9 Consistently with the Crimes (Sentencing Procedure) Act 1999, a determination of the sentence here to be imposed must be approached from a consideration of the nature and seriousness of the offences in question, together with aggravating and mitigating factors. In these cases, I am satisfied that the evidence demonstrated, to the requisite degree, that the offences charged were proven.
10 What arises for consideration is a failure to address what was plainly a serious risk to safety, of an obvious kind. The agreed statement of facts records that the work in question was undertaken in a precarious way, by having an employee climb to the top of the concrete panels which were to be moved, by way of makeshift means, rather than by use of a stable ladder. The panels were of differing heights, not stacked with similar height panels being placed in proximity to each other. The tallest panel was 3.85 metres high. The one on which Mr Time was working was 1.75 metres high. There were spaces between the panels. The work being undertaken was to attach heavy chains to the top of each panel, to enable the panel then to be lifted by a crane. The work was being undertaken at a considerable height; the footing was unstable because it was not of a suitable width; the employee was not prevented from falling from the top of the panel by use of fall protection equipment, or other means; and the work required the employee to adopt an awkward position, when attaching the chains. Mr Time was inexperienced in the work. The crane operator could not clearly see Mr Time on the panel, so that the operator could ensure that he was not struck by the lifting equipment which was being moved into position.
11 While there was evidence that the defendants had paid some attention to safety considerations at this workplace before the accident, the evidence also showed that such attention was not paid in any systemic way, particularly so far as this particular operation was concerned. No risk assessment had been undertaken of the work being performed, no procedure for performing the work safely documented and no adequate training or instruction was given in how to perform the work safely. Given how the work and training were arranged, the risk of an employee performing this work being struck and then falling, was obvious. The risk which materialised was plainly foreseeable, given the approach adopted. On the evidence it was unremarkable that the result was that these defendants failed to meet the obligations which were imposed upon them by the legislation.
12 Most regrettably for Mr Time, the risk to which he was exposed as a result of the defendants' approach, was of a most serious kind. The crane operator could not clearly see him working on top of the panels. Mr Time was attaching chains to concrete panels of up to 12 tonnes in weight. Lifting gear strong enough to safely lift such loads was plainly going to seriously injure the person trying to attach the chains to the panel, if a part of the equipment such as the hook block which struck Mr Time, were to fall. There was also an obvious risk of him falling onto, or even from the panel. That these risks were present was apparent, given the system of work being used. As the result of the risks materialising, Mr Time suffered very serious injury, as was also entirely foreseeable. These are all matters which must be taken into account in assessing the nature and seriousness of the offences here in question.
13 It appears from the evidence that other employers operating in this industry had also failed to address the safety risks of this particular operation. The steps taken by the Inspector after the accident, as well as those taken by the defendants, amply evidenced this. That situation cannot, however, excuse these defendants' failures. As the steps later taken by the defendants to remove the risks demonstrated, there were steps available to be taken before the accident, which could have removed the risks in question.
14 That the defendants took considerable steps to address the risks which the accident had so graphically revealed was commendable, involving as it did very considerable effort and expense, with the introduction of what appears to have been a significant innovation in this industry. As the Inspector commented in his evidence, these commendable steps went further even than suggestions which he had himself made. These are matters relevant to be taken into account by way of mitigation of the penalties which are imposed. Nevertheless, they also demonstrated that this is yet another case where there were steps available to be taken, which could have prevented this risk from materialising, if proper attention had been paid to the safety of the work in question, before the accident occurred.
15 It must also be noted that there was a considerable delay between the time of the accident in December 2003 and the time of implementation of the new system in 2005. While the evidence showed steps being pursued by the defendants through that time, so that the risk to safety which had materialised could be addressed, I am unable to conclude that the evidence showed that the defendants' response immediately addressed the risk, given the work being undertaken and how it was done.
16 As has so often been observed in the authorities, the obligations which the Act imposes on employers requires them to be proactive, not merely reactive, in ensuring safety.
17 There was an issue between the parties as to how it was that the new system came to be devised. Undoubtedly, the prosecuting Inspector himself acted proactively in drawing industry attention to the risk which had been revealed, in his pursuit of a solution. There was a debate about whether it was the defendants or the Inspector who first approached the industry body. It is unnecessary to resolve that issue, because the industry body itself had no solution to offer.
18 On the evidence it is quite apparent that the new system which the defendant eventually introduced, had significant regard to what the Inspector had suggested in February 2005. That cannot be doubted, given that in September 2004, the corporate defendant wrote that it had highlighted its concerns about proposed changes to Inspector Maddaford and that it was 'confident that we have conducted the relevant investigations and assessment of work practices, and adopted the safest possible practices to ensure the safety of our employees in this situation. Furthermore, Sasso Precast Concrete Pty. Ltd. is open to any viable suggestions to increase the safety of our employees in this situation.'
19 Most commendably, the Inspector himself continued to pursue the issue and made suggestions in February 2005, which the defendants pursued by investigating the necessary engineering issues which arose. As the Inspector accepted, the final system improved upon his suggestions, in various ways.
20 These are all matters relevant to be taken into account by way of mitigation, of course. I am satisfied that in doing so, however, it cannot be overlooked that the accident occurred in December 2003, but the risk does not appear to have been removed until 2005. The Inspector issued improvement notices in January 2004 and March 2005 and himself made suggestions in February 2005, for the changes which the defendant eventually implemented. The Inspector inspected the work in March 2005. While that inspection and the photographs then taken suggest that the defendant had taken some steps in the meantime to address the deficiencies which had been revealed, the evidence does not permit the conclusion that the risk had by that stage been completely addressed. That had to await the new system being devised and implemented. The Inspector saw the new system in July and made further suggestions, which were implemented by August 2005. He produced a final inspection report in the following November.
21 Given the evidence that the risk which here materialised was a problem present elsewhere in industry, it follows that general deterrence must feature in the penalty here imposed. On the evidence, I am satisfied that specific deterrence also has a role to play, albeit a smaller one than would have been the case, without the ultimate removal of the risk.
22 I also accept that the plea was entered at an early point, so as to properly lead to a 25% penalty discount for utilitarian savings. (See Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 at [29] to [31] and Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97 at [64] to [67]). The other matters relied upon by the defendants by way of mitigation, must also be taken into account. I accept the defendants' contrition for what here occurred and have taken the matters relied upon into account, by way of further reduction of the penalty imposed. In doing so, however, I have had regard to the delay in addressing this risk, which I earlier discussed. I also take the view that the nature of the defendants' commitment to safety prior to the accident, as portrayed by Mr Tolomeo in his affidavit, was revealed by the answers he gave in cross examination, not to have been quite as complete as his affidavit had suggested. Undoubtedly, however, the steps taken afterwards, adopted quite a different and more rigorous approach, to which I have had regard.
23 Having weighed all of these matters, I have concluded that the appropriate penalty in this case for the corporate defendant is $84,000.
24 As for Mr Tolomeo, it was argued that although he was the managing director of the defendant who had day to day control and responsibility for the work being undertaken, as well as overseeing all aspects of the defendant's business, it ought to be concluded that his culpability for what had occurred ought not to be found to have been as high as that of the corporate defendant.
25 The submission was explained on this basis: