Inspector Marie Gregory v Boral Construction Materials Group Limited

Industrial Relations Commission (NSW)|2009-08-13|Before: Backman J, Ms P

CITATION: Inspector Marie Gregory v Boral Construction Materials Group Limited (ACN 000 028 080) [2010] NSWIRComm 76

PARTIES: Inspector Marie Gregory (Prosecutor) Boral Construction Materials Group Limited (ACN 000 028 080) (Defendant)

CATCHWORDS: Occupational health and safety - s 8(1) Occupational Health and Safety Act 2000 - work at height - employee at work suspended in a crane work box - risk to safety - failure to have adequate systems in place for selection of contractors and plant - failure to provide adequate information, etc - systems of work in place prior to the offence - reasonable foreseeability - probable consequences - simple steps available to remedy the risk - deterrence - subjective factors - maximum penalty - contribution - whether principle of consistency in sentencing should be applied - penalty - orders

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Crown in Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 CASES CITED: Inspector Aldred v Herbert and others [2007] NSWIRComm 170 Inspector Gregory v S&P Jackson Pty Ltd and Scott Jackson [2009] NSWIRComm 158 Inspector Karen Simpson v Poonindie Pty Ltd (trading as Ted Wilson & Sons) ACN 067 774 985 [2009] NSWIRComm 18 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326

HEARING DATES: 13 August 2009; Written Submissions: 20 October 2009; 3 November 2009; 12 November 2009

Mr C Magee (Prosecutor) WorkCover Authority of New South Wales (Ms P Blackmore) LEGAL REPRESENTATIVES: Ms P McDonald (Defendant) Blake Dawson (Ms L Constantine)

Inspector Marie Gregory v Boral Construction Materials Group Limited

Prosecution pursuant to section 8(1) of the Occupational Health and Safety Act 2000

1 Boral Construction Materials Group Limited (the defendant) pleaded guilty to one offence under s 8(1) of the Occupational Health and Safety Act 2000 (the Act). The charge alleged that the defendant failed to ensure the health safety and welfare, "of its employees, and in particular Matthew Coote". The failure to ensure safety was the subject of two particulars. The first particular (particular (a)) focused on the failure, "to provide and maintain a safe system of work in relation to the process of accessing the dust extraction unit requiring work at a height of approximately 15 metres ... This included a failure to have an adequate system in place for the selection of contractors and plant". The second particular (particular (b)) alleged a failure, "to provide adequate information, instruction, training and supervision", in relation to the "process of accessing the dust extraction unit requiring work at a height of approximately 15 metres". 2 The dust extraction unit was located about 15 metres above ground level on an asphalt batching plant. The plant was operated by Bitupave Limited, trading as Boral Asphalt. The defendant's employees performed work at the plant. One of its employees was Matthew Coote who was a Grade 4 plant operator at the premises. The classification of Mr Coote's work as "Grade 4" meant that he was regarded as a senior employee although he had no supervisory or management functions. 3 At some stage in June 2006, a duct comprising part of the dust extraction unit became blocked. On 17 June 2006, Mr Coote was instructed to clear the blockage. This involved cutting the duct with an oxyacetylene cutter and a rod in order to clear the blockage. The blocked duct could not be accessed via the unit. Boral Asphalt had originally intended to hire an 80 foot boom lift to perform the task, however, it was unavailable on 17 June. An alternative work method was decided upon which involved using a work box suspended by a crane. 4 Boral Asphalt engaged S&P Jackson Pty Limited trading as North Coast Cranes (North Coast Cranes) to provide the necessary plant to facilitate access by Mr Coote to the blocked duct. North Coast Cranes supplied a 15 tonne Tadano crane and a work box. It also supplied a crane driver (Mark French) and a dogger (Brendan Currie). The work method decided upon was that Mr Coote and Mr Currie would be suspended above ground in the work box supported by the crane. Mr Currie's presence in the work box was required so that he could assist Mr French in manoeuvring the work box. 5 After Mr Coote and Mr Currie had been suspended 15 metres above ground in the work box for approximately one hour, Mr Currie instructed the crane driver to lower the work box about one metre in order to enable Mr Coote to access another section of the duct. When Mr French attempted to lower the suspended work box, either the hydraulics or the controls of the crane failed causing the work box to fall to the concrete pavement at ground level. On its descent the work box collided with part of the plant and a fence which reduced the impact of the fall. According to the agreed facts, the work box did not "freefall" because of mechanical resistance in the crane working mechanism. Nevertheless, as a result of the fall, Mr Coote sustained serious injuries, including soft tissue, ligament and cartilage damage on his knees and ankles. He was off work for four months after which he returned to work on "suitable duties". The risk to safety 6 The agreed facts record that there was a failure either of the hydraulics or the controls of the crane. The cause of the failure, however, was not ascertained. The prosecutor, therefore, did not rely on a risk to safety arising from defective crane mechanisms, or that the incident (and resultant injuries suffered by Mr Coote) was a manifestation of the relevant risk to safety. The risk to safety was characterised by the prosecutor in written submissions in two ways, as, "the risk to safety of employees working at heights", and, "the risks from the use of a work box suspended from a mobile crane". These risks were both said by the prosecutor to be "well known". In oral submissions during the sentence hearing, Mr Magee of counsel on behalf of the prosecutor, informed the Court that no reliance was sought to be placed on the use of the work box as an inappropriate method of work. Nor was the prosecutor contending that the crane was inherently unsafe or inadequately maintained. Instead, the prosecutor relied on a number of systems failures on the part of the defendant. These systems failures were said to be found, primarily, in the procedures for choosing contractors to supply plant or equipment. Although the defendant did have a preferred supplier (North Coast Cranes), it did not require the supplier to provide documents confirming that the plant to be supplied was in a safe and serviceable condition, or adequately maintained, or that adequate inspections had been performed. It was not suggested by the prosecutor that the crane and work box (the relevant plant supplied) did not meet any of these specifications. 7 Other systems failures set out in the agreed facts were also relied upon by the prosecutor. These will be discussed in more detail later in the sentencing reasons. For present purposes, the prosecutor, in addressing the Court, acknowledged that the defendant's systems failures as particularised in the charge, were not of themselves, "... directly causative of the incident", adding by way of qualification that the defendant's failures were, nevertheless, "reflective of the nature of the type of injuries that could have been sustained. 8 The defendant, in submissions, sought to emphasise two matters, first, that the proximate cause of the risk to safety was not established, and secondly, that the charge, as particularised, did not include an allegation that the "plant" was defective or otherwise unsafe. 9 Before dealing further with these matters it is necessary to resolve an issue between the parties as to the characterisation of the risk to safety. According to the defendant, the prosecutor in submissions, had impermissibly sought to characterise the relevant risk to safety on a broader basis than was envisaged, both by the charge and in the agreed facts. It emerged from the prosecutor's oral submissions during the sentence hearing that reliance was in fact being placed on three separate risks to safety arising from the work performed at height on 17 June 2006. The first of these risks was described as the "broad risk" which was the risk of a fall from height. The second risk, described as the "narrow risk", was said to arise from working at height in plant. The third formulation of the risk by the prosecutor was the risk of working at height in a work box suspended from a mobile crane. According to the prosecutor, the defendant's systems were inadequate (as alleged by particular (a) of the charge) in that they failed to address each of those three categories of risk. 10 As a general observation, I note that neither the charge, nor the agreed facts, contain any clear expression of the prosecutor's formulation of the risks to safety. The only reference in the charge to a risk is the allegation that "as a result of the defendant's failures Matthew Coote was placed at risk of serious injury". The agreed facts provide substantial elaboration of the failures alleged against the defendant, but they do not refer at all to a risk to safety, either in isolation or in connection with any of the defendant's acts or omissions set out in the document. 11 A close inspection of the agreed facts reveals that most of the acts and omissions are described in that document in the context of the work being performed on 17 June 2006, that is, in the work box suspended from the crane supplied by North Coast Cranes. According to the agreed facts, particular (a) encompasses multiple failures on the part of the defendant. These multiple failures I have summarised in the following way: · the failure to undertake a risk assessment with regard to, "the use of a crane and work box"; · the failure to "source" adequate information to enable work to be performed safely from the suspended work box; · the failure to supply North Coast Cranes with detailed specifications of the work to be performed, instead relying on North Coast Cranes to supply, "the appropriate plant"; · the failure to obtain service and maintenance records from North Coast Cranes "in relation to the crane provided"; · the failure to have an adequate system for selecting "suppliers of plant, and ensuring that those suppliers provided safe plant"; · the failure to maintain an adequate preferred supplier list in that it did not ensure, "those suppliers", provided safe plant; · the failure to obtain a safe work method statement from North Coast Cranes in relation to the proposed method, "to be used to lift the work box" and manoeuvre it into position"; · the failure to develop in conjunction with North Coast Cranes a work procedure for the transfer of material to and from the work box. 12 The notion of causation in the context of an offence under s 8(1) of the Act involves the making of a logical, commonsense connection between an act or omission and a resultant risk to safety: see for example Crown in Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 at [45]. The elaborate and extensive reformulation of particular (a) set out in the agreed facts largely illustrates this. The causative facts must necessarily be referable to the circumstances underpinning the offence. In the present matter, the defendant, on the day of the offence, engaged its preferred supplier, North Coast Cranes, to provide plant and equipment to enable Mr Coote to access the blocked duct. The plant and equipment supplied was the crane and suspended work box. The work was performed utilising that plant and equipment. The risk to Mr Coote's safety arose while he was attempting to access the blocked duct from the suspended work box at a height of 15 metres. The cause of that risk (although not the direct or proximate cause) is found in the defendant's deficient systems of work constituted by the various acts and omissions as set out in the agreed facts (extrapolated and expanded upon by agreement, from the particulars in the charge). 13 I intend therefore to proceed in these sentencing reasons on the basis that the relevant risk to safety at the time of the offence was the risk of a fall from height while working in a work box suspended from a crane at a height of 15 metres. I should add for completeness that particular (b), as revealed in the agreed facts, focuses exclusively on the risk to Mr Coote's safety, as well as the safety of other employees, by reference to the actual work being performed on the day of the offence (accessing the blocked duct from the suspended work box). Systems of work in place prior to the offence 14 The defendant's systems failures at the time of the offence (as extracted from the agreed facts) have been set out above and need no repetition. They were extensive and revealed serious deficiencies. 15 It is acknowledged, however, that at the time of the offence the defendant, as a member of a large corporate group, known as the Boral Group, operated under a comprehensive and established system of safety designed for application to all related divisions and corporate entities belonging to the group. 16 This system was set out in the affidavit of Terence Jackson, an employee and regional manager of Boral Asphalt. Mr Jackson explained that within the Boral Group there exists a demarcation of roles and functions with the members of the Group all conducting operations in accordance with the same systems. 17 Prior to the offence, the Coffs Harbour Asphalt batching plant (where the incident occurred) had in place a risk management process consisting of three elements, which were:

(iii) Safe Operating/Work Procedures (SWP). 18 The Take Five procedure was used for "non routine" work. Mr Coote, who was performing "non routine" work at the time of the incident, completed a "Take Five" pro forma document with regard to the work involved in accessing the blocked duct, which he described as, "clear blocked duct". The document, as pointed out by the defendant in submissions, did not address any issues which involved contracting North Coast Cranes. It did, however, identify four risks, one of which was the risk of falling. 19 JSAs were used for more detailed risk assessments. The purpose of completing a JSA was to set out the steps involved in a task, as well as identifying any hazards or risks associated with the task and nominating the risk level and control measures required to manage the hazards. It appears that no JSA was completed for Mr Coote's task on the day of the offence. 20 The third element of the risk management process was the SWP. The SWPs used the risk and control information identified in the JSA's to set out a step-by-step process on the method to be employed in order to carry out the nominated task safely. SWPs were used for routine work and set out the steps for completing standard tasks. They were developed by an occupational health and safety workshop when required by a particular work team, and were subjected to consistent monitoring to ascertain their continued suitability and applicability. 21 These systems in place, in particular the "Take Five" procedure, demonstrate that the defendant had directed its attention to safety issues at the site, on and prior to the date of the offence. Accordingly, this is a matter which will be taken into account in mitigation of the objective seriousness of the offence. Reasonable foreseeability of the risk to safety 22 According to the prosecutor, given the deficiencies in the defendant's systems (including the lack of training, information and instruction given to Mr Coote) with regard to the work involved in accessing the blocked duct from the suspended work box, the risk to his safety was reasonably foreseeable. In written submissions, the prosecutor also referred to an Australian Standard, AS1418, and a Position Paper issued by WorkCover which contained advice on the use of crane work boxes. Neither of these documents were tendered into evidence. The Court is therefore unable to consider them. 23 The prosecutor also relied on clause 142(3)(d)(i) of the OH&S Regulation 2001 which was said to apply in circumstances where persons are to be lifted or suspended by plant. Clause 142(3)(d)(i) permits persons to be lifted or suspended by the plant in limited circumstances, that is, where, "another method of lifting or suspending is not reasonably practicable". The prosecutor did not direct my attention to any definition of "plant" for the purposes of applying the clause, although I note that other definitions of "plant" in the 2001 Regulation include various types of cranes. "Plant" is also defined generally in Regulation 82 to mean "machinery, equipment or appliance". "Work box" is also defined in Regulation 82 to mean, "a personnel carrying device, designed to be suspended from a crane, to provide a working area for persons conveyed by and working from the box". I am prepared to accept on this basis that the crane and suspended work box utilised on the day of the offence fall within the meaning of "plant" in clause 142(3). What the Court does not know, however, is whether the use of some other method of lifting or suspending on the day was "not reasonably practicable". The agreed facts reveal that Boral Asphalt's first choice of plant for the particular task was an 80 foot boom lift, but this was unavailable for hire on 17 June. This might suggest that the use of this method at least was not reasonably practicable, and, that the defendant had made a genuine attempt to comply with the clause. On the state of the evidence, the Court is unable to make any finding in the prosecutor's favour about whether clause 142(3)(d)(i) of the 2001 Regulation was relevant to the circumstances of the offence. 24 The defendant contended that the risk to safety, being a fall from height in a work box, was not reasonably foreseeable because of the circumstances in which the risk arose. The circumstances relied upon by the defendant were: (a) the task was a one off and unusual task. It was not part of its core activities;

(b) it did attempt to get a boom lift to elevate the employee but it was not available;

(c) it contracted with North Coast Cranes who had expertise in the provision and operation of cranes and work boxes and performing work at height;

(d) it was entitled to rely upon the expertise of the specialist contractor. 25 In my view, the fact that the work involved a "one off and unusual task", does not, of itself, facilitate a finding that the risk was not reasonably foreseeable. In one sense, the fact that the work involved procedures and equipment with which the defendant was unfamiliar should have alerted it to the need to take particular care in ensuring that adequate precautionary measures were in place, before the work was undertaken. The "Take Five" procedure which was used for "non-routine" work was utilised by Mr Coote in relation to accessing the blocked duct. It did not address, at all, the equipment or plant to be used, although Mr Coote identified as one of the risks associated with the work, the risk of falling. Mr Coote's work at the asphalt production facility, according to Mr Jackson, involved operating batching equipment, loading materials into hoppers, loading finished asphalt into trucks, and completing maintenance on fixed production plant. None of these tasks suggest that Mr Coote had any experience in the type of work (and the procedures involved in that work) he was expected to perform when accessing the blocked duct. The deficiencies in the Take Five procedure also highlight Mr Coote's lack of training, instruction and information with regard to procedures involving non-routine work. According to the agreed facts, Mr Coote was provided with limited information and instruction on how to perform the work safely and he was not given any information about the risks and safety requirements associated with working from a suspended work box. The Take Five procedure, had it been utilised properly, should have properly identified the work to be performed and the procedures attendant upon that work with a view to ensuring that Mr Coote could perform the work competently and safely. From an objective standpoint, these matters weigh heavily in favour of a finding that the relevant risk to safety was reasonably foreseeable. 26 The defendant also relied on the fact that because it lacked the relevant expertise associated with the provision and the operation of the crane and the work box, it was entitled to rely upon the expertise of North Coast Cranes. 27 Contrary to the defendant's contentions on this issue, in my view its reliance on the expertise of North Coast Cranes without taking steps to ensure that the work was performed safely, provides compelling evidence that the resultant risk to safety was reasonably foreseeable. Mr Coote, the defendant's employee, performed the work in unfamiliar circumstances, utilising plant with which he was unfamiliar. He was also not the beneficiary of suitable or appropriate procedures designed to ensure he could perform the work safely. As the agreed facts record, the defendant did not "source" the necessary safety information required to ensure the safety of its employees. Nor did it obtain any safe work method proposal or any detailed specification from North Coast Cranes in relation to the work. The obligations upon an employer under the Act who does not possess skills and expertise for the performance of a particular task have been addressed in a number of authorities in this jurisdiction. In Inspector Aldred v Herbert and others [2007] NSWIRComm 170 at [29], I said on this issue: ... s 8(2) (as well as s 8(1)) directs attention to the employer as the person or entity solely responsible for ensuring the safety of all persons at its place of work. This obligation may be discharged directly because, for example, the employer possesses the necessary skills, expertise and capacity. The obligation may also be discharged indirectly if the employer does not have the necessary skills. In those circumstances, it must ensure that some other person or entity is suitably qualified to ensure the safety of all persons in the workplace. In addition, the employer must ensure that such suitably qualified persons carry out all instructions on safety matters as directed by it. It is incumbent upon the employer to monitor, on a consistent basis, the activities of the person or entity to whom the responsibility for safety matters has been delegated to ensure that those instructions are properly and adequately complied with. These observations are based on well-established principles developed in a number of authorities of this jurisdiction. 28 As for the defendant's reliance on its earlier attempt to hire a boom lift, I regard this as having little weight when considered with other matters relevant to the issue of foreseeability. The boom lift was unavailable. It became, therefore, incumbent upon the defendant in its selection of another contractor to ensure that the expertise, equipment, plant, personnel or procedures brought to the task by the contractor, were adequate, suitable and safe for those employees instructed to perform the work. 29 The risk to safety was reasonably foreseeable when regard is had to the defendant's deficient systems which were not designed to obtain information from the supplier about the crane and the suspended work box from which it was proposed Mr Coote, who was unused to operating under such conditions, would access the blocked duct, at a height of 15 metres. Probable consequences 30 It may be reasonably concluded from the foregoing matters that a likely or probable consequence of the defendant's deficient systems, as well as its failures to adequately instruct, inform, train and supervise Mr Coote, in the context of the work he performed, could result in serious injuries to him. Whether simple steps available to remedy the risk 31 The prosecutor submitted that steps were available to the defendant to either alone or in combination reduce the risk to safety. These steps were said to include: · a documented system in relation to the equipment selected for working at height; · ensuring that its preferred suppliers' list included relevant risk assessment criteria tailored to the particular procedure envisaged for the work to be performed; · the requirement for a completed risk assessment from the supplier in relation to the proposed plant and method of work to be adopted;

· ensuring that those persons required to work in the work box had undergone crane and work box awareness training; · adequate supervision. 32 According to the defendant, no simple steps were available to facilitate a remedy for the breach. This point was said to be illustrated by the sophisticated and detailed system set up by the defendant as a response to the breach. 33 On this issue, the prosecutor's submissions are to be preferred. The defendant's new system, to which I will return later in these sentencing reasons, is commendable and demonstrates a very serious and genuine commitment to matters of safety. It does not follow from this, however, that relatively straightforward steps (as identified by the prosecutor) were unable to be implemented by the defendant before the offence. Deterrence 34 I also intend to take into account the principle of general deterrence, which will reflect the need to deter others from failing to take a rigorous approach to ensuring that the risks associated with working with cranes and work boxes at height are identified and minimised by the effective promulgation and enforcement of policies and procedures. 35 Specific deterrence is also relevant and will be taken into account. In doing so, I acknowledge the prosecutor's concession that the defendant has demonstrated, by the extensive and detailed safety regime it has devised and implemented after the offence, a genuine commitment to occupational health and safety. This matter is relevant to the application of the principle by a sentencing court. Given the defendant's genuine commitment to ensure safety, the principle will be accorded less weight than it otherwise might be. It remains relevant, however, because the defendant continues to operate as an employer in the asphalt manufacture and dispatch industry. 36 The objective factors considered above compel the conclusion that the offence was objectively serious. Changes after the incident 37 I turn now to consider the defendant's new safety regime which has been implemented since the offence. 38 The new regime has been set out in detail in Mr Jackson's affidavit, as well as in the affidavit of Nigel James Ward, general manager of Australian Construction Materials (ACM), an operating division of the Boral Group. Mr Ward is also employed by Boral Construction Materials Limited, a corporation forming part of the Boral Group. The defendant, in submissions, summarised the major aspects of the new system. I propose to provide a further summary of those major aspects. 39 Following the accident, an authority to work permit (AWP) was introduced for high risk work which includes work performed at height. Before permits are issued, contractors and employees are required to complete a risk assessment. Safety documentation such as a SWP must be submitted with the risk assessment to the production manager, site supervisor or production operator for approval prior to work being commenced. 40 Special requirements have been introduced for work involving cranes. These requirements include a specific risk assessment for the work which is contained in a "Work at Heights Equipment Checklist". The Checklist requires personnel to consider appropriate equipment for the anticipated work. A crane lift permit must also be completed. If the task involves personnel being lifted by the crane an additional "Crane and Suspended Work box Checklist" must be completed. That Checklist contains hazard identification measures such as whether the work box has been manufactured to the relevant Australian Standard. Prior to the procedure for lifting personnel by crane is commenced, a member of management must review and approve the checklists, and the results of that review and any conditions imposed must be discussed at a toolbox meeting. 41 Immediately after the accident, Crane and Work box Awareness Training was undertaken at all Boral Asphalt sites. In addition, a more detailed and sophisticated training programme called Mobile Crane Awareness Training was undertaken. The training covered different types of cranes, as well as relevant legislative obligations and the identification of hazard lift plans. 42 The "Take Five" system was continued after the offence, but was improved by the addition of information on the pro forma concerning the appropriateness or otherwise of the creation of a JSA. Refresher training has also been undertaken on the Take Five system. The system now is used only for non-routine work predicted to take one hour or less to complete. If it is anticipated that the work will take more than one hour, a JSA must be completed. 43 These procedures, which were devised and implemented after the offence, represent only a few of the very extensive procedures implemented by the Boral Group after the offence. They have been selected as examples of the new system specifically tailored to meet safety requirements as they occur in relation to the type of work which was undertaken by Mr Coote on the day of the offence. They represent the defendant's genuine commitment to matters of safety and will be taken into account in mitigation of penalty. Maximum penalty and prior conviction 44 The defendant has a prior conviction. The maximum penalty faced by it is therefore $825,000. The prior conviction operates to preclude the Court from extending leniency otherwise available to a defendant with no prior conviction. Plea of guilty 45 The parties submitted that the plea of guilty was entered at the "earliest possible opportunity" (defendant's submission) or "at an early point" (prosecutor's submission). In these circumstances, it is appropriate to award a discount of 25 per cent for the utilitarian benefit derived from the plea of guilty at an early stage in the proceedings. 46 As a separate consideration from the utilitarian value of the plea the defendant is also entitled to leniency in recognition of the remorse shown by the plea of guilty. Defendant's good industrial and corporate character 47 The defendant has been in operation since 17 April 1934. Until the present offence, it had only one prior offence committed in 2004. The occupational health and safety systems set out in Mr Ward's affidavit demonstrate that the defendant has been operating under occupational health and safety systems for some time. In addition, under the Boral Group's current safety regime, an Awards and Recognition Scheme has been implemented for the purpose of recognising the safety performance of individuals and the teams in which they work. The Scheme encourages positive safety behaviour. It also allows employees to provide feedback and to recommend ideas. The promotion and sharing of safety experiences is a valuable and effective means of ensuring a safe workplace. 48 The Boral Group also makes a number of substantial financial and non-financial contributions to a range of charities and community organisations. These include:

(a) the largest corporate funding for the Juvenile Diabetes Research Foundation, including sponsorship of the "Walk to Cure Diabetes";

(d) Building Communities, a joint initiative between World Vision and the Boral Group commenced in 2005 in Indonesia. The Boral Group has ended its relationship with World Vision, but continues to pursue community building activities in Bayah, Indonesia;

(e) financial and other contributions for natural disasters, including the 2009 Victorian Bushfire Appeal. 49 The foregoing matters attest to the defendant's good industrial and corporate citizenship and will be taken into account in mitigation of penalty. Contrition 50 The defendant's response via the Boral Group to the offence has been laudable and demonstrative of its remorse and contrition for the circumstances of the offence. In addition to the new safety regime which was put in place after the offence, the defendant also took the following immediate action: · provided assistance to Mr Coote; · shut down the site and isolated the crane involved in the incident; · made counselling services available to all personnel involved in the incident; · issued a safety alert across all Boral Asphalt plants and spray depots; · commenced an independent assessment of the crane by Newstart Assessments which was forwarded to WorkCover. 51 Mr Jackson, on behalf of the defendant, also acknowledged and deeply regretted the occurrence of the incident and its impact on Mr Coote. 52 These matters will be taken into account in the defendant's favour under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. Co-operation with authorities 53 The defendant also fully co-operated with WorkCover Authority in its investigation into the circumstances of the offence. This will also be taken into account in the defendant's favour. Contribution of North Coast Cranes 54 According to the prosecutor, the Court is entitled to have regard to the fact that the defendant was the principal contractor at the site with particular responsibilities relevant to that role. It also, by virtue of that role, had obligations with regard to its sub-contractors, including North Coast Cranes, in particular to properly satisfy itself that the specialist contractor had adopted and was following all appropriate safety procedures. Nevertheless, the prosecutor submitted that the culpability of North Coast Cranes was "somewhat greater" than the defendant's culpability. The Court was not further enlightened by the prosecutor as to why it was open to find that North Coast Cranes' culpability was "somewhat greater". 55 The defendant, not surprisingly, made a similar submission. Its submission was based on the following matters:

(a) the provision of cranes and the elevation of employees to work at height was not part of the defendant's operations and did not form part of its expertise;

(b) North Coast Cranes supplied the plant (crane and work box) and the crane driver and dogger;

(c) the risk arose from the supply of unsafe plant and the primary responsibility for that matter lay with North Coast Cranes. 56 As to the defendant's first point, it has been earlier considered and rejected in the context of its deficient systems of work and the reasonable foreseeability of the risk. Nevertheless, in relation to all three points there exists one particular factor in the defendant's favour. The deficiency of the defendant's system, which was the gravamen of the offence, was not the proximate or direct cause of the risk. The direct cause of the risk was never ascertained, although, according to the defendant's third point, it had something to do with "unsafe plant", the primary responsibility for which lay with North Coast Cranes. 57 Given the existence of this factor, which was conceded by the prosecutor, I am prepared to find, in the absence of other evidence, that the defendant's relative culpability or contribution to the offence was somewhat less than North Coast Cranes. I am unable to be more specific with regard to the finding given the paucity of evidence to which the Court was directed and given the prosecutor's absence of reasons for her concession. Consistency 58 Following the conclusion of the sentence hearing, the parties provided further written submissions to the Court on the principle of consistency in sentencing. The issue arose in the context of a judgment of his Honour Justice Marks in Inspector Gregory v S&P Jackson Pty Ltd and Scott Jackson [2009] NSWIRComm 158. In that judgment, his Honour fined North Coast Cranes $5,000 for its involvement in the incident at the defendant's premises on 17 June 2006 in which Mr Coote sustained injuries as a result of the falling work box. The maximum penalty faced by North Coast Cranes for two offences under s 8(1) and s 8(2) of the Act was $550,000 which is a lesser penalty than the maximum faced by the defendant. I note also that the charges against North Coast Cranes which were dealt with by Marks J were particularised in similar terms to the particulars of the charge against the defendant, notwithstanding a submission to the contrary which was advanced by the prosecutor. 59 The similarity in particularisation arises in the following way. The two charges against S&P Jackson each particularised a failure to maintain a safe system of work, "in relation to accessing the dust extraction unit ... in that an adequate risk assessment was not conducted". The charge against the defendant in the present proceedings was also particularised as a failure, "in relation to accessing the dust extraction unit". The agreed facts in the present proceedings also relied on an inadequate risk assessment as exemplifying the defendant's failure to maintain (and provide) a safe system of work. The second particular set out in the two charges against S&P Jackson alleged a failure to provide adequate information and instruction by failing to provide adequate documentation with regard to the work involved in lifting personnel in the work box and by failing to provide adequate instruction with regard to the completion of the risk assessment. Particular (b) in the charge against the present defendant similarly relied upon a failure to provide adequate information and instruction (as well as training and supervision) with regard to the, "process of accessing the dust extraction unit". The agreed facts with regard to particular (b) focused upon a number of matters which included the provision of limited information and instruction to Mr Coote, "as to how to safely perform the task", and as to, "the risks and safety requirement of specifically working within a work box". 60 The charges against both defendants therefore focused on similar matters arising from failures to provide or maintain safe systems with regard to the method of work and equipment and plant used at the time of the incident and limited instruction and information with regard to the performance of that work. 61 The prosecutor, in contending that the Court should not, as Marks J did, impose a nominal penalty, relied upon two further matters. These were:

(a) the "differing duties and responsibilities" that the present defendant had towards its employees in relation to the selection of contractors and plant; and,

(b) the fact that the defendant is a member of the Boral Group, which includes Boral Ltd, and Boral Ltd is the largest building products and construction materials supplier in Australia. 62 The significance of both of these matters was said to be that they provided evidence in support of the prosecutor's submission that the two defendants are not "similar offenders" and, therefore, that the approach of Marks J in imposing a nominal penalty against S&P Jackson should not be followed. 63 The prosecutor sought to clarify that the reference to "differing duties and responsibilities" as a distinguishing factor was intended to convey to the Court that because the present defendant was the principal contractor with "particular" responsibilities to ensure safety, a finding that the two defendants were "similar offenders" was not available. 64 The fact that the defendant had "particular duties and responsibilities", (presumably) not shared by S&P Jackson, provides little support for the submission that the defendants are not "similar offenders". The principle of consistency has been held to apply in circumstances where two defendants (one supplying the labour and the other utilising that labour) faced charges involving similar factual circumstances arising from the same workplace incident: Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326. 65 The other matter relied upon by the prosecutor was the present defendant's membership of a large corporate group in contrast to S&P Jackson's status as a small family company. This submission suffers a difficulty which becomes apparent when attempting to reconcile the present defendant's larger corporate status with the prosecutor's concession that S&P Jackson's culpability was "somewhat greater" and with her primary submission that this Court should impose a larger penalty than was imposed by Marks J on S&P Jackson. The matter may, however, be resolved in another way. Marks J, when determining the penalty to be imposed on S&P Jackson did not take into account its size or corporate nature. His Honour did take into account the relationship between S&P Jackson and its director in deciding to exercise his discretion under s 10 of the CSPA in favour of the director. Moreover, the size of a corporate defendant, and other matters, such as the extent of its operations, has little or no bearing on a consideration of the seriousness of an offence with which the corporate defendant has been charged: see Inspector Karen Simpson v Poonindie Pty Ltd (trading as Ted Wilson & Sons) ACN 067 774 985 [2009] NSWIRComm 18 at [55]. It may have some relevance under s 6 of the Fines Act 1996. Neither the present defendant, nor S&P Jackson, relied on the provision in their respective sentence proceedings. 66 According to the defendant, the offences with which each defendant was charged reflect a number of similar characteristics which warrant the imposition of a penalty against it consistent with not being outside the range of penalty imposed by Marks J on S&P Jackson. 67 The approach to consistency in sentencing was considered by the Full Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 where it was said: [62] It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and thus is not relevant in this matter. However, as Walton J, Vice-President, observed in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 435-436: "Whilst the principle of parity normally operates in relation to co-offenders or across the range of those convicted of the offence in question (see Siganto v The Queen (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione (at 309)), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which 'shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe ' where there exists common factual circumstances giving rise to the charges. It should also be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour. Hence, the decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, shall be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606 ." [63] When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 at 371 where Hunt CJ at CL said: "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe (1984) at 612 …: 'The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.' " 68 It has not been contended here that the defendant and S&P Jackson are co-offenders. As Hunt CJ at CL emphasised in Morgan (in the passage extracted above in Capral Aluminium), it is quite wrong to compare a sentence under challenge directly with that imposed upon another offender simply because the two offenders may have similar characteristics and may have committed similar crimes. Although in the present case the defendant has yet to be sentenced, the observations of Hunt CJ at CJ are of no less relevance or application. What is relevant is whether the proposed sentence for the offence under consideration falls within the range appropriate to the objective seriousness of the offence and the subjective factors relevant to the particular offender. 69 A fundamental difference, however, which precludes this Court from conducting any useful comparison between the present proceedings and the proceedings before Marks J in S&P Jackson is that his Honour found himself unable to determine the objective seriousness of the offences with which S&P Jackson had been charged. His Honour was unable to determine the extent to which S&P Jackson's failures contributed to the risk of the work box falling. This was because his Honour found that there was no appropriate evidence before him as to the nature of the risk and as to the extent of any increase in that risk. 70 Marks J had before him for consideration a document relied upon by the prosecutor entitled "Supplementary Agreed Statement of Facts". The document had been prepared apparently in an attempt to redress an insufficiency of evidence otherwise relevant to a conclusion as to the cause of the incident. The full text of that document is reproduced below: SUPPLEMENTARY AGREED STATEMENT OF FACTS 1. There was a risk of a fall of the work box which arose from: (a) the failure to have an adequate task specific risk assessment; (b) the provision to provide adequate documents to assess the permissible lifting load; (c) the failure to provide adequate documents as to the requirements in relation to lifting personnel in a work box; and (d) the failure to provide adequate instruction in the completion of a risk assessment for the task. 2. The above listed failures increased the risk of the work box falling to the ground as they removed layers of safety designed to prevent the risk of work box falling to the ground. 71 His Honour's findings are encapsulated in the following passages from the judgment: [25] In that, essentially, the prosecutor relied upon the material in the supplementary agreed statement of facts, which I have reproduced at [10] above, it is the "risk of a fall" which must be measured in order to assess the objective seriousness of the offence. [26] Obviously, the work box may have fallen as a result of some event external to the equipment, by the manner in which the equipment was operated, or some innate failure of the equipment itself, or a combination of all or any of these. However, these are causes that may only be the subject of speculation given the factual circumstances surrounding these proceedings. Furthermore, the focus of attention must be directed to the material in the supplementary agreed statement of facts that refers to an increased risk of the work box falling because layers of safety designed to prevent such a risk were removed because of the four matters set out in [1] of the supplementary agreed statement of facts. [27] The difficulty that I have in assessing the objective seriousness of the offence is that any determination about the nature and extent of the risk itself and, more importantly, an increase in that risk by reason of the matters referred to in [1] must be a matter of speculation. The only factual material before the Court is that which I have previously set out. Any matter that is adverse to the interests of the defendants must be proven beyond a reasonable doubt as is plain from the decision of the High Court in Olbrich , to which I have earlier referred. There is no appropriate evidence about the nature of the risk and the extent of any increase in that risk. [28] In all the circumstances, I conclude that I am unable to determine the extent to which the risk of the work box falling may have been increased by reason of any of the matters set out in [1] of the supplementary agreed statement of facts with sufficient precision and in a manner that cannot be described as speculative. In all the circumstances, I am unable to conclude that I could appropriately impose any penalty other than that involving the payment of a nominal fine. 72 Marks J's consideration as to the objective seriousness of the offence proceeded, primarily, upon the basis of the Supplementary Agreed Statement of Facts, a document relied upon by the prosecutor which asserted the existence of an "increased risk" of the work box falling but without the necessary factual material to provide the connection between the alleged failures and that "increased risk". 73 This Court, however, does not find itself constrained by an absence of evidence which might have otherwise prevented appropriate findings being made as to the objective seriousness of the offence. Those findings have been made and need no repetition. Having made the finding that the offence was objectively serious and having had regard to the subjective factors relevant to the defendant's circumstances, the Court may proceed to determine penalty by reference to the appropriate range of penalties available for offences of similar severity. In doing so, the Court will also take into account the prosecutor's concessions, first, that it is open to the Court to find (insofar as it can) that S&P Jackson's culpability was "somewhat greater" and, secondly, that the offence, "would be likely to be seen at the lower end of the set of offence(s) that come before the Court". 74 The Court will also take into account in determining penalty the maximum penalty, which is $825,000, as well as the applicable provisions of the CSPA, in particular, s 21A and s 22. Orders 75 In Matter No IC 886 of 2008, the Court makes the following orders: 1. The defendant is convicted of the offence. 2. The defendant is fined $90,000 with a moiety to the prosecutor. 3. The defendant is to pay the reasonable costs of the prosecutor as agreed or, in the absence of agreement, as assessed. ___________________

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