Inspector Ken Kumar v Top Container Transport Pty Ltd

CATCHWORDS: Sentence proceedings - Occupational Health and Safety - s8(1) of the Occupational Health and Safety Act 2000 - employee fatally injured in warehouse when crates stacked "six high" topple over - consequences of the breach - foreseeability and seriousness of the risk to safety - availability of simple remedial steps - deterrence - maximum penalty - respective culpabilities of the defendant and corporate co-defendant - defendant's financial means - penalty - orders.

Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 1983 LEGISLATION CITED: Occupational Health and Safety Act 2000 Workers Compensation Act 1987

Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 Inspector Jones v T Helsby & Sons Contracting Pty Ltd (No 2) [2004] NSWIRComm 57 Inspector Paul Kenneth Wade v Ken Mathews Haulier Pty Limited t/as Ken Mathews Landscaping Supplies [2005] NSWIRComm 85 CASES CITED: Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61 Veen v R (No 2) (1988) 164 CLR 465 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited (2004) 135 IR 166 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Another (1999) 95 IR 383

Prosecutor: Mr R. Reitano, of counsel Solicitor: Criminal Law Practice, Legal Group LEGAL REPRESENTATIVES: WorkCover Authority of New South Wales

• 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Inspector Ken Kumar v Top Container Transport Pty Ltd (In Liquidation)

Prosecution under s8(1) of the Occupational Health and Safety Act 2000.

1 Top Container Transport Pty Ltd (In Liquidation) ("the defendant") has been charged with one offence under s8(1) of the Occupational Health and Safety Act 2000 ("the 2000 Act"). 2 The offence under s8(1) of the Act alleges a failure by the defendant as an employer at 16 Childs Road, Chipping Norton on 26 November, 2001, to ensure the health, safety and welfare at work of all its employees, in particular, Maxwell Cook. 3 The offence under s8(1) has been particularised in the Application for Order in the following way: (a) The Defendant, at all material times, was a corporation responsible for the operation and management of a warehouse facility for the general cartage, storage and distribution of steel and ceramic products located at 16 Childs Road, Chipping Norton, in the State of New South Wales ("the premises"). (b) The Defendant at all material times, employed a number of workers, including Maxwell Cook ("Cook"), to work at the premises. (c) The Defendant, at all material times operated plant, namely a Daewoo forklift truck, model no 252-2 and serial no 11-00412 ("the forklift"), at the premises. (d) On 26 September 2001, as part of his duties, Cook used the forklift to stack steel crates containing stainless steel welded pipes ("the crates"). The crates were constructed of steel and were approximately 6200mm long, 600mm wide and 570mm high. The weight of a fully laden crate was approximately 1400kg. (e) The Defendant failed to ensure the health, safety and welfare at work of all the employees of the Defendant, in particular Cook, by: (i) failing to provide safe systems of work in that the Defendant: (i) failed to undertake a risk assessment that identified the maximum number of crates that could be safely stacked to ensure stability; (ii) failed to provide and maintain a system of work that ensured that an employee was not exposed to the risk of the crates falling on the employee. (ii) failing to provide such training and supervision as was necessary to ensure the safety of all the employees of the Defendant, in that the Defendant: (i) failed to supervise employees to ensure the crates were stacked in a manner that was safe and without risk of injury; (ii) failed to train supervisors in the identification of risks associated with the stacking of the crates. (f) As a result of the said failures, Maxwell Cook was fatally injured.

4 The proceedings in relation to the offence were conducted as ex parte proceedings. The defendant did not enter a plea to the offence. 5 On 12 February 2004, the Administrator of the defendant, PPB Chartered Accountants & Business Reconstruction Specialists ("PPB") advised by letter that the defendant has no assets or money available for any unsecured creditor, or, to meet any costs associated with the present prosecutions. In the letter, PPB also advised: Under all circumstances, it will not be possible for me to cause legal representation to appear before the Commission in relation to this matter, given the financial inability to pay costs that would be incurred in that process.

6 On 14 July 2004, the prosecutor wrote to the defendant advising it that the matters had been listed for hearing on 6 December 2004 at 10am in the Industrial Relations Commission. 7 On that day when the matter came before me for hearing, there was no appearance for the defendant. Factual background

8 A Statement of Facts was tendered by the prosecutor in the ex parte proceedings. In it, Francis James Burn ("Mr Burn") was nominated as the defendant's sole director, and, Donald William Steel ("Mr Steel") as the General Manager. According to the document, the defendant employed approximately twenty workers to work at the premises at 16 Childs Road, Chipping Norton, New South Wales ("the premises"). A co-defendant, Keralex Pty Limited (In Administration) ("Keralex") occupied the premises and was responsible for the operation and management of a warehouse facility for the general cartage, storage and distribution or products including Stemcor steel products. It also operated a Daewoo forklift truck model no 252-2, serial number 11-00412 at the premises ("the forklift"). 9 Maxwell Cook ("Mr Cook") was an employee of Top Container on the date of the alleged offence, that is, on 26 September 2001. On that day, he used the forklift to stack steel crates containing stainless steel welded pipes ("the crates"). The crates were approximately 6200mm long, 600mm wide and 750mm high. The weight of a fully laden crate was approximately 1,400 kilogrammes. 10 On 26 September 2001, twelve crates had been delivered to the premises from R&H Transport upon instructions from Stemcor (A/SIA) Pty Limited. Mr Cook commenced work that day at about 10am. He was assisted by another Top Container employee, Mark Lomas ("Mr Lomas") with the unloading and stacking of containers of nuts and bolts using the forklift. 11 The crates were delivered to the premises at around lunchtime. Mr Cook unloaded the crates using an overhead crane and then stacked the crates using the forklift. He stored them by stacking them one on top of the other, six crates high ("the stack"). 12 Mr Lomas finished work that day at about 2.30pm. Thereafter, Mr Cook worked alone without supervision stacking the crates using the forklift. At about 3.40pm, while Mr Cook was operating the forklift near the stack, the stack collapsed and one of the crates fell on top of the forklift. The force of the collapse of the stack on the forklift resulted in Mr Cook suffering fatal injuries. Consideration

13 Section 8(1) of the 2000 Act provides:- An employer must ensure the health, safety and welfare at work of all employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 14 The elements of an offence under s8(1) which the prosecutor must prove beyond reasonable doubt in order to establish the offence are as follows: (i) the defendant was an employer; (ii) the defendant's employees were at work; (iii) the defendant failed to ensure the safety of its employees; First element: the defendant was an employer.

15 The Statement of Facts alleges that Mr Steel was employed by the defendant as its general manager from early February, 2001 to 17 December, 2001, and, that at the time of the first alleged offence it employed approximately twenty workers, including Mr Cook, to work at the premises. Mr Cook had been employed by the defendant as a storeman/forklift operator at the premises from early February, 2001. 16 Also tendered against the defendant during the ex parte proceedings was a brief of evidence compiled by the prosecutor. 17 The material contained in that brief of evidence in relation to the defendant's status as an employer may be summarised as follows: (i) Mr Burn said that the defendant employed workers at the premises on 26 September 2001: Final Statement, Frank Burn, 21 September 2003, Q127, Q148; (ii) in the same Final Statement, Mr Burn said that the defendant employed both himself and Mr Cook on 26 September 2001: Q40 and Q158 respectively; (iii) Mr Steel, General Manager of the defendant said that he was employed by the defendant from early February, 2001 until 17 December, 2001 after which time he worked for Keralex: Managers Statement, 22 September, 2003 Q44, Q45, Q102, Q122, Q123. (iv) Lyndsay Crowley ("Mr Crowley") at first said he was employed as a Sydney Manager on 26 September 2001 by "Burnsall Haulage, a division of Keralex Pty Ltd" and that that entity employed about 27 employees at the premises: Manager's Statement, 13 November 2001, Q6, Q7, Q16, Q17. Later, in a Manager's Statement dated 31 July 2003, the following exchanges took place between Mr Crowley and the prosecutor: "Q34: Who employed you on 26 September 2001?

A: Top Container Transport Pty Ltd. I became aware of this after about month or so of joining the company when I received my first pay slip. I applied for a position with Chandler and MacLeod recruitment. When I was interviewed I was told that there a (sic)position with Burnsall Haulage, a division of Keralex Pty Ltd.

Q39: In reply to my question 6 of 13 November 2001, you said that you were employed by Burnsall Haulage, a division of Keralex Pty Ltd. In fact, as indicated in your letter to me on 25 October 2001, Burnsall Haulage is just the trading name. Is this your understanding?

A: My understanding was that Burnsall Haulage was a trading name.

Q44: In your Group Certificate for the year 2001/2002 who is listed as your employer, Keralex Pty Ltd or Top Container Pty Ltd?

(v) an internal WorkCover document contained in the brief of evidence headed "WorkCover New South Wales Policy Term and Tariff Industry Report" records that Top Container Transport Pty Ltd had between 18 April 2001 until 18 April 2002 30 employees. 18 The foregoing evidence is sufficient to find, beyond reasonable doubt, that the defendant was at the date of the alleged offence (26 September, 2001) an employer, under s8(1) of the 2000 Act. Second element: the defendant's employees were at work

19 The evidence set out and relied upon above to establish that the defendant was an employer, also establishes to the requisite standard, that as at 26 September, 2001 the defendant employed a number of workers at the premises including Mr Cook. The evidence also establishes that on that particular day Mr Cook was at work at the premises storing and packing the crates using the forklift. Third element: the defendant failed to ensure safety. Whether there was a risk to safety 20 It remains to consider whether there was a risk to safety and, if so, whether the risk to safety arose by reason of some act or omission on the part of the defendant. 21 According to the Application for Order, the defendant failed to undertake a risk assessment that identified the maximum number of crates that could be safely stacked to ensure stability; and, failed to provide a system of work that ensured that people at the premises were not exposed to the risk of the crates falling on them. In addition, the defendant allegedly failed to provide necessary supervision to ensure the crates were safely stacked and failed to train supervisors to identify risks associated with the stacking of the crates. 22 According to Mr Lomas, on 26 September 2001, one load of Stemcor steel products arrived at the premises. The load consisted of some twelve crates. The crates were stacked on top of each other, six high, against the western wall by the side door. The crates were lifted by means of a forklift. Mr Cook stacked two stacks, six high. Mr Lomas says Mr Cook "would have" started at about 1pm and finished at 2.45pm. Mr Lomas saw Mr Cook stacking the crates at the beginning of the task. At that stage, the stack would have been "three high". A previous load of Stemcor steel products was stacked about a month before by Mr Lomas who stacked three stacks using a forklift and a crane. (Photographs forming part of the evidence taken by the prosecutor on 27 September 2001 confirm that the two stacks of crates stacked by Mr Cook on 26 September 2001 were stacked loose, six feet high.) 23 A report contained in the brief of evidence dated 26 February 2002 and headed "Burnsall Haulage FLT Accident" produces calculations of the angle of tilt required to cause overturning of crates stacked six high. The report was commissioned by the WorkCover Authority of New South Wales and prepared by Senior Inspector Alan Kerruish. The width and height of the crates tested were identical to the dimensions of the crates which toppled over and fatally injured Mr Cook on 26 September 2001. An assumption is made for the purposes of the test that each case or crate in the stack is of equal weight and that the weight in each crate is evenly distributed. The report concludes that a six-crate high loose stack, with its centre of gravity at 3,300 mm above ground level, requires a 456' angle of tilt to cause it to overturn. 24 Although the report does not purport to duplicate the exact conditions existing at the time of the fatal accident, some reliance may nevertheless be placed on it as an indication that the six crates stacked in two loose stacks by Mr Cook at the time of the accident (as the evidence suggests) required only a small angle of tilt in order to give rise to a risk of toppling over. Whether there was a failure to undertake a risk assessment

25 The prosecutor particularised the failure to undertake a risk assessment in terms of a failure to assess the risk associated with identifying the maximum number of crates that could be safely stacked to ensure safety. 26 The available evidence in relation to this particular is, in summary: (i) Mr Burn did not know when interviewed by the prosecutor on 21 September, 2003, who was responsible for occupational health and safety matters at the premises, or, whether there were any policies and procedures established, and, if established, whether they were implemented at the premises. Mr Burn said that he did not carry out any risk assessment, "of the company's operations" at the premises; (ii) Mr Steel in his interview of 22 September, 2003 said he did not carry out a risk assessment of "the company's" premises; (iii) Mr Crowley in his first interview on 13 November, 2001 said that no risk assessment was conducted prior to the accident on 26 September, 2001, on the safe and stable storage of the steel crates. 27 The evidence immediately referred to above would enable me to conclude beyond reasonable doubt that the defendant, being an employer who employed workers to work at the premises on 26 September, 2001 failed to ensure their health, safety and welfare by failing to undertake a risk assessment that identified the maximum number of crates that could be safely stacked to ensure stability. Whether failure to provide a safe system of work 28 The prosecutor also alleges against the defendant a failure to, "provide and maintain" a system of work that ensured that people at the premises were not exposed to the risk of crates falling on them.

29 I note in passing that the use of the word "maintain" is redundant if the evidence does not disclose to the requisite standard a failure to provide a system of work in the terms defined. If, therefore, what the prosecutor is alleging is really a failure to provide a system of work, it is not necessary to add the words "and maintain" to the Application for Order. 30 The evidence in relation to this particular, in summary, is: (i) Mr Burn was not aware of any system of work at the premises on 26 September 2001 in regard to handling clients' products. (ii) Mr Steel said he did not establish any work procedures at the premises because it was not his area of responsibility. He did not provide any advice to workers covering safe work practices; and, he was not aware of any systems of work at the premises for handling clients' products. (iii) Mr Crowley in his first interview told the prosecutor that at the time of the fatal accident, Mr Cook was working alone. Mr Cook started work at 10am, Mr Hayward was his supervisor. The storage of the Stemcor product was discussed by Mr Cook and Mr Lomas who agreed that the crates should be stacked four to five high. According to Mr Crowley "for some unknown reason the crates were stacked six high". In answer to a question, "Did the company put in place a safe system of work to handle steel crates?", Mr Crowley said, he didn't know whether there were any previous instructions. 31 The references to "the company" are not helpful in the ascertainment of which corporate defendant was in breach of a failure as alleged at a particular time. In circumstances where Mr Burn was the sole director however of both corporations, and, where on the evidence Mr Burn does not appear to delineate between the functions, at least in so far as safety is concerned, of each corporate defendant, the references may be taken to mean either Keralex or Top Container. 32 The evidence, considered as a whole, in relation to this second particular, establishes, beyond reasonable doubt that there was a failure on the part of the defendant, under s8(1) of the Act to provide a safe system of work. Whether there was a failure to supervise employees to ensure the crates were stacked safely.

33 The available evidence in relation to the third particular is: (i) Mr Burn said in his interview that he didn't know whether Mr Cook was provided with information, instruction, training or supervision in the handling of Stemcor products (ii) Mr Steel said in his interview that he was not aware if employees of Top Container had been given any training in operating plant and equipment at the premises (iii) Mr Lomas in his statement dated 20 November, 2001 said that no instructions were given about how to stack the Stemcor steel products at the premises. Mr Lomas also said that he had received no training in the storing and packing of products at the premises (iv) Mr Hayward said in his statement dated 14 November, 2001 that Mr Cook was not given any instructions on how to store products in the premises; and, that "Burnsall Haulage" did not, to his knowledge, provide any training in relation to the safe storage and handling of steel products in the premises (v) Mr Crowley said that no specific instructions were given with regard to the handling and safe storage of the product. In addition, he did not know whether any information was provided to employees in relation to the safe handling and storage of the steel crates. Mr Cook, according to Mr Crowley was not given any specific instructions prior to commencing work on 26 September, 2001. In his second interview Mr Crowley said he was not provided with any occupational health and safety training at Burnsall Haulage, and, he was not provided with any guidelines, policies or procedures for the training of employees in the safe manner in which the steel containers were to be unloaded and stacked or stored in the premises. (vi) Mr Cook was working alone in the premises at the time of the fatal accident. 34 The evidence detailed above establishes beyond reasonable doubt the third particular contained in the Application for Order.

Whether there was a failure to train supervisors to identify risks associated with the stacking of crates.

35 The fourth and final particular alleges a failure to instruct or train employees of the defendant in the identification of risks associated with the stacking of the crates. There is substantial overlap between this particular and the other three particulars insofar as the evidence relevant to those other particulars dealing with the lack of policies, procedures and guidelines in relation to the manner in which the crates were to be stacked, and various failures to instruct, train or supervise employees in the storing and packing of crates, is also relevant evidence to make out the fourth particular. 36 An assessment of this evidence enables the conclusion that the fourth particular is also made out by the prosecutor beyond reasonable doubt. 37 I make the following order: 1. In Application for Order No IRC 5369 of 2003 the offence is proven; the defendant is found guilty and convicted. Sentence Proceedings: Matter No IRC 4369 of 2003

38 I now proceed to sentence the defendant for the offence for which the defendant has been convicted in Application for Order IRC No 5369 of 2003. The decision to proceed to sentence forthwith is made on three bases. First, on 6 December, 2004 the Court was requested by the prosecutor, in the event the offence was found proven, to be heard on sentence, which is what occurred on that day. Secondly, the letter written by the Liquidator of the defendant, PPB, on 12 February, 2004 strongly suggests in its terms that the defendant had no intention of appearing before the Court in any proceedings (refer [5] of this judgment). Thirdly, the defendant did not appear at the ex parte proceedings. 39 Mr Reitano of Counsel, for the prosecutor submitted that the offence was objectively serious having regard to the consequences of the breach, the obviousness of the risk, and, the simple steps that were readily available to avoid placing employees at risk in the circumstances. Consequences of the breach

40 In relation to the consequences of the breach, (here the tragic death of Mr Cook), Mr Reitano submitted that the likelihood of such a consequence given the weight and dimensions of the crates was obvious, and, in addition there existed reasonably straightforward and simple steps, which could have been taken by the defendant to avoid the risk. These circumstances "cast light on the seriousness of the offence." Foreseeability and obviousness of the risk.

41 Mr Reitano placed reliance on a number of factors to support a submission that the risk (to safety) was foreseeable. These factors were: (i) the risk of forklifts in a warehousing environment must be seen as something that is to be regarded as, "fairly naturally" raising having concerns about safety; (ii) the risk to safety created by using a forklift to lift a 1400kg weight is, "something that commonsense would dictate the necessity of even the ... simplest of risk assessments" (iii) the complete lack of any supervision and training at all must obviously have rendered the work in question to be dangerous. Availability of simple remedial steps

42 Post accident measures implemented by the defendant at the premises highlight the ready availability of such measures prior to the offence. These post accident measures are reproduced by the prosecutor as follows:- Since the accident date, Top Container implemented the following changes:

a) Implemented a system on 2 October 2001 to: 1) inspect all products when received at the premises; 2) unload the product by overhead crane; 3) place damaged crates to the top of the stack; 4) to not stack crates more than 4 crates high or 2.4 metres whichever is the greater. b) Subsequent to Top Container engaging a safety consultant, Environment Friendly Logistics, implemented a system after 23 October 2001, to ensure the crates in the premises were made stable and secure and reduced in stacking height to below 4 metres. c) After 23 October 2001, Top Container set up a safety committee and implemented occupational, health and safety training for its employees, neither of which had previously been in place. Deterrence 43 In relation to general and specific deterrence Mr Reitano contended that both principles assumed some importance in the circumstances of this case. 44 Mr Reitano also reminded the Court in oral submissions that there are no subjective matters put forward for consideration. 45 In relation to the defendants' financial circumstances, being a company presently in liquidation, Mr Reitano urged the Court to adopt Boland J's approach in Inspector Jones v T Helsby & Sons Contracting Pty Ltd (No 2) [2004] NSWIRComm 57. Consideration

46 The defendant faces a maximum penalty of $550,000.00. The defendant has a prior conviction which was relied upon by the prosecutor in the sentence proceedings. The prior conviction is under the Workers Compensation Act 1987. It is only if the defendant is a "previous offender" under s12 of the 2000 Act that the higher statutory maximum under that section falls to be considered. "Previous offender" is defined in s4 of the 2000 Act to mean a person who has been, before sentence, previously convicted of an offence under the 2000 Act or the Occupational Health and Safety Act 1983 ("the 1983 Act"). The defendant's prior conviction nevertheless has some relevance to the proceedings being an aggravating factor which the Court is to take into account: Veen v R (No 2) (1988) 164 CLR 465 at 477-478; s21A(2)(d) Crimes (Sentencing Procedure) Act 1999.

47 The risk to safety arose from the risk of the crates toppling over. The risk of crates toppling over arose from the unsafe method employed to stack crates. The unsafe method utilised to stack the crates was the direct result of the non-provision by the defendant and Keralex to Mr Cook and other employees, of any practices, procedures, training, instruction or information in relation to the safe undertaking of the task. 48 There were inherent dangers associated with the operation. Mr Cook at the time of his fatal accident was working alone. He was working with heavy and cumbersome items of plant, namely the crates and contents; and using a forklift to transport and stack the items. 49 In all these circumstances no other conclusion is available other than that the risk to safety was both obvious and foreseeable. 50 This conclusion renders the offence objectively serious: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited (2004) 135 IR 166 at 216 per Walton J, Vice-President. 51 The evidence reveals that the defendant directed no attention at all to any matters concerning safety. In addition, many simple, effective, and available measures could have been implemented by the defendant prior to the 26 September, 2001, and would have substantially obviated the risk (refer [42] of this judgment). The objective seriousness of the offence is compounded by these additional matters: Inspector Paul Kenneth Wade v Ken Mathews Haulier Pty Limited t/as Ken Mathews Landscaping Supplies [2005] NSWIRComm 85 at [35]. Deterrence

52 In this matter general deterrence is relevant. The circumstances of this tragic accident reveal yet again the paramount importance of workers' safety in the workplace and the need to seek out and identify risks to safety, and, implement measures to obviate, or where possible eliminate those risks. Workers at the very least are entitled to work in an environment in which they are secure in the knowledge that such measures have been taken so that they may work without fear of injury to themselves and others. 53 Special deterrence assumes less significance. The defendant has been in liquidation since 12 March, 2002. Prior to that date it was in administration from 17 December, 2001. According to correspondence in the brief of evidence a return in the administration was unlikely. In the absence of other evidence as to the future direction of the defendant I propose to include as a component of the penalty imposed a small amount for specific deterrence: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29. Consequences of the breach

54 Here, the death of Mr Cook manifests the degree of seriousness of the risk to safety to which Mr Cook and others at the premises were subjected. This is because of the complete lack of any training, instruction or supervision or procedures in an environment in which heavy items of plant were transported and stored and heavy machinery utilised such as a forklift, at the time of the offence. This factor contributes to the seriousness of the offence: Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61, at [93], [94] and [95]. Respective culpabilities of the defendant and Keralex

55 Although the prosecutor did not raise the issue of culpability between the two corporate defendants, it is my view that the issue requires consideration. The responsibility for attending to matters of safety at the premises must squarely lie with both corporate defendants. Although Top Container has a prior conviction, it is under the Workers Compensation Act 1987 and is unrelated to matters of occupational health and safety. Under the principles in Veen's case the prior conviction does not serve to illustrate that the present offence is an uncharacteristic aberration since it cannot be usefully compared with the present offence in order to facilitate such a conclusion. Nor does it serve to highlight the defendant's moral culpability in relation to the present offence, or show a dangerous propensity to re-offend. 56 Both corporate defendants had, during the period of the offence, common directorship, and, although the defendant and Keralex exercised different functions in relation to the premises and were charged with different offences under the 2000 Act, both nevertheless faced offences which particularised almost identical failures to ensure safety. 57 In these circumstances I regard the contribution and therefore the culpability of each defendant to the detriment to safety occasioned by the failures to ensure safety as particularised in the Applications for Order as equal: refer, for example, WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Another (1999) 95 IR 383 at 437. Personal Factors not relevant

58 The defendant did not enter a plea in this matter so no discount for penalty is available. Further, given the defendant's failure to appear no personal factors were raised, and none are apparent from any of the material before the Court. Defendant's Financial Means

59 One further matter that requires attention is the capacity of the defendant to pay a fine. The correspondence from the Liquidator suggests that the defendant has little financial means. No other information is forthcoming which would enable a sufficiently comprehensive assessment to be undertaken of the defendant's capacity to pay a fine. In these circumstances I propose to adopt the approach of Boland J in Inspector Jones v J Helsby & Sons Contracting Pty Ltd (No 2) [2004] NSWIRComm 57 at [15] where his Honour said: "It is apparent from some of the information filed by the prosecutor that the defendant claimed it had a level of debt that, according to the Administrator, prevented the defendant from defending the prosecution. It might be thought that the imposition of a penalty on the defendant would, in the circumstances, be futile. Two things may be said about that. Firstly, no proof of debt was in evidence. Secondly, one of the principal purposes of punishment is to deter future breaches by others. General deterrence is an important consideration in this matter given the very high danger of persons being affected by carbon monoxide emissions from concrete cutting machines where they are used in enclosed areas."

60 In determining penalty against the defendant I have taken into account the maximum penalty, the objective seriousness of the offence, the prior conviction, the respective culpabilities of the defendant and Keralex, and, the defendant's capacity to pay a fine. Orders.

61 I make the following orders in Matter No IRC 5369 of 2003: 1. The offence under s8(1) is proven, and the defendant is convicted. 2. The defendant is fined $140,000 with a moiety thereof to the prosecutor.

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