Inspector Ian Lancaster v CKR Pty Limited & Another [2010] NSWIRComm 71 | Case summary

1 CKR Pty Limited pleaded guilty to an offence under s 8(1) of the Occupational Health and Safety Act 2000. Zoran Cvetkovski pleaded guilty to an offence under s 10(1) of the Act. Both offences arose from an incident which occurred on 11 December 2006 during the construction of two free-standing two-storey residential units at Albion Park. 2 At the time of the incident, CKR performed carpentry work in the construction industry. Robert John Tolson was the sole director and secretary. His wife, Kaye Tolson, was the sole shareholder. The company was formed by Mr Tolson on 19 March 1986. It was described by Mr Tolson as a small family company. It employed Mr Tolson's son, Cord Tolson, as a supervisor, as well as two other employees, Owen Smith and Aaron Rankmore, both of whom worked as carpenters. At the time of the incident, Mr Rankmore was in his first year of trade having completed his apprenticeship with CKR in November 2006. He was 21 years of age. 3 Mr Cvetkovski was the owner of the site where the units were under construction. He was also, according to the agreed facts, the principal contractor at the site. He held an owner-builder's licence with respect to the construction of the units and completed owner-builder training with Ozob Online Pty Ltd on 14 August 2006. According to the agreed facts, as a result of his training, Mr Cvetkovski was aware of his obligations as a principal contractor prior to the commencement of the construction of the units. 4 Mr Cvetkovski had no previous experience in building and construction before the incident. Because of this and because he did not reside locally he arranged for his uncle, Tordorce (Tony) Mitrevski to undertake caretaker duties at the site. Mr Mitrevski owned an earthmoving business at the time and gave Mr Cvetkovski advice on what contractors to engage. Mr Mitrevski also discussed with him the design and construction of the units. 5 Some time in November 2006, Mr Mitrevski engaged CKR to do the carpentry work for the units. The work included the provision of timber flooring and the erection of pre-fabricated timber framework. CKR commenced work at the site on 30 November 2006. 6 On the day of the incident, Cord Tolson instructed Mr Smith and Mr Rankmore to stack timber wall frames in the centre of the first floor of Unit 1, which had been newly constructed. The frames had earlier had their straps removed and separated. Prior to the stacking of the frames Cord Tolson and Mr Smith built a makeshift platform from five pieces of 90mm x 35mm timber spread across a void. On top of the timber was placed a 3,600mm x 900mm sheet of flooring. The void was 4,700mm long and 1,580 wide. It was not completely covered by the makeshift work platform. 7 Mr Rankmore gained access to the first floor using a fold out ladder. Cord Tolson and Mr Smith lifted up the timber frames to Mr Rankmore who stacked them at the rear of the first floor. Although it was apparently the usual practice to keep the frames two metres away from the edge of the work platform this was not done because of the absence of steel beams. After stacking the frames at the rear of the first floor the workers commenced stacking at the front however the first stack interfered with this process because the frames from that stack were overhanging. In an attempt to deal with the problem, Cord Tolson instructed Mr Rankmore to push one of the frames in the rear stack out of the way. Mr Rankmore, in order to accomplish this task, stood adjacent to the first floor edge at the rear of the unit on a piece of tongue and groove floor board. Mr Rankmore stood in this position because he was unable to push the stack of frames from another position. While pulling on a frame Mr Rankmore fell approximately 5.3 metres from the first floor through the work platform which had been constructed by Cord Tolson and Mr Smith, and landed on the floor below. An ambulance arrived at the site about 10 minutes later and Mr Rankmore was flown by helicopter to Wollongong Hospital where he died on 15 December 2006 of injuries sustained from the fall four days beforehand. CKR System of Work prior to the incident 8 Some time in 2005 CKR entered into a contract with Wideform Constructions Pty Ltd to do carpentry work at Wollongong Golf Club. Mr Tolson described the undertaking as one of the few large commercial contracts in which CKR had been involved. An incident at the worksite on 22 October 2005 resulted in CKR being charged with an offence under s 8(2) of the Act. CKR was subsequently convicted of the offence. 9 Following the incident, Mr Tolson, for CKR, implemented a new policy of not accepting jobs from owner-builders unless CKR was the project manager with total control over the site and Mr Tolson had approved all safety measures. CKR was also confined, in adherence to the new policy, to working on small residential jobs, mainly single houses and duplexes. CKR also reviewed and made substantial amendments to its OH&S Plan, in consultation with a Risk Management Consultant from the Master Builders' Association. The amendments to the Plan consisted of the following matters (extracted from Mr Tolson's affidavit): i. special consideration was given to young workers employed by CKR and its subcontractors in relation to electric shock/electrocution hazards; ii. the site supervisor's specific responsibilities were expanded to include the following: · assist in preparing site Specific Safe Work Method Statements; and, · monitoring compliance with SWMS; iii. the employees responsibilities were expanded to ensure compliance with the relevant Site Specific SWMS; iv. project specific risk assessment register was amended to include existing services hazard (eg. electrical, gas or other) in relation to roofing, cladding, window fixing, framing/trusses and generally through site investigation, competent supervision and clear visual identification of services; v. any work to be carried out that deviated from the agreed Scope of Works required the development of a new SWMS prior to the work commencing, ensuring adequate investigation to establish the location of existing electrical services and cabling, charged gas lines, water and sewer services and asbestos containing materials; vi. additional areas of specific training for employees included working around or adjacent to electrical installations and cabling; vii. additional tool box talks were instituted so that if there was a new work activity (or one which deviated from the initial Scope of Works) a new work area or a new item of plant or substance was used, a Tool Box Talk would be undertaken to ensure all those involved with the work understood the work procedure and understood the hazards and relevant control measures associated with the work. 10 The OH&S Plan was used by CKR on all sites managed by it. It was the current plan as at 11 December 2006. It included the adoption of fall protection measures to control the risk of falling from heights and the development and dissemination of safe work method statements for work at each site. All CKR employees were inducted into that system, including Cord Tolson and Messrs Smith and Rankmore. CKR also trained and assessed Mr Rankmore with regard to the safety risks involved in working at heights. An assessment form dated 16 August 1986 for Mr Rankmore, attached to Mr Tolson's affidavit, reveals that Mr Rankmore was assessed on certain safety aspects concerning the erection and modification of scaffolding two metres or higher and the use of a safety harness. Mr Rankmore's induction documentation, also annexed to Mr Tolson's affidavit, shows that on 12 August 2005 he was inducted in relation to CKR's safety policies and procedures. Mr Rankmore and Mr Smith both received formal training on occupational health and safety as part of their TAFE courses in general construction. Mr Smith, at the time of the incident, had also completed an OH&S supervisor's course. Mr Tolson explained in his affidavit that for the past five years when CKR had been the principal contractor at a site, it had sent to each sub-contractor a Notice notifying them of CKR's OH&S Plan. The Notice, a copy of which was annexed to Mr Tolson's affidavit, invited sub-contractors to view the Plan at CKR's office. In the alternative, the Notice informed that a copy of the Plan could be sent by email. Sub-contractors were also required under the terms of the Notice to provide safe work method statements in accordance with the Plan and the applicable OH&S regulations. 11 This comprehensive system of work with its emphasis on safety, and which had been in use and implemented by CKR under the guidance of Mr Tolson, was not adhered to on 11 December 2006. At the time of the incident, there appeared to be little or no safety systems in place to ensure that the CKR workers followed the procedure outlined in the Plan when working from heights. The investigation conducted after the incident revealed that there were no secured ladders, and no perimeter scaffolding, temporary handrail systems, or fall arrest harness, either erected or at the site. There was, according to the agreed facts, in place at the site an informal arrangement or system of work which involved verbal communication among the employees with regard to the safe performance of tasks. In addition, daily tool box talks were conducted between the employees prior to the commencement of work in which safety risks were discussed. 12 CKR's OH&S Plan also included a Project Specific Risk Assessment Register that required the use of fall protection systems in respect of work such as formwork, scaffolding and framing/trusses. It also required production of a safe work method statement identifying all potential hazards which were classified into class 1 or class 2 on the Register. On 11 December 2006, no adequate risk assessment had been undertaken and no consideration was given, or determination made, to control measures needing implementation at the site, apart from the makeshift work platform which partially covered the gap above the basement level of Unit 1. According to the agreed facts the only attempt to invoke safety procedures on the day was made by Cord Tolson who advised Mr Smith and Mr Rankmore to "take care" during the lifting of frames. Clearly, this was an inadequate instruction. With regard to a safe work method statement, the agreed facts record that Cord Tolson, on 29 November 2006, did prepare and sign one. It identified the risk of falling from heights and nominated appropriate controls to be put in place with regard to the use of ladders, namely that they were to be secured at the top, rise one metre above the platform, and be more than three metres away from a void. This SWMS was deficient in that it failed to properly identify and address the risk to which Mr Rankmore was subject. Mr Rankmore was exposed to a risk to his safety because no fall protection had been installed on the first floor of the unit and because the large void at the rear of the unit, through which he fell, had been inadequately covered. Neither of these risks were identified in the SWMS prepared by Cord Tolson SWMS. 13 Mr Rankmore was also inadequately supervised on the day of the incident. He was at all times at the site under the direct supervision of Cord Tolson, CKR's nominated supervisor. Cord Tolson instructed Mr Rankmore to climb to the first floor and stack the timber frames in full knowledge that there was no perimeter scaffolding, temporary handrails or fall arrest harness. CKR had no documented description for the role or responsibilities of a supervisor. Cord Tolson had not received any formal training in the completion of risk assessments or in the development of SWMS. These tasks were usually undertaken by his father. Nor did Cord Tolson receive any instruction or training which might have explained his role and responsibilities as a supervisor of both Mr Smith and Mr Rankmore. Although Mr Rankmore had been assessed with regard to the risk of working from heights, Mr Smith had not been at the time of the incident. Although CKR had provided Mr Rankmore with a general work induction, it did not provide a site-specific induction for the work undertaken by him at the site on 11 December 2006. 14 These matters reveal that CKR's safety system, although comprehensive, was deficient in a number of respects, particularly with regard to Cord Tolson's role and responsibilities as supervisor. Nevertheless, CKR's systems were designed and developed to address in some detail the safety of its employees, as well as sub-contractors. This system was clearly not followed with regard to the work undertaken at the site on 11 December 2006. Why this occurred was explained by Mr Tolson in his affidavit. 15 In October 2005, Mr Tolson's father was taken to Wollongong Hospital and placed on life support after suffering a hemorrhagic stroke. Mr Tolson, after conferring with medical staff, made a decision to turn off the machines that were keeping his father alive. This decision caused him a great deal of distress and he said he continues to be haunted by it. His mother was at the same time suffering from dementia. Her condition deteriorated and was exacerbated by several illnesses such as gastroenteritis and a golden staph infection in her left leg. In late October 2006, Mr Tolson's mother fell and broke her hip while resident at the Unanderra Care Centre. From that time, Mr Tolson substantially reduced his workload in order to care for his mother. He ceased quoting for jobs or taking on any new work on behalf of CKR. He said that he effectively ceased taking any active part in the business of CKR and left the running of its operations to his son, Cord Tolson. His wife, Kaye Tolson, continued to pay the accounts. Mr Tolson said he did not know that his son had taken on new business after October and was not aware of CKR's involvement at the site until after the incident. On 10 December 2006, Mr Tolson's mother passed away. 16 The following day, 11 December 2006, the day of Mr Rankmore's accident, Mr Tolson said he went to the site. He said that if he had not been distracted by the illness and death of his mother he would not have allowed CKR to accept the job from Mr Mitrevski because it was CKR policy not to accept jobs from owner-builders unless CKR was the project manager with total control over the site and all safety measures had received his prior approval. He also said he would not have allowed Mr Rankmore to work at height without an adequate fall arrest system such as a safety harness or handrails, in accordance with the OH&S Plan. 17 A submission was made on Mr Tolson's behalf during the sentence hearing that Mr Tolson was unable to exercise his responsibilities on behalf of CKR because of his psychological impairment. Evidence of Mr Tolson's impairment was said to be found in the report of Mitchell Byrne, a clinical and forensic psychologist. The report was annexed to Mr Tolson's affidavit. Mr Byrne saw Mr Tolson on a number of occasions commencing on 17 April 2009, that is, over two years after Mr Rankmore's accident. Mr Byrne's findings as to Mr Tolson's psychological state at the time of the accident were somewhat equivocal. The report states, for example, that Mr Tolson was "likely to be depressed" during the final months of his mother's life and his high state of anxiety over his mother's deteriorating condition (and resultant difficulty in concentrating) warranted a conclusion that, "it is likely ... he was unable to shift attention from his mother to business matters. ... His capacity to conduct business affairs was likely to be impaired." 18 While the Court has a great deal of sympathy for Mr Tolson's difficult circumstances during the period of his mother's illness, it must be borne in mind that CKR is the defendant before the Court. The incident of 11 December 2006 arose because of the omissions or failures of CKR to take steps to ensure Mr Rankmore's safety. Cord Tolson, at the site, was acting on behalf of CKR as its designated supervisor. In his affidavit, Mr Tolson said that from October 2006 he left the running of the business to his son. Cord Tolson, on behalf of CKR, failed, for reasons not properly explained, to follow CKR's policy of not taking work involving an owner-builder, but in doing so he was acting, and authorised to act, on behalf of CKR. 19 CKR's actions at the site on 11 December 2006, may be said to involve an uncharacteristic and substantial departure from its usual approach to matters of safety. Its actions, nevertheless, on the day, disclosed a serious breach of occupational health and safety which in turn must facilitate the conclusion that the offence with which it has been charged is objectively serious. A factor in mitigation of the objective seriousness however, which the Court will take into account in CKR's favour, is that CKR had in place, prior to the offence, an impressive and comprehensive regime of safety. Mr Cvetkovski - systems of work prior to the incident 20 Mr Cvetkovski, the principal contractor at the site, appears, on the available evidence, to have paid little attention to matters of safety at the site. At the time of the incident he was a sales manager working for a real estate agent. He had no previous experience in building and construction. Instead, he relied on his uncle, Mr Mitrevski to organise the tradespeople and attend the site on most days. The contractors would normally liaise with Mr Mitrevski with regard to any issues requiring advice or resolution at the site. Mr Cvetkovski attended the site on Tuesdays and Sundays and sometimes on Saturday afternoons. In his affidavit, he conceded that he was aware of his responsibilities as an owner-builder in relation to the site but he relied heavily on his uncle who assisted him without payment. He had some involvement with the tradespeople recommended by his uncle to work at the site. He spoke to some of them (the bricklayers and gyprockers) and was present at the site with his uncle where they discussed the work to be done by those tradespeople. He said he understood from his uncle that work would only be done above the ground floor after the scaffolding had been erected. He inspected SWMS provided by some contractors. He did not have any contact with the CKR employees and did not enquire of his uncle whether CKR had provided a SWMS. 21 Mr Cvetkovski's failure to have in place any procedures designed for the safety of the CKR employees was a serious omission. As the principal contractor he was required to undertake an assessment of the risks and to ensure that a site safety plan was in place before work was undertaken at the site. He did not request a SWMS from CKR, nor did he enquire of his uncle whether he had requested one. No site induction was undertaken by him. He did not exercise any supervisory responsibilities either directly or through his uncle. Mr Cvetkovski's disregard for all matters pertaining to safety at the site is difficult to reconcile with the evidence that he had completed owner-builder training and was aware of his obligations as a principal contractor prior to the commencement of work at the site. These matters necessitate the conclusion that the offence with which he has been charged is objectively serious. Reasonable foreseeability of the risk: both defendants 22 The risk to safety (which was a risk of a fall from height) in relation to the charge against CKR was both obvious and reasonably foreseeable. Mr Rankmore had no fall protection. The makeshift platform through which he fell was completely inadequate, failing to cover the large void which measured 4,700mm x 1,580mm. The fact that Mr Rankmore fell through the work platform indicates that it was unable to sustain his weight. The activity being undertaken by Mr Rankmore, therefore, placed him at a high degree of risk. He was not given proper supervision, the risks had not been properly assessed, and the timber frames were no doubt large and cumbersome. 23 The failure of Mr Cvetkovski to make any enquiries as to the work undertaken by the CKR employees on 11 December 2006 (working at height) and his failure to exercise any supervision, either directly or through his uncle, also compels the conclusion that the risk to safety arising in relation to the offence with which he has been charged was objectively reasonably foreseeable. 24 The prosecutor submitted that CKR had actual foresight of the risk to safety because it instructed Mr Rankmore to stack the frames on the first floor in the knowledge that Mr Rankmore was without any fall protection. I am not prepared, however, to make the finding. Mr Tolson left the running of the business of CKR to his son, Cord Tolson. It appears to me that Cord Tolson was ill-equipped to adequately discharge the occupational health and safety responsibilities and obligations incumbent upon CKR. According to the agreed facts, Cord Tolson had not received any formal training in the completion of risk assessments or in the development of SWMS, nor was any training or instruction provided to him by CKR with regard to his role and responsibilities towards CKR's employees under his supervision. 25 The finding made against both defendants that the risk to safety was reasonably foreseeable exacerbates the objective seriousness of both offences. Remedial measures available at time of offences: both defendants 26 Simple and straightforward measures were readily available and amenable to implementation in order to minimise the risk to Mr Rankmore's safety. These included the provision of fall protection devices such as perimeter scaffolding, full arrest harness or temporary hand railing. The devising of a safety management plan incorporating a risk assessment for the work to be undertaken by the CKR employees on 11 December 2006 would have been within the means of both defendants. 27 The failure to implement any of these measures adds to the overall objective seriousness of the offences against each defendant. Probable consequences: both defendants 28 Mr Rankmore fell approximately 5.3 metres from the first floor of the unit to the ground below. Given this distance, it was entirely probable that the fall would result in a fatal injury. Section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 is also relevant and will be taken into account as an aggravating factor, against both defendants. Whether offences "involved a series of criminal acts": both defendants 29 The prosecutor contended that the failures alleged against each defendant constitute an aggravating factor under s 21A(2)(m) of the CSPA. This was said to be because each charge is a single offence containing a number of allegations of criminal acts which are part of a single course of conduct. R v Tadrosse (2005) 65 NSWLR 740 was relied upon in support of the submission. 30 The failures relied upon by the prosecutor are, in summary: inadequate fall protection, the failure to cover the void, lack of supervision and the absence of a safety management plan, a risk assessment, and a SWMS. I note that not all of these "failures" have been specifically particularised in each charge, but it is not necessary to resolve this issue. I rejected a similar submission against the prosecutor in Inspector John Patton v Bi-Lo Pty Limited and Another [2010] NSWIRComm 38. For the same reasons, the prosecutor's present submission in relation to the application of the section in these proceedings is also rejected. My reasons in Bi-Lo are set out below and are adopted in these sentencing reasons: [22] The prosecutor submitted that the Court should take into account as an aggravating factor s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (CSPA). That section requires a court to take into account the circumstance where the offence involves, "a series of criminal acts". According to the prosecutor each of the failures particularised in the charges are sufficient to separately ground an offence. The charges allege a number of acts which, according to the prosecutor, separately constitute breaches of s 8(1) and s 8(2). In other words, as I understood the way the submission was put, the charges each allege a single offence containing a number of criminal acts that are part and parcel of a single course of conduct. R v Tadrosse (2005) 65 NSWLR 740 was relied upon in support of the submission. [23] For reasons which follow, the submission, in my view, is not sustainable. The charges particularise different aspects of the one breach. They do not allege acts or omissions "rolled up" and demonstrating a single course of conduct. R v Tadrosse was concerned with a series of frauds perpetrated by the offender in order to obtain property. The property was fraudulently obtained by use of false identity documents. Howie J, with whom Grove and Hall JJ agreed, found that the trial judge was in error in taking into account in the sentencing process s 21A(2)(m) as an aggravating factor. The error arose because there were multiple charges before the court for which the offender was going to be sentenced, and the multiplicity of acts of criminality (as well as the multiplicity of victims) was properly addressed by reference to the principle of totality. It followed that it was illogical to also take into account as an aggravating factor, relevant to each offence, the fact that there was a series of criminal acts disclosed by those offences: at [28]. [24] The present charges, in contrast, particularise different conduct charged as one offence. Particular 4 of No IC 150 of 2008, for example, focuses on the failure to assess any risks, with regard to loading the bales of cardboard. Particular 7 focuses on the failure to instruct, inform, train and supervise on how to perform the task of loading the bales safely. Particular 5 deals with the failure to provide a safe system of work for avoiding falls from trucks. Particular 6 is concerned with the failure to provide a safe system of work for avoiding falls from the loading dock hoist. The different acts or conduct may be referable to the same factual background, but they cannot be said to constitute in combination one activity or one single course of conduct. The approach to charging by the prosecutor is only permissible because of s 31 of the 2000 Act, so long as "multiple contraventions" can be said to arise out of the same factual circumstances. 31 Returning to the "failures" relied upon by the prosecutor in support of the submission, they each focus on different omissions notwithstanding that they arise from the same factual background. They do not comprise "a series of criminal acts", a prerequisite for the application of the section. General deterrence: both defendants 32 The present circumstances involve yet another fatal injury resulting from a fall from height at a construction site. I adopt and apply here the comments made with regard to the necessity to invoke the principle of general deterrence in Bi-Lo: [28] Falls from height are notoriously prevalent at worksites. They invariably result in serious injuries and often fatalities. I adopt the comments I made in the context of the application of general deterrence to offences involving falls from height in Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd ; Inspector Robert Johnston v Lipman Pty Ltd [2006] NSWIRComm 103 at [11] where I said: The circumstances of these matters exhibit a strong case for general deterrence. Mr Murdock was exposed to a serious risk to his safety because he was required to work on top of scaffolding at a height of some five metres. The risk to safety was compounded by the failure on the part of both defendants to provide Mr Murdock with any fall protection device or to devise some procedure or work method that would have ensured that Mr Murdock could carry out his work safely. Falls from heights at construction sites happen with alarming regularity and often result in serious or even fatal accidents. In most cases such accidents are easily avoidable and require only relatively simple measures to work out a procedure that will keep workers safe. Employers on construction sites should also be made aware that they all share equally the responsibility for ensuring the safety of persons at work sites. If for example the principal contractor has a practice of inducting all workers who enter the site then subcontractors also working at the site with those workers should ensure that they have been properly inducted before work commences. It has been emphasised many times in this jurisdiction that an employer cannot delegate its responsibilities to ensure a safe work place and ensure workers' safety. This is especially important to understand in the context of a typical construction site at which may be found a large and diverse workforce consisting of a principal or head contractor, any number of specialists contractors and labour hire personnel. Working at heights is a potentially dangerous activity and it is imperative that employers take adequate measures to ensure their workers can work above ground safely and without fear of injury. Specific deterrence: both defendants 33 In his affidavit, Mr Tolson explained that prior to Mr Rankmore's accident, CKR's workload decreased and from about February 2007 all of CKR's contracts were completed and no new contracts were commenced. CKR completed its last contract on 28 July 2009. It has no further construction contracts and has ceased quoting on projects. In about May 2007, Mr Tolson acquired a new company, BCA Construction, of which he is the sole director. Based on these matters, the application of specific deterrence would appear to have little utility. Accordingly, it will not be taken into account against CKR. 34 Mr Cvetkovski, following the accident, resolved never to engage in construction of a building as an owner-builder. In his affidavit, he said, "The knowledge that someone was killed on a site that I owned means I could not do it again." Specific deterrence, in the case of Mr Cvetkovski, would also appear to be of little utility, and accordingly, it does not fall for application against any penalty to be imposed on Mr Cvetkovski. Maximum penalties: both defendants 35 CKR has a prior conviction. It therefore faces a maximum penalty of $825,000. Mr Cvetkovski has no prior criminal record. The maximum penalty faced by him for the offence is $55,000. Subjective factors

Pleas of guilty: both defendants 36 Both defendants entered pleas of guilty at a relatively early stage in the proceedings. In the absence of any submission to the contrary made by the prosecutor, I propose to award a discount of 25 per cent for the utilitarian benefit derived from each plea of guilty. 37 As a separate consideration, both defendants are also entitled to leniency in recognition of the remorse shown by their respective pleas of guilty. Prior conviction: CKR 38 The details of CKR's prior conviction were set out in Mr Tolson's affidavit. CKR had entered into a contract with Wideform Construction Pty Ltd to do carpentry work. It was a large commercial project. After the contract was completed Wideform contacted a CKR supervisor and requested labour in order to build a small awning. According to Mr Tolson, the CKR supervisor was informed that if the awning was not completed it would delay handover of the building and penalties would be applied. The CKR supervisor, who was unable to contact Mr Tolson with regard to the additional post-contract work, arranged for an employee to attend the site. Wideform provided an assistant to work with the employee. On 22 October 1995, while the work was taking place, the assistant provided by Wideform drilled into brickwork which caused the drill chuck to rub against electrical wiring shorting out the electricity at the site. No-one was injured as a result of the incident. CKR was charged and convicted under s 8(2) of the Act for its role in the circumstances of the offence. It was fined $27,000. After the incident, CKR instituted a number of remedial measures which have been earlier set out in these sentencing reasons. 39 It was submitted on behalf of CKR that because the circumstances of the prior offence were unrelated to the present circumstances they would not stand in the way of the Court extending leniency where it might otherwise be withheld on the basis that CKR had a prior conviction. Those circumstances pertaining to the prior offence were said to include the fact that there was no injury sustained, the breach arose from unplanned work following completion of the contract, the relevant risk was not one involving a fall from height, it was not work of a type normally undertaken by CKR and it resulted in a specific revision of CKR's safety policies and procedures. 40 Under s 21A(2)(d) of the CSPA a record of prior conviction is said to be an aggravating factor to be taken into account in determining the appropriate sentence. In R v McNaughton (2006) 66 NSWLR 566, Spigelman CJ at CL, Grove, Barr and Bell JJ agreed, found that the reference to prior convictions (in s 21A(2)(d) of the CSPA) should be interpreted as, "referring to the use of that consideration in the ways authorised expressly in Veen v The Queen (No 2) (1988) 164 CLR 465" (at [32]). In Veen, the High Court set out a number of principles which a sentencing court may consider with regard to the approach to be taken to an offender's antecedent criminal history (at 477-8). Although the prosecutor in those proceedings brought Veen to the Court's attention, he did not advance any specific submission as to how the Court should utilise the authority in its approach to CKR's prior conviction. Nor did CKR direct the Court to any authorities in support of its submission. 41 I do not find the parties' respective submissions on the issue sufficiently persuasive to warrant a departure from the usual approach of withholding leniency where an offender has a prior conviction. In R v Johnson [2004] NSWCCA 76 at [29], consideration was given to the exercise of discretion not to withhold leniency where an offender had a prior conviction but there was a large gap between the commission of the offences. Here, the offences were committed about 12 months part and therefore do not fall within that particular exception. I propose therefore to withhold leniency where it might otherwise have been extended on the basis of the prior conviction. Absence of prior convictions: Mr Cvetkovski 42 Mr Cvetkovski comes before the Court as a first offender and is entitled to the benefit of leniency for that reason. Post-offence measures: both defendants 43 Following the events of 11 December 2006, CKR undertook remedial action. Mr Tolson resumed active involvement in the business of CKR in late January 2007. CKR later ceased performing any work for owner-builders. Mr Tolson, on behalf of CKR, also conducted an investigation into the incident. He engaged the Master Builders' Association to attend the site for the purpose of conducting a safety audit. The following additional measures (as detailed in Mr Tolson's affidavit) were also undertaken by CKR: Cord Tolson attended an OH&S Risk Management for Supervisors and Managers course conducted by the MBA on 26 February 2007, and a testing and tagging course for electrical equipment. Mr Tolson was enrolled in an OH&S Risk Management course on 13 and 14 March 2007, a Safe Working at Heights course on 4 May 2007, and an electrical testing and tagging course on 21 February 2007. Mr Tolson continued to attend industry briefings organised and run by the MBA once every three months that regularly feature OH&S updates and compliance checks to enable him to keep up to date with OH&S requirements. 44 Mr Cvetkovski met with the prosecutor following the incident. As a result of advice received he took a number of steps to ensure that safety was maintained at the site. The steps included: a. preparation of a written site safety plan for the works; b. ensuring scaffolding with hand rails was in place before any further work was carried out; c. conducting a risk assessment with each contractor before they started work on the site; d. preparation and implementation of a documented site induction for all contractors; and e. ensuring every contractor provided a safe work method statement before they started work. 45 The respective measures taken by each defendant following the events of 11 December 2006 will be taken into account in mitigation of the penalties to be imposed. Co-operation: both defendants 46 Both defendants fully co-operated with WorkCover during its investigation into the incident. Contrition: both defendants 47 Mr Tolson, in his affidavit, set out an account of Mr Rankmore's employment with CKR. Mr Tolson regarded Mr Rankmore as both a valued employee and a friend. In the affidavit, Mr Tolson said he felt sadness and remorse for Mr Rankmore's death, as well as guilt because he had not been present to prevent the accident from occurring. He also said that he would not have allowed Mr Rankmore to work at height in any circumstance without an adequate fall arrest system in place. The measures put in place by Mr Tolson on behalf of CKR following the accident attest to an acknowledgement by it of responsibility for its failures. Those matters will be taken into account on CKR's favour as demonstrative of its contrition and remorse with regard to the circumstances of the offence. 48 Mr Cvetkovski said he was shocked and distressed upon being advised shortly after the accident that Mr Rankmore had been badly injured. He has since resolved never to undertake the construction of another property as an owner-builder. Following the accident he sought advice from the prosecutor and acted on that advice by taking a number of steps to ensure that the safety of the workers was maintained at the site. These matters also demonstrate an expression of contrition on the part of Mr Cvetkovski which will be taken into account in mitigation of penalty. Assistance to Mr Rankmore's family: CKR 49 CKR rendered assistance to Mr Rankmore's family following his death. It helped the family with insurance, as well as with the funeral arrangements. Mr Tolson, on behalf of CKR, also kept in contact with Mr Rankmore's family by telephone. Good corporate citizenship: CKR 50 Several character references annexed to Mr Tolson's affidavit serve to demonstrate CKR's good corporate citizenship under the guidance of Mr Tolson as sole director. 51 These matters will also be taken into account in CKR's favour in mitigation of the penalty to be imposed. Capacity to pay: CKR 52 CKR also relied on its scaling down of operations and its lack of financial resources following the offence to support a submission that it has a limited capacity to pay a fine. It was also submitted that the burden of any fine to be imposed would fall on Mr Tolson and his family. CKR was, at the time of the offence, a small family company. Mr Tolson was the sole director. The prosecutor effectively supported CKR's submissions, accepting that CKR is impecunious, its liabilities exceed its income and it is no longer engaged in the construction industry. CKR's financial records, which tended to confirm its impecuniosity, were annexed to Mr Tolson's affidavit. A caveat expressed by the prosecutor was that general deterrence be borne in mind should the Court accede to CKR's submissions and take into account in the imposition of penalty, its limited capacity to pay a fine. 53 Given the parties' agreed position on the issue, the supporting documentation, and, bearing in mind the principle of general deterrence and its significance in the context of the building and construction industry (as to which, see my earlier commentary on the application of the principle), I propose to take into account in CKR's favour its limited financial capacity when imposing penalty. Respective roles 54 According to Mr Cvetkovski, his role in the events leading up to the incident exhibits a lesser degree of culpability than the culpability of CKR. One basis upon which the submission was put was that he relied on others, including CKR. There was no evidence placed before the Court from which it may be inferred that Mr Cvetkovski relied on CKR to perform the work safely. Mr Cvetkovski had no contact with CKR. In any event, Mr Cvetkovski's purported reliance on CKR to perform the work safely does nothing to facilitate a finding that his culpability in the objective seriousness of the offence was less than that of CKR. Mr Cvetkovski was the principal contractor with attendant responsibilities and obligations to ensure the safety of CKR employees at the site. Mr Cvetkovski did extremely little, if anything, to discharge those responsibilities and obligations. It was also contended on Mr Cvetkovski's behalf that it was CKR which employed the unsafe work practices on the day of the accident (partially covered void, the unsafe method adopted for moving the timber frames). Those unsafe work practices, it was said, did not arise from the unsafe state of the premises over which Mr Cvetkovski exercised control. Again, Mr Cvetkovski was the principal contractor at the site at the time of the accident and obliged to take adequate steps to ensure the CKR employees subcontracted by him to do the work performed the work safely. One of the particulars of the offence to which Mr Cvetkovski entered his plea of guilty specifically alleged that he failed to ensure that persons working on the first floor of the site were provided with a safe system of work for working at height. 55 CKR, a subcontractor at the site, also had attendant responsibilities towards its employees to ensure their safety, something which it failed to do in relation to Mr Rankmore on the day of the accident. CKR may have had a more direct role in the supervision of Mr Rankmore, as its employee, but Mr Cvetkovski had overall responsibilities for the safety of all personnel at the site. Neither the prosecutor, nor CKR, I should add, made any submissions on this issue. These circumstances in combination warrant the conclusion, in my view, that the culpability of each defendant in the circumstances on the day of the incident giving rise to the charges is equal. Victim Impact Statements 56 The Court also received statements from Mr Rankmore's mother, Laurelle Rankmore, and his father, Norman Sheather. Both statements were read onto the Court record. The Court expresses its deepest sympathies to Ms Rankmore and to Mr Sheather for the loss of their son in such tragic circumstances. Penalty 57 In determining penalty for CKR, I have taken into account the objective seriousness of the offence, its systems of work in place prior to the offence mitigating the objective seriousness of the offence, the maximum penalty, the prior conviction, its limited capacity to pay a fine and other subjective factors, and its role in the circumstances of the offence by reference to Mr Cvetkovski's role. 58 In determining penalty for Mr Cvetkovski I have taken into account the objective seriousness of the offence, the maximum penalty, the absence of prior convictions and other subjective factors, and his role in the circumstances of the offence by reference to CKR's role. 59 Various factors, both in mitigation and aggravation of the respective offences with which each defendant has been charged, have also been considered by reference to the CSPA, in particular, s 21A. Orders 60 In Matter No IC 2285 of 2008, the Court makes the following orders:

Inspector Ian Lancaster v CKR Pty Limited & Another

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Cases Cited (6)