Inspector Menon v Australian Regional Wholesales Pty Ltd

Inspector Daniel Beavon v Martin Gerald Barratt & Anor [2007] NSWIRComm 48 Inspector Dimitri Barlas v C&J Carpentry & Construction Pty Ltd & Ors [2009] NSWIRComm 127 Inspector Jones v James Denson and Another [2006] NSWIRComm 234 Inspector Michael Dall (WorkCover Authority of NSW) v Waterside Constructions Limited & Anor [2009] NSWIRComm 206 Inspector Webster v Joyce [2009] NSWIRComm 52 CASES CITED: Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 R v Olbrich (1999) HCA 54 R v Tadrosse (2005) 65 NSWLR 740 Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153 WorkCover Authority of New South Wales (Inspector Macready) v Forcon Pty Ltd and Jeffrey Ronald Forsyth [2007] NSWIRComm 132 WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited & Ors [2008] NSWIRComm 223

Mr R Pontello of counsel (Prosecutor) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Mr Y Shariff (Defendant) Clayton Utz Lawyers

INSPECTOR MOHAN MENON v AUSTRALIAN REGIONAL WHOLESALERS PTY LTD

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

1 Australian Regional Wholesalers Pty Ltd ("the defendant") operates a business as a wholesaler of electrical and data supplies at Unit 2, 4 Victoria Avenue Castle Hill in the State of New South Wales. It trades under the name John R Turk Wholesale Electrical and Data Supplies. 2 On 30 April 2007, Mr Jason Arthur Warbrick, who was employed by the defendant as a Storeman and Driver, was assisting Mr Simon Parnell, the Branch Manager of the store, to put stock away on the second mezzanine level of the premises. Whilst carrying out this work, Mr Warbrick slipped and stepped backwards over a 200 mm high joist and fell onto the plasterboard ceiling of the customer service and sales area, which collapsed. This resulted in Mr Warbrick falling approximately 2.8 m onto the carpet-covered concrete floor below, landing adjacent to the sales counter. 3 Mr Warbrick suffered severe bruising to his right side, hip, and lower back, as well as lacerations to his right wrist. He was conveyed to hospital by ambulance and discharged on the same day. Mr Warbrick was unfit for work for seven days. He returned to suitable duties on 8 May 2007. 4 The defendant, in an amended application for order, was charged with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") with: failing to ensure the health, safety and welfare at work of its employees, and in particular, Jason Arthur Warbrick. 5 The particulars to the amended application for order were that: (a) The defendant failed to ensure that there was a safe system of work in place on the second mezzanine level at the premises for the movement and/or storage of stock, particularly to prevent the risk of falls. (b) The defendant failed to conduct any or any adequate risk assessment with respect to: (i) working on the second mezzanine level at the premises; (ii) storage of stock at the premises. (c) The defendant failed to provide its employees, and in particular Jason Arthur Warbrick, with any or any adequate training and information with respect to working on the second mezzanine level. 6 Section 8(1) of the Act provides:

An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 7 The defendant pleaded guilty to the charge. 8 Mr R Pontello of counsel, who appeared for the prosecutor, tendered an agreed statement of facts, which provided: ... 3. At all material times, ARW conducted its business at premises located at Unit 2, 4 Victoria Avenue, Castle Hill in the State of New South Wales (the premises) and was an employer.

At all material times, ARW was a corporation that undertook the business of operating as a wholesaler of electrical and data supplies and for that purpose traded in the name "John R. Turk Wholesale Electrical and Data Supplies". 5. At all material times, ARW was an operating arm of the Rexel Group Australia Pty Ltd. Rexel is a NSW registered business that provides human resources, training, logistics, finance, IT and strategic development services to all the companies under its control, including the defendant. 6. At all material times, ARW had three directors, Guy Picken, Gilles Emmanuel Marie Detanger, and Henri-Paul Laschkar.

Background 7. ARW employed Simon Parnell (Mr Parnell), 34 years old, as the Branch Manager of the premises. Mr Parnell's duties included managing the day-to-day operation of the store, including supervision of the defendant's employees. Mr Parnell had responsibility in relation to the control of work and work processes at the premises. Mr Parnell was employed by Transfield Services as a Supervisor prior to his employment with ARW. 8. ARW employed Mr Jason Arthur Warbrick (Mr Warbrick), 36 years old, as a storeman and driver. Mr Warbrick commenced work with ARW on 26 February 2007. Mr Warbrick's duties including moving and receiving stock. Mr Warbrick worked as a chef prior to his employment with ARW and did not have any previous retail outlet experience. 9. ARW employed James Littlehales (Mr Littlehales) as a counter hand. Mr Littlehales commended work with ARW in or about the end of 2004. Mr Littlehales' duties included counter sales and moving and receiving stock. 10. At the front of the premises was a shop front store open to the public, whilst the rear of the premises consisted of a dock and storage area. The storage area was located on the ground floor, and also had two mezzanine levels. 11. The first mezzanine level was accessed by a set of stairs from the ground floor, and consisted of a storage area with racking and stacked goods. The area was enclosed by a system of square metal posts and rails that included a top rail and infill rail. The top rails and infill rails had been cut away by Mr Parnell to allow access from the first mezzanine level to the second mezzanine level. The rails had been cut away and a rudimentary gate formed from round conduit pipe stuck into the cuts. In order to gain access to the second mezzanine level the conduit pipe would be removed or slid into the cut rails. 12. The second mezzanine level was an area approximately 4 metres by 3.5 metres, adjacent to, and approximately 600mm below the level of the first mezzanine level. The second mezzanine level was bounded by two adjoining brick walls. However, there was a gap of approximately 500mm between one of the brick walls and the edge of the floor of the second mezzanine level, leaving an open penetration on the floor. The third side of the second mezzanine level lead to the first mezzanine level as described in paragraph 11 above. There was no fall protection on the fourth side of the second mezzanine level as required by Sections 3.2 and 3.4 of Australian Standard AS 1657 - 1992 Fixed platforms, walkways, stairways and ladders - Design, construction and installation. 13. There was no step between the first and second mezzanine levels as required by Section 3.1.1 of Australian Standard AS 1657-1992 Fixed platforms, walkways, stairways and ladders - Design, construction and installation.

The Incident 14. On 30 April 2007 Mr Parnell, Mr Warbrick and Mr Littlehales were moving stock from the ground floor of the premises to the second mezzanine level. Mr Littlehales was using a forklift to lift a pallet of stock from the ground to the second mezzanine level. Mr Parnell and Mr Warbrick were standing on the second mezzanine level. Mr Warbrick was undertaking the task of assisting Mr Parnell to unload the stock from the forklift. 15. Mr Littlehales did not hold a certificate of competency for the operation of a forklift. 16. Mr Warbrick was assisting Mr Parnell to put stock away on the second mezzanine level and in doing so slipped, and stepped backward over a 200mm high joist, and onto the plasterboard ceiling of the customer service and sales area located below. The plasterboard ceiling collapsed and Mr Warbrick fell approximately 2.8 metres to the carpet covered concrete floor below, landing adjacent to the sales counter. 17. Mr Warbrick's fall through the ceiling panel was partially slowed by the installed air conditioning ducting on the top surface of the ceiling and a square metal ceiling support beam near the sales counter. 18. As a result of the fall, Mr Warbrick suffered severe bruising to his right side, hip, and lower back, as well as lacerations to his right wrist. Mr Warbrick was conveyed to hospital by ambulance and discharged on the same day. Mr Warbrick was unfit for work for 7 days, and returned to suitable duties on 8 May 2007.

SYSTEMS OF WORK PRIOR TO THE INCIDENT 19. ARW commenced to use the second mezzanine level for storage in approximately January 2007. Prior to using the second mezzanine level for storage of stock, ARW did not conduct a risk assessment of the suitability of the area for storage or access by staff. Prior to the incident, all the staff at the premises had accessed the second mezzanine level on a number of occasions to store stock. 20. No assessment was conducted by ARW as to the load bearing capacity of the ceiling material underneath the second mezzanine level prior to using the level for storage and employees working upon the level. 21. ARW did not provide its employees with any fall arrest system whilst they were working on the second mezzanine level. There was no adequate flooring and no suitable guardrail in place as required by Australian Standard AS 1657 - 1992 Fixed platforms, walkways, stairways and ladders - Design, construction and installation. 22. On 30 April 2007, ARW had borrowed a forklift from Tradelink Plumbing Supplier located nearby at Unit 1, 4 Victoria Avenue, Castle Hill. 23. Mr Parnell instructed Mr Littlehales, who did not hold a Certificate of Competency, to operate the forklift. 24. Mr Littlehales and Mr Parnell both stated that the use of the forklift on 30 April 2007 to lift stock from the ground to the second mezzanine level, was the first time that they had used this procedure. 25. ARW provided Mr Warbrick with general induction training shortly after he commenced employment. The induction training covered general company policy and general workplace safety. ARW did not provide its employees with any training or information in relation to working at heights, in particular storing stock on the second mezzanine level. 26. ARW had an Occupational Health and Safety Management System dated November 2006. The system did not contain any information in relation to working at heights or safe storage procedures at heights. Occupational Health and Safety is discussed as a specific agenda item as part of the general monthly site meetings. 27. ARW had documented generic safe work method procedures dated December 2006. There was no safe work method procedure for work at heights or storage of stock at heights. There were no site specific documented safe work method procedures.

STEPS TAKEN AFTER THE INCIDENT 28. Following the incident, Prohibition Notice number 148845 was issued to ARW which prohibited the use of the second mezzanine level to store stock, and to develop a fall protection system and safe system of work for working at heights. 29. Following the incident, Improvement Notices numbers 7-129858, 7-129865, 7-129864 and 7-129861 were issued to ARW in respect of installing guarding on the first mezzanine level, assessment of the suitability of the second mezzanine level as a storage area, and control measures to be implemented in relation to the second mezzanine level. ARW complied with all improvement notices by their due date. 30. Following the incident, ARW replaced the sections of removed railing. ARW closed off access to the second mezzanine level and halted the practice of storing stock on the second mezzanine level. 31. Following the incident, ARW moved heavier stock to lower shelves and banned the storage of heavier stock on upper shelves on the first mezzanine level. ARW also purchased a walker stacker. 32. ARW does not have any prior convictions under the Occupational Health and Safety legislation.

9 The prosecutor also tendered the following documentation: 1. 37 x colour photographs taken by Inspector Barry Sutcliffe on 30 April 2007, 4 May 2007 and 18 May 2007 showing the second mezzanine level, the hole in the floor caused by the fall and changes made to both the first and second levels after the incident.

2. Factual Inspection Report of Inspector Barry Sutcliffe dated 25 May 2007.

3. Prohibition Notice Number 148845 dated 30 April 2007.

4. Improvement Notices Numbers 7-129858, 7-129861, 7-129864 and 7-129865 dated 30 April 2007.

RGA Occupational Health & Safety Management System (OHSMS) dated November 2006.

RGA OHS Management System - 3.6.5.2 - Safe Manual Handling Guidelines.

Induction Checklist of Jason Warbrick dated 26 February 2007.

Walkie Stacker/Walk Behind Forklift Training Checklist of Jason Warbrick dated 18 July 2007.

10. "Safe Working at Heights" WorkCover Guide 2006.

11. Australian Standard AS 1657 - 1992 Fixed Platforms, Walkways, Stairways and Ladders - Design, construction and installation.

12. The defendant has no prior convictions. Defendant's evidence 10 Mr Y Shariff of counsel, who appeared for the defendant, read an affidavit of Penny Joanne Atherton, who is currently employed by Rexel Group Australia Pty Ltd ("Rexel Group") in the position of Audit Manager. Rexel Group is part of the same group of companies as the defendant, which is an operating entity within the Rexel Group. The Rexel Group is a service company which provides human resources, training, logistics, finance, IT and strategic development services to all companies within the Rexel Group, including the defendant. 11 Ms Atherton described her current duties and the business and operation of the defendant. The defendant has two separate divisions, the JRT Business and the Ideal Business. The JRT Business commenced operation in or about 1972 and was purchased by the Rexel Group in or about 1998. The JRT Business operates primarily in New South Wales and Queensland. 12 Ms Atheron stated that the Rexel Group employs 1,270 employees in Australia and 492 in New South Wales. The defendant employs 735 employees in Australia and 200 employees in New South Wales. At the time of the incident, it employed 674 employees in Australia and 221 in New South Wales. Ms Atherton explained that the defendant operates branches located in Queensland, New South Wales, Victoria and the Northern Territory. In New South Wales there are 25 branches across Sydney. She described the manner in which the branches operate and, in particular, the Castle Hill branch functions where the incident took place. At the time of the incident, four employees were engaged at the Castle Hill Branch. They comprised a Branch Manager, as Assistant Manager, a Driver/Internal Sales, and a Driver/Storeman (Mr Warbrick). 13 Ms Atherton detailed the defendant's Occupational Health and Safety Management Systems. The defendant currently employs three Human Resources Co-ordinators. The task of managing workplace safety, improving safe working processes and providing safety training and instructions is shared by the Human Resources Team. In addition to the Human Resources Co-ordinators, the Team comprises the HR Services Manager, the Audit Team and Regional and Branch Managers. In early 2009, the defendant increased its number of Human Resources Co-ordinators from one to three to oversee all occupational health and safety issues. Their duties include compliance with safety obligations, workers' compensation issues and return to work programmes. 14 At the time of the incident, the defendant had an occupational health and safety management system manual ("OHS Manual"), which was annexed to the affidavit. The manual has been updated since the incident. It sets out safe working procedures; how to respond to specific occupational health and safety incidents; how to conduct risk assessments; and relevant contact details if a particular issue arises. The manual is reviewed, at a minimum, every two years. The Rexel Group engages accredited safety consultants, Workplace Safety Matters Pty Ltd to assist in the formulation of safety measures and updating of the OHS Manual. A document setting out the changes made to the OHS Manual between 2006 and 2009 was annexed to the affidavit. 15 The Rexel Group ensures that posters about occupational health and safety matters are located in each Branch and placed in prominent positions to remind all workers about the need to identify workplace hazards, assess and eliminate/control them, as well as detailing who should be contacted in the event of an occupational health and safety incident at the Branch. Ms Atherton explained training and instruction that is provided to the defendant's managers was explained. Training presentations provided to managers between 2006 and 2009 were exhibited to the affidavit, together with a document titled "Implementation Instructions for Branch and Department Managers". This document was designed to remind managers of their specific obligations to ensure the defendant's safety management System operates effectively. 16 Ms Atherton stated that the defendant provides induction and training to its employees. Annexed to the affidavit was a copy of the induction checklist for Mr Warbrick recording his induction dated 26 February 2007 and signed by him, Since 2005, on a monthly basis, each Branch Manager conducts a meeting with the Branch employees during which occupational health and safety is discussed as a specific agenda item. Minutes of the monthly staff meeting of 9 May 2007 were exhibited to the affidavit, which showed that the incident was discussed as a specific item. The Branch Manager also conducts occupational health and safety inspections at each Branch on a quarterly basis. The OHS Manual contains an easy to use checklist for the relevant Branch Managers to conduct these inspections. Forklift and vehicle safety checklists must be completed on a monthly basis. 17 The defendant has a policy that all serious occupational health and safety issues are communicated to senior management directly by telephone, either by the defendant's Human Resources Department or middle management. The OHS Manual contains hazard and injury forms referable to each month which must be signed by the Regional Manager on a monthly basis even if no hazard has been reported or if no accident has occurred. The OHS Manual also contains monthly checklists which refer to all the items which must be completed by each Branch Manager on a monthly basis. This provides a final check for each Branch and Regional Manager to ensure there has been compliance with occupational health and safety obligations. Quarterly checklists are also undertaken. In addition to the OHS Manual, the defendant has documented manual handling systems which are posted on the Branch's OHS Board. The Audit Team also conducts internal audits of each Branch once a year. 18 Ms Atherton set out her understanding of the circumstances surrounding the incident and the steps taken by the defendant when the incident occurred. Mr Warbrick continued to work with the defendant for approximately one year after the incident before being relocated to the Alexandria Branch. He resigned from the defendant's employment on or about 30 May 2008. The reasons for his resignation were unrelated to the incident. 19 Ms Atherton stated that the defendant sincerely regrets the circumstances in which one of its valued employees was exposed to risk and was injured. She said the incident was at odds with the defendant's culture and values. The defendant unreservedly apologised to Mr Warbrick and does so again to this Court. The steps taken by the defendant to prevent a recurrence of the incident were described by Ms Atherton. They were: (a) an assessment of the suitability of the second mezzanine level as a storage area was undertaken; (b) the second level of the mezzanine has been closed off completely to ensure there is no risk of anyone falling from the second floor; (c) permanent railings were installed on the mezzanine floor; (d) there has been a cessation of the practice of storing stock on the mezzanine floor and the storage of heavier stock on the upper shelf has been prohibited. The defendant moved heavier stock to lower shelves. The defendant has purchased a walker stacker; and (e) the area is secured and is a "no work" zone, i.e. it has been closed off completely. 20 Improvement notices were also issued the defendant in respect of installing guarding on the first mezzanine level, assessment of the suitability of the second mezzanine level as a storage area and control measures were implemented in relation to a second mezzanine level. 21 Since the incident, the Audit Team has conducted safety audits in person at each of the defendant's Branches throughout Australia. The Audit Team has surveyed, assessed and given advice to Branch Managers about the use of storage areas, the use of "ad hoc" storage areas, the use of "ad hoc" mezzanine levels and the use of mezzanine levels generally. Ms Atherton stated that the defendant was committed to continuously improving its safety processes. By way of example, the defendant recently introduced a scaling system to evaluate the occupational health and safety risk arising from different areas within a Branch. The Rexel Group has also increased the number of Human Resources Co-ordinators to assist in the management of occupational health and safety within the business and the OHS Manual has been updated and redistributed. The defendant co-operated with WorkCover during its investigation and complied with all improvement notices issued. 22 The defendant's contribution to the community includes: (a) the defendant raised over $206,000 for the Red Cross Victorian Bushfires Appeal; (b) the defendant sponsors two cars for "A Sporting Chance" to provide emergency relief to children at their homes; (c) the defendant raised approximately $25,000 for the same program through Electoral Ladies Lunches; (d) in 2008 the defendant supported the Bravehearts Children's Charity via donations of power point and lighting for the relocation to their new premises; (e) under the JRT banner, the defendant donates to the Variety Club Children's Charity; and (f) under the "Ideal" brand, the Ideal Business supports the Wesley Hospital Choices Program which supports persons affected by breast and gynaecological cancers The defendant contributed $20,000 in 2008 and $20,000 in 2007. Relevant principles 23 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated at [8] - [15]: "[8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing.

[9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: '[I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence' ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: 'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27:' 'Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.'

[12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: 'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: '... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.'

[13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: 'We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).'

[14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: '[B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.'

[15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: '[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).' " Consideration 24 The primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the statement of agreed facts, and the evidence. Without repeating what is contained in the agreed statement of facts, in considering the seriousness of the offence, it is relevant to set out some of the important matters. 25 First, prior to using the second mezzanine level for the storage of stock, the defendant did not conduct a risk assessment of the suitability of the area for storage or access by staff. 26 Secondly, no assessment was conducted by the defendant as to the load bearing capacity of the ceiling material underneath the second mezzanine level prior to using the level for storage and employees working upon that level. 27 Thirdly, the defendant did not provide its employees with any fall arrest system whilst they were working on the second mezzanine level. 28 Fourthly, there was no adequate flooring and no suitable guardrail in place as required by the Australian Standard AS 1657 - 1992 Fixed platforms, walkways, stairways and ladders - Design, construction and installation. 29 Fifthly, the defendant failed to provide its employees with any adequate training and information with respect to working on the second mezzanine level. 30 Sixthly, the Occupational Health and Safety Management System dated November 2006 did not contain any information in relation to working at heights or safe storage procedures at heights. 31 In my view, there was a simple failure on the part of the defendant to take steps to ensure that work, including the storage of items, could be undertaken on the second mezzanine level without the risk of injury. It appears that the defendant assumed that the second mezzanine level was safe, however, it did not undertake any risk assessment or give any instruction to its employees regarding the safe use of the second mezzanine level. 32 Mr Shariff conceded that this was a case where the defendant failed to prevent and guard against the risk of a fall. Counsel acknowledged that the defendant accepted the force of what was observed by Boland J in Inspector Jones v James Denson and Another [2006] NSWIRComm 234 at [27]: Given the danger of falling from a height of three metres, let alone six to seven metres, which may easily result in death as too many of the cases that come before this Court demonstrate, it beggars belief that an employer would not take steps nowadays to ensure that employees working at height were secure. Moreover, only three weeks earlier Mr Denson had been issued with an Improvement Notice that "Employees/Persons may be exposed to risk of injury due to unsafe access/egress to roof work area. Persons access roof area using Elevated Work Platform as point of landing." This should have placed him on a high state of alert regarding the risks associated with working on the roof of the complex. 33 The defendant also accepted that a fall from any height was a serious matter and that the risk of a fall could have been, and should have been, eliminated or controlled. 34 Mr Shariff submitted that, although the risk of a fall was a serious risk, the present case fell within the lower to mid range in terms of objective seriousness. 35 Mr Pontello described the risk of falling 2.8 m as high and that this case might be assessed at the mid to high level of the applicable range. 36 Despite the defendant's failure to ensure the mezzanine was safe, the offence does not fall within the more serious class of cases that come before this Court. I am satisfied that the defendant was safety conscious. It simply assumed that the second mezzanine level was safe. However, there were no suitable guardrails in place as required by the Australian Standard. The defendant had made available a first mezzanine level which provided a safe, secure and guarded location in which to store stock. The defendant also had in place policies relating to the management of inventory to assist in the management of storage and space at Branches. These were legitimate steps taken by the defendant in order to avoid the need for "ad hoc" and unsafe storage spaces. The use of the second mezzanine level emerged as an "ad hoc" practice at the Castle Hill Branch. It was never intended to be used for this purpose. 37 The foregoing considerations tend to mitigate the seriousness of the offence, but they do not take it into the lowest range of available penalties as submitted by the defendant. The risk of injury from falling from the second mezzanine level because of the failure to provide adequate guardrails and to assess the load bearing capacity of the ceiling material underneath the second mezzanine level, was reasonably foreseeable. The height of the fall was approximately 2.8 m. Furthermore, the risk was easily avoidable, as is obvious from the steps taken by the defendant to prevent a recurrence of the incident, as set out in the evidence of Ms Atherton. 38 Mr Pontello submitted that the offence was made out by a number of acts of criminality (or putting it another way, a number of acts which separately constitute a breach of s 8(1) of the Act), and this is an aggravating feature to be taken into account in determining the appropriate sentence for the offence: s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999. Counsel submitted the aggravating factor in s 21A(2)(m) was concerned with the situation found in the present case, where a single offence contained a number of allegations of criminal acts that were part and parcel of a single course of criminal conduct: R v Tadrosse (2005) 65 NSWLR 740 at [29] per Howie J. 39 Mr Shariff submitted that the prosecutor's submissions sought to invite the court to punish the defendant for matters which it had not been charged nor particularised. In particular, Mr Shariff submitted the defendant had not been charged with any matter relating to the use of a forklift and the presence of electrical wiring. Counsel further submitted these were not matters which comprised the charge against the defendant and it should not be punished for these or other matters. Mr Shariff conceded that the Court was entitled to take into account that the offence involved a failure to have a safe system of work (particular (a)); a failure to conduct a risk assessment (particular (b)), and a failure to provide training and instruction (particular (c)). However, outside these specifically charged matters, counsel submitted there was no other series of criminal acts which the Court may take into account. It followed, so counsel submitted, matters which the defendant has not been charged cannot be taken into account in determining sentence. 40 Mr Shariff emphasised the warning of Howie J in Tadrosse at [29] that the Court must bear in mind the prohibition against taking into account, as a matter of aggravation that which is an element of the offence charged. 41 I did not understand Mr Pontello's submissions to extend to taking into account acts which could have given rise to a breach of the Act, for example, the use of the forklift and the presence of electrical wiring, to be acts that I should take into account in determining sentence. 42 In any event, in R v Olbrich (1999) HCA 54; 199 CLR 270 Gleeson CJ, Gaudron, Hayne and Callinan JJ observed at [27]: ... we would adopt what was said by the majority in R v Storey ([1998] 1 VR 359) [15] - that a sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."

I, therefore, do not propose to take into account acts involving the use of a forklift or the presence of electrical wiring in determining sentence in this matter. 43 As to general deterrence, I consider it appropriate to draw attention to the need for employers operating as a wholesaler that supplying material or data that may require storage at heights to be constantly vigilant of the need to ensure that workers are not exposed to the risk of falling from height and that employees working above ground are safe and secure. I have, therefore, included an element in the penalty for general deterrence. 44 In relation to specific deterrence, I accept that this is not a case which calls for the imposition of some additional specific punishment, aimed at deterring the defendant from further offending against the Act and/or for the purpose of compelling the defendant's attention to occupational health and safety. The defendant has a good record and has taken appropriate steps to avoid a recurrence of the offence. However, as the defendant continues to operate, a small element of penalty is in consideration of the need for specific deterrence. 45 The relevant subjective factors relating to the defendant include a plea of guilty, which I am satisfied was an early plea justifying a discount of 25 per cent; co-operation with the WorkCover Authority in its investigation of the breach; steps that have been taken to avoid the breach recurring; the defendant's commendable approach to occupational health and safety; contrition; contribution to the community; and, the fact that the defendant may be regarded as a good corporate citizen. The prosecutor conceded the defendant was an "entity of excellent character". I also take into account the size of the defendant's business and that the defendant provided assistance to Mr Warbrick after the incident. 46 In submitting that this matter falls within the lower to mid range in terms of objective seriousness when compared to other fall cases, Mr Shariff referred to the following cases: (i) Inspector Jones v James Denson and Another [2006] NSWIRComm 234 . In this matter, the defendant was charged with failing to ensure the safety of employees who were working at the edge of an office roof approximately six to seven metres above the ground. No employee was injured. A fine of $75,000 was imposed on the corporate defendant; (ii) Inspector Daniel Beavon v Martin Gerald Barratt & Anor [2007] NSWIRComm 48. In this matter, an employee fell three metres from the first floor of a building onto a concrete slab below. A fine of $45,000 was imposed on the corporate defendant; (iii) WorkCover Authority of New South Wales (Inspector Macready) v Forcon Pty Ltd and Jeffrey Ronald Forsyth [2007] NSWIRComm 132. In this case, the defendant was prosecuted for failing to ensure the safety of a worker who slipped and fell 4.46 m from a balcony onto a dirt driveway. The corporate defendant was fined $73,125; (iv) WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited & Ors [2008] NSWIRComm 223. In this case, the defendant was prosecuted for failing to ensure the safety of a worker who fell 15 m off the edge of a building in defended proceedings. A fine of $175,000 was imposed against one corporate defendant and $168,500 against the other corporate defendant; (v) Inspector Dimitri Barlas v C&J Carpentry & Construction Pty Ltd & Ors [2009] NSWIRComm 127. In this matter, two corporate defendants were prosecuted for failing to ensure the safety of a worker who fell backwards 3.5 m from the first floor of a building onto a concrete floor. A fine of $90,000 was imposed on each of the two corporate defendants; (vi) Inspector Webster v Joyce [2009] NSWIRComm 52. In this case, an individual defendant was prosecuted for failing to ensure the safety of an employee who lost his balance and fell 6 m from the leading edge of formwork on the second level of a building onto the ground below. The individual defendant was fined $18,000; and (vii) Inspector Michael Dall (WorkCover Authority of NSW) v Waterside Constructions Limited & Anor [2009] NSWIRComm 206. In this matter, a corporate defendant was prosecuted for failing to ensure the safety of a worker who slipped and fell about 11.27 m from a scaffold lap board onto a concrete floor below. A fine of $97,500 was imposed upon the corporate defendant. 47 In Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153, Boland J President, Staff J, (Marks J dissenting) observed at [47]: Recently, a Full Bench in dealing with a similar submission in comparing cases and penalties, stated in WorkCover Authority (NSW) (Inspector Mason) v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350; (2006) 157 IR 313 at [38]: ... We consider that there are real difficulties in comparing penalties imposed under the Occupational Health and Safety Act, even in cases where there is an essential common feature, such as a falling incident, crushing incident etc, because of the myriad of differing surrounding factual circumstances in the cases. ... 48 As the defendant has no previous convictions under the Act the maximum penalty is $550,000. It is important that careful attention is given to the maximum penalty in determining sentence. In Sacco Builders Pty Ltd v Inspector Chaston, the majority observed as follows at [55]: Recently, Walton J Vice-President in Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92, in an extensive review of the principles applicable in occupational health and safety sentencing matters, observed in respect of determining the maximum penalty as follows at [192]:

In Morrison v Powercoal (2005) (at [16] and [17]), the Full Bench observed that a fundamental consideration in determining penalty is the maximum penalty for an offence. In R v Moon (2000) 117 A Crim R 497 at [70], Howie J described "the nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence" as being "crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed". Wright J, in Walco (at [23]), described the task of the Court in sentencing as "assessing the relative seriousness of the offender's particular offence in relation to the worst case for which the maximum penalty is provided" (see Independent Cargo at 4). Ultimately, maximum penalties will have significance in sentencing in accordance with the statement of the High Court of Australia (per Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian v The Queen (2005) 228 CLR 357 at [30] and [31] as follows: Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing , Stockdale and Devlin observe that: 'A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ... A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].' It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case...

And then at [56]: ... It is most important that sentencing under any regime be done against the maximum penalty, not on the basis of what is thought to be fair in any case. 49 Having regard to all the relevant circumstances set out in these reasons, I have decided that the appropriate penalty is $90,000. 50 The prosecutor seeks a moiety and costs which I propose to grant. ORDERS 51 The Court makes the following orders: 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 $90,000 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, leave is granted to either party to approach the Court for final orders as to costs with a moiety to the prosecutor.

AMENDMENTS HISTORY: 18/12/2009 - number 217 after [NSWIRComm]. - Paragraph(s)

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