Inspector John Sharpin v Boka Aluminium Windows Pty Limited & Anor

Industrial Relations Commission (NSW)|2005-12-16|Before: Kavanagh J

Industrial Relations Commission of New South Wales in Court Session

CITATION: Inspector John Sharpin v Boka Aluminium Windows Pty Limited & Anor [2005] NSWIRComm 447

Prosecution: Inspector John Sharpin PARTIES: Defendants: Boka Aluminium Windows Pty Ltd Marko Franovic

Occupational Health and Safety Act 2000 s 8(2) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 21A 22 23 34

Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610, (2000) 99 IR 29 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Markarian v R (2005) 215 ALR 213 CASES CITED: R v Sharma (2002) 54 NSWLR 300 R v Thomson, R v Houlton (2000) 49 NSWLR 383, (2000) 115 A Crim R 104 Tyler v Sydney Electricity (1993) 47 IR 1

Prosecutor: Mr D.B. O'Neil of counsel Solicitors: Ms H. Cameron WorkCover Authority of NSW LEGAL REPRESENTATIVES:

Defendant: Mr M.K. Scott of counsel Solicitors: Mr L.P. Lozina Dibbs Barker Gosling

1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Kavanagh J

INSP JOHN SHARPIN v BOKA ALUMINIUM WINDOWS PTY LIMITED

Prosecution under s8(2) of the Occupational Health and Safety Act 2000

Prosecution under s26(1) of the Occupational Health and Safety Act 2000

[2005] NSWIRComm447 1 Two charges are brought by Inspector John Sharpin of the WorkCover Authority of NSW, the first against Boka Aluminium Windows Pty Ltd under s8(2) of the Occupational Health and Safety Act 2000 (the Act) and the second charge against Marko Franovic under s26(1) of the Act. 2 Both defendants, Boka Aluminium Windows Pty Ltd and Mr Franovic, originally raised a defence of not guilty. However, at the close of the prosecution's case, it was agreed between the parties that Boka Aluminium Windows Pty Limited (the defendant) would seek leave to enter a plea of guilty to an Amended Application for Order in matter No IRC2519 of 2003. On application, the prosecution against Mr Marko Franovic was stood over. 3 In matter No IRC2519 of 2003, it is alleged the defendant breached s8(2) of the Act in that it failed to: Ensure that persons not in its employment, and in particular, James Gowans, Joseph Romeo, Michael Mende and Mario Musumeci, were not exposed to risks to their health or safety arising from the conduct of its undertaking while at its place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000. The particulars of the charge as relied upon in the amended Application for Order are as follows: a) At all material times the defendant was an employer. b) At all material times the defendant engaged contractors for the building of a factory at 19 Ash Road, Prestons, in the State of New South Wales ("the site"). c) At all material times the defendant sub-contracted A Team Concrete (Aust) Pty Ltd to perform concreting work at the site. d) At all material times A Team Concrete (Aust) Pty Ltd used a concrete boom pump manufactured by Powercrete Australia Pty Ltd, model number T100-177-60 ("the pump"), attached to a vehicle with registration number QSV - 987 for the concreting work it performed at the site. e) The defendant failed to ensure that proper maintenance and inspections had been carried out on the pump prior to its use by persons at the site. f) The defendant failed to ensure that persons not in its employment did not work under or close to the boom of the pump. 4 After the plea of guilty was entered, the prosecutor filed, along with the evidence already tendered before the court, a Statement of Facts. A challenge was raised to paragraph 25 of the Statement of Facts which paragraph, after the Court heard argument, was deleted. Accordingly, the Statement of Facts now relevantly reads: 3. At all material times the defendant engaged contractors for the building of a factory at 19 Ash Road, Prestons, in the State of New South Wales ("the site"). 4. At all material times Boka Investments Pty Ltd owned the site. 5. At all material times the defendant sub-contracted A Team Concrete (Aust) Pty Ltd to perform concreting work at the site. 6. At all material times A Team Concrete (Aust) Pty Ltd contracted with Concrete Civil Pty Ltd for the provision of labour hire workers at the site including Joseph Romeo. 7. At all material times A Team Concrete (Aust) Pty Ltd employed a number of personnel at the site, including: a) James Gowans, 20 years of age, as a general labourer. b) Michael Mende, 31 years of age, as a concrete pump operator. c) Mario Musumeci, 34 years of age, as a leading hand. 8. At all material times A Team Concrete (Aust) Pty Ltd used a concrete boom pump reconditioned by Powercrete Australia Pty Ltd, model number T100-177-60 ("the pump"), attached to a vehicle with registration number QSV - 987 for the concreting work it performed at the site. 9. On 11 March 2002 at approximately 7.15am, James Gowans, Joseph Romeo, Michael Mende, Mario Musumeci and Salvatore Cardile were performing concreting work at the site and the pump was pouring the first concrete load of ready mixed concrete into the centre of a floor slab at the site. Mr Cardile was a director of A Team Concrete (Aust) Pty Ltd. 10. Mr Gowans was working underneath the boom of the pump and Mr Romeo was working close to the boom of the pump when the boom connection failed at the turret of the pump unit and fell to the ground striking them both. 11. A backhoe on site was used to sling and lift the boom off Mr Gowans and Mr Romeo who were then taken by ambulance to Liverpool Hospital. Mr Gowans did not recover from the head injuries he suffered and died at approximately 7.30pm on the same day. Mr Romeo suffered fractures to his neck, shoulder and ribs and remained in hospital for one week. 12. At the time of the accident, the pump was set up on one side of the floor slab of the building under construction at the site and the boom was extended to the middle of the slab. A laser guided screed was used to perform the finishing work for the concrete surface. The boom was 19 metres long, constructed of steel and weighed approximately 1.5 tonnes. A rubber hose was attached to the third section of the boom and measured approximately 3 metres in length. The pump was attached to a white UD Truck, with registration plate QSV-987. The truck had four outriggers attached. 13. Mr Cardile was the supervisor of the concrete pour at the site. At the time of the accident, Mr Gowans was holding the rubber concrete drop hose attached to the boom of the pump. Prior to the accident, Mr Cardile was holding the hose and then directed Mr Gowans to hold the hose whilst he went to talk to the agitator driver about the concrete being too wet. Mr Romeo was using the concrete vibrator close to the boom and Mr Musumeci was watching the laser guided screed work. 14. The concrete boom pump was being operated by Mr Mende, an employee of A Team Concrete (Aust) Pty Ltd, with 10 years of experience in operating such pumps. Mr Mende was operating the concrete boom pump from a cable remote unit and was adjacent to the passenger side front outrigger which enabled a full view of the outboard end of the boom. 15. Marko Franovic, a director of the defendant, was present at the site on 11 March 2002 and observed persons working under the boom of the pump. 16. On 11 March 2002 Wayne James attended the site and undertook a factual inspection, a copy of which is annexed and marked "A". Inspector James also took 17 photographs at the site, copies of which are annexed and marked "B". 17. On 11 March 2002 Inspector Sharpin issued a notice to A Team Concrete Pty Ltd under section 70 of the Occupational Health and Safety Act 2000 for the pump to be taken to the WorkCover TestSafe facility in Londonderry for testing purposes. 18. Various tests and calculations were performed on the pump and boom by David Ng, Head of the Mechanical Unit, TestSafe Australia, Reza Eftekhar, engineer employed by WorkCover and Michael Cheng, engineer employed by Workcover. The tests were to address the boom metallurgical material composition, the rotational force movements and other static and induced stress forces on the boom. Rexroth Pty Ltd conducted tests on the hydraulic components of the boom. 19. An engineering report was prepared by Michael Cheng on 30 April 2002 which concluded that the boom detached from the turret of the pump unit at the main trunnion connection. This was caused by the two trunnion retaining rings fracturing. One ring had approximately 45% fatigue fracture areas and the other ring approximately 20% fatigue fracture areas which had been growing for a considerable time prior to the accident. The ring with the 45% fracture front broke first causing an immediate overload failure to the other ring and the collapse of the concrete boom assembly. Mr Cheng also concluded that a proper inspection and maintenance program should have been able to detect the cracks before they grew to a critical size. A copy of photograph number A7 from the report is annexed and marked "C". 20. Reza Eftekhar, senior engineer of WorkCover, also prepared a metallurgical engineering investigation report dated 28 April 2002. Mr Eftekhar also concluded that the immediate cause of the accident was the two fatigue fractures in the trunnion retainer rings. Mr Eftekhar believed the fractures had been in place for a long time and could have been detected via inspection by a competent person. The reason for the fractures developing was found to be the inappropriate mechanical properties of the rings due to an error in material selection. This inappropriate material selected was brittle and pre-disposed to the initiation of fractures. Copies of Figure 1 and Figures 4 to 9 from the report are annexed and marked "D". 21. Opinion is divided as to how the presence of the cracks that caused the failure of the trunnion rings could have been detected. Mr Leonard, Managing Director of Concrete Pump Parts Pty Limited, believes that a magnetic particle crack test or dye penetrant crack test undertaken by an expert is required to identify the presence of such a crack. 22. Following the accident, documents were obtained from the pump, which included the WorkCover NSW Code of Practice for Pumping Concrete and a safety manual issued by Schwing America, a concrete boom manufacturer. 23. The safety manual from Schwing America includes directions to: a) Avoid standing directly under or over the boom or the system pipeline. b) Have the boom inspected by a certified boom inspector on a regular basis. c) Ensure proper and timely maintenance of the boom. d) Inspect the boom for cracks and how to test for cracks in the boom. A copy of the safety manual is annexed and marked "E". 25. . . . 26. A log book was not kept and inspections were not carried out on the pump in accordance with AS 2550.15 - 1994 "Cranes - Safe Use - Concrete placing equipment" and the Code of Practice "Pumping Concrete". 27. The Australian Standard, AS 2550.15 details the maintenance inspection and assessment requirements for concrete placing equipment. The standard requires non-destructive inspection of all critical areas for evidence of cracking to be performed on an annual basis. A copy of the Australian Standard is annexed and marked "F". 28. The Code of Practice for pumping concrete requires that all concrete placing booms and pumps be inspected once a year by a competent person and the results entered into a log book. A copy of the Code of Practice is annexed and marked "G". 29. On 14 April 1997 Scahill & McCloskey Consulting Engineers provided by letter a boom inspection certification. The certification provided that the boom satisfied the requirements of AS 1418 -15(1994), the Australian Standard for cranes and concrete placing equipment and if the boom was regularly maintained it would continue to operate satisfactorily. 30. The defendant's safety management plan required that an inspection and maintenance history for items of plant be provided prior to the commencement of use of the plant on the site. The defendant did not comply with this requirement in relation to the pump. 31. The defendant was provided with a job safety analysis and work method statement from A Team Concrete (Aust) Pty Ltd for the work to be performed at the site. The job safety analysis and the work method statement did not require that the workers performing concreting work avoid working under or close to the boom of the pump. 5 Mr D.B. O'Neil, of counsel, appeared for the prosecution. Reliance was placed by the prosecution on the Statement of Facts drawn from the primary documents already before the court. 6 Mr M.K. Scott, of counsel, appeared for the defendant. Mr Scott relied upon an affidavit from Mr Franovic, Director of Boka Aluminium. Mr Scott also tendered, on behalf of the defendant, a video and various documents which revealed the company's safety policy.

Principles 7 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case, s8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999) and the court, using the "instinctive synthesis" approach, would include the 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 circumstances where it better serves the interests of transparency, which element would be narrowly confined (for example, the utilitarian value of the plea). 8 Their 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]). 9 The proper approach to sentencing as approved by the majority (Gleeson CJ and Gummow, Hayne and Callinan JJ) in Markarian was stated as follows: 27 Express legislative provisions apart, neither principle nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence ( Pearce v The Queen (1998) 194 CLR 610 at 624). And Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies ( Johnson v The Queen (2004) 78 ALJR 616 at 618, 624).

and the sentencing process should reflect the general obligation on a judge to reveal his/her reasoning: 39 …Accessible reasoning is necessary in the interests of victims, of the parties, appeal Courts and the public.

Their Honours reasoned further: 39 . . . . That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing Judges should be absolutely forbidden. An invitation to a sentencing Judge to engage in a process of 'instinctive synthesis', as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression 'instinctive synthesis' may then be understood to suggest that an arcane process into the mysteries of which only Judges can be initiated. The law strongly favours transparency.........There may be occasions when some indulgence in an arithmetical process will better serve these ends. 10 In Markarian, the High Court endorsed the instinctive synthesis approach to determine penalty. McHugh J said: [84] The synthesising task is conducted after a full and transparent articulation of the relevant considerations including an indication of the relative weight to be given to those considerations in the circumstances of the particular case. The instinctive synthesis approach does not prevent the use of adjectives or adverbs or indications that this or these factors makes or make the case more or less serious than other cases or are the critical features of the case. And judicial instinct does not operate in a vacuum of random selection. On the contrary, instinctive synthesis involves the exercise of a discretion controlled by judicial practice, appellate review, legislative indicators and public opinion. Statute, legal principle and community values all confine the scope in which instinct may operate. The judicial wisdom involved in the instinctive synthesis approach is therefore likely to lead to better outcomes than the pseudo-science of two-tier sentencing. At all events, I am not satisfied that two-tier sentencing is a better method or process than the instinctive synthesis method that has been the traditional approach of common law judges. and: [138] . . .Yet even this is not now absolute. Specification, in a staged or sequential approach, of the degree of reduction of what would otherwise have been the penalty for a plea of guilty is, it seems, sometimes permissible ((1988) 164 CLR 465). So presumably is re-adjustment for any assistance to authorities. So indeed, by statutes in many parts of Australia, must now be specific reductions and adjustments expressed in terms of identified quantification or percentages. Even occasionally (albeit in unexplained circumstances) arithmetical indulgence will now, it seems, be overlooked. However, preferably that will happen only where the factors adjusted are comparatively few and the case is "simple" ([1990] VR 951 at 957). . . . [139] Australian judges must now express their obeisance to an "instinctive synthesis" as the explanation of their sentencing outcomes. It might be prudent for them to avoid mention of "two stages" or of mathematics. 11 Spigelman CJ in R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; (2000) 115 A Crim R 104 correctly, given the consideration in Markarian, endorsed the "instinctive synthesis" approach to sentencing saying: [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.

12 In R v Sharma (2002) 54 NSWLR 300, the Court of Criminal Appeal sitting five Judges (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ) concluded specifying the "discount" allowed for the utilitarian value of a plea of guilty was both consistent with s22 of the Crimes (Sentencing Procedure) Act 1999 and the "instinctive synthesis" approach to sentencing.

Consideration 13 The defendant company is one of two held by Mr Franovic and his family. This defendant company, while a supplier of aluminum windows (as its name indicates) was also a company which constructed commercial premises which premises were, after completion, leased. The second company, Boka Investments Pty Limited, operates as the beneficiary of rent received from the leased commercial premises after the construction is completed. 14 The defendant through Mr Franovic engaged A Team Concrete (Aust) Pty Limited to perform concreting work on the site at Prestons. Those sub-contractors brought onto the site a commercial truck on which was attached a concrete boom pump. A Team Concrete (Aust) Pty Ltd was pouring the first concrete load of Readymix concrete when the boom connection to the pump collapsed. The boom broke from the pump unit at the main trunnion connection where two remaining rings both fractured. They fractured from fatigue. Evidence revealed a number of tests were available to test the strength of the connections which snapped and caused the boom to collapse. Either of those tests could have been conducted during maintenance which, if either one had been performed, would have identified the fault. 15 When the boom arm fell to the ground it struck two workers, Mr James Gowans and Mr Joseph Romeo. Mr Romeo suffered fractures to his neck, shoulder and ribs. Mr Gowans suffered a head injury and died as a result of this incident. 16 Mr Franovic gave evidence on the plea. He revealed he had a conversation with a Mr Sam Cardile of A Team Concrete (Aust) Pty Ltd and asked for an assurance from Mr Cardile, when he was negotiating the contract for the concrete pour, as to the state of his equipment. In that conversation, Mr Franovic agrees that his major concern was the reliability of the equipment and he asked: Are your pumps in good order?

He had experienced, on other sites, the failure of such pumps which had the effect of causing a financial loss on his building projects. Mr Cardile had replied: Yes they are all certified. ...

Mr Cardile then placed in front of Mr Franovic a document which, on inspection, is dated 14 April 1997. The document is from a consulting engineer and it was an authorisation in the nature of an inspection certificate for the said boom pump for the purpose of certification. However, in authorising the certification in 1997, while the document states the boom satisfied the requirements of the relevant code for concrete placing booms, it in addition states: ...if regularly maintained (it) will continue to operate satisfactorily. 17 Evidence revealed the defendant company did not require the production of maintenance logs recording the regular maintenance of the boom pump. Mr Franovic revealed he had asked no further questions after being shown the certification. He did not note the date on the document. 18 The pleadings in the Amended Application for Order relevantly relies upon two particulars: (e) The defendant failed to ensure proper maintenance and inspections had been carried out on the pump prior to its use by persons at the site; and (f) The defendant failed to ensure that persons not in its employment did not work under or close to the boom of the pump. 19 Mr Franovic revealed his son, recently deceased, Mr Rade Franovic, was employed by the defendant company as Project Manager and, within the company structure, he had responsibility for all occupational health and safety matters. Mr Franovic opined that his search of the Occupational Health and Safety documentation held by the defendant company prior to the accident revealed: 11. The general induction process (which was managed by my late son Rade) which was generally followed by Boka when subcontractors came on site involved to the best of my knowledge and belief Rade: (a) Explaining the need for safety gear to be worn and an inspection to make sure that all workers wear all their safety gear; (b) Going over the evacuation points for the site in case of emergency; (c) Showing of the luncheon shed, toilet facilities etc; (d) Give warnings that all leads are to be kept off the ground and work to be carried out in a safe manner; (e) An indication that Rade was the first aid officer and that any accidents were to be reported to him because they have to be documented. A Team Concrete (Aust) Pty Limited has been to the Ash Road, Prestons site on many occasions having previously worked on the other five factory complexes. The other factory complexes are on the same land and some are as close as 50 metres away from each other. A Team Concrete (Aust) Pty Limited were involved in the levelling of the site, laying of the sand plastic and mesh on the floor of the factory which occurred a number of days leading up to the laying of concrete on 11 March 2002. 12. I understand that Rade, was due to induct new employees on the site on 11 March 2002. I further understand that when Rade arrived on site on 11 March 2002, work had already commenced on site earlier than planned and that Rade was unwell and had to leave the site before any inductions could take place. I was not aware of this on the day. 13. On 11 March 2002 I arrived on the site just before 7 o'clock. My late son, Rade, also arrived on the site that morning (we did not travel together). Work had begun by the time I had arrived. I observed the site and saw nothing unusual about the site nor the way in which the work was performed. . . . 20 It is clear from this evidence and questions in cross examination there was no requirement from the defendant company for the production from the sub-contractor of log books confirming the regular maintenance and/or inspection of the boom pump. It is, however, agreed the defendant's safety management plan required the production of inspection and maintenance records before plant was used on their site. The defendant therefore was in breach of its own safety procedures. 21 The second element relied upon in the charge is that persons on site be required not to work under the boom. The "Guide to Safety for Concrete Pump Operators" recites relevantly the following: 3.2 All persons working in the vicinity of the pump or pipelines should keep well clear and the general public should also be excluded from the working area. ... 22 The defendant tendered various supplier's guides as to the correct procedures for the use of concrete pumps. All of the guides demonstrated workers holding the pump hose and guiding it - thereby placing the employee underneath the boom. There was a particular difficulty with this boom as it was placed on a commercial vehicle and therefore the boom hung low to the ground. The manufacturer's manual for this boom pump provided words of warning "avoid standing under or over the boom on the system pipeline." 23 Particular (f) required the defendant ensure that "persons . . . did not work under or close to the boom and the pump". It was the boom that struck the two persons when it collapsed. My difficulty with this particular is, every manual issued by a number of different suppliers shows the operator standing underneath the boom as the employee guides the head of the pump. It is the prosecutor's submission the pump operator must stand at the side of the boom not underneath it and manipulate the pump with an attached lever. 24 Given the practice in the industry and my reading of the Code there is no such requirement. Such a proposition from the prosecution might well be drawn to the industry's attention. However, it is not the role of this Court to design a system of work. The basic failure, in the facts as presented, was the failure to ensure the maintenance on the boom pump had been properly carried out on this machine to ensure safety of all persons at the defendant's worksite. The offence is proven. 25 In assessing the objective seriousness of the offence, an assessment as to whether there was a foreseeability element to the offence is required. Mr Franovic had been involved in the building industry for many years. He undertook the construction of a commercial premises and he personally hired the sub-contractor. He did not properly read the certification, nor the date of the certification, nor did he require that he or his son (responsible for occupational health and safety at this worksite) and both acting on behalf of the defendant company, sight any log books to gain an assurance as to the regular maintenance and inspection of the boom pump. 26 The later Safety Management Plan reveals a system of checks to ensure that requirement is now met. I accept that it was reasonably foreseeable that the failure of the defendant to inform itself of the maintenance of the boom pump resulted in a dangerous piece of heavy equipment coming onto its site. Fatigued retaining rings hold up the boom. The existence of simple and straightforward steps, namely, the inspection of records could have been taken by the defendant to avoid the incident. Further, if upon becoming aware of the absence of any maintenance or inspection record (as the evidence revealed) the risk could have been avoided, either by not allowing the use of the machine on its worksite or insistence of a complete safety report on the machine. Mr Franovic himself admitted he was concerned as to the unreliability of such machines. A check on the maintenance log was more than practical in the circumstance. I cannot accept the proposition that the fatigue fractures would not have been evidenced on a proper inspection and maintenance routine. That, in any event, is not the issue. The obligation is to ensure there was regular maintenance inspection on the heavy machinery brought onto this worksite and without adherence to that requirement it was foreseeable that faulty equipment could be brought on site. There is therefore a foreseeable element to this offence. 27 The defendant retained overall responsibility for the site. The boom pump was not owned by the defendant and the court must assess the contribution of the defendant to the relevant risk and focus on the nature and seriousness of this defendant's breach. The offence led to two employees being exposed to a risk to their health and safety arising from conduct of the employer and the well acknowledged words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5) are apposite in the circumstances: The gravity of the damage or injury actually resulting from 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. ...

The death of Mr Gowans and the injury to Mr Romeo are but reflective of the gravity of the risk created by the defendant in breach of the Act in not ensuring safe equipment was brought onto its worksite. 28 A level of deterrence must be factored into consideration as to penalty. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384, this principle was applied in the context of consideration of breaches under the Act where Hungerford J held (at 388): I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive.

These principles were cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay ) (2000) 49 NSWLR 610 at 644; (2000) 99 IR 29 at 60 where it was said: ... the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that 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 Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . . 29 The defendant's attitude to questions of workplace safety and the steps it has taken to improve safety following the incident are commendable. The defendant met its obligations to review its procedure. The defendant is a first offender who has now in place proper safety practice and procedures which procedures ensure there should be no risk of re-occurrence. I accept the defendant has not manifested, by its commission of this offence, a continuing attitude of disobedience to the law or likelihood that any offence of like kind will be committed in the future. 30 Nonetheless elements both of general and specific deterrence are taken into account in my consideration as the company continues to work in the construction industry. Specific deterrence is necessary as construction is a continuing activity of the defendant. There must also be an element of general deterrence factored into the penalty to ensure the fundamental obligations for safe working under the Act are once again brought to the attention of employers. 31 In consideration of penalty, a number of subjective features to the offence have been placed before the court. A plea of guilty was entered although not at the earliest possible stage. I take into account there is some utilitarian value to the plea of guilty (R v Thomson; R v Houlton (2000) 49 NSWLR 383; (2000) 115 A Crim R 104) as the plea reduced the time taken for the hearing. I further note the significant reduction in the number of particulars relied upon by the prosecutor to which the plea has been entered. Initially, the prosecutor pleaded a much broader case. I find there was a utilitarian value to this plea although I do not believe it should attract the full discount of 25% and I allow a discount of 15%. 32 The defendant company has operated in New South Wales for some 28 years and it significantly contributes to the industrial climate in New South Wales as it employs over 60 workers. The company has an unblemished industrial record as it has no prior convictions. The defendant does not put any financial constraints before me and acknowledges the company has significant income and assets. 33 It is accepted the defendant co-operated with WorkCover Authority in its investigations. Relevantly, although under no obligation, the company made a donation to the family of the deceased notwithstanding that he was not the company's employee. 34 Mr Franovic in evidence debated his company's obligations under the Act in a circumstance where "his" company did not own the machine. However he also accepted the company had an obligation to provide a safe worksite. He expressed his contrition. 35 I am persuaded there is now in place within the company a culture where, as an employer, it accepts its responsibility to ensure safe working at all of its work sites. 36 The principle of parity is relevant. Three companies, A Team Concrete (Australia) Pty Limited, A Team Concrete Pty Limited and Concrete Civil Pty Limited were associated with this incident and have already been sentenced by the Court. A Team Concrete (Australia) Pty Limited faced two charges, one under section 8(1) of the Act and one under section 8(2) of the Act. A Team Concrete Pty Limited faced one charge under section 10(2) of the Act. Concrete Civil Pty Ltd pleaded to one charge (they were relevantly employers or machine owners). A Team Concrete (Australia) Pty Limited was fined $100,000 for its two offences; A Team Concrete Pty Limited was fined $55,000 for its offence as the owner of the plant and Concrete Civil Pty Limited was fined $45,000. 37 In the consideration as to parity it is relevant to note each company was identified as a "small" company to which the application of s6 of the Fines Act 1996 was held to be appropriate. Further, A Team Concrete (Australia) Pty Ltd, who received the larger penalty was found guilty of two offences under the Act. I therefore take into account the level of criminal conduct and the antecedent of each defendant. 38 The maximum penalty for a corporate first offender is $550,000. 39 I find given the nature and quality of the offence, the above subjective elements and the discount allowed for the utilitarian value of the plea and, in the application of the principle of parity to the consideration of penalty, this is an offence for which the defendant is to be fined in the sum of $45,000.00.

40 I make the following orders: 1. I find the offence proven. I find the defendant guilty. 2. The defendant is fined in the sum of $45,000.00 with a moiety to the WorkCover Authority.

The defendant shall pay the prosecution's costs as agreed or assessed with leave to apply as to final orders.

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Decision date

Before

Source

Judgment (25 paragraphs)

Parties

Cases Cited (12)