Inspector Hinton v David Tanti

Judgment 1This prosecution is brought by Inspector Jamie Hinton of the WorkCover Authority of New South Wales ("the prosecutor") against David Tanti ("the defendant") being the sole Director, sole shareholder, Secretary and General Manager of Tanti Demolition and Excavation Pty Ltd ("Tanti Demolition") with responsibility for the day-to-day management and operations of the company under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 ("the Act") by way of an amended Application for Order filed 18 April 2011. 2On or about 1 August 2008 at 102-103 Dunning Avenue, Rosebery in the State of New South Wales, Tanti Demolition and Excavation Pty Ltd, under a contract to carry out the demolition and removal of all above-ground structures situated at the premises, contravened s 8(2) by virtue of s 26(1) of the Act in that, by its acts or omissions, it failed to: ensure that people (other than employees of the defendant), in particular, members of the public including (among others) Amanda Louise Lizier and Ringo Ka Kit Ng, were not exposed to risks to their health or safety arising from the conduct of the corporation's undertaking while they were at the corporation's place of work contrary to section 8(2) of the Occupational Health and Safety Act, 2000. The particulars of the risk are: (a) The risk was the risk of persons, in particular members of the public, being struck by falling bricks, rubble and/or debris and/or by the collapse of a brick wall. The particulars of the charge are: (b) The corporation failed to ensure that a structure situated at the premises was safe and without risks to health in that the corporation should have ensured, but did not ensure, that i. a wall adjoining a footpath and public thoroughfare ("the wall") was fenced with hoarding; ii. scaffolding was placed along the length of the wall; and iii. the footpath was covered with an overhead protective structure along the length of the wall. As a result of the defendant's failures, people, who were not employees of the corporation, were placed at risk of injury. 3The defendant pleads guilty to the charge. 4Mr D W M Chin, of counsel, appeared for the prosecutor and the defendant, Mr D Tanti, was self represented. The prosecutor relied upon an amended Application for Order, an agreed Statement of Facts, Factual Inspection Report of Inspector Castro dated 29 October 2008; Photographs 1-36; Australian Standard - AS2601-1991; Australian Standard AS2601-2001 and a decision of the Administrative Decisions Tribunal . 5The defendant relied upon his affidavit statement of 31 May 2011 with attached documentation addressing the system of work in place at the time of the incident and the revised procedures to eliminate the identified risk. The affidavit statement further expressed the contrition and an expression of remorse by the defendant. Financial documents were also tendered with some objection. 6There was an Agreed Statement of Facts relied upon, which relevantly reads: 3. As at 22 October 2008: (a) David Victor TANTI of 3-5 Rochester Avenue, Botany in the State of New South Wales ( "the defendant" ) was the sole director, sole shareholder, secretary and general manager of Tanti Demolition with responsibility for the day-to-day management and operations of the company; and (b) Tanti Demolition employed the following persons: Edward Masters, Renae Gray, Boris Blazevski, Alexander Williams, Joseph Johnson, Joel Adamson, John Boere, John Reynolds, and Sanjeshni Prasad. Tanti Demolition's undertaking 4. At all material times, Tanti Demolition carried on the business of the demolition of buildings and structures, earthmoving, excavation, salvage and salvage sales and asbestos removal (" the demolition business "). 5. From 24 November 2006 to 24 November 2008 Tanti Demolition held a restricted licence to carry out demolition work issued under the Occupational Health and Safety Regulation 2001 (" the Regulation ") (Licence No. 201032DE2). 6. On or about 1 August 2008 the owner of premises at 102-108 Dunning Avenue, Rosebery, in the State of New South Wales (which had an adjoining footpath and public thoroughfare on Morley Avenue) (" the premises "), Aristocratic Property Developments Pty Limited, engaged Tanti Demolition under a contract (" the contract ") to carry out the demolition and removal of all above-ground structures situated at the premises (" the demolition work "). 7. The premises covered a total area of approximately 8,005 square metres and was bounded by Dunning Avenue (east), Morley Avenue (north), Jones Lane (west) and a commercial property to the south. A large, unoccupied factory or warehouse with double skin brick walls was situated at the premises (" the building "). The building had been used, inter alia , for metal fabrication in the manufacture of electronic gaming machines. 8. Morley Avenue was a two-lane road, measuring approximately 12 metres wide. The wall of the building along Morley Avenue was a freestanding masonry double-brick wall approximately 100 metres in length by 5 metres in height (" the wall "). The wall was approximately 250mm wide with engaged piers of approximately 600mm located every 4.5 metres along the wall. 9. The full length of the wall adjoined a public footpath measuring 1.8 metres wide and a 1.7-metre grass verge - a total distance of 3.5 metres from the wall/building line to the street gutter along Morley Avenue. 10. On 22 October 2008, Tanti Demolition was conducting the demolition business by performing the demolition work at the premises pursuant to the contract. 11. At all material times the defendant was the Site Manager at the premises with responsibility for implementing occupational health and safety procedures and ensuring safe plant and equipment in respect of the demolition work. 12. Prior to the incident the defendant conducted visual inspections of the wall to determine its structural integrity. The defendant did not hold any qualifications to determine the structural stability and integrity of the wall. The defendant did not engage the services of a qualified person, such as a structural engineer, to advise in relation to the structural integrity of the wall. 13. The defendant also visually assessed the height of the wall without the use of any measuring devices. 14. During the demolition work and prior to 22 October 2008, strong winds had occurred in the area of the premises. The records of the Bureau of Meteorology show that at 5.36pm on 6 October 2008 the area near Sydney Airport at Mascot experienced a maximum wind gust of 80km/h, wind direction WSW. Sydney Airport is located approximately 2 kilometres from the premises. The demolition work had commenced prior to, and was being carried out on, 6 October 2008. The incident 15. As part of the demolition work, the roof of the building had been removed approximately one week prior to 22 October 2008. 16. On 22 October 2008: (a) The defendant was present at, and had control of, the premises. (b) Alexander Williams was the site supervisor. (c) Several members of the public had parked their cars along Morley Avenue, adjacent to the public footpath adjoining the wall, including Mr Ringo Ka Kit Ng who had parked his Mitsubishi sedan (registration number MEG 213) in that location on 22 October 2008. (d) At approximately 11:00am to 12:00pm the wind strengthened, and employees of Tanti Demolition who were working on the roof were directed to cease working at height. Tanti Demolition employees commenced a clean-up of the site and tied down any roof sheets in order to prevent them from blowing away in the windy conditions. Those employees included: Edward Masters, Renae Gray, Boris Blazevski, Alexander Williams and Joseph Johnson. (e) The records of the Bureau of Meteorology show that at 3:00pm the area near Sydney Airport at Mascot experienced a maximum wind speed of 72km/h, wind direction SSW, and a temperature of 10.9 degrees celsius. In a report by ABC Consultants and Structural Engineers obtained by Tanti Demolition (referred to below), it was found that a wind speed of 70.2 km/h would have resulted in a wind pressure of approximately 0.27kPa on the face of the wall. (f) At approximately 3.00pm part of the wall collapsed. The collapsed section was approximately 32 metres long and 5 metres high. The extension of the collapse continued to the top part of the wall for approximately 7 metres at each side of the wall. (g) Debris was strewn over the adjoining footpath and over three quarters of the public road. The debris consisted of bricks, mortar, tree branches, windows and metal trimmings. There were 8 trees along Morley Avenue, and two of the trees were broken with their branches underneath rubble and debris. Between the two remaining trees at Jones Lane corner, there was a tree with damage to the trunk. At the end of the East elevation two timber windows of approximately 2.5 metres by 2 metres high stood on the partially collapsed wall. (h) The debris from the collapsed wall severely crushed approximately seven cars that were parked on Morley Avenue. One of those (crushed) cars was the Mitsubishi sedan (registration number MEG 213) that was parked by Mr Ringo Ka Kit Ng earlier that day. A total of approximately 16 parked cars sustained damage from the falling debris of the collapsed wall. (i) At the time the wall collapsed, a member of the public, Ms Amanda Louise Lizier (nee Glover), was driving her car along Morley Avenue (registration number BBE 76C). Whilst driving, and in an attempt to avoid being struck by the collapsing wall, Ms Lizier took evasive action by abruptly turning her car to her left side. Her car was struck by debris from the collapsing wall, and by a tree which had been brought down by the collapsing wall, resulting in damage to the driver's-side doors and wheels, windscreen, roof and bonnet. (j) At the time of the collapse of the wall, the aforesaid employees of Tanti Demolition were working at the rear of the premises, approximately 40 metres opposite to the Morley Avenue side of the premises. Tanti employees heard a bang and car alarms sounding off, but did not witness the collapse. The defendant and Mr Williams ran towards where the wall had collapsed. Mr Williams accounted for all Tanti Demolition employees at the premises to ensure that no one had been hurt. Mr Williams directed Tanti Demolition employees to check that no one was trapped under the debris or in the cars. (k) The police, ambulance and fire brigade soon after attended at the premises. The police directed that no one was to touch anything until WorkCover representatives arrived at the premises. (l) After WorkCover representatives arrived at the premises, a safe work method statement was prepared and Tanti cleared the road and footpath. Tow trucks removed the damaged vehicles and temporary fencing was installed. The clean up was completed and public access along Morley Street restored between 7:00pm and 8:00pm that evening. Australian Standard - The demolition of structures: 2601-2001 and 2601-1991 17. As at 22 October 2008, Australian Standard - The demolition of structures (AS2601-2001) prepared by Standards Australia Committee BD-059 (" the Standard ") set out certain requirements for the demolition of a structure. 18. Tanti Demolition's quotation for the demolition work specified that the work would be carried out in accordance with the Regulation. Part 8.6 (regulation 247(1)) of the Regulation requires demolition work to be carried out in accordance with a previous version of the Standard: AS 2601-1991 (" the 1991 Standard "). 19. At the time of carrying out the demolition work Tanti Demolition's induction material also contained a site checklist that asked ' does the demolition work on site comply with AS 2601? '. 20. In contravention of clauses 1.5.1.5, 1.5.1.7, 1.5.1.8 and 3.1.7 of the Standard (and of the corresponding clauses 1.5.1.4, 1.5.1.5, 1.5.1.6 and 2.1.7 of the 1991 Standard) - and thus also in contravention of regulations 247(1), 253 and 254 of the Regulation - Tanti Demolition had failed to: (a) fence the wall for its full length with any hoarding, and in particular a hoarding constructed of solid materials to a height of not less than 2.4 (or at least 1.8) metres adjacent to the thoroughfare; (b) provide any scaffolding along the length of the wall, and in particular heavy-duty scaffolding to enclose the work area and to be impenetrable and able to withstand the impact of rubble; and (c) cover the footpath with any overhead protective structure, and in particular an overhead structure consisting of a horizontal platform of solid construction and vertical supports extending from the common boundary to the edge of the carriageway for the full length of the wall, having a clear height above the footpath of not less than 2.1 metres, terminating at the edge of the carriageway with a continuous solid upstand projecting not less than 0.5 metre above the platform surface, and be designed for a uniformly distributed live load of not less than 7 kPa. Events following the incident 21. On the date of the incident Prohibition Notice No. 170728 was issued to Tanti Demolition to cease all demolition work and to assess risks and hazards at the premises. 22. Following the incident Prohibition Notice No 146459 was issued on 23 October 2008 to Tanti Demolition, which required the cessation of demolition work and that falling objects were to be controlled with protective structures. 23. As a result of the Prohibition Notice No 146459 Tanti Demolition engaged ABC Consultants and Structural Engineers (" ABC ") to attend the premises on 23 October 2008. ABC prepared a report dated 29 October 2008 on the causes of the incident and the structural integrity of the walls, as well as recommendations for the remainder of demolition work at the premises. 24. Following the incident on 27 October 2008 Tanti Demolition completed an internal Accident Report of the incident. 25. Following the incident Tanti Demolition installed fencing around the entire perimeter of the premises before recommencing demolition works. 26. Tanti Demolition was placed under external administration on 19 June 2009. 27. Tanti Industries Pty Ltd - of which the defendant was also the sole director - had a restricted demolition licence that expired in November 2008. The defendant subsequently applied to the WorkCover Authority of New South Wales to for a renewal of the expired licence. The defendant's application for renewal of that licence was unsuccessful. Tanti Industries Pty Ltd subsequently applied to the Administrative Decisions Tribunal for a review of the decision to refuse the application to renew its licence. By its decision on 15 January 2010, the Administrative Decisions Tribunal affirmed the decision to refuse renewal of the restricted demolition licence on the grounds that the Tribunal was ' unable to attest that [the defendant] is a person who is fit and proper to be the holder of the licence ' as a result ' largely ... of his lack of clear understanding of requirements of the [occupational health and safety] legislation and his attitude towards WorkCover '. 28. The defendant remains engaged in the asbestos removal and demolition business. He is currently employed or engaged as a site manager by Alexander Williams trading as Space Demolition, which has its registered office at 3-5 Rochester Street, Botany, in the State of New South Wales. Relevant Principles 7In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(2) and s 26(1) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 8Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 9Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 A Crim R 104 , correctly, given the consideration in Markarian , recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. Proper regard is to be had to express legislative provisions and to the relevant statutory regime ( Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. 10In Inspector Morgenthal v Houghton [2010] NSWIRComm 192, Staff J observed at [9]: In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ...are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[i]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' 11Section 3A of the Crimes (Sentencing Procedure) Act 1999 contains a comprehensive statement of the purposes of sentencing. It provides: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 12It is recognised that these purposes are sometimes conflicting and reconciliation of them can be difficult ( Veen v The Queen (No.2) (1988) 164 CLR 465 (at 476); WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm92; (2009) 186 IR 125 at [184] and the authorities cited therein). 13Of particular relevance is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia: 21A Aggravating, mitigating and other factors in sentencing . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, ... (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . . 14When, in a plea of guilty, an Agreed Statement of the Facts is tendered, those facts, as agreed, are provided beyond reasonable doubt. A fact advantageous to the offender can be proved on the balance of probabilities ( R v Olbrich (1999) 199 CLR 270 at 281). Not all facts are resolved in a way which either increases or decreases sentence. Matters may not be known by the sentencing judge ( Weininger v The Queen [2003] HCA 14; 140 A Crim R 184; 196 ALR 451; (2003) 212 CLR 629 at [23] - [24]). Consideration 15In a consideration as to penalty, the Court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474): ...in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence"... And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk, In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected.... 16In assessing the objective seriousness of this offence, it is necessary to note that at the time of carrying out the demolition work Mr Tanti, the defendant, had in place documentation indicating there was a system of work in place which included induction material and a site safety checklist, The checklist asked the question of the employees: "Does the demolition work on site comply with the relevant Australian Standards?" The defendant was the controlling mind of the corporation and was clearly aware of the requirement for the safe performance of demolition work as enunciated in the Australian Standards. The corporation, in its documentation as to safe work procedures, acknowledged those Australian Standards. Nonetheless, the facts of this case reveal a most serious breach of the Act. The incident demonstrates that, in the implementation of the Occupational Health and Safety Act 2000, employers have designed workplace procedures in documentary form but these known requirements are not being rigorously implemented at the work site. 17In contravention of the Australian Standards, cl 1.5.1.4 up to 2.1 and 7, and in contravention of regulations related to demolition, Mr Tanti, as the supervisor on site, failed to ensure, while demolition work was performed on a building beside a public footpath, that there was fencing around the perimeter of the building. There was no guarding. He failed to provide scaffolding along the length of the wall, which scaffold had to be strong enough to withstand the impact of a fall. He failed to cover the footpath with any overhead protective structure to ensure the safety of both his employees and those using the public footpath and roadways. 18Those failures allowed, at approximately 3pm, on a very windy day, a brick wall approximately 32 metres long and five metres high to collapse without any protection from falling rubble. Evidence revealed debris from the collapse was strewn over the adjoining footpath and over three-quarters of the public road. The damage was considerable. Trees were struck by the rubble. Sixteen parked cars sustained damage. A member of the public, driving her car along the road, swerved her car while attempting to avoid the rubble from the collapsing wall and her vehicle suffered damage. Fortunately, employees had been taken down from the roof (where they had been working attaching some covering due to high winds) and no employee suffered injury. 19The defendant, the hands-on site manager of the premises, bears the responsibility for all the company's failures as his own failures. The culpability of the defendant, given the provisions of s 26(1) makes Mr Tanti's culpability commensurate with that of the company, Tanti Demolition, in the failure to comply with the fundamental obligations, when performing demolition work to provide bracing and scaffolding to protect the public. 20In mitigation of the offence, the defendant asks for consideration as to the effect the large winds of that day had on his site. I do not accept that windy conditions could be held to materially impact on the culpability of the defendant. The defendant must ensure safety at its worksite in any and all circumstances . 21The availability of simple and straightforward steps to remedy such a breach is also relevant to the objective seriousness of the offence ( WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994). In these circumstances the defendant could have, and should have, implemented the fundamental and commonplace protective measures that he knew were required to ensure safety on his demolition site. The defendant was obliged to erect proper hoarding, scaffolding and overhead protective structures along the length of the unsupported wall as well as bracing for that wall. These are the basic standards enshrined in Australian Standard AS2601-2001 and the associated regulations. 22This was a most serious offence. It was more than a foreseeable risk. The risk to safety was an obvious risk and the offence is therefore more serious. This was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 . On the issue of foreseeability, the Full Bench in Capral stated at [82]: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: "... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. 23The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71] - [77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example , Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] ) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 24The personal circumstances of the defendant reveals his demolition company at the time has not had its licence to demolish renewed. Mr Tanti has formed another company. He tenders for demolition work and contracts out work for which a licence is required. However, he actively oversees all sites. In such a circumstance, an element of specific deterrence is very necessary in penalty. 25As to general deterrence, once more the Court must reiterate that in the dangerous occupation of demolition there has been proclaimed, in both Federal and State parliaments, rigorous standards to ensure safety in the performance of this hazardous task. In this matter, the Court has examined an incident where basic safety features such as the placement of scaffold and a hoarding were ignored. The industry must be once more reminded that compliance with Australian Standards and Regulations ensures only the minimum safety requirements to be in place on a demolition site. Here there was a breach of the minimum requirements of those standards. There will be an element of general deterrence in penalty. 26The gravity of the potential risk to safety flowing from the breach is relevant as a measure of the gravity of the breach and the culpability of the defendant. The words of Hill J, in Tyler v Sydney Electricity (1993) 47 IR 1 at (5), I find apposite: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from the breach and its foreseeability are clearly relevant ... In this case, the Court can only comment on the good fortune of the defendant where, when a brick wall about 32 metres long collapsed into a public thoroughfare, there was only damage to property and serious injury of members of the public was avoided. 27The defendant, in mitigation of penalty, reveals a further number of personal circumstances which he asks the Court to take into account in its consideration of penalty. It is agreed the maximum penalty for the offence is $55,000. 28It is also agreed that the defendant conducted a demolition business for some twelve years without any prior offence. He has, therefore, a good industrial record. 29The defendant asked the Court, in consideration of penalty, to take into account the following matters: WorkCover Authority had cancelled the licence of the defendant to operate through his corporation as a demolisher. Mr Tanti appealed to the Administrative Decisions Tribunal in relation to this cancellation given it has dramatically affected, he asserted, his financial circumstances. However, the Administrative Decisions Tribunal rejected the application, suggesting the evidence persuaded the defendant continued to fail to understand the obligations placed upon him under the Australian Standards and Regulations for demolition work and it determined it was not satisfied the licence for his corporation should be restored. There is evidence the defendant has now formed a new company. His new company does minor demolition work (allowed to be performed without the licence) and he continues to be site manager on sites where he contracts out for major demolition work. This is a curious circumstance that appears available to those unlicensed. 30I accept in the circumstance Mr Tanti has suffered financially. However, he tenders no proper financial records nor any official financial statements. He relies upon a personal statement which reveals he has interests, perhaps mortgaged, in four properties, one of which is a major home in the Kensington district, another a home in the Botany district. Mr Tanti also holds income from two other apartments. 31He also revealed in oral evidence that his new company has a turnover of approximately $1 million. While no application is made under s 6 of the Fines Act 1996, the Court is asked to take note of the fact that, without a licence to demolish, his ability to generate income is affected. I accept the latter proposition. 32It is agreed that the defendant entered a plea at the earliest opportunity, after the filing of the amended Application for Order. There shall be credit for the early plea in a discount of 25 percent in accordance with the principles recited in R v Thomson; R v Houlton . 33In Cahill v State of NSW (Department of Community Services) (No 4) [2008] NSWIRComm 201, Boland J (President of the Industrial Court of New South Wales) said at [62]: A simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable the Court to find that the offender is remorseful: As Cummins J said in DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200, "personal expressions of remorse need to be translated into reality". See also see Regina v Heip Tan Nguyen [2004] NSWCCA 438 per Bell J (Hidden and James JJ agreeing) at [21]. There must be evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both). Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provides " remorse " may be taken into account as a mitigating fact if, and only if: . . . (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both) (emphasis added) . . . 34I am satisfied Mr Tanti is genuinely regretful and remorseful. He revealed, although not in detail, that he took responsibility for removing the damaged vehicles and ensured they were restored to working order (although the evidence is silent about whether he covered any of the costs of the latter circumstance). 35I take into account my assessment of the objective seriousness of the offence and the subjective features placed before me. 36I find the defendant guilty. The defendant is fined in the sum of $15,000. There shall be a moiety of penalty to the WorkCover Authority. 37The defendant shall pay the prosecutor's costs. If there has been no agreement reached between the parties as to costs, I give leave to re-list at short notice. Orders 38The Court makes the following orders: (1)In Matter No IRC1159 of 2010, I find the defendant guilty of the offence as charged. (2)The defendant is fined in the sum of $15,000 with a moiety to the prosecutor. (3)The defendant to pay the costs of the prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2011