Inspector May v Andrew Steward trading as ASB Constructions

Department of Mineral Resources of NSW (Chief Inspector Terrey) v AM Hoipo & Sons Pty Ltd (2000) 99 IR 137 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Inspector Chadwick v Denbur Constructions Pty Limited [2004] NSWIRComm 195 Inspector Green v Camilleri Properties Pty Limited (2006) 152 IR 156 Inspector May v HG Nielsen & Co Pty Ltd & Anor [2006] NSWIRComm 403 Inspector Paul Wade and Litchfield Roofing (Australia) Pty Ltd [2005] NSWIRComm 394 CASES CITED: Lowe v The Queen (1984) 154 CLR 606 Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of NSW (Inspector Glass) (2001) 106 IR 435 R v Thomson; R v Houlton (2000) 49 NSWLR 383 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd and Anor (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (2000) 101 IR 261 WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363

PROSECUTOR Mr D O'Neil of counsel Solicitor: Mr P Thompson DLA Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT Mr R Reitano of counsel Solicitor: Mr P Macken Leigh Virtue & Associates

INSPECTOR PHILLIP MAY v ANDREW STEWARD T/AS ASB CONSTRUCTIONS

Prosecution under s 8(2) of the Occupational Health & Safety Act 2000

1 Andrew Steward t/as ASB Constructions, the defendant has pleaded guilty to a breach of s 8(2) of the Occupational Health & Safety Act 2000 ("the Act"). 2 The defendant was the principal contractor engaged to perform construction works associated with the renovation of a residential dwelling at 3 Quarry Street, Tempe in the State of New South Wales ("the site"). The renovations included the construction of a second storey to the dwelling. The defendant engaged HG Nielsen & Co Pty Ltd to perform roofing works on the site. 3 On 27 April 2004, Mr Hugh Crawford was employed by HG Nielsen & Co Pty Ltd to carry out roofing work at the site. He was descending a ladder from the second storey to the first storey when the ladder slipped, causing Mr Crawford to fall approximately 3.4 metres onto the clip-lock roof below. 4 Mr Crawford sustained serious injuries including fractures to his spine, a fracture to his right collarbone, three broken ribs and a cut to the head, which required 50 stitches. HG Nielsen & Co Pty Ltd and its director, Mr T Nielsen were charged in relation to the incident. Each pleaded guilty and fines of $60,000 and $6,000 were respectively imposed: Inspector May v HG Nielsen & Co Pty Ltd & Anor [2006] NSWIRComm 403. 5 In an amended application for order Inspector Phillip May of the WorkCover Authority of New South Wales alleged the defendant: Contravened Section 8(2) Section 8(2) of the Occupational Health and Safety Act 2000 (Act) in that; On 27 April 2004 at 3 Quarry Street, Tempe in the State of New South Wales, (site), the defendant, being an employer in NSW, failed to ensure that persons other than his employees, including Hugh Crawford (injured worker) and Nathan Bullock, were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they were at the employer's place of work in that as the injured worker was attempting to climb down a ladder from the roof of the second storey to the roof of the first storey of the residence at the site the ladder slipped and fell causing the injured worker to fall approximately 3.4 metres sustaining serious injuries including fractures to his spine, ribs and right collarbone by reason that: 1. The Defendant failed to ensure that there was a safe means of movement between the different levels at the place of work, namely the roof of the residence at the site; and 2. The Defendant failed to ensure that there was provided a specific safe work method statement for the work to be performed at the site; and

3. The defendant failed to conduct an adequate risk assessment of the work to be performed at the site; and 4. The Defendant failed to ensure that there was a safe system of work provided to people other than employees at the site such that: (a) ladders were properly tied off and footed when used; (b) falls from height were controlled by a means of fall protection; 5. The Defendant failed to ensure that there was provided to non-employees site specific induction and supervision. 6 Further particulars of the offence were set out in the amended application for order, which were reproduced in the statement of agreed facts. 7 Mr D O'Neil of counsel, who appeared for the defendant, tendered the following evidence:

1. A factual inspection report by Inspector Denis Macready dated 4 January 2006. 2. Three colour photographs showing the front, rear and first level of the site. 3. A prior convictions statement. The defendant has no prior convictions. 4. WorkCover Code of Practice 2004 - Safe Work on Roofs Part 2 - Residential Buildings. 6. Statement provided by Mr Graeme Perrett (Supervisor) to Inspector Phillip May dated 4 November 2004. 7. Roof Tiler's Safety Plan dated 23 April 2004 together with blank OHS Site Safety Plan Attachment - Site and Trade Specific Risk Assessment, 3 Quarry Street, Tempe. 8 The agreed statement of facts provided the following information: 1 At all material times the Prosecutor was an Inspector appointed under Division 1 of Part 5 and empowered by section 106(1)(c) of the Occupational Health and Safety Act 2000 (Act) to institute proceedings in this matter. 2 The Prosecutor brings proceedings under section 8(2) of the Act against Andrew Steward, of 6A Blamey Street, Allambie in the State of New South Wales. 3 The Prosecutor conducted investigations into the circumstances surrounding an incident which occurred on 27 April 2004 to Hugh Crawford (injured worker), then aged 51 years, 3 Quarry Street, Tempe in the State of New South Wales (site). 4 At all material times H G Nielsen: 4.1 Was a duly incorporated company with its registered office located at Suite 36, 401 Pacific Highway, Artarmon in the State of New South Wales; 4.2 Employed the injured worker as a roof tiler tradesman commencing approximately 1981; 4.3 Entered a contract with Andrew Steward (Steward) trading as ASB Constructions (ASB) of 6A Blamey Street, Allambie, NSW to perform roofing works on the residential building at the site. 5 At all material times ASB: 5.1 Was the principal contractor for the site; 5.2 Employed Patrick Hoelscher as an apprentice carpenter on the day of the incident; 5.3 Had an undertaking at the site to perform construction works associated with the renovation of the residential dwelling at the site. In particular the construction of a second storey to the dwelling. 6 The roofing works performed by H G Nielsen at this site consisted of repairs to the existing slate roof and provision of a new slate roof to the extension to the dwelling at the site. HG Nielsen was not contracted to perform repairs to the existing almost flat clip lock roof on the first storey or the provision of the newly installed flat ribbed profile roof on the second storey. 7 At all material times Nielsen was a director of H G Nielsen. 8 At all material times the site constituted H G Nielsen's and ASB's place of work. Background 9 On Saturday 24 April 2004 Nielsen and the injured worker attended the site and performed some work on the flat roof at the premises. Nielsen decided that work should cease early on 24 April 2004 due to concerns he had relating to the safety of working on some pitched sections of the roof whilst there were no safety rails installed. 10 Nielsen was to arrange for the installation of safety rails on Tuesday, 27 April 2004 as Monday 26 April 2004 was the Anzac day holiday but failed to do so. 11 Two sub contractors to ASB, Clayton Marshall (Marshall) and Graeme Perret (sic) (Perret) (sic), were present at the site performing work for ASB on Tuesday 27 April 2004. Perret (sic) was nominated by ASB as its the site supervisor. 12 On Tuesday, 27 April 2004 another employee of H G Nielsen, Nathan Bullock (Bullock), a 16 year old apprentice, was present at the site to assist the injured worker. 13 Bullock was working on a section of roof at the front of the premises on Tuesday 27 April 2004. The inured worker had forbidden Bullock from accessing the roof at the rear of the building. 14 The site consisted of a residential building undergoing renovation with a new second storey addition being added. There was a pitched slate roof to the front of the building rising to the second storey addition which also had a partially completed pitched slate, metal and timber roof at the time of the incident. To the rear of the second storey addition was another section of the premises. The roof of this section was approximately 3.4 metres lower than the flat roof of the second storey addition and had an almost flat metal clip-lock roof. This roof was approximately 4.4 metres above ground level. 15 At all material times there was no scaffolding or safety rails provided at the site. 16 The employees of H G Nielsen were not wearing any safety harnesses whilst working at the premises and there were no ropes provided for use with safety harnesses. 17 There was a rope tied to the roof at the premises which workers used as an aid to assist in walking on the pitched section of the roof at the front of the residential building at the site. Incident 18 On Tuesday 27 April 2004 at approximately 8.45am the injured worker was on the existing flat ribbed profile roof of the second storey of the building at the premises and decided to access the clip lock roof of the first storey on his way to getting some more roof slates. 19 The injured worker decided to use a ladder which was already in place between the first and second storeys as a means of access to the roof of the first storey. 20 The ladder had been placed on the clip lock roof of the rear section of the premises and was leaning against the guttering of the second storey. The ladder could extend to approximately 4.5m and was extended approximately one metre above the edge of the second storey roof before the injured person attempted to descend. 21 The ladder was not tied off or footed and there was no other person holding the ladder as the injured worker was attempting to descend the ladder. 22 As the injured worker was in the process of descending the ladder it slipped and fell causing the injured worker to fall approximately 3.4m from the existing flat ribbed profile roof onto the clip lock roof below. 23 The injured worker was transferred to Royal Prince Alfred Hospital for treatment and remained in hospital for approximately four days. 24 As a result of the incident the injured worker sustained serious injuries including fractures to his spine, a fracture to his right collarbone, three broken ribs and a cut to the head which required 50 stitches. Investigation 25 At approximately 10.41am on Tuesday 27 April 2004 Inspector Denis Macready attended the site in response to a verbal notification of the incident. 26 On arrival at the site Inspector Macready was met by Sergeant Brett Godfrey and Constable Rowena Ryder of Newtown Police, Nielsen, Steward, Perret (sic) and Bullock. 27 During the inspection Inspector Denis Macready observed, inter alia, the following: 27.1 A residential dwelling with a chain wire fence that had a sign mounted on it. The sign was white with green letter in that read "Development Proposal". 27.2 The single storey dwelling consisted of light green painted brick walls, reddish brown and white framed windows with lattice work. 27.3 The roof was pitched and consisted of grey slate tiles. There was a central arched entrance with a small pitched roof and a white gable that faced Quarry Street. The number "3" was attached to the right side of the arch. Either side of the arched entrance was a verandah with a reddish brown metal bull nose roof. 27.4 On the left, lower, front side of the slate roof lay a roll of silver and blue material. 27.5 A blue cloth lay on the right hand side of the bull nose roof. 27.6 From the top of the house a rope was observed running over the top, centre of the slate roof, down to the top of the left side of the bull nose roof. 27.7 At the rear of the building there was a partially constructed second storey which consisted of a pitched roof with gables at the Northern and Southern ends. The pitched roof was not completed and insulation and battens were visible. 27.8 At the rear of the building was a flat pitched skillion roof that ran off the back edge of the new extension and appeared to be sheeted with clip lock metal roofing material. The walls were clad with grey, Hardie Board type planks. 27.9 The back half of the single storey dwelling had been previously extended out to the back and consisted of brick walls and a silver/grey clip lock style flat roof. This roof was approximately 4.4m high at the rear. 27.10 From the room on the second storey under construction could be seen a patch of red substance approximately 250mm x 450mm on top of the clip lock roof, approximately 1.11m from the south wall and 1.20m from the external wall and was approximately 3.4m below the roof of the second storey. Steward and Nielsen identified this area as the place where the injured worker was found. 27.11 Adjacent and to the left of the red substance was a timber wedge that measured approximately 100mm x 40mm. 27.12 Adjacent and further to the left of the red substance and timber wedge was a patch of nails covering a diameter of approximately 800mm. 27.13 Approximately 2.4m from the external wall, west of the red substance was a light blue T-shirt with a dark blue patch. 27.14 To the right of where the injured worker was found was a green poly tarp placed in a pile that measured approximately 3.0m x 2.5m. 27.15 Approximately 1.2m north of the northern wall was an aluminium extension ladder with white writing and a blue background with the words "Bailey, leading the world on ladders". The ladder was laying in an east-west direction and was approximately 3.5m to 4.0m long. 27.16 West of the green tarp was a small pile of slate tiles, measuring approximately 400mm x 500mm that was in line with the north was (sic) of the extension and approximately 3m west of the back wall. 27.17 Behind the tiles were three (3) pieces of timber, 2 x 500 x 50mm (approx) and 1 x 300 by 50mm (approx). Behind the timber was a stack of orange and black ridge capping tiles. 27.18 To the left of the ridge capping was a pile of slate 500mm x 500mm x 60mm high. 27.19 At the western end of the ladder in the northern corner of the first storey clip lock roof lay another stack of slate tiles. 27.20 Another green poly tarp partly covered the west end of the ladder and part of the slate tiles. 27.21 To the north of the ladder on the northern edge of the first storey roof was a number of edge capping tiles, four (4) decorating ridge cap tiles and a large centre capping tile, several pieces of timber trims, a length of guttering and several short pieces of Hardie Board type material. 27.22 The metal clip lock roof on the first storey where the injured worker was found measured approximately 7.5m wide x 5.2m deep. Following the incident 28 H G Nielsen, Nielsen and Steward trading as ASB fully cooperated with WorkCover during the investigation. 9 Mr R Reitano of counsel, who appeared for the defendant, relied on the following evidence:

1. An affidavit of Andrew Steward sworn 4 December 2006. He who was not required for cross-examination. 2. Taxation returns of Andrew Steward and Vivienne Steward together with Vivienne Steward and Andrew Steward Partnership for year ended 30 June 2005. 3. Photograph showing 10 Occupational Health and Safety folders. 4. Five testimonials in respect of Mr Stewart. 5. Supervisors Occupational Health and Safety Instruction Manual. 10 Mr Andrew Steward stated that he is in partnership with his wife Vivienne Stewart, operating a business known as ASB Constructions. The business commenced to trade in 2000 with the partnership commencing in 2003. He stated that other than the incident which gave rise to these proceedings, there has not been an incident that has resulted in any injury to an employee of the business. Mr Steward stated that he has always placed a very heavy emphasis on safety and his compliance with occupational health and safety obligations, which has given rise to adverse comments and complaints because of his insistence on proper procedure and compliance with his occupational health and safety obligations. Mr Steward has attended occupational health and safety management courses and had arranged for sub-contractors to attend a subsequent course with him. 11 When work commenced at the site of the incident, Mr Steward made arrangements for a safety policy and management plan, which he had used on another site to be adopted at the Tempe site. Mr Steward commenced as the site Foreman and Supervisor, employing Mr Clayton Marshall and an apprentice, Mr Patrick Hoelscher. After a few weeks, he handed over responsibility as Foreman and Supervisor to Mr Marshall. However, Mr Steward realised that Mr Marshall may not have been able to fulfil such responsibilities and therefore advertised for a new Foreman. Mr Graeme Perrett commenced work at the site on 7 April 2004 as the Foreman and Supervisor. Mr Steward deposed that he spent an amount of time instructing Mr Perrett what was required for the purpose of supervising the site and managing the occupational health and safety system he had implemented at the time. A written manual was provided to Mr Perrett outlining how to run the site induction and how to maintain records associated with the safety programme. 12 Roofing work was to commence at the site on 27 April 2004. On the afternoon or evening of 24 April 2004, Mr Steward attended the site and left documentation associated with the occupational health and safety programme including, in particular, the site induction documentation. 13 Mr Steward stated that he spoke to the owner of the site about ensuring that the documents were left in a conspicuous place so that Mr Perrett could locate them. He specifically spoke to Mr Perrett prior to work commencing on 27 April 2004 to remind him to make sure that the site induction was carried out and the documentation was completed. 14 After the incident on 27 April 2004, Mr Steward immediately set about revising the safety plan and the occupational health and safety system. He developed a more thorough induction process and implemented the use of an induction register as a way of checking to ensure that the inductions were being adequately carried out and that verification of the induction process and safety systems were completed and filed. 15 Where a tender is accepted by the defendant, all documents associated with the safety system are provided to the owner, his supervisors, and any other contractors associated with building or renovation. All forms and documents are required to be signed on site and returned to him for reviewing each week. 16 Following the incident, Mr Steward purchased safety signage and equipment. Additional occupational health and safety training has been provided to his employees which included two of his employees attending the WorkCover Authority Occupational Health & Safety Accreditation Induction Training Course in May 2004. Two other employees had already undertaken this course at TAFE. 17 In addition to Toolbox meetings which are conducted on a regular basis, Mr Steward has implemented a system of meeting with his supervisory staff on a Wednesday evening each week, for the purpose of discussing occupational health and safety issues and to reinforce compliance with occupational health and safety obligations. Mr Steward has implemented and improved the site register so that any person entering the site undertakes induction and is required to sign in and out by the site supervisor. He has also adopted a pegboard system by which a person's details are completed on a green tag (if they are a regular sub-contractor and have been inducted onto the site) or a red tag if they are a visitor. 18 All persons entering a site must initially attend the site office, which has clearly visible all of the occupational health and safety obligations that need to be satisfied. "Walkie talkies" have been provided to employees to enable the site supervisor to be notified immediately a person attends the site. Any person who has been away from the site for a period of time is again inducted to the site if the period of absence necessitates this. 19 Mr Steward stated that in the financial year ending 30 June 2005, his total taxable income was $23,836 and his wife's taxable income was $29,000. He has some continuing community involvement as a sponsor with the New South Wales Police Force and provides financial support to the Heart Foundation and the Careflight Helicopter. He has been a member of the Housing Industry Association since 1998. He also provides counselling and training through the Zoeros Life Skills Training Programme. 20 Mr Steward stated that the proceedings have had a very significant impact on himself, his family and his business and that he deeply and sincerely regrets the occurrence of the incident and has taken it upon himself to use his best endeavours to ensure that no such incident occurs in the future. 21 It should be observed that there was a clear factual difference between Mr Steward and Mr Perrett in respect of whether Mr Steward spoke to Mr Perrett on 27 April 2004 and reminded him to make sure the site induction was carried out and documentation completed. However, the defendant did not require Mr Perrett for cross-examination, accepting that the defendant had failed to implement and ensure that there was a proper and appropriate system of supervision in place on the day of the incident. 22 It was acknowledged by the defendant that regardless of whether Mr Perrett was new to his employment and should have taken further steps to ensure the health and safety of those on site, or that there was a miscommunication or misunderstanding between Mr Steward and Mr Perrett, the defendant, should have done more to ensure safety at the site. Consideration 23 Counsel were in agreement as to the principles to be applied in sentencing hearings, which I do not propose to set out, as they are well known. 24 The obligation upon an employer under s 8(2) of the Act is to ensure that persons not in the employer's employment are not exposed to risks to their health and safety. The risk in this case was the risk of falling from the second storey to the roof of the first storey of the residential premises at Tempe. 25 Although the defendant had taken some steps, he had failed to take all the necessary steps, to ensure that there was no detriment to safety at the site. Needless to say, with any fall from height, there is a serious risk and in this case, it was clearly foreseeable. In this matter there was a sloping roof at the front of the house and at times the workers used a rope as an aid to assist in walking on the pit section of the roof at the front of the premises. There was no scaffolding or safety rails provided at the site and employees of the sub-contractor did not wear any safety harnesses while working at height. The defendant did not consult with anyone at the site with regard to the identification of any risk involved in carrying out the work on the roof. Such consultation and the provision of a safe work method statement prior to the work commencing would have resulted in appropriate fall protection equipment being in place prior to the work commencing. 26 In the absence of appropriate fall protection equipment, the risk was obvious. Where the risk of injury is obvious and foreseeable and insufficient steps are taken to eliminate the risk or to protect employees from its impact, it will increase the seriousness of the offence: WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd and Anor (2000) 95 IR 383 at 452; WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (2000) 101 IR 261 at 267. 27 The observations of Boland J in Inspector Chadwick v Denbur Constructions Pty Limited [2004] NSWIRComm 195 are equally apposite to this matter. His Honour said at [18]:

[18] This is yet another example of the principal contractor not taking sufficient steps to exercise proper management and control over its place of work, namely, the construction site, in respect of occupational health and safety matters. Experience shows that principal contractors in the construction industry cannot be assured that subcontractors will, as a matter of course, meet their responsibilities regarding safe working. Where subcontractors fail to ensure the safety of their employees it will often reflect a failure on the part of the principal contractor. This is one of those cases. 28 It was acknowledged by the defendant that there had been a failure to provide proper supervision at the site. Had this occurred, it would have meant that, at the very least, the ladder would have been tied and properly footed. Although documentation associated with occupational health and safety programmes, including an induction document, was left at the site by the defendant, and this is a factor to be taken into account in favour of the defendant, the safety documentation was not implemented. 29 In Inspector Paul Wade and Litchfield Roofing (Australia) Pty Ltd [2005] NSWIRComm 394, a Full Bench approved observations made by Walton J, Vice-President in WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 regarding "paper systems". His Honour said at [35]:

[35] However, the occurrence of the accident in this case indicates these procedures were not sufficiently comprehensive or sufficiently communicated to and understood by the employees to ensure their safety. The existence of a system on paper alone is clearly not sufficient to comply with the obligations imposed by the Act. The employer is required to ensure that its "paper systems" are implemented and maintained in its daily operations: see Sydney City Council v Coulson (1987) 21 IR 477 at 480; WorkCover Authority (NSW) (Inspector Tyler) v Abigroup Contractors Pty Ltd (2000) 99 IR 196 at 214 par 26. The Court must have regard not merely to the system as it exists in theory, but as it is implemented in practice. In Inspector Davies v Supercoat Feeds Pty Limited (unreported, CT96/1020, 22 April 1997, at p 4), for example, Fisher P said: "The relevant system of work, however, is the customary method of carrying out the operation in which the employer is engaged - the system of work is that actually utilised and operated at the place of work. 'Paper' systems whose prescriptions are not followed do not represent the actual system of work utilised and are irrelevant." 30 The defendant also failed to conduct an adequate risk assessment. 31 Mr Reitano accepted that it was a serious offence. However, he submitted that the risk of falls from heights was known to the defendant and was referred to in the Supervisor's Occupational Health and Safety Instruction Manual that the defendant left at the site. 32 The obligation on the defendant was to ensure that no work occurred at height without appropriate fall protection equipment, scaffolding or railings being in place. Although the defendant had recognised the risk, which is well known in the industry and identified it in its occupational health and safety programme left at the site, it failed to ensure that HG Nielsen & Co Pty Ltd and Mr Nielsen were provided with a safety work method statement. The risk was not only obvious, but was identified, it being the risk of persons falling from height. 33 The measures open to the defendant to ensure against the risk were simple and straightforward as evidenced by the instruction manual and the steps taken by the defendant after the accident. 34 In the present case, Mr Crawford fell approximately 3.4 metres and suffered fractures and lacerations to his head. The injuries to Mr Crawford manifest a serious risk to safety. 35 The importance of general deterrence in the present circumstances is demonstrated by a number of factors. Mr Crawford was working at a height of approximately 3.4 metres, which was accessed by a ladder which was not tied and did not have a proper footing. Mr Crawford was not provided with fall protection equipment, scaffolding or rail protection. In WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363, a prosecution which involved an apparent fall from a ladder by an employee, a Full Bench observed at [28]:

[28] … These matters highlight yet again the dangers of working at heights and the importance of implementing appropriate safety measures for the protection of workers. The issue has been recently discussed in a number of Full Bench decisions of this jurisdiction: see for example Inspector Green v Camilleri Properties Pty Limited (2006) 152 IR 156; Inspector Mason v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350, at [43]. 36 It is clear from the cases cited above by the Full Bench that falls from height, including in the building and construction industry, continue to be a regular feature of cases coming before this Court in its occupational health and safety jurisdiction. It is appropriate in this case that I give weight to the need for general deterrence. 37 As to specific deterrence, I note that the defendant continues to operate in the building industry. However, I also note that the defendant took immediate and significant steps on the day after the accident to improve its polices and procedures regarding occupational health and safety. This is the first offence since the business has been operating and it cannot be said that the defendant had no safety plan. These factors result in a small component being included in the penalty in respect of specific deterrence. 38 In respect of the subjective factors, the defendant entered a plea at the second directions hearing. I am disposed to accept that the plea was entered at the earliest opportunity, despite a submission that questioned whether the plea would be so characterised. In accordance with the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383, the defendant is entitled to a discount of 25 per cent for the utilitarian value of the plea. 39 Other subjective considerations include that the defendant is a relatively small operation. It has no prior convictions. It co-operated with WorkCover in the investigation of the accident and it took appropriate steps to avoid a recurrence of the accident and has improved its policies and practices relating to occupational health and safety. The defendant is entitled to a finding that he is a good corporate citizen. I also take into account the defendant's contrition and the testimonials by other persons in organisations that have worked with the defendant. 40 The defendant relied upon s 6 of the Fines Act 1996 ("the Fines Act"). The relevant principles in relation to the application of s 6 of the Fines Act have been collected in a number of decisions in this jurisdiction: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209; Department of Mineral Resources of NSW (Chief Inspector Terrey) v AM Hoipo & Sons Pty Ltd (2000) 99 IR 137 at [48] - [51]; Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of NSW (Inspector Glass) (2001) 106 IR 435 at [56] - [57], [67], [81] - [83]; Inspector Green v Camilleri Properties Pty Limited (2006) 152 IR 156 at [21]. A Full Bench in WorkCover Authority of New South v D J Gleeson Pty Ltd recently adopted the principles set out in these decisions. 41 In Manpac Industries the Full Bench stated at [81] - [82]:

[81] … Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714, 100 IR at 76).

[82] However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at pp 209-210, Wright J, President observed: "... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. ...

When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ... 42 It is clear that the defendant is a small business, albeit, as described by Mr Steward as successful. It has operated profitably for some time. The partnership generated $1.2 million in the financial year ending 30 June 2005. After expenses were deducted from the business, Mrs Steward's taxable income was $49,890. This included an amount of $20,819 being capital gain. Mr Steward's taxable income was $23,836. The partnership's net income was $44,178. 43 I propose to take into account the defendant's financial position and give it appropriate weight in determining the penalty to be imposed in this matter. 44 In Inspector May v H G Nielsen & Co Pty Ltd, the corporate defendant was fined an amount of $60,000 for a breach of s 8(1) of the Act in relation to the accident of Mr Crawford. The question arises as to the relative culpability of the defendant in these proceedings. It was common ground that the maximum fine in this matter is $55,000. In assessing the relative culpability, it is appropriate that I take into account that this defendant had a supervisor's instruction and safety manual, which included site induction documentation and a reference to use effective fall prevention systems. The documentation was left at the site on the afternoon or evening of Friday 24 April 2004. It will be recalled that the accident occurred on Monday 27 April 2004. However, this defendant had a responsibility for the whole of the site on the day of the incident and should have ensured that any risk to safety was avoided. 45 Mr O'Neil submitted that the appropriate approach to take is to focus on the breaches of this defendant as the principal contractor in assessing the culpability of this defendant. Counsel submitted that although I should be aware of the role of HG Nielsen Pty Ltd as the employer, I should not be "distracted" by that fact. This is so, however, it is appropriate that I approach sentencing in this matter in accordance with the principles set out by Mason J, as his Honour then was in Lowe v The Queen (1984) 154 CLR 606 where his Honour said at 610 - 611: "Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." Brennan J added in that same case (at 617): "The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case." 46 In my view, the respective culpability of the two defendants is approximately equal given that each defendant had an obligation to ensure safety at the site but noting that this defendant's obligations extended to ensuring the safety of the site on the day of the incident. Taking into account the matters referred to in this judgment, I propose to impose a penalty of $10,000 on the defendant Andrew Steward t/as ASB Constructions. ORDERS 47 I make the following orders:

1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence alleged under s 8(2) of the Occupational Health & Safety Act 2000. 3. The defendant is fined an amount of $10,000 with a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, if agreement cannot be reached, as assed in accordance with the Court Rules.

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