41 The defendant has pleaded guilty to two charges under s 8 of the Occupational Health and Safety Act. Both charges involve extensive and serious failures to ensure the safety of personnel at the 'Peppers at Salt' site on 15 January 2005. The failures included a failure to provide and maintain a system of work that was safe and without risk to health, a failure to ensure plant was safe, a failure to provide such information, instruction and training as was necessary to ensure the health and safety at work of personnel and a failure to provide such supervision as was necessary to ensure health and safety.
42 It is difficult to comprehend why such a reputable firm, with long experience in the construction industry and which undoubtedly had very good occupational health and safety policies and practices in place according to the evidence of Mr Vining, failed in so many ways to ensure the health and safety of personnel on the site. But fail it did, leading to the creation of a risk that had tragic consequences.
43 The failure in relation to the system of work occurred essentially because the defendant allowed the crane to traverse across a slope with a raised and freely suspended load. This resulted in excessive swinging and inertia forces being exerted by the load. Those forces adversely affected the stability of the crane.
44 It was quite unnecessary for the crane to be used for transporting the concrete to staircase 5.1. As the agreed facts revealed, there were at least four alternative means of supplying concrete, all of them simple and straightforward.
45 In relation to the unsafe plant, the agreed facts show that the crane did not have indicating and limiting devices fitted that would have assisted the operator to assess whether the crane was safe to operate. Furthermore, the crane's rated capacity charts did not comply with the relevant Australian Standard, thereby constituting a failure to provide necessary information. As to the failure to provide information and instruction the defendant had not devised a safe work method statement for the construction of staircase 5.1; neither Mr Davis nor Mr James had read the SWMS applicable to the operation of the crane, which required the crane to be operated on a level surface; and whilst the SWMS provided that "all inductees must, before operating the Manitou, sign off that they have read and understood the Manufacturer's Operators Manual" the operator's manual did not show the allowable slopes or load charts for the Manitou as configured on 15 January 2005.
46 Critically, in relation to the failure to provide supervision, Mr Davis had no experience operating a Manitou crane. He held no certificate of competency to operate such a crane and was unaware of its capabilities and limitations. Moreover, the attempted second pour of concrete occurred in the absence of supervision.
47 As it was recently observed by the Full Bench in Narayan v Inspector Dave Chamings [2007] NSWIRComm 281 at [40]:
[40] Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] and [18]. See also Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32].
48 The risk, which was the subject of the breaches in these proceedings, was the risk to the health and safety of personnel as a consequence of the crane toppling over. Manifestly, the risk in this case was serious indeed.
49 In Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 it was held that it will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible. See also Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 70. The risk of the crane toppling over and injury or death being the result was foreseeable. That the risk was foreseeable was evident from the training documents completed by Mr James when he gained his Manitou operator's ticket in September 2004 and from the SWMS applicable to the operation of the Manitou.
50 All of the foregoing factors - the unsafe system of work, the unsafe plant, the inadequacies in the provision of information, instruction and training, the failure to provide supervision, the potential for serious consequences flowing from the risk, the foreseeability of the risk and the availability of simple, straightforward measures that would have avoided the risk - lead irresistibly to the conclusion that in terms of the objective seriousness of the offences they are towards the higher end of the seriousness range.
51 General and specific deterrence are further considerations to be taken into account in determining sentence: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [71] to [80]. The defendant acknowledged that it was appropriate to have regard to the need for general deterrence. Undoubtedly that is correct, especially given the prevalence of cranes in the construction industry and the inherently dangerous nature of that industry.
52 In relation to specific deterrence, it must be acknowledged that the defendant has taken appropriate steps to avoid a recurrence of the incident. But as the Full Bench observed in Capral at [77]:
[W]e think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in the case of offences under the Act. At least where the offender continues to be an employer, risk to safety or its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may incur both by omission and omission. Employers are required to maintain constant diligence and take all practical precautions to ensure safety in the work place.
53 Consistent with that observation I propose to give some weight to specific deterrence.
54 There are a number of relevant subjective factors to be given weight. First, the defendant entered a plea of guilty at an early opportunity. That should attract a discount of 20 per cent. Secondly, I accept the expressions of remorse and contrition, manifested as they were in the early guilty plea and the assistance to Mr James and the family of Mr Palmer. Thirdly, there was cooperation with the Work Cover Authority in its investigation of the matter. Fourthly, the defendant is entitled to rely on the remedial steps taken after the incident to meet its occupational health and safety obligations. I have already referred to these steps; they were timely, comprehensive and appropriate. Fifthly, as the prosecutor acknowledged, the defendant may be regarded as a good corporate citizen.
55 As to the last consideration, however, it is noted that the defendant has three prior convictions: 2001, 2003 and 2004. This is a matter to be taken into account in fixing penalty: s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999. The prior convictions are a worrying sign, especially given the nature and quality of the instant offences. However, I am not satisfied that the defendant's antecedent criminal history is part of a continuing attitude of disobedience of the law which, having regard to the need for retribution, deterrence and protection of society, indicates a more severe penalty is warranted: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
56 In light of the sentence imposed on Linddales, the question of parity, or perhaps more accurately the need for consistency in the sentencing of offenders for what may be described as "related offences", arises. Linddales pleaded guilty to a charge under s 8(1) of the Act. The culpability of Linddales was significantly less than that of the defendant. The only failure by Linddales was a failure to ensure the plant was safe. Moreover, Linddales was a first-time offender. On the other hand, not only did the defendant plead guilty to two charges constituted by multiple omissions to ensure the health and safety of workers on the site, but the defendant as principal contractor also had control of the site and direct supervision of the workers whose health and safety was placed at risk.
57 There is no basis upon which to suggest the penalty to be imposed on the defendant should be on par with that imposed on Linddales.
58 It is necessary to consider the principle of totality. The correct approach to sentencing in circumstances where the totality principle arises for consideration involves taking each of the offences and, having regard to all of the relevant circumstances including the objective and subjective factors, arriving at a separate penalty for each offence: Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) (2006) 159 IR 121 at [584]. It is then open to the sentencing judge to apply the totality principle, which requires consideration of the overall criminality involved in the offences and which requires that regard be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate: Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at [37]. Once the totality principle had been applied it will then usually be appropriate to fix separate penalties for each offence.
59 In my opinion, having regard to how the charges were framed, the evidence in the proceedings and the Court's findings regarding the objective and subjective factors, there is no basis for distinguishing between the gravity of the two offences; they should attract the same penalty.
60 The maximum penalty in both cases is $825,000. It becomes a matter of determining where, given all of the circumstances, the penalties should be fixed on the scale of zero to the maximum.
61 For the offence committed against s 8(1) of the Act I consider that the appropriate penalty is $200,000. Given my view that the two offences should attract the same penalty, it follows that in relation to the offence under s 8(2) the penalty should also be $200,000.
62 As I observed in Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) (No 2) [2007] NSWIRComm 168 at [77]-[78] in relation to the predecessor provisions to ss 8(1) and (2):
[77] … [U]nder the totality principle a defendant is not to be punished more than once for elements that are common to the offences and, as well, the aggregate sentence or penalty is to be just and appropriate having regard to the overall criminality involved. In a technical sense, s 15(1) and s 16(1) are constituted by different elements but the intention of both sections is the same, that is, to place obligations on employers to ensure the health and safety of persons where those persons are at the employer's place of work, and those obligations apply equally to employees and non-employees. It is arguable, therefore, that where two offences have been committed, one under s 15(1) and the other under s 16(1) and the offences are of the same level of seriousness so as to attract the same amount of penalty, that to do other than apply one penalty to both offences would be to breach the totality principle.
[78] On the other hand, if the defendant has breached its separate obligations to both employees and non-employees, it is arguable that applying the penalty for one offence to both offences would not reflect the overall criminality involved.
63 Accordingly, although there is a significant overlap between the elements of the respective offences, given the defendant breached its obligations to both employees and non-employees under provisions of a statute that create separate offences, an aggregate sentence of $200,000 would not properly reflect the overall criminality of the offences. In those circumstances, I have decided the offence under s 8(1) should attract a penalty of $150,000 and the offence under s 8(2) should attract the same penalty, making a total of $300,000.
Orders