Consideration
49Counsel agreed that the primary consideration in sentencing requires a determination of the objective seriousness of the offence in accordance with the above principles. This involves examining the nature and quality of the offence, as set out in the agreed statement of facts, and the evidence. Without repeating what is contained in the agreed statement of facts and the evidence, in considering the seriousness of the offence, it is relevant to set out the important matters.
50The available evidence clearly indicates that the defendants failed to take measures that were reasonably practicable to ensure the premises were safe and without risk to the health of persons who were not employees. The risk of a person entering the unfenced site and falling into one of 17 uncovered pier holes was obvious and clearly foreseeable. So much was identified in the corporate defendant's SWMS' for the Telstra site. However, such policies were not addressed in respect of the site the subject of the incident.
51The personal defendant attended the site on 12 August 2008 and observed the pier holes. He contacted TFH Fencing to arrange for a perimeter security fence to be installed as the premises were unsecured. I accept that it was the corporate defendant's usual practice to have perimeter fencing in place at building sites. However, this site should never have been left unfenced after the pier holes were dug. Suitable fencing should have been erected at the time work commenced at the site. At the very minimum, to avoid risk, the pier holes should have been covered, which occurred after the incident.
52The fencing that was ordered by the personal defendant on 12 August 2008 was booked to be installed on 14 August 2008. Enquiries by Inspector Hinton revealed that it would have been possible to have had perimeter fencing delivered to the premises on 12 August 2008, however, a surcharge would have been incurred.
53The personal defendant made no arrangements to secure the premises with the exception of the safety tape on 12 August 2008, as he believed that a contractor, Mr Sean Teague was going to return to the premises that afternoon to have the pier holes filled with concrete. Mr Teague left the site at approximately 3.00pm. He provided the personal defendant and another contractor, Mr Matthew Reitsma, with a roll of red and white safety tape marked with the word "danger" to be put up at the premises. The personal defendant asked Mr Reitsma to place the safety tape around the external perimeter of the premises when he finished work for the day. The personal defendant left the premises at approximately 4.00pm whilst it remained unsecured and the pier holes uncovered. It should have been obvious to the personal defendant at the time he left the site, that the pier holes were not going to be filled that day.
54The only "barrier" surrounding the premises at the conclusion of work on 12 August 2008, was the safety tape that had been put around the external perimeter of the premises. Mr Nematalla acknowledged that the foreseeability of the pier holes being left uncovered causing harm was "a given".
55Mr Nematalla characterised the personal defendant's action as:
[A] shortcoming that can also be characterised as a simple lapse in judgment. What else could it be? A hitherto good citizen, and a corporate one at that, who has always practised safety. What could it be but a lapse in judgment based on the mistaken belief, having ordered the fence, there would be people there, workmen in particular, who would look after that. That does not excuse the conduct. He embraces his culpability and accepts the seriousness of it.
56I reject the contention that what has occurred here could be described as a "simple lapse in judgment". The obligations under the OHS Act are to ensure the health and safety of both employees and non-employees. Fisher CJ observed in Inspector Milligan v Roads and Traffic Authority (Industrial Court of New South Wales, 29 August 1996, unreported) at 13 - 14 "No precautions of any kind were taken... The accident and death of Dr Cremona should not have happened. I can find nothing of excuse in the narrative given. ... The neglect of well known precautions in circumstances where there was every indication of a major risk of injury takes this matter towards a "worst case" category." The failure by the defendants to take any precautions, steps or measures in respect of the hazards present in this matter similarly places it in the "worst case" category.
57There was clearly a neglect of well known precautions or measures that should have been taken, in particular, the immediate installing of a perimeter fence. It is to be remembered that there were 17 uncovered pier holes of approximately 450mm in diameter and approximately 1.80m - 2.0m deep in a residential area.
58Furthermore, there was no adequate risk assessment conducted by the corporate defendant to determine the hazards and the level of risk posed by leaving the premises unsecured and the pier holes exposed. In addition, there was no site specific safety plan in relation to working with exposed pier holes and ensuring the premises were secured against unauthorised access. Apart from the unfurling of the safety tape, the premises were left unsecured after work had ceased on 12 August 2008.
59The gravity or otherwise of the potential risks to safety flowing from a breach is relevant as a measure of the gravity of the breach and culpability: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [31] - [33]; Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] and Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153; (2009) 188 IR 79, Boland P and Staff J, (Marks J dissenting).
60Although damage or injury to employees, or non-employees does not, of itself, dictate the seriousness of the offence or penalty, a breach where there was every prospect of serious consequences, may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury, may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited [17] - [18]. See also Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 at [94] - [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 (at 428); Morrison v Powercoal Pty Ltd at [32]. In the present case, Mr Korol died from asphyxiation.
61In addition, there were a number of simple remedial steps which could have been taken by the defendants to avoid the risk to safety. These included ensuring that the pier holes were covered; ensuring that the premises were secure by having perimeter security fencing in place; ensuring that risk assessments were undertaken to determine the hazard and level of risk posed by leaving the premises unsecured and the pier holes exposed; instructing sub-contractors working at the premises that pier holes that had been dug were to be covered or protected by temporary covers prior to work ceasing; ensuring there was a site safety plan in place at the premises in relation to the works being undertaken, and in particular working with exposed pier holes and ensuring the premises were secured against unauthorised access.
62I note that the corporate defendant after the incident, took steps to put in place systems of work to ensure that persons were not exposed to risks on their building sites.
63I agree with Mr Ginters that these offences should be assessed as being serious and at the mid to upper range of penalty available to be imposed on offenders.