Inspector Martin Carmody v Leighton Contractors Pty Limited

Industrial Relations Commission (NSW)|2004-11-16|Before: Kavanagh J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Martin Carmody v Leighton Contractors Pty Limited [2004] NSWIRComm 332 Prosecutor: PARTIES : Inspector Martin Carmody Defendant: Leighton Contractors Pty Limited FILE NUMBER: IRC4739 of 2002 CORAM: Kavanagh J CATCHWORDS : s.16 - Occupational Health & Safety Act - plea of guilty - exemption from holding demolition licence granted upon condition - exemption under Occupational Health and Safety (Demolition Licensing) Regulation 1996, Pt 4, cl 14 - failure to comply with exemption - lack of supervision - importance of supervision in circumstance of careless employee - adoption of subcontractor's inadequate work method statement - lack of particularity in risk assessment of subcontractor adopted - adoption of subcontractor risk assessment without particularity - obligation on employer in its undertaking under s.16(1) - no passing off of liability - penalty LEGISLATION CITED : Occupational Health and Safety Act 1983 Crimes (Sentencing Procedure) Act 1999 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610, (1999-2000) 99 IR 29 CASES CITED : Cameron v The Queen [2002] HCA 6 R v Sharma [2002] NSWCCA 142

HEARING DATES: 09/06/2004; 09/23/2004 DATE OF JUDGMENT: 11/16/2004

Prosecutor: Ms A.J. Katzmann SC with Mr D.B. O'Neill of counsel Solicitors: WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Mr B.D. Hodgkinson SC with Mr M.L. Shume of counsel Solicitors: Carroll & O'Dea

JUDGMENT: - 18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Tues 16 November 2004 IRC4739 of 2002 INSPECTOR MARTIN CARMODY v LEIGHTON CONTRACTORS PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 JUDGMENT (Penalty) [2004] NSWIRComm 332

1 This is a prosecution under s16(1) of the Occupational Health and Safety Act 1983 (the Act) against Leighton Contractors Pty Limited. The Amended Application for Order was in the following terms: ...on 12 May 2001 at premises located at the Sydney International Aquatic Centre at Homebush in the State of New South Wales in that it failed to ensure that persons not in its employ, namely, Allan James Welsh and Lance Grove, were not exposed to risks to their health or safety arising from the conduct of the Defendant's undertaking in that it, the Defendant, failed to: (a) Supervise the work being undertaken at gridline P in accordance with the conditions of the exemption from holding a demolition licence granted to it on 21 March 2001; (b) Ensure that the risks to Welsh and Grove in the work that they were performing on 12 May 2001 had been adequately assessed or controlled. 2 However, by way of the agreed statement of facts the above application for order was constrained in the following way: On 12 May 2001 the Defendant failed to: (a) Supervise the work being undertaken at gridline P in accordance with the conditions of the exemption from holding a demolition licence granted to it on 21 March 2001. (b) Ensure that the risks to Welsh and Grove in the work that they were performing on 12 May 2001 had been adequately assessed or controlled in any risk analysis or work method statement (emphasis added).

4 An agreed statement of facts was tendered relevant to the charge which reads as follows: 3. At all material times the Defendant contracted with the Olympic Co-ordination Authority to project manage the fabrication, erection and later dismantling of parts of, the Sydney International Aquatic Centre at Olympic Park, Homebush in the State of New South Wales ("the site"). 4. At all material times the Defendant sub-contracted with National Engineering Pty Ltd (ACN 061131333) ("National Engineering") for National Engineering to undertake the erection and dismantling of the Aquatic Centre. 5. At all material times National Engineering sub-contracted with Penrith Rigging Service Pty Ltd (ACN 001 863 109) ("Penrith Rigging") for Penrith Rigging to provide riggers and cranes to National Engineering to erect and dismantle the Aquatic Centre. 6. The Aquatic Centre was erected by National Engineering and Penrith Rigging without incident. 7. After the Olympics, WorkCover informed the Defendant that dismantling of parts of the Aquatic Centre was "demolition work" within the meaning of the Occupational Health & Safety (Demolition Licensing) Regulation (NSW) 1996. 8. On 21 March 2001, Inspector Rech on behalf of WorkCover granted to the Defendant an exemption from the need to hold a current unrestricted demolition licence in order to dismantle parts of the Aquatic Centre, subject to certain conditions. Those conditions were: a. The exemption is for the specific purpose of the company Leighton Contractors Pty Ltd ("the Company") carrying out all the demolition of the structure known as Portion 2, Contract HBAY 125 on the Aquatic Centre, Homebush, New South Wales. b. All work is to be supervised by Kevin [sic Kelvin] Durham. c. All work must be risk assessed and the control measures put in place to control the risk. Security to be provided around the work area to prevent unauthorized persons (children) entering the area during the demolition process as defined. d. All lifting gear to meet current Australian standards. e. That all staff involved in the demolition work be inducted into the work plan. f. That during the carrying out of demolition work all work meets the performance standard of AS2601 - 1991. g. That the State Co-ordinator of the Construction Team be advised of any issues that draw the attention of the public or press ASAP. h. Should any issues as per Item 8 come to the attention of the Company, that the MBA be consulted immediately and solutions to those matters be implemented. 9. Section 2.1.1 of AS 2601-1991 provides that: "Supervision At all times demolition work shall be directly supervised by a competent person." 10. "Competent person" is defined in Section 1.3 of AS 2601-1991 as "a person suitably qualified, adequately trained and appropriately experienced for the particular class or kind of work specified". 11. Kelvin Durham was the Project Manager for the site and employed by the Defendant at the time of the accident. In this position he had overall responsibility for the site. 12. Leighton delegated the task of providing supervision of the dismantling to National Engineering. National Engineering appointed Michael Brown as its supervisor. National Engineering did not hold a demolition licence. Nor had it been exempted from holding one. 13. Michael Brown was a qualified and experienced rigger. However, he did not hold a demolition licence. Neither was he exempted from holding one. 14. On 12 May 2001 Allan James Welsh ("Welsh") was injured in a fall at the Aquatic Centre ("the accident"). 15. Michael Brown was in Canberra on 12 May 2001. 16. On that day Welsh and Lance Grove ("Grove") had been working in an elevated work platform ("bucket") of a boom lift undertaking the removal of steel columns on Grid Line P, being columns that had supported part of the seating stands at the Aquatic Centre during the Olympics. Leslie Nancarrow ("Nancarrow") was operating a crane in order to lift the columns. The crane was rated to lift significantly in excess of 1.5 tonnes. 17. Both Welsh and Grove were qualified riggers. Welsh had been working in the industry for the whole of his working life, which was approximately 30 years. Both employees had been inducted onto the site. 18. Welsh, Grove and Nancarrow were employed by Penrith Rigging. Stanley Beard ("Beard"), the sole owner and director of Penrith Rigging, was their immediate supervisor. At the time of the accident Beard had over twenty-seven years experience in rigging and had operated Penrith Rigging for over twenty-five years. Neither Penrith Rigging nor Beard held a demolition licence. Nor had it or he been exempted from holding one. 19. At all relevant times Beard was working approximately 90 metres away from Welsh and Grove. 20. Welsh was working from within the bucket using an electric impact wrench to remove the "holding down" bolts which affixed column 1210B ("the Column") to the top of a concrete plinth. Two columns had originally been attached to the plinth on diagonal angles. The Column weighed approximately 1480 kilograms. It was approximately 9 metres in length with a 3 metre section of steel ("the outrigger") extending at 90 degrees from the top. The Column was attached by a number of bolts to a concrete plinth at its base. Welsh had slung the column that had been attached to the opposite side of the plinth without incident. 21. Welsh was wearing a harness which was attached to a section of the bucket which was rated as a fall arrest anchor. Grove was also with Welsh in the bucket wearing a harness attached to the bucket. 22. Shortly before the accident Welsh unhooked his harness lanyard and stepped out of the bucket onto the concrete plinth to remove the last of the holding down bolts. 23. When Welsh removed the nut from the last holding down bolt the Column lifted and swung to the side, knocking Welsh from the plinth, causing him to fall approximately 4.5 metres onto the grassed area surrounding the plinth. He then rolled down an incline of approximately 45 degrees, hitting his head on a stone feature wall at the base, sustaining serious injuries. The injuries included multiple fractures of the pelvis and the ribs, a bruised lung, a torn tendon, a wedge fracture of T8 and a crack in T10 and a cut of some 250 mm across the top of his head from one ear to the other. 24. No-one was supervising the work of Welsh and Grove during the slinging of the Column and its removal. 25. Beard noticed that Welsh had left the bucket a short time before the accident but was too far away from him to do anything about it. 26. After Welsh fell, the Column continued to swing out of control, in the direction of the boom lift basket, striking the basket and damaging it. Grove ducked his head below the hand rail of the basket to avoid being injured, himself. 27. Before the accident, whilst removing the other column bolted to the same plinth, Grove had stepped from the bucket onto the plinth to remove the last nuts from the holding down bolts as he could not reach these bolts from within the bucket. He had connected his fall arrest harness lanyard to the hand rail of the bucket. The hand rail was not rated as a fall arrest anchor. (See AS 2550.10 Elevated Working Platforms, particularly Section 9.4). 28. Kelvin Durham was present at the site on the day of the accident. At the time of the accident he had just stepped out of his site office. The office was situated approximately 60 metres from where Welsh and Grove were working. Durham saw the accident as it happened. Durham was aware of the work being undertaken that day on Grid Line P as was he aware of other works being undertaken on the site. He did not visit the area that day at any time before the accident. 29. The steel columns had been erected by slinging a nylon sling around the top part of each column, hoisting the column with a crane over a concrete plinth and then lining up the base of the column with the top of the plinth. A rigger would then use an Electric Impact Wrench, and working from within the bucket of a boom lift, harnessed at all times, tighten the first bolt at the uppermost point of the plinth to hold the column in place temporarily. The crane would then slew the beam so as to lower it to the correct angle and then the rigger would tighten the final bolts. Penrith Rigging had erected all the steel columns at the site under supervision of National Engineering. 30. Before 12 May 2001 the Defendant did not conduct a risk analysis or prepare a work method statement but National Engineering did. Neither the risk analysis nor the work method statement identified; (a) the risk of a column moving suddenly or erratically; (b) the need for a competent person to supervise the lifts and, in particular, the need for Mr Durham to undertake the supervision; (c) the method of demolition, including the slinging positions. 31. The work method statement was attached to the application for exemption from the need to have a demolition licence under the Occupational Health & Safety (Demolition Licensing) Regulation (NSW) 1996. 32. On 10 May 2001 Michael Brown instructed a meeting of riggers at which Welsh, Grove and Nancarrow were present in the system of work to be used to dismantle the structure. The instruction required the persons involved to remove the upper columns first and then the lower columns, to sling each column about a metre and a half from the top and to use a double wrap with a 4 tonne nylon sling. Brown demonstrated with a dogman from another company how the job should be done. Welsh witnessed the demonstration. He noted that Brown appeared to be careful not to place the sling too low and saw that the procedure was safe. He also noticed that during the demonstration the men in the bucket wore safety harnesses and were not required to leave the bucket of the boom lift 33. After the demonstration, from a position on the ground, Brown watched Welsh, Grove and Nancarrow remove columns on Grid Line Q. The columns on Grid Line Q were similar in size and shape to the columns on Grid Line P. The rigging crew performed this lift correctly. On that occasion Welsh and Grove remained harnessed and within the bucket. The columns were dismantled without incident. 34. Welsh was absent from the site on 11 May 2001. 35. At the beginning of the shift on 12 May 2001 Welsh, Grove and Nancarrow attended an informal tool box meeting. Ted Tamsett told them to take down the two lower columns on Grid Line P. Welsh understood that the work was to be carried out strictly in accordance with the method that Brown demonstrated two days earlier on Grid Line Q. 36. If the riggers had trouble reaching the holding down bolts the boom lift could have been manoeuvred to facilitate access from a position within the basket. 37. An investigation into the causes of the accident revealed that the nylon sling had been placed at the central point of the column, which was not its point of equilibrium. The combination of the placement of the sling and the section of steel extending at 90 degrees from the top of the column caused the column to rotate when it was being lifted vertically. 38. Welsh's conduct in removing his harness and leaving the bucket of the boom lift was contrary to the risk analysis, which stipulated that all personnel using the boom lift were to be harnessed and hooked up to the bucket and were to remain within the bucket at all times. 39. After the accident the work method statement was amended. The amendments included a description of the method of dismantling the remaining columns, stipulated the slinging positions and emphasized the requirement for riggers to wear their harnesses hooked up to the boom lift bucket and remain within the bucket at all time (sic). . . .

5 Ms A.J. Katzmann SC with Mr D.B. O'Neil, of counsel, appeared for the prosecution. They tendered and relied upon the agreed statement of facts and a number of photographs of the site. Documentation in relation to the defendant's dealing with WorkCover were tendered. The relevant statutory and Australian standards for the Demolition of Structures was placed before the Court as well as affidavits of Mr Michael Brown, Mr Alan Welsh and Mr Peter Burns. The prosecutor also tendered the industrial record of the company. It was agreed in the circumstances the maximum penalty for the offence given the prior breaches under the Act was $825,000.

6 Mr B.D. Hodgkinson SC with Mr M.L. Shume, of counsel, appeared for the defendant. The defendant relied upon an affidavit of Kevin Collins, the defendant's New South Wales and ACT Occupational Health and Safety Manager. Attached to the affidavit was documentation representing the defendant's safety and health policy, a master list of documents forming the company's specific project safety and health plan for the relevant work at the site, the Sydney Aquatic Centre. Also relied upon was the general safety policy of the defendant as contained in a safety handbook, a quality assurance statement of intention stating commitment to the philosophy and implementation of the Occupational Health and Safety Act aims. 7 The defendant, as Project Manager for the erection and dismantling of part of the Aquatic Centre at Olympic Park, contracted with National Engineering to perform the demolition part of the contract. National Engineering sub-contracted with Penrith Rigging to provide riggers and cranes to assist in the demolition. Leighton Contractors, National Engineering and Penrith Rigging had also been involved in the erection of those parts of the Aquatic Centre which were to be dismantled.

8 Demolition work requires a licence (Occupational Health and Safety (Demolition Licensing) Regulation 1996, Pt 2, cl 5). Neither National Engineering nor Penrith Rigging held such a licence. A licence can be granted for a year or for a specific demolition task under the regulations.

9 The defendant applied to the WorkCover Authority of New South Wales for an exemption from the need to have a demolition licence (Occupational Health and Safety (Demolition Licensing) Regulation 1996, Pt 4, cl 14). In support of its application it nominated Mr Kelvin Durham as supervisor and thus, the responsible person on site to ensure the works were to be carried out in a safe and proper manner. Attached to its application for exemption to WorkCover, the defendant attached the following statements: Relevant information: . LCPL have engaged an independent design consulting engineer (Cardno BMK) to carry out design and design verification for the structure. . LCPL have engaged the Master Builders Association to carry out regular safety audits on the site. . The scope of work will be undertaken meeting the performance standard of AS2601-191.

10 Also attached to the application was Mr Durham's curriculum vitae and the Method Statement of the sub-contractor, National Engineering titled "National Engineering Work Method Statement Portion 2 - Sydney Aquatic Centre (Revised 17/03/01)".

11 WorkCover Authority granted the application subject to specific conditions (see paragraph 8 of Agreed Statement of Facts as recited in [4] above.)

12 A note to the conditional exemption read: . . . You are advised that this exemption in no way waves or modifies your obligation, and duty of care under the Occupational Health and Safety Act 1983 and associated legislation.

13 Relevant to my consideration as to the nature and quality of this offence and relied upon by the prosecutor through the agreed facts are the conditions imposed on the defendant by WorkCover, that all work was to be supervised by the defendant's employee, Mr Kelvin Durham; all work had to be assessed and control measures put in place to control the risk to safety; all staff involved in the demolition work had to be inducted into the work plan; all demolition work had to meet the performance standard of Australian Standard "The Demolition of Structures" 2601-91.

14 The two particulars to the breach emphasise the defendant's failure to both supervise and adequately assess or control the worksite.

15 The failure of the defendant to supervise in any way this task, especially given the terms and conditions of the exemption, was in my view most serious. It was Mr Durham who wrote and requested the exemption on behalf of the defendant. He identified himself as the Project Manager. It was Mr Durham who then wrote the letter to National Engineering saying: ...safety is and will remain a focal point for this project and will be strenuously enforced by the LCPL Project team.

Where construction methodologies and/or Work Method Statements have been developed, they must be strictly followed at the work face after the workers have been inducted into the procedures.

No deviation from the methodology will be permitted without prior approval by myself.

However, he also noted: ...the LCPL project manager, (being myself), is solely responsible for ensuring works progress in a safe and proper manner. 16 The exemption granted under the Act was conditional upon Mr Durham supervising. He did not. In the words of the prosecutor the privilege the respondent was granted was flouted and abused.

17 Mr Burns, who was at the time the manager, Structural Division of National Engineering, opined that as Mr Welsh was a leading hand, foreman rigger with a great deal of experience, he could be the supervisor on site.

18 The defendant submits it misunderstood the conditions attached to the exemption and notwithstanding those conditions: As it had contracted with National Engineering to perform and supervise the dismantling work and they engaged Penrith Rigging... the requirement for supervision of the work was being appropriately met. It argues this amelioration to the offence in circumstances of a plea of guilty. However, given the obligation under the Act for an employer to provide a safe worksite and given the specific terms of the exemption, I do not believe it is proper to give this submission any positive consideration.

19 The obligation was on the defendant to ensure the work was supervised. Both specifically and generally its obligation to ensure safe working is not one which can be passed on to another entity.

20 I accept the prosecution submission that the defendant was "privileged" to receive an exemption under the Act and, in not adhering to the conditions for the exemption especially the requirement to supervise, was in serious breach of the Act.

21 The second particular to the offence relied on by the prosecutor is the failure of the defendant to specifically risk assess the demolition in gridline P and the defendant's failure to assert control over the performance of the task through a defined work method.

22 A column that weighed some 1480 kilograms, which was nine metres in length with a three metre section of steel extending 90 degrees from the top, which column required movement from a concrete plinth by crane was always a task which was inherently dangerous.

23 The defendant adopted the general work method statement prepared by National Engineering. An examination of the statement reveals it does not address the particular work which was being performed on the day; it almost entirely ignores the demolition part of the contract and directs itself almost exclusively to the role played by National Engineering in the erection, not the demolition of the stand.

24 The defendant also adopted the National Engineering Risk Analysis. This document was task specific. The Structural Dismantling Stage Two Document relevantly at point 3.3 headed "Steel Dismantling with Crane" outlined the following control measures: (A) All personnel operating boomlift to be suitably qualified. All personnel using boomlift be harnessed and hooked up to bucket. Personnel using boomlift to remain within the bucket at all times. Alternatively static lines to be used or double lanyard system. Must be clipped on at all times. Must not clip onto line too close to edge of building. (B) Boom lift is in good working order; pre commencement plant inspection performed; logbooks up to date. Boom lift is operated on stable ground and maintained a suitable distance form (sic) any drop/steep batter.

25 The defendant has acknowledged it committed a breach of the Act but submits it did have in place, through the National Engineering documentation, a risk assessment of the particular task the focus of the breach.

26 The prosecution submits the National Engineering Risk Assessment adopted by the defendant and the associated demonstration of the task given to the employees by National Engineering were not specific in that they did not identify that employees, when required to lift the concrete column, should attach the sling about 1.5 metres from the top of the column to achieve column balance for the lift. Mr Welsh, the rigger performing the duties revealed he attached the sling, "About halfway down the - - column".

27 Further, the prosecution relies upon the evidence that at different times both employees stepped out of the crane bucket to loosen the bolts holding down the columns. The prosecution submits the risk to safety was aggravated by the employees action in stepping out of the crane basket. When the relevant column was released it swung across and struck Mr Welsh who was standing on the plinth after having loosened the bolts that released the column - a place he should not have been. Mr Welsh suffered injury although he has now returned to full duties.

28 Mr Welsh and Mr Grove had been given a demonstration as to how to safely perform the task. Mr Welsh had undertaken the dismantling of another frame on Grid P and he had followed the sequence of actions which were demonstrated to him a few days earlier. However, in performance of this task in breach of safety, he diverted twice from that safe working demonstration: first, in standing out of the crane basket to detach the bolts and secondly, in attaching the sling in a position which caused the concrete column, when lifted, to become unbalanced and to swing uncontrollably, after the lift.

29 Both employees breached the clearly defined warnings given in the risk assessment, in the general tool box meetings and in the written warning on the crane basket when they left the basket to loosen the bolts. If they had simply manoeuvred the boom lift basket they could have reached out to the base plate bolts, loosened and taken them off, without climbing out of the basket. The boom lifts have a range of manoeuvring capabilities. Mr Welsh, had the system demonstrated to him been followed, would not then have been in a position to be struck by the swinging column. It is in circumstances where there is the careless employee that the role of the supervisor becomes not only relevant but essential in occupational health and safety terms.

30 The gravity of the potential risk to safety flowing from the breach is a measure of the gravity of the breach and the culpability of the defendant. Mr Welsh suffered injury which reflected the gravity of the risk to safety on this worksite; he was required to work on a task under no supervision; where there was also no specific work method for its performance and where the risk assessment which was in place was not sufficiently specific.

31 The Act ensures that an offence created under the provisions of s16 is an absolute offence. It obliges an employer to ensure persons at their workplace are not exposed to risks to health and safety. There was in the performance of this lifting task at the defendant's worksite an obvious risk to safety against which appropriate measures were not taken, although they were available and feasible (see below [32]- [36]). The defendant immediately after the incident was able to put in place procedures to ensure the compulsory licensing of its demolition contractors, complete compliance with its obligation to supervise on its worksites and procedures to ensure the design of appropriate work methods and risk assessments of all individual tasks on site. I find there was an element of foreseeability to this offence.

32 Viewed objectively this can only be regarded as a serious breach of the Act. 33 In consideration of the subjective elements of the offence, the defendant tendered and relied upon an affidavit of Kevin Collins, the defendant's Occupational Health and Safety Manager. The defendant has a large workforce, employing 1,174 people nationally, with 262 permanently based in New South Wales. It is likely to have approximately 450 sub-contracting companies on its sites each year. The defendant accepts, as a project management company, it was not, and is not, a specialist demolition company.

34 Since this breach of the Act the defendant has ensured: Only licensed demolition companies are utilised for all demolition work in every project managed by Leighton. Leighton has been involved in a number of major projects since the incident where demolition has been part of their contract. In all cases, licensed demolition contractors have been engaged by Leighton to undertake all of the demolition of the contractual work.

35 The defendant also conducted a review of its Safety and Health Management Plan. The following safety related issues have been introduced by it since the incident: (a) an annual review of Safety and Health Policy. (b) The establishment of a Senior Management Safety and Health Group which meets monthly to manage and monitor outcomes; (c) The implementation of a Leighton Contractors Safety Data Base to report all accidents and near misses; (d) The appointment of a Senior NSW/ACT Branch Safety Manager to train nominated project equivalents and other project personnel in safety and health; (e) The development of a two-day Construction Risk Management Training Course accredited by the WorkCover Authority. (f) The implementation of compulsory pre-start meetings on various projects to improve communication between trades people; (g) The establishment of a Safety and Health Intranet site for Leightons to communicate safety and health information to all Leightons' personnel; (h) The development of a process matrix to provide a reference guide to safety and health systems.

36 The defendant is a highly regarded construction company. Placed before the Court was its comprehensive Master Plan used for each particular project. It prepares a General Safety Handbook and a project-specific Safety and Health Plan. It is committed to a Statement of Intention for Health and Safety on its construction sites. The company ensures tool box meetings are carried out at all its sites no matter who is the sub-contractor. It ensures induction courses for each new worker on site and risk assessments are carried out for all tasks.

37 I accept the defendant, in its expression of regret is sincere. I accept the company's renewed efforts to ensure that all risks of injury on its construction sites are eliminated. These endeavours are reflected through its occupational health and safety commitment. I accept the related company policies have been revised and the new procedures are now being implemented. I accept there are now invigorated training programmes in place and a very clear understanding by the company that it has to delineate on its building sites between the role of persons involved in erecting and those involved in demolition. This breach has reinforced within the company the vital role played by its company site supervisor in ensuring safe working.

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

39 These principles were recently cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74]) where it was said: the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . . 40 The defendant, as to specific deterrence, has ensured that it now sub-contracts only to licensed demolition companies. It has also ensured that there is in place an appropriate procedure which allows it to verify that all persons working as sub-contractors on its site have the appropriate licences. It ensures all sub-contractors hire properly qualified and licensed employees. Notwithstanding the licence and qualification requirements, it also ensures the appropriate on site training in safety procedures.

41 While the defendant has revealed it as a company does not now seek any licence and/or exemption for demolition work on its worksite, while ever it is the project manager on a construction site overseeing demolition work, the company will still have an obligation under the Act to ensure safety and health on its work sites. There must therefore be an element of specific deterrence in my consideration as to penalty.

42 Demolition work is inherently dangerous. Ms Katzmann's submission is on point: In this case there is the issue of supervision being delegated to someone who didn't hold a licence or who had not been exempted from holding a licence but in addition there is the feature that not only was supervision delegated, but it wasn't exercised.

True it is the workers themselves were either complacent or, frankly, careless about their own safety, but this is nothing new. It is the reason why supervision is necessary after all. This Court has often remarked ... demolition work is notoriously hazardous even for workers taking proper precautions. Had the conditions attached to the exemption been adverted to, then the risks would easily have been obviated. General deterrence requires a message be sent to the industry that direct supervision means just that, namely, that supervision cannot be delegated and that the superintendent must be present throughout the demolition process to ensure that no one is exposed to risks to his or her safety.

43 I take into account elements of both specific and general deterrence in my assessment of penalty.

44 The defendant submits it entered an early plea of guilty to the charge. The judgment of the High Court in Cameron v The Queen [2002] HCA 6 and its affect on the guideline judgment of R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383 was raised. In Thomson, the Court of Criminal Appeal held the full benefit and discount for the utilitarian value of an early plea of guilty should be restricted to pleas entered at the earliest opportunity and should rarely be given after a matter has been set down for trial. In Cameron, the High Court held when a defendant accepts responsibility for a crime and shows a willingness to facilitate the course of justice, the Court in the assessment of the value of such a circumstance must consider: . . . whether the plea was entered at the first reasonable opportunity.

45 The effect of Cameron on the guideline judgment in Thomson was considered by the Court of Criminal Appeal in R v Sharma [2002] NSWCCA 142. The court held that the reasoning in Cameron was not applicable in New South Wales because the common law principles enunciated in Cameron have been modified by statute, through s22 of the Crimes (Sentencing Procedure) Act 1999, which renders it mandatory that a sentencing judge take into account both "the fact" of the plea of guilty and "when" it was made.

46 Section 22 of the Crimes (Sentencing Procedure) Act relevantly states: (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must taken into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty and may accordingly impose a lesser penalty than it would otherwise have imposed. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decision. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court. 47 The Court of Criminal Appeal held that s22 of the Crimes (Sentencing Procedure) Act amended the common law. The Court of Criminal Appeal relevantly determined in Sharma at [50-52]: The New South Wales act states that a Court "must", not "may", take into account a plea. Furthermore, what is required to be taken into account is both " the fact " of the plea and " when " it was made. If a lesser penalty is not to be imposed then the Court must give reasons.

The statutory reference to "the fact " of the plea, as the matter required to be considered, does not direct attention to the subjective intention of the person pleading guilty. Nor, in my opinion, is the element of timing, reflected in the reference to "when" a plea was made, a reference only to subjective elements.

The mandatory language of s22 must be followed whether or not by doing so the Court can be seen to "discriminate", in the sense that word was used in the joint judgment in Cameron, against those who put the crown to proof. The Court must take the plea into account even if there is no subjective intention to facilitate the administration of justice. However, viewed objectively, there will always be actual , as distinct from intended , facilitation of the administration of justice by reason of "the fact" of the plea. The use of the word "must" and the reference to "the fact" of the plea, strongly suggest that the Parliament was not concerned only with subjective elements. The actual facilitation of the administration of justice was to be regarded as relevant by sentencing judges. and at [65]: Nothing in the New South Wales Act expressly or implicitly refers to the common law requirement to which their Honours refer. I do not doubt that the common law principle does apply in New South Wales. However, it is not a principle which must be invoked to construe s22 in the absence of any indication, unlike the Western Australian statute [ie. in Cameron ] that it is a pertinent restriction on the scope of the section. and at [68]: Although the legislation may have been regarded at the time as re-enacting the common law, as then understood in this State, the force of the relevant principle from that time was based on the statute rather than on the common law. Accordingly, when, in Cameron, the High Court came to restate the common law in a manner not consistent with what New South Wales judges had assumed that law to be, the statute continued to have full force and effect in accordance with its terms. That is what the statute requires. (See Giannarelli v Wraith (1988) 156 CLR 543 at 586.) In my opinion the reasoning in the joint judgment in Cameron does not apply in this State. Thomson should still be followed.

48 The circumstances of the plea raised the question as to the discount to be applied. The matter was set down for hearing for three weeks. In addition to Leighton Contractors Pty Limited, there were three other defendants, against whom the prosecution laid charges, namely, Stanley Norman Beard; Penrith Rigging Service Pty Limited and National Engineering Pty Limited. All prosecutions were listed for hearing concurrently.

49 On the first day of the hearing, the prosecution filed in court an Amended Application for Order, upon which the defendant immediately entered a plea of guilty. The sentencing hearing of the defendant was then stood over until the scheduled third week, to allow each of the parties to deal with any evidentiary issues that may arise from the prosecution of the three other defendants. However, on the second day of the hearing, leave was granted for the prosecution to withdraw the applications against the other three defendants.

50 The Amended Application for Order, although not relying on all of the 16 particulars cited in the original application, still retains two of the particulars similar to those in this original application. There is a substantial difference between the amended application for order placed before the court and the original application.

51 I accept the defendant fully co-operated with the prosecutor at all stages of the investigation including the provision of documentation and assistance with the interviewing of witnesses.

52 In a consideration as to whether there is a utilitarian value to the plea, the use of the court's time must be valued. The fact of the plea and when it was made must also be taken into account, as well as other mitigating factors such as the expression of remorse and the assistance provided to authorities.

53 In consideration of penalty, I take into account the gravity of the offence, the plea of guilty and the above relevant subjective features of the breach. In accordance with Sharma, notwithstanding the plea was entered on the scheduled first day of the trial, given there was an amended application for order then filed upon which an immediate plea was entered, I find there was a degree of utilitarian value to the plea entered on the amended application for order. I allow a discount of 20% for the plea in the circumstances. I allow a further discount of 10% for the subjective features referred above.

55 The defendant is to pay the prosecutor's costs. There will be a moiety to the WorkCover Authority. I note there has been no agreement between the parties as to the quantification of costs. I will hear the parties on this issue in the event no agreement can be reached.

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