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: