Inspector Michael Dall v William Caesar Porta trading as Western Pacific... [2006] NSWIRComm 214 | Case summary

Inspector Michael Dall v William Caesar Porta trading as Western Pacific... [2006] NSWIRComm 214 | Case summary | Zoe

[11]

1 This prosecution under s9 of the Occupational Health and Safety Act 2000 (the Act) is brought by Inspector Michael Dall of the WorkCover Authority of NSW against William Caesar Porta t/as Western Pacific Engineers (the defendant) as a self-employed person. Section 9 relevantly states: Duties of self-employed persons A self-employed person must ensure that people (other than the employees of the person) are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work. 2 On 19 September 2002, at premises known as BHP Newcastle Main Site located on Selwyn Street, Port Waratah, Newcastle, it is asserted Mr Porta, through his trading name, failed to ensure that persons not in his employment, in particular, Gregory John Rees and Anthony John Edwards were not exposed to risks to their health or safety arising from the conduct of his undertaking while they were at his place of work. 3 The relevant particulars of the charge relied upon are as follows: a) The defendant was at all material times a self-employed person carrying on business as an engineer. b) At all material times Demtech Pty Ltd contracted the defendant to engineer and oversee the demolition of Power Plant Boiler No. 6 ("boiler") at the site. c) The defendant failed to ensure that persons performing demolition work on the boiler were not exposed to risks to their health and safety in that: i. The defendant failed to provide and maintain an adequate and safe method of demolition for the induced collapse of the boiler. ii. The defendant failed to undertake a sufficient investigation into the structure of the boiler prior to performing demolition work. iii. The defendant failed to accurately calculate the structural capacity of the columns of the boiler to sustain the loads imposed during the demolition process for the collapse of the boiler. iv. The defendant failed to undertake an adequate risk assessment in relation to the demolition process for the induced collapse of the boiler. v. The defendant failed to ensure that the calculations in relation to the induced collapse and the assumptions upon which those calculations were based were in fact consistent with and relevant to the circumstances that existed at the time work was being undertaken in preparation for the induced collapse of the boiler. As a result of the abovementioned failures Gregory John Rees sustained fatal injuries and Anthony John Edwards was injured. 4 The defendant pleaded guilty to the charge. 5 Mr R. Reitano, of counsel, for the prosecutor tendered an Agreed Statement of Facts and photographs of the site. He also tendered expert engineering reports from Mr Chris Turner, Mr Terry Kershaw and Dr Kevan Heathcote addressing the causes of the uncontrolled collapse of Boiler 6. 6 The defendant was represented by Mr P. Willis, solicitor. The defendant gave evidence and was cross-examined. Mr Willis tendered the curriculum vitae of the defendant and two documents, entitled "Work Profile William Porta" and "W. Porta: Financials". 7 Relevantly, the Agreed Statement of Facts states: 2. At all material times William Caesar Porta trading as Western Pacific Engineers [ABN: 45 243 657 239] was a self employed person carrying on business as an engineer whose address for service is 22 Ironbark Drive, Cranebrook in the State of New South Wales ("defendant"). 3. At all material times the premises known as 'BHP Newcastle Main Site' ("site") was owned by the New South Wales State Government. 4. At all material times BHP Billiton Limited was responsible for the demolition of structures on the site and contracted with Brambles Australia Limited ("Brambles") for the demolition of all buildings and structures at the site. 5. Brambles contracted Demtech Pty Ltd ("Demtech") to remove the Power Plant Boilers at the site, which included Boiler No. 6. 6. The defendant was the engineer sub-contracted by Demtech to engineer and provide the methodology for the induced collapse of the Power Plant Boilers. Michael Dwyer was employed by Demtech as the site supervisor. The defendant held an Unrestricted Demolition Licence, a Structural Engineering Certificate and had partially completed an engineering degree. 7. At approximately 11.30am on Thursday 19 September 2002 Boiler No. 6 ("boiler") at the site collapsed without warning. Gregory Rees ("Rees") sustained fatal injuries and Anthony Edwards ("Edwards") sustained a broken rib and lacerations and was hospitalised for several hours. Both Rees and Edwards were employed by Demtech as demolition workers. 8. At the time of the boiler collapse Rees and Edwards were positioned in the bucket of an elevated work platform (cherry picker) approximately 25 to 30 feet from ground level. They alternated between the respective tasks. At the time of the collapse, Rees was operating the elevated work platform and Edwards was performing cuts to the south west column of the boiler using an oxygen propane cutting torch to cut the metal of the column. The defendant was providing directions for the location of the cuts from the base of the elevated work platform. 9. Rees and Edwards had completed the top cut to the south west column and were working on the cut underneath when the boiler collapsed. Edwards was knocked to the bottom of the bucket of the elevated work platform when the boiler collapsed and was rescued from the damaged bucket still wearing his safety harness. A steel beam fell on Rees as a result of the boiler collapse and he sustained fatal injuries. 10. Jason Maybury and Robbie Hague, employees of Demtech, and Michael Dwyer ("Dwyer"), a supervisor contracted to Demtech, were on the site and witnessed the boiler collapse. 11. Brambles had an office on the site and Dwyer attended this office and informed Stephen Dale Merritt, the National Manager Contract Administration for Brambles, and Colin Elvy, Project Manager for Brambles, of the boiler collapse.

[12]

Events prior to the incident 12. Demtech entered into a contract with Brambles on 12 July 2001 for the removal of an extensive amount of plant at the site including the Power Plant Boilers. The contract provided for occupational health and safety conditions to be met. Brambles performed a safety audit on 20 January 2002 and site direction notices were exchanged between Demtech and Brambles over the course of the demolition work. The contract also provided for Brambles to purchase all scrap metal arising from the demolition activities from Demtech. 13. The Power Plant Boiler Nos 1 to 5 were demolished by Demtech prior to late August 2002. 14. As part of a continuing process of reducing the mass of the boiler No. 6 in preparation for the induced collapse, gas flu ducting and other ancillary fittings were stripped from the boiler by Dwyer. This was achieved by using a 30 tonne Tomatsu Excavator. The defendant agrees that he was aware of the stripping process, but has no recollection of instructing Dwyer to remove beam B11. At all times, he was aware that it was a structural beam which should not have been removed and for that reason believes that he would not have agreed to its removal. 15. On 27 August 2002 Demtech wrote to Brambles and noted the lack of scrap truck supply to remove demolished sections of the plant resulting in the need to stockpile scrap metal. The sale and transport of the scrap metal by Demtech to Brambles then became an issue in dispute between the companies. The persons performing demolition work at the site were working in the vicinity of significant amounts of the piles of scrap metal which were not restrained or secured. Australian Standard AS 2601 - 1991 The Demolition of Structures provides in clause 2.2.1.2 that demolished material shall be removed progressively from the site and shall not be allowed to accumulate to the extent that it presents a hazard to site personnel. 16. On 30 August 2002 Demtech faxed to WorkCover a proposal for the induced collapse of the boiler prepared by the defendant. The induced collapse method involves weakening the structure by strategically cutting columns of the structure and then pulling the structure using slings to fall in a defined position. The proposal involved the collapse of the structure in a northward direction. 17. On 2 September 2002 Demtech prepared a job instruction and safety analysis for the demolition of Power Plant Boilers Nos 6 to 7. The proposal and job safety analysis documents did not provide details of the structural support system of the boiler and the principal materials of its construction in accordance with AS 2601 - 1991. 18. On 16 September 2002 WorkCover sent a letter to Demtech granting a permit for the induced collapse in a northward direction subject to certain conditions. 19. On 17 September 2002 discussions were held between Jeffrey Britton ("Britton"), a director of Demtech, the defendant, Dwyer and Rees regarding the direction of the collapse of the boiler as a coal bunker was in the fall path of the boiler in the northward direction. Britton advised the defendant, Dwyer and Rees that it would be necessary to get approval from WorkCover for any change in the plans for the collapse of the boiler. 20. On 18 September 2002 Demtech made efforts to remove a coal bunker and other structures from the fall path of the boiler and were not able to move these structures with the available equipment. The available equipment did not include a 100 tonne excavator which had been available for other phases of the demolition work. 21. As the coal bunker could not be moved and the 100 tonne excavator was not available, a decision was then made for the boiler to be felled in a westerly direction. The defendant contacted Rick Rech, WorkCover's State Co-ordinator of Asbestos Demolition, and advised him that the Demtech would now be felling the boiler in a westerly direction and different types of cuts to the columns would be made. Rick Rech advised the defendant that he was driving and requested that the details be faxed to him. Rech advised the defendant that he would review the amended proposal when he was back in the office. 22. On 18 September 20002, the defendant faxed to WorkCover the amended proposal incorporating the plan that the boiler was to be felled in a westerly direction and with variations to the cuts to be made to the boiler ("amended proposal"). A new permit for the amended proposal was not issued by WorkCover prior to the demolition work commencing or at any time. 23. The amended proposal for the proposed weakening sequence was to remove sections of the lower east west beams known as B1 and B12, then make cuts to the western columns. The three cuts to be performed were detailed as a "birdsmouth cut" through the flange to the web on one side and a flat cut through the flange to the web on the other side. These cuts left the web intact. Slings would then be attached at the prescribed points and the hinge points prepared on the eastern side columns. The western columns would then be pulled outwards using two 30 tonne excavators. 24. On 18 September 2002 beam B1 was removed. 25. On the morning of 19 September 2002 the defendant held a tool box meeting with Rees and Edwards to discuss the position of the cuts to be made. Rees informed the defendant that he had noticed a slight movement in the structure. Beam B12 was removed on the morning of 19 September 2002. In consultation with Rees and Edwards, the defendant decided that it was too windy to continue with the collapse at that time and they retired to the shed. At that time, Rees asked the defendant how he wanted him to "play this one", to which the defendant claims he replied, "I want you to back right off. I want you to leave 50mm from the web." Sometime later, the wind swung around to the west, which placed the boiler in the lee of the Basic Oxygen Steel Making Plant and the defendant decided to proceed with the collapse of the boiler. The top cut to the south west column was then performed and it was whilst the middle cut was being undertaken that the boiler collapsed. 26. Calculations were done by the defendant for the induced collapse of the boiler in the westerly direction, which did not take into account the fact that beam B11 had been removed from the boiler on 10 August 2002. 27. The mass of the collapsed structure was estimated to be in the vicinity of 300 tonnes.

[13]

Investigations after the incident 28. At approximately 1.30pm on 19 September 2002 Inspector Michael Dall attended the site and observed the following: (a) A demolition site, which was approximately 2 hectares in size. The site was principally rectangular in configuration. This site was described as the remains of the BHP Power House Department. (b) Standing vertically at a height of approximately 31 metres in the approximate centre of the site was the rectangular structure of boiler number 7, which had been partially demolished. The top of this structure was a gable roof lined with corrugated iron sheeting, as were the southern and eastern sides to an approximate depth of 6 metres and 12 metres respectively. Dimensions of structure - 21 metres x 13 metres x 31 metres ridge height sitting on reinforced concrete foundation. (c) Adjacent to this on the south-western side was the collapsed structure of boiler number 6. This consisted of four steel columns, steam drum, integral steel tubing, supporting steel beams and associated structure. Dimensions of structure - 14 metres x 14 metres x 30 metres ridge height sitting on reinforced concrete foundation. (d) An approximate 1.8 metre high chain wire fence boarded the perimeter of the demolition site. (e) On the north eastern side of the site was an excavator red in colour with the number '12' painted on the front right hand side in colour white. At the base of the boom written in large text in the colour white were the words Moltoni Adams. (f) Behind the before mentioned excavator in a northwest direction was another excavator principally yellow in colour with a black base. (g) The site was strewn with large piles of demolition refuse and rubbish which consisted of rubble, steel, steel tubing, ducts, synthetic mineral fibre, cable and piping. 31 Chris Turner, Senior Engineer employed by WorkCover, carried out an investigation into the collapse. In his opinion, the mechanism of failure was considered to be by a buckling collapse of the southwest column about the two hinge points formed by the cuts. This was caused by the removal of beams and the weakening cuts made for the induced collapse reducing the structural capacity of the column to the point at which it could no longer sustain the imposed loads. The causation of the unexpected collapse has been the subject of disagreement between the expert witnesses. 32. The engineering calculations provided by the defendant were also reviewed by Mr Turner. The calculations were based on the working stress design method of steel design covered by AS 3990 - 1993. Mr Turner noted the following in respect of the calculations: (a) The calculations were based on beam B11 being in position. Beam B11 had been removed on 10 August 2002. (b) The structure at the time of preparation for the induced collapse was "side sway not prevented" and in accordance with clause 6.3.3 of AS 3990 the reduction factor of 0.9 should not have been used. (c) The calculated stress in the northwest column was 23.3MPa, which was larger than the permissible stress of 20MPa. (d) The calculated maximum stress in the southwest column was 34MPa. The revised maximum permissible stress to this column calculated by Mr Turner after taking into account the missing beam B11 and not using the 0.9 reduction factor, was 20MPa. Accordingly, the southwest column was considerably overstressed. (e) The calculations for the western columns were based on both the birdsmouth cuts and the flat cuts finishing 50mm from the web. This differed from the amended proposal submitted to WorkCover and the actual cuts made on site which were taken right up to the web. The cuts performed would have resulted in an even weaker section than considered in the calculations. 33. The calculations made by the defendant for the second proposal to collapse the boiler were made on the basis that beam B11 remained in place, whereas it had been removed on 10 August 2002. The defendant failed to note the beam had been removed. 34. Dr Kevin Heathcote, an engineer employed by Access UTS, also prepared a report in relation to the collapse of the boiler. Dr Heathcote concluded that the demolition procedure adopted for the boiler was inadequate, and the cuts made to the southwest column created instability in the structure. Dr Heathcote was of the opinion that the provision of temporary bracing of the structure during the weakening operations would have allowed the cuts to be made safely. 35. Mr Terry Kershaw, principal engineer of GHD Pty Ltd, also prepared a report in relation to the uncontrolled collapse of the boiler. Mr Kershaw was of the opinion that the work plan for the demolition of the boilers did not comply with Australian Standard AS 2601 "Demolition of Structures" in that temporary bracing was not used to stabilise the structure. Relevant Principles 8 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213. The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea).

[14]

9 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 10 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying: [57] The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 11 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace, is a relevant consideration. The task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s9 of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). Of relevance particularly is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia: . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, … (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . . Consideration 12 In a consideration of penalty, the court must consider the objective seriousness of the offence or, as has been said, the nature and quality of the offence. The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474): . . . in our view, it 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" . . .

[15]

13 Mr Porta was an engineer whose responsibility was to provide the methodology for the collapse of seven boilers on the BHP Newcastle site demolition site. On 19 September 2002, he was directing the induced collapse of Boiler 6, a large structure, weighing 300 tonnes and standing 31 metres in height. In preparing his calculations for the induced collapse he failed to notice that a significant structural beam, known as B11, was already removed from the boiler. Mr Porta did not recall ordering the removal of beam B11. He prepared calculations without this being taken into account. 14 Originally, the decision was made to "drop" Boiler 6 to the north. However that required the removal of a coal bunker which was in the fall path of the boiler. The coal bunker proved so heavy it could not be shifted. The excavator that had been planned to be used to assist in its removal was not available from Brambles. It was then determined to drop the boiler in another direction, that is, to the west. 15 WorkCover Authority issues permits for demolition. On 16 September 2002, Mr Porta had approval by way of a permit for the northerly drop of Boiler 6. He spoke to WorkCover on 18 September 2002 as to the proposed change of direction for the collapse of Boiler 6 to the west then faxed his amended methodology. He assumed approval and proceeded with the induced collapse to the west without the permit. 16 On 18 September 2002, Mr Porta had overseen the removal of a further cross beam, beam B1. The structure also had all ducting removed from it. Without the official permit for the drop and acting on calculations which did not take account for a missing structural cross beam B11, he ordered another beam, B12, to be removed early in the morning of 19 September 2002. 17 Mr Rees and Mr Edwards were then taken up in a cherry-picker to perform the cuts to the columns of Boiler 6. The two employees performed the top cut to the south west column to begin to create a "hinge" movement on the columns to assist in the induced collapse. They proceeded then to make the middle cut. While that was being undertaken, there was an unplanned, uncontrolled collapse of Boiler 6. 18 As a result of the incident, Mr Rees who was performing the cuts in the cherry picker high above the ground suffered fatal injury when the cherry picker was struck in the fall of Boiler 6. Mr Porta, himself, and Mr Edwards both suffered injuries. 19 From the expert reports there were a number of causes contributing to the failed collapse: beam B11 had been removed; stress calculations were incorrect; cuts were meant (in the original procedure) to be within 50 mm of the web but in the amended proposal, cuts went right up to the web of the column; there was no temporary bracing or support structure provided to ensure a "controlled" collapse. 20 The acts of omission asserted against the defendant and to which the defendant pleads guilty was his failure to provide a safe system of work through: the failure to undertake a sufficient investigation into the structure of the Boiler 6; the failure to accurately calculate the structural capacity of the columns; the failure to adequately risk assess the task and the failure to ensure the calculations took into account the state of the structure on the relevant date. 21 Mr Porta had the authority on this site to organise the demolition of Boiler 6. As a self-employed person, Mr Porta carried an absolute obligation to ensure the safety of persons who were not his employees and to ensure that such persons were not exposed to any risk arising from the conduct of his undertaking. 22 I have accepted Mr Porta's plea to the charge. I do so given the particular facts agreed to. Mr Porta while the consulting engineer was always on the work site. The BHP site at Newcastle was always his place of work and he performed his undertaking to design the methodology while at the site. It was his place of work on 19 September 2002 (as distinguished in Tsougranis v Inspector Carmody (No 2) [2006] NSWIRComm 133; see also WorkCover Authority of NSW (Inspector Farrell) v Morrison (No 1) [2001] NSWIRComm 325 and WorkCover Authority v Schrader (2002) 112 IR 284 at [64]). 23 It has been held prima facie once the warranty prescribed by s9 of the Act is breached due to the presence of a risk to the health or safety of a person who is not an employee, there is a breach of the section. It is the risk to health or safety which triggers the operation of the provision. Mr Porta was therefore obliged to exercise abundant caution and constant vigilance and take all practical precautions to ensure the safety of Mr Rees and Mr Edwards. While Mr Rees and Mr Edwards were employed by Demtech, the engineering responsibility for the demolition was Mr Porta's. He had an absolute obligation to protect the other workers. 24 While the mere occurrence of the incident or detriment to safety is not sufficient to establish an offence there was, I accept, a clear causal connection established between the acts of Mr Porta in making an error in his calculations as to the distribution and weight-bearing capacity of the columns leading to the uncontrolled collapse. Further, he failed to factor into the methodology bracing or any secondary support in Boiler 6. He did not risk assess the task. Mr Porta's acts were causally connected to the detriment, that is, to the risk to safety arising from the uncontrolled collapse which risk, in this incident, became a reality. 25 It was a serious breach of the Act, the ramifications of which caused the death of Mr Rees, which fatality must be read as reflective of the gravity of the offence. As it was held by Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5): The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability.

[17]

28 A number of subjective features to the offence have been placed before the court. Once again the way in which the modern industrial climate operates is brought to the fore in an examination of the circumstances leading to this offence. Here BHP required a site to be cleared. Brambles bid for the demolition contract. Brambles then sub-contracted the demolition to another company Demtech, which company then sub-contracted responsibility for the demolition methodology to an individual expert. Mr Porta, on behalf of Demtech, had the responsibility to obtain a permit and to design the methodology to be used by Demtech for the particular demolition. The chain of responsibility under the Act places an obligation on a number of the parties in this contract and both Brambles and Demtech failed to ensure safety on this site. In such a circumstance I do not accept Mr Porta carries alone the full responsibility for this breach of the Act and I accept others significantly contributed to the risk (the prosecution in its fair presentation of the charge does not suggest otherwise). Nonetheless, this was a serious offence by the defendant. 29 A level of deterrence must be factored into consideration as to penalty. In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in the context of consideration of breaches under the Act where Hungerford J held: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: "The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive."

[18]

These principles were cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay ) (2000) 99 IR 29 where it was said: [74] the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both 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) Inspector Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . . 30 Mr Porta continues to work on demolition sites although he does not now tender for work requiring large demolition drops. In such a circumstance, nonetheless, an element of specific deterrence is to be factored into penalty. Further, once more the court has to examine a serious breach of the Act through unsafe work practices within what is a well recognised dangerous industry, the demolition industry. Demolition sites are notorious for operating without respect for safe working protocols. The industry must be encouraged to respect and comply with all the safety standards now in place, as well as with WorkCover procedures and with the specific regulations under the Act. These safety standards have been designed to ensure safe work practice in the demolition industry. The circumstances reveal there was significant disregard of those standards. It must be reiterated there is a need to have respect for and compliance with all the relevant standards and regulations. An element of general as well as specific deterrence is factored into my consideration as to penalty. 31 A number of subjective features are placed before the court in consideration of penalty for this most serious offence. Mr Porta is a man aged 61 years with a wide-ranging professional experience as a demolition expert.

[20]

34 Mr Reitano submitted as the information on the defendant's financial status was not supported by primary documentation it should be characterised by the court as inadequate and the court would not be persuaded as to the financial status of the defendant. The Full Bench in WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 stated: [51] ... where a defendant desires to plead incapacity to pay as a determinative issue in the imposition of penalty, it behoves the defendant to discharge the onus that such a submission invokes by placing before the Court all of the information it relies upon in support of that submission in order for the Court to give that information proper consideration in the exercise of its sentencing discretion. 35 However, in the circumstances placed before me, I do not accept nor adopt the proposition put by the prosecutor. Mr Porta gave sworn evidence. He accounted for the fact he could not produce supporting documentation. He revealed that his personal life is in disarray given the state of his wife's health and her activities on the home front. He is unable to access the family home where most of his records are retained. It is also of relevance that he works in the Goulburn area and his home is in the Newcastle district. He conceded in evidence he could have contacted accountants for supporting documentation but failed to do so. 36 I accept this incident has required Mr Porta's attendance at court over a number of days when required to give evidence in separate prosecutions. Given the fact the defendant lives in Goulburn and the family home is in Newcastle; the perilous health of his wife; his restricted access to the family home I accept his explanations as to the failure to provide primary documentation regarding his financial status and am satisfied that his evidence has been presented in a truthful manner. I am therefore satisfied Mr Porta is a man of limited means but not a man with no means. 37 Other circumstances in mitigation of the offence must be addressed. The prosecutor supported that the defendant entered a plea at the earliest opportunity and so should have the benefit of the decision in Thomson; Houlton. I find the plea has therefore a utilitarian value which should attract the full discount of 25 per cent. 38 Mr Porta has expressed his remorse and contrition for the offence. That contrition has been demonstrated by his actions in assisting the WorkCover Authority in its inquiries and by giving evidence for the prosecution against others charged in relation to the incident. I accept Mr Porta's remorse and professional reputation has been damaged and this incident has had a dramatic effect on his life and health. He is in his later years. It is also of consequence that Mr Porta took a careful and compassionate step to assist the welfare of the family of the deceased employee. 39 The defendant co-operated with the investigation but does not seek the application of s10 of the Crimes (Sentencing Procedure) Act 1999. He accepts the incident was serious and he should not have the benefit of a non-recorded conviction. 40 The defendant is the principal and the only operator of a trading identity which uses his personal and professional skills. Mr Porta has no prior convictions and has worked in this inherently dangerous industry for over 40 years. He has what one could consider to be a fine industrial record given he operates in an inherently dangerous industrial environment. The defendant now refuses to do large demolition work. He rigorously now complies with the relevant standards and regulations in ensuring secondary support structures are in place for each demolition. Calculations are now cross checked and any removal of beams from a structure to be demolished is now recorded to ensure their effect on the structures is acknowledged in the calculations. I accept the defendant has not manifested, by its commission of this offence, a continuing attitude of disobedience to the law or a likelihood that any offence of like kind will be committed in the future. The defendant is a first offender who has now in place proper safety practice and procedures which procedures ensure there should be no risk of re-occurrence. 41 I must however impose a penalty which reflects the gravity of the offence. The maximum penalty at the time of the offence was $55,000. 42 I find the defendant guilty. 43 The defendant is fined in the sum of $22,500.

Inspector Michael Dall v William Caesar Porta trading as Western Pacific Engineers

At a glance

Court

Decision date

Before

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Judgment (24 paragraphs)

Parties

Cases Cited (16)

Cited By (1)