Inspector McColl v Combined Crane Rigging & Arthur Didovich

PROSECUTOR Ms P E Lowson of counsel Solicitor: Ms R E Sutton Moray & Agnew

LEGAL REPRESENTATIVES: DEFENDANTS Mr S B Benson of counsel Solicitor: Mr D Brown Brown & Partners

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 19 March 2004

INSPECTOR WILLIAM McCOLL v COMBINED CRANE & RIGGING PTY LTD (IN LIQUIDATION)

Prosecution under s 16(1) of the Occupational Health and Safety Act 1983

INSPECTOR WILLIAM McCOLL v COMBINED CRANE & RIGGING PTY LTD (IN LIQUIDATION)

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

INSPECTOR WILLIAM McCOLL v ARTHUR DIDOVICH Prosecution under s 50(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 48

1 Combined Crane & Rigging Pty Ltd ("the first defendant") had been engaged by Abbey PreCast Concrete Australia Pty Limited (now known as Danmark PreCast Pty Ltd) to install tilt-up concrete panels weighing approximately eight tonnes and measuring about 6-8 metres long and two metres wide at a construction site at 7-9 Lanceley Place, Artarmon in the State. St Hilliers Contracting Pty Limited was the principal contractor on the site. Arthur Didovich ("the second defendant") was a working director of the first defendant and a person involved in the day-to-day management of the first defendant's activities and was in a position to influence the conduct of the first defendant.

2 On 3 October 2000, a crane being used by the first defendant to place the concrete panels into position needed to be moved to a particular position on the site. In order to do this, props supporting concrete panel number 243 needed to be moved. In the process of moving the props the panel fell onto the roof of a factory unit next door to the site. No person was injured.

3 The first defendant was prosecuted by Inspector William McColl ("the prosecutor") of the WorkCover Authority of New South Wales under s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983. Inspector McColl prosecuted the second defendant under s 50(1) of the Act.

4 Section 15(1) of the Act provides: 15. Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

5 Section 16(1) of the Act provides: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

6 Section 50 of the Act provides: 50. Offences by corporations (1) Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that: (a) (Repealed) (b) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. (2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed. (4) In the case of a corporation which is a council of a local government area, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section.

7 The first defendant is a company in liquidation and the prosecution was advised by the Liquidator, Mr G T Hancock of Horwath, Chartered Accountants, that he would "not be attending or defending" the proceedings. No plea was entered. Notwithstanding that the first defendant is in liquidation there is no bar to the prosecutor proceeding against the defendant: See WorkCover Authority of New South Wales (Inspector Maltby) v Josef & Sons Contracting Pty Limited (In liquidation) & Ors (2002) 118 IR 259; Inspector Steve Jones v T Helsby & Sons Contracting Pty Ltd (Administrator Appointed) [2004] NSWIRComm 5.

8 Further, although the first defendant was not represented in the proceedings the matter may proceed ex parte. Section 250 of the Criminal Procedure Act 1986 provides: 250 Procedure where accused person does not obey order to appear If the accused person does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned), the court may, if satisfied that the order was served on the accused person: (a) proceed to hear and determine the matter in the absence of the accused person, or (b) if the court thinks the matter should not proceed on that day or without the accused person, adjourn the hearing to a specified time and place and make an order for the apprehension of the accused person under Division 2.

9 I am satisfied that the relevant order was served on the first defendant and that the Liquidator was aware of the time and place for hearing. The Liquidator made a decision not to be represented.

10 Section 198 of the Criminal Procedure Act provides: 198 Absent accused person taken to have pleaded not guilty An accused person in proceedings who is absent from the proceedings and who has not lodged a written plea of guilty in accordance with section 182 is taken to have pleaded not guilty.

11 The charge under s 15(1) against the first defendant was that the defendant: being an employer on 3 October 2000 at a construction site known as the 'Enterprise Centre' located at 7-9 Lanceley Place, Artarmon in the state of New South Wales ("the site") DID FAIL to ensure the health, safety and welfare at work of its employees and in particular Mario Katalinic, Ian Lee and William Latimer ("the workers") contrary to section 15(1) of the Occupational Health & Safety Act, 1983 in that the said employees, were exposed to risk of injury in carrying out the work of installing pre-cast tilt up concrete panels using a Cerdano 50 tonne mobile crane at the said site when a pre-cast concrete tilt up panel identified by the number 243 ('the panel") fell from its position by reason that the defendant failed: (1) to provide or maintain a system of work that was safe and without risk to health by reason that: (i) there was no adequate documented procedure for inspection of the props of the pre-case tilt up panels and the means of securing those props to the panels; (ii) there were no adequate records kept of inspections with respect to the means used in fixing the props to the pre-cast panels;

(iii) the panel identified as 243 was not secured by fish plates or any other means before its props were removed to allow crane access to that area of the site;

(iv) there was no adequate, safe work method statement for the removal of props from pre-cast panels to allow crane access;

(v) there was no adequate risk assessment of the tasks to be performed by the workers. (2) to provide such information, instruction, training and supervision, as may be necessary, in relation to the installation of pre-cast tilt up panels by reason that the defendant did not: (i) adequately ensure that its employees understood that the panel was to be secured by fish plates before its props were removed to allow crane access;

(ii) adequately assess the training of its employees, to ensure competency to install the pre-cast tilt up panels;

(iii) adequately supervise its employees, to ensure they did not remove props on the panel without it being secured by other means;

(iv) make any, or adequate, arrangements for the supervision of its employees at the site: (a) generally; and/or (b) in circumstances where arrangements had been made for crane access between the defendant and the principal contractor and were not adhered to.

(v) instruct its employees to wait until the panel had been secured by fish plates before removing its props to allow crane access;

(vi) instruct its employees to inspect the props on the pre-cast tilt up panels. (3) to maintain a place of work under its control, to wit the north western side of the site on Level 2 in a condition that was safe and without risks. (4) failed to take steps as were necessary to make available in connection with the use of plant, to wit a crane, adequate information about crane access at the site and about any conditions necessary to ensure that pre-cast tilt up panels were secured by appropriate means prior to the removal of their props to allow crane access.

12 The charge under s 16(1) against the first defendant was that the defendant: being an employer on 3 October 2000 at a construction site known as the 'Enterprise Centre' located at 7-9 Lanceley Place, Artarmon in the state of New South Wales ("the site") DID FAIL to ensure that persons not in its employment, namely employees of St Hilliers and members of the public in the vicinity of the factory units at 80 Reserve Road, Artarmon were not exposed to risks to their health and safety arising from the conduct of its undertaking, namely the installation of pre-cast concrete tilt up panels using a Cerdano 50 tonne mobile crane at the said site when a pre-cast tilt up concrete panel identified by the number 243 ("the panel") fell from its position onto the roof of factory units at 80 Reserve Road, Artarmon contrary to section 16(1) of the Occupational Health & Safety Act , 1983 by reason that the defendant failed: (1) to ensure there was any, or any adequate, safe work method statement for the installation of pre-cast concrete tilt up panels using a crane at the site;

(2) to carry out any, or adequate risk assessment of the tasks to be performed by its employees; (3) to ensure there was any, or any adequate procedure for inspection of the props on the pre-cast tilt up panels and the nuts and bots used to secure the props to the panels; (4) to prevent the removal of props on the panel identified as 243 to allow crane access without first ensuring the panel was secured by alternative means; (5) to provide such information, instruction, training and supervision of its employees, as may be necessary to ensure the safe handling of pre-cast concrete tilt up panels; (6) to adequately supervise its employees with respect to the handling and installation of pre-cast tilt up concrete panels.

13 The charge against the second defendant under s 50(1) was that he did fail: in that being a director of [the first defendant] and a person concerned in the management of the company, which company failed to ensure the health, safety and welfare at work of its employees and in particular Mario Katalinic, Ian Lee and William Latimer ("the workers") at a construction site known as the 'Enterprise Centre' located at 7-9 Lanceley Street, Artarmon in the state of New South Wales ("the site") contrary to section 15(1) of the Occupational Health and Safety Act 1983 in that the said employees were exposed to risk of injury in carrying out the work of installing pre-cast tilt up concrete panels using a Cerdano 50 tonne mobile crane at the said site when a pre-cast tilt panel with identification number 243 ("the panel") fell from its position by reason that the company failed: [the charge then sets out those particulars in the charge under s 15(1) against the first defendant] AND the defendant is deemed to have contravened the same provisions pursuant to section 50(1) of the Occupational Health and Safety Act 1983.

14 The onus falls on the prosecutor to prove the charges against the first defendant beyond reasonable doubt. The second defendant pleaded guilty to the charge under s 50(1) of the Act.

15 On 29 January 2004 St Hilliers was convicted pursuant to s 16(1) of the Act in relation to the incident that occurred on 3 October 2000 and a fine was imposed in the amount of $84,500: Inspector McColl v St Hilliers Contracting Pty Ltd [2004] NSWIRComm 3.

16 The evidence in relation to the first defendant consisted of the following: (a) The agreed statement of facts in relation to the second defendant. (b) A factual inspection report into the incident prepared by Inspector Peter Newman on 8 October 2000. (c) The following records of interview conducted by inspectors of the WorkCover Authority: (i) Mario Katalinic, dogman/rigger employed by the first defendant. (ii) Robert Davies, formwork carpenter employed by the first defendant. (iii) William Latimer, dogman/rigger employed by the first defendant. (iv) Ian Lee, crane operator employed by the first defendant. (v) Andrew Christopher Payne, sub foreman employed by St Hilliers Contracting Pty Limited. (vi) Mark Longo, general manager, construction employed by St Hilliers Contracting Pty Limited. (vii) Carmello Licciardello, project manager, employed by St Hilliers Contracting Pty Limited. (viii) Arthur Didovich, the second defendant. (d) A statement made by Vince Matters to the prosecutor on 11 December 2000 and who was working in unit 6 next door to the site when the concrete panel fell. (e) A letter to the prosecutor from Peter Roles received by the prosecutor on 31 January 2001 who was valuing a motor vehicle outside unit 4 next door to the site when the panel fell. (f) An affidavit of Rachael Ellen Sutton, solicitor, annexing correspondence with the Liquidator and ASIC extracts relating to the first defendant. (g) A statement showing that the first defendant has no previous convictions under the Occupational Health and Safety Act .

17 In relation to the charge under s 15(1) the evidence established that the prosecutor was duly appointed and authorised to institute the proceedings against the first defendant. The first defendant was an employer. Messrs Katalinic, Lee and Latimer were employees of the defendant and were at work on 3 October 2000 at 7-9 Lanceley Place, Artarmon. The first defendant had been engaged to erect and install concrete panels forming the walls of a building using a mobile crane to lift the panels into position. The statement of facts in the proceedings against the second defendant summarises, and is entirely consistent with, the other evidence in the proceedings against the first defendant, in particular, the records of interview. The statement contained the following facts: 16. At all material times, the first defendant employed: (a) Arthur Didovich, a director. (b) Ian Lee ("Mr Lee"), the crane operator (c) Mario Katalinic ("Mr Katalinic"), labourer (d) Robert Davies ("Mr Davies"). (e) Mr William Latimer ("Mr Latimer"). At all material times on 3 October 2000 the above employees apart from Arthur Didovich were present at the site at the time of the incident. Mr Didovich had left the site just before the incident occurred. 17. At some time between 29 September and 3 October 2000 the first defendant had erected panels at the site, including but not limited to panel numbered 243 18. On 29 September 2000, Mr Payne met with Mr Didovich at the site to discuss the procedure of what would take place on 3 October 2000 ("the 29 September meeting"). 19. During the course of the 29 September meeting, Mr Didovich advised Mr Payne that for the purpose of crane access to install the concrete panels for an internal wall, two set up props that were attached to panel 243, would need to be moved. Mr Didovich stated that the proposed work method was to install two additional props so as to ensure that there were two props in place at all times. It was further discussed and agreed that as an additional precaution fishplates would be welded to panel 243 and each adjoining panel prior to the removal of the props to give further stability to panel 243. Mr Payne stated that he would confirm with Abbey for a welder to be present on site on 3 October 2000 to undertake the welding work, in particular welding the fishplates to panel number 243 before the props were adjusted. 20. Following the meeting on 29 September 2000, Mr Payne telephoned Mr Paul Cattabriga of Abbey to arrange for a welder to be present at the site on the morning of 3 October 2000. In any event there was no welder in attendance on 3 October 2000. 21. On 3 October 2000 the crane was set up on a suspended slab consisting of hardwood timbers laid down on the first floor of the building under construction. Its function is to distribute the load of the crane. The size of the suspended slab was approximately 8ft by 8ft. 22. At all material times each panel was placed into position using the crane. Employees of the first defendant directed each panel into position. Each panel was numbered. Once a panel was installed the employees of the sub-subcontractor put props into position to secure each panel in place. The props were put on with the assistance of a cherry picker. The props were attached to the ferrule which forms part of the panel and the other end of the props were bolted to the floor using Dyna bolts. Each prop was secured to the ferrule with a pin which would be secured with a bent over nail or piece of wire to stop the prop from coming out. The first prop of each panel was used to plumb the panel before the second one was fitted or locked off. 23. At all material times on 3 October 2000, panel 243 was located on the north western side of the site on level 2 at the end of a row of four other tilt up panels. The panel formed part of the north wall and had two props supporting it. The props were secured with pins and Dyna bolts. 24. At all material times on 3 October the panel had a blue label on its base with identification number 243. 25. At all material times the panel weighed approximately eight (8) tonnes and measured between approximately 6 to 8 metres long by approximately 2 metres wide 26. The crane being used by Mr Lee on 3 October 2000 was an orange Cerdano 50 tonne mobile crane ("the crane") which was being used by the company to install the panels. The crane was facing the opposite direction to panel 243. 27. Mr Lee spoke to Mr Lucas, the foreman employed by the principal contractor to arrange for the movement of the propping under the suspended slab whilst he and the other employees of the sub-subcontractor had lunch. The crane was to be moved out, turned around and driven into position to begin installing the internal wall, which was to run perpendicular to the north wall. 28. On 3 October 2000 at approximately 1.15pm after some consultation with Messrs Lee, Latimer and Davies, Mr Katalinic went and obtained the rattle gun to undo the dyna bolt attaching one of two props to the floor. He removed the dyna bolt and at that point the panel fell on to the roof of factory Unit 4 at 80 Reserve Road, Artarmon which was located next door to the site. It is unclear whether or not Mr Katalinic had also removed the pin. In any event the connecting pin in the other prop was not in place. 29. When Mr Katalinic commenced removing the props from the panel, (i) had not been secured by other means; specifically the additional props had not been installed and the panel had not been welded to the adjacent panels using fish plates; and (ii) it had not been inspected to ensure that pins and Dyna bolts were secure. 30. From an inspection of the prop connections after the panel collapsed it appeared that there was no pin in the second prop. 31. As a consequence of the panel collapsing, damage was occasioned to units 1, 2, 3, 4, 5 and 6 located at 80 Reserve Road, Artarmon. The estimated cost of the damage was over $1,000,000. 32. At the time of the incident there were members of the public present in the vicinity of unit 4, 80 Reserve Road, Artarmon. Mr Peter Rolls, Mr Reg Rolls and Mr Clive Hores were present inspecting a motor vehicle. 33. At all material times on 3 October 2000, the first defendant failed to follow its own Work Method Statement in that a minimum number of two props should have been in place to hold the panel. 34. At all material times on 3 October 2000, the principal contractor, the first defendant and Mr Didovich failed to ensure that the prop was secured in place by a fishplate before removing its props. 35. At all material times the principal contractor and the first defendant failed to inform its employees of arrangements that had been made for the securing of the panel by alternative means before the props on panel 243 were moved. 36. At all material times there was no or any adequate record kept in the form of a site diary or otherwise of arrangements that had been made between Mr Payne and Mr Didovich as to how the panel was to be secured prior to the removal of props to allow crane access. 37. At all material times including 3 October 2000 the first defendant had no documented procedure for checking the security of the pins and Dyna bolts that secured props to the panels, and specifically panel 243.

18 I am satisfied beyond reasonable doubt that on 3 October 2000 the first defendant, being an employer at a construction site known as 'Enterprise Centre' located at 7-9 Lanceley Place Artarmon, did fail to ensure the health, safety and welfare at work of its employees and in particular, Mario Katalinic, Ian Lee and William Latimer contrary to s 15(1) of the Occupational Health and Safety Act 1983 in the manner described in the application for order.

19 Much of the evidence relating to the charge under s 15(1), particularly that evidence relating to the first defendant's failures, is relevant to the charge under s 16(1). However, in addition it must be proved that: 1. There were persons not in the defendant's employment;

2. The persons were at the defendant's place of work;

3. The defendant failed to ensure those persons were not exposed to risks to their health or safety;

4. The risk arose from the conduct of the defendant's undertaking.

20 The evidence was that at the time of the collapse of the panel there were persons not in the first defendant's employment, namely, Messrs Mathers, Hollabone and Doyle who were working in unit 6 at 80 Reserve Road Artarmon, which was next door to the construction site. Unit 6 was damaged as a consequence of the collapse.

21 Mr Peter Roles, Mr Reg Roles and Mr Clive Hores who were persons not in the first defendant's employment, were inspecting a motor vehicle outside unit 4 at 80 Reserve Road. Unit 4 was damaged as a consequence of the collapse.

22 I could find no evidence of any other persons not in the first defendant's employment who were at the first defendant's place of work in the sense that they were on the site at 7-9 Lanceley Place, Artarmon at the time the concrete panel fell and who may have been exposed to risks to the health and safety.

23 Thus, in considering whether or not there were persons at the defendant's place of work who were exposed to risk arising from the conduct of the defendant's undertaking, the consideration must be limited to those persons in unit 6 at 80 Reserve Road and the persons outside unit 4.

24 "Place of work" is defined in s 4 of the Act as meaning "premises, or any other place where persons work". In Clarke v W C Meinhardt and Partners Pty Ltd (unreported, Fisher CJ, Nos 90/1212 and 90/1213, 30 June 1992) his Honour considered whether the public footpath and roadway onto which the façade of a building collapsed were within the "place of work" of the defendant. Fisher CJ found that: [W]ith respect to the duty under s 16(1) I consider the employer's conduct of his undertaking includes here the design of the façade retention structures, the safe retention of the façade and residual maintenance and inspection discussed above. I consider the place of work includes every area which may be affected by this work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and the site upon which the façade collapsed.

25 In Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at [51]-[52] the Full Bench expressed the following view about "place of work": 51 In Inspector Page v Woolworths Ltd (unreported, Peterson J, 9 September 1994) his Honour adopted the approach of Fisher CJ in Inspector Clarke v Meinhardt in opting for a broad construction of "place of work" in s 16(1) and referred to the "immediate environs which may be affected by the conduct of that business" as being included within the meaning of the term.

52 While each case will indeed be a question of fact, we consider that a broad construction of the term "place of work" in s 16(1), consistent with the approach of Fisher CJ and Peterson J in the cases cited, is also appropriate in this case.

26 I am prepared to accept, consistent with the reasoning of Fisher CJ in Inspector Clarke v Meinhardt, that for the purpose of the charge under s 16(1) "place of work" includes unit 6 at 80 Reserve Road. There is sufficient doubt about unit 4 in circumstances where the persons were located outside of the unit at the time of the collapse and, therefore, I do not regard those persons as being exposed to risk for the purpose of s 16(1).

27 I am satisfied that the first defendant failed to ensure that persons not in the employment of the defendant in unit 6 at 80 Reserve Road, Artarmon were not exposed to risks to their health and safety arising from the conduct of its undertaking, namely the installation of pre-cast concrete tilt up panels using a Cerdano 50 tonne mobile crane at the said site when a pre-cast tilt up concrete panel identified by the number 243 ("the panel") fell from its position onto the roof of factory units at 80 Reserve Road, Artarmon contrary to section 16(1) of the Occupational Health & Safety Act, 1983.

28 The evidence relating to the second defendant, who pleaded guilty to the charge under s 50(1), consisted mainly of the agreed statement of facts that has already been referred to. Given the same factual matrix applies to both the first defendant in relation to the proven charge under s 15(1) and the second defendant in relation to the guilty plea under s 50(1), I will deal with the question of sentencing in relation to these two offences in a combined way.

29 The offence by the first defendant under s 16(1) also arises out of the same set of facts applicable to the offence under s 15(1) except that the offence under s 16(1) relates to the exposure to risk of persons not in the defendant's employment who were in unit 6, 80 Reserve Road at the time of the panel's collapse whereas the offence under s 15(1) relates to the first defendant's failure to ensure its own employees were not exposed to risks to their health and safety. The failures by the first defendant, referred to in the particulars of the two charges against it, had significant elements in common, for example, the failure to provide adequate or necessary information, instruction and training. I am satisfied that there are sufficient common elements in the two offences committed by the first defendant and the offence committed by the second defendant to allow me to address the considerations regarding sentencing in a combined way.

30 The primary consideration in sentencing is the objective seriousness of the offence. This will involve a consideration of the following factors: (a) The nature and quality of the offence and whether it involved obvious and foreseeable risks, whether there were simple and straightforward steps available to remedy any failures on the part of the defendant and, whether injuries sustained by an employee or person manifested the degree of seriousness of the relevant detriment to safety; (b) the need for general deterrence; (c) the need for specific deterrence; (d) the maximum penalty for the offence as prescribed by Parliament.

31 Despite the fact that at a meeting between Mr Didovich and Mr Payne of St Hilliers on 29 September 2000 where the method for moving the props was discussed and agreed upon and which involved two props being in place at all times, the agreed method was not followed. Nothing was done by either the first defendant or the second defendant to ensure that in removing the props to allow the mobile crane to be re-positioned the method agreed upon was followed. The two defendants left the task to employees and in doing so failed to provide a safe system by which the work was to be carried out, failed to provide the necessary information, training and supervision and failed to ensure the task could be carried out in a safe manner without risk to employees and to persons who might be in the immediate vicinity, namely, in unit 6 at 80 Reserve Road.

32 The risk to safety where work required the removal of props supporting an eight tonne concrete panel was obvious. The stability of the panel depended on the procedure agreed on 29 September being followed to the letter. Unless a very clear procedure was followed in relation to maintaining the stability of the concrete panel whilst the two props were removed there was an obvious risk that an unsupported or insufficiently supported panel might fall putting employees and other persons at risk of serious injury or death. 33 The seriousness of an offence may be compounded by the fact that there were simple, straightforward steps available to the defendants to ensure the safety of employees (and in respect of the first defendant, persons not in the first defendant's employ) but the defendants failed to take those steps. In the present case, the risk to safety could easily have been avoided. As Ms P E Lowson of counsel for the prosecutor submitted, the steps available to the defendant to avoid or minimise the risk of injury included: (i) Supervising or discussing the work on the day in question to ensure that the work method statement was adhered to where the props had to be moved to allow the crane access to the area - for example, by fitting a third prop before removing the existing props; (ii) Ensuring that the specific work method of welding fishplates prior to removal of any props was reduced to writing and provided to all of the relevant workers; (iii) Ensuring that the work did not progress unless a welder attended to attach the fishplates as had been agreed; (iv) Ensuring that no steps were taken to remove a prop without assessment of the risks, including contemporaneous inspection of both props; (v) Ensuring that inspection of props was the subject of a properly documented procedure.

34 The gravity of an injury resulting from a breach of the Act does not of itself dictate the amount of penalty. However, the occurrence of death or serious injury may manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32] and the cases referred to therein. In this case there were no injuries but that does not mean the risk was not serious. On the contrary, the risk of serious injury or death was extremely high. 35 One of the main purposes of punishment is deterrence, both general and specific. It is appropriate in this case to give weight to the need for general deterrence given the nature of the incident and the industry in which it occurred.

36 As to the need for specific deterrence, it seems to me that the first defendant is unlikely to trade again. In relation to the second defendant, he is undischarged bankrupt with debts of about $200,000 and banned from taking part in the management of a company. Nevertheless, there was no evidence to the effect that the second defendant will never again work in the building industry. Specific deterrence, therefore, should be a factor to be taken into account in fixing penalty in relation to the second defendant but not a factor carrying great weight.

37 The maximum penalty in the case of the first defendant is $550,000 for each offence. In the case of the second defendant the maximum penalty is $55,000. The amount of the maximum penalties reflects the high degree of seriousness with which the community regards offences under the Occupational Health and Safety Act.

38 It is to be noted that the first defendant has committed two offences. I shall come to the issue of totality shortly but in considering the level of the first defendant's culpability I have had regard to my findings and the level of penalty imposed in Inspector McColl v St Hilliers Contracting Pty Ltd [2004] NSWIRComm 3. The defendant in those proceedings committed an offence under s 16(1) of the Act. The first defendant in these proceedings committed two offences, one under s 15(1) and the other under s 16(1) of the Act. Putting aside for the moment the fact that the first defendant committed two offences compared to St Hilliers' one offence, given the failures particularised against the first defendant under the s 16(1) charge compared to those failures particularised in the charge against St Hilliers and given that the first defendant in this case had the primary responsibility for ensuring the work was carried out safely, I consider that the objective seriousness of the offence committed by the first defendant under s 16 was greater than that of the defendant in Inspector McColl v St Hilliers.

39 The only subjective factors to be taken into account in relation to the first defendant are that the defendant has no prior convictions under the Act and secondly, the first defendant at least had a work method statement in relation to the installation and erection of concrete panels which employees had signed. These same factors apply to the second defendant and, in addition, there is his plea of guilty. He is entitled to a discount on his sentence in that respect although the plea was not entered at the earliest opportunity.

40 There was also some character evidence tendered in relation to the second defendant and reliance was placed on his affidavit in which he deposed that:

· The defendant is 63 years old and has been working in the construction industry for 43 years in heavy lifting, steel work and the installation of pre-cast panels. · The defendant has never been previously prosecuted for occupational health and safety offences. · The defendant's experience has involved work on some of Australia's largest construction projects. · The employees of the first defendant engaged on the Artarmon site were very experienced in the type of work required to be carried out at that site. · The second defendant has a strong commitment to occupational health and safety. · The second defendant deeply regretted the failures on 3 October 2000. · The second defendant's assets comprised his personal effects and approximately $50 in cash. · Since becoming bankrupt the second defendant has found it extremely difficult to obtain continuous employment. His financial position remains dire with no foreseeable prospects of that changing. · In the early 1990s, the second defendant was nominated by the Earthmoving Contractors Association to participate on the preparation of a code of practice for erection of tower cranes in New South Wales. The committee met approximately once per week over a period of approximately six months. His participation on that committee was on a purely voluntary basis. He was also on a WorkCover committee to develop a code of practice for installation of safety lines.

41 Mr S B Benson of counsel for the second defendant submitted that without proceeding to a conviction the Court should dismiss the charge pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. Mr Benson relied on a judgment of Wright J, President in Inspector Jennifer Searle v Baptist Community Services - NSW & ACT (unreported, Matter No IRC 1520 of 2001, 19 December 2003) where his Honour considered that there were such extenuating circumstances existing as to cause the Court to dismiss the charge without proceeding to conviction.

42 The defendant in that case was a charitable institution that provided a range of welfare services. The defendant operated a youth program pursuant to a contract with the Department of Community Services, which organised the care of children with behavioural and social difficulties. In February 1999 a young male client attacked and injured a support youth worker employed by the defendant. The defendant was charged under s 15(1) of the Act.

43 At pars [60] and [61] of his judgment Wright J stated: As earlier noted, the defendant relied, inter alia , on the consideration specified in s 10(3)(c) of the Crimes (Sentencing Procedure) Act relating to the extenuating circumstances in which the offence was committed. I consider the defendant is entitled to rely on the extenuating circumstances of the offence but not necessarily in the precise way it contends. It should be made clear that the extenuating circumstances considered relevant are essentially those referred to in the earlier part of para [59] above. That is, that the defendant for laudable reasons entered into the program at the request of governmental authorities because of the contraction of their direct role and it found itself uncharacteristically unprepared. I consider that some of the more particular matters relating to supposed defaults on the part of others are not properly to be seen as extenuating for present purposes.

44 Paragraph [59] of his Honour's judgment was in the following terms: These circumstances lead to another important conclusion pertinent to the exercise of discretion. The evidence seems to indicate, and the Court so finds, that the unusual set of circumstances (at least up to that time) presented to the defendant in 1998/1999 by the contraction of the direct departmental role in support services for young people with challenging behaviour or high support needs, resulted in an unfortunate situation and one uncharacteristic of the defendant. That is, it entered into a situation where it was uncharacteristically "out of its depth". This situation may not have been plain to the defendant until the incident the subject of these proceedings. Although there are a number of aspects relevant to the charge which emphasise the foreseeability of the risk to employee safety (including the inadequate and unsafe system of work, the unsafe workplace, the future to preclude client access to dangerous items (such as knives) and inadequacy of risk assessment) it is relevant to refer again to the following extract from Ms Heinreich's evidence: CP's extreme level of disability had never been experienced by the OOHS ISP West Program employees before. Also the challenging behaviours demonstrated by CP (e.g., assault; property damage and toileting issues) escalated as he became more familiar with his surroundings. There seemed to be no 'pattern' for his violent outbursts and his prescribed medication for much of the ISP seemed inefficient or ineffective in dampening his aggressive moods. As a result of this, those BCS employees assigned to provide care had insufficient time to develop rapport or stability with CP. Throughout his ISP, repeated efforts were made by BCS to alter the staffing levels, residential locations and 'room-mates' for CP in an attempt to balance his needs to live appropriately and the needs for BCS to practically comply with all OHS safety & security considerations.

45 After referring to R v Rushby [1977] 1 NSWLR 594 at 598, Wright J stated: The passage cited from R v Rushby shows the difficulty in a case as complex as the present one in balancing the competing factors. I consider that the very particular circumstances, on fine balance, should result in the granting of the defendant's application. The seriousness of the offence, including the actual and potential consequences of it, has to be balanced with the highly exceptional set of circumstances which came together and resulted in the breach. The conclusions that the situation was uncharacteristic of the defendant and it found itself "out of its depth" are readily available on the detailed evidence provided by the defendant. On that evidence there seems little prospect of re-occurrence of such an offence. The issue of general deterrence has led to great hesitation in deciding to grant the application. However, I have concluded that, in light of the exceptional character of the defendant, the fact that in other cases in the welfare field heavy penalties have been imposed in cases where it was appropriate to do so, the exceptional circumstances of the offence seen in the perspective of the defendant's overall work (both in hindsight and in the perspective of the benevolent motives that appeared to lead it to enter a field it became clear it was not equipped for) the application should be granted.

46 It would appear that the extenuating circumstances on which the second defendant relies in the present proceedings are his long experience on difficult projects in the construction industry without conviction for an offence, his good character, his age, that it is unlikely there will be a re-occurrence of the offence and his difficult financial position. As to the last matter, I consider it is a matter I would take into account under s 6 of the Fines Act 1996.

47 As to the other matters, whilst I consider it is appropriate that I have regard to them in mitigation of the sentence I do not consider they are sufficient to justify a decision to dismiss the charge without proceeding to conviction.

48 As Wright J noted in Baptist Community Services at [33]: The settled jurisprudence of this Court is that, in proceedings to enforce the Occupational Health and Safety Act , the application of the ameliorative relief provided by s 10 of the Crimes (Sentencing Procedure) Act (and its predecessor, s 556A of the Crimes Act 1900) ought to be "rare indeed" or applied only in "rare and exceptional circumstances" given the important public purposes which sentencing under the statute serves. It has also often been said that the application of the provision is generally inappropriate in certain identified circumstances. The circumstances include the presence of long-standing adverse work practices; where the risk of injury was readily foreseeable or where the breach could and did result in serious consequences of injury: for example, Schultz v Tamworth City Council (1995) 58 IR 221 at 229; WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 101; WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 at 430 - 431; WorkCover Authority of New South Wales v Profab Industries Pty Limited (2000) 49 NSWLR 700; Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436 at [22] to [31]. McCarthy v Sell & Parker Pty Limited (2000) 102 IR 355 at 357 - 358; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 132 - 133; Riley v Australian Grader Hire Pty Limited (2001) 103 IR 143 at [14] - [15] and Benbow v Converquip Pty Limited (2001) 106 IR 258 at [55].

49 In WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 at 72 the Full Bench said at [26], "in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999) must be considered as extraordinary and highly exceptional."

50 The breach in this case was a serious one and the second defendant was directly involved in the breach. Mr Didovich had discussed what was to be done with a representative of St Hilliers, he agreed on a particular method for relocating the crane whilst ensuring the concrete panel would remain safe but then did not take steps to ensure that the method agreed upon was followed. Mr Didovich is not entitled to rely on the submission that it was Mr Payne of St Hilliers who failed to ensure the agreed method was carried out. Mr Didovich did not meet his own responsibilities under the Act. I do not consider the reasons put forward by counsel for the second defendant to apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act meet the test of "extraordinary and highly exceptional".

51 Section 6 of the Fines Act provides: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

52 I propose to have some regard to the evidence of the second defendant as to his financial position although, as Ms Lowson submitted, the second defendant's evidence in this regard is not at all satisfactory and does not seek to give the whole picture as to the defendant's means. I note that the second defendant is an undischarged bankrupt and he said in his evidence that his assets comprised his personal effects and approximately $50 in cash. Such limited information does not, in my opinion, go far towards meeting the test in s 6 of the Fines Act of being information that may be reasonably and practicably available to the second defendant to provide to the Court so that the Court may make an informed assessment of the defendant's means. The onus is on the defendant if he wishes the Court to have regard to s 6 of the Fines Act and I am not satisfied in this case that it was unreasonable and impracticable for the defendant to provide more information than what he has.

53 The question of totality arises in relation to the two offences committed by the first defendant. This issue was considered by a Full Bench of the Commission in Court Session (Wright J, President, Walton J, Vice President, Hungerford J) in Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 at 192-197; [2001] NSWIRComm 106 at [21]-[38]: 36 This review of the authorities establishes that in determining penalties for multiple offences under the Occupational Health and Safety Act the Court is required to determine separately an appropriate penalty for each offence. Having done so, the Court should then consider what the appropriate penalty should be by applying the principle of totality. Where the multiple offences contain common elements, the principle of totality must, for that reason alone, be applied to ensure that the defendant is not punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if that occurred. The principle must also be applied for the reasons stated in Pearce and Mill . 37 We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should 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.

54 In light of the objective seriousness of the offences with which the first defendant is charged under s 15(1) and s 16(1) of the Act I consider that the appropriate penalty is $145,000 for each offence. These should be discounted by 2.5 per cent to take into account relevant subjective factors. This results in a penalty of $141,375 for each offence.

55 On the basis of the foregoing, the total penalty would be $282,750. However, there is a very considerable overlap in the failures charged in the two offences. Applying the totality principle, I consider that the total fine should be $155,000 with the penalty for each offence being $77,500.

56 The first defendant is, of course, in liquidation. Nonetheless, general deterrence is a matter of some importance in this case and it is appropriate that the penalty reflects the seriousness of the offences.

57 I consider an appropriate penalty in relation to the second defendant is $15,000. This amount is discounted by 25 per cent for the utilitarian value of the early guilty plea and a further 10 per cent for other subjective factors. This results in a penalty of $9,750.

58 The Court makes the following orders: Matter No IRC 5508 of 2002

1. The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $77,500 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. Matter No IRC 5509 of 2002

1. The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $77,500 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

Matter No IRC 5511 of 2002 1) The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $$9,750 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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