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[2011] NSWIRComm 73
Industrial Relations Commission (NSW)
2011-05-27
Haylen J
Original judgment source is linked above.
Background 11. On or about 3 September 2007 CJM provided CMS with an estimate for undertaking roofing work at the premises. This estimate stated that scaffold and handrail requirements for work that was to be performed at heights over two metres were to be supplied by 'the builder', being CMS, to 'Workcover Standards'. 12. On or about 20 September 2007 CMS accepted the estimate given by CJM and provided CJM with a purchase order in respect of the work to be carried out. The purchase order referred to the requirement for the builder to provide scaffold and handrails for work over two metres. The purchase order also required that 'Work Method Statements' be provided to CMS before CJM commenced work. 13. A document titled 'CMS Site Safety Management System Section 2 (Site Management Plan)' ("CMS Plan" ) was provided to CJM by CMS. Amongst other things, the CMS Plan required all contractors and employees working on the premises to abide by CMS's safety guidelines. The CMS Plan also required any person working at height at the premises to make sure that a risk assessment was conducted before such work commenced. The CMS Plan required the implementation of control measures for falls prevention as outlined in clause 56 of the Occupational Health and Safety Regulation 2001 ("Regulation"). 14. The CMS Plan also required a site induction to be carried out for all people working at the premises. CJM provided CMS with a safety management plan titled 'CJM Roof Services Pty Ltd: Health, Safety & Environment Documentation Pack, Version 2' and a document titled 'CJM Roof Services Pty Ltd Safe Work Method Statement'. 15. At all relevant times, CJM sub-contracted the work it was required to perform at the premises to Gerard Murphy. Gerard Murphy retained the services of his sons, Justin and Tony Murphy, to assist him when he was performing roofing work at the premises. Gerard Murphy was an experienced roofing contractor. Gerard Murphy commenced working at the premises on or about 20 December 2007. Justin and Tony Murphy commenced work the following day. Justin or Tony Murphy did not work at the premises on 5 January 2008. Gerard Murphy issued invoices to CJM for the work he performed at the premises. 16. CJM purchased the roof mesh, flashing and zincalumne sheets used for the roofing works and which were later installed at the premises. 17. Gerard Murphy and Justin Murphy asked Mr Flanagan to put up roof rails but this was not done. They used a scissor lift to put up roofing materials for 2 or 3 days prior to 6 January 2008 but it was removed on or around 22 December 2007. The scissor lift was not used in the roofing work after that time. The Premises 18. On 7 January 2008, Inspector David Waterhouse undertook an inspection of the premises and made observations contained in a Factual Inspection Report dated 16 January 2008. On 7 January 2008 whilst at the site, Inspector Waterhouse took a number of photographs. 19. At the time of Inspector Waterhouse's inspection at the premises, there were under construction, 8 factory units which were built on a sloping hill. The units were being constructed with concrete tilt-up panels. By 6 January 2008, the bottom four units had been finished to the point where the roof sheeting had been completed and the floor slabs had been laid. Unit number 3 had the concrete floor laid. Unit 3 was approximately 7.7 metres wide and 17.250 metres deep. The height to the underside of the purlins from the concrete floor at the west side was approximately 5 metres and on the north side approximately 4.5 metres. The doorway to the unit faced south. Approximately 7.1 metres in from the doorway and approximately 2.7 metres from the west wall, there was a brown substance that appeared to be dried blood on the concrete floor. Immediately above the brown marking on the cement were two sheets of roofing material running in an east west direction. On the roof above the southern end of unit 3, Inspector Waterhouse saw three sheets of safety mesh running in an east - west direction. Two of the sheets were against the southern wall and continued over units 2 in the west and unit 4 in the east. The third sheet of safety mesh continued over unit 4 to the east but ended at the junctions of units 2 and 3 to the west. At the end of the third piece of safety mesh, the mesh was incomplete and the western end of it was not tied. The untied portion was under a loose roofing sheet. The roof beams were 1.7 metres apart. 20. On the roof above the south end of unit 3, there were two sheets of safety mesh running in an east - west direction. These sheets continued across units 2 and 4. There was a sheet of roof sheeting adjacent to these sheets of safety mesh running in an east - west direction. Three rolls of yellow insulation material were lying on the floor in the south western corner of unit 3. On the roof of unit 5, there were found roofer's tools scattered across the roof. These included a battery powered screw gun, a box of roofing screws, a coil of rope, a pair of yellow handled tin snips and a mastic gun with yellow cartridge. There was also a number of flashing off cuts in the south eastern corner. There was no scaffold or roof rails installed on unit 3.
The Incident 21. On Saturday 5 January 2008, Gerard Murphy was performing roofing work at the premises for much of the day. On that day, the other people working at the premises were Mr Tanner, Mr Flanagan (a labourer), Mr Bonfield (a fitter) and Mr Kristijan Sutinoski (a labourer). Work at the premises finished at about 3.00 pm. Mr Kristijan Sutinoski left the site at about 2.00pm and Mr Bonfield left the premises at about 2.30 pm. Shortly before 3.00 pm, Gerard Murphy was working installing roof sheeting above the area known as industrial unit number three. 22. There were no handrails or scaffolding installed at or near the area where Gerard Murphy was working. Gerard Murphy was not wearing a safety harness whilst he was working that day. Gerard Murphy asked Mr Tanner to leave the 'container' open so he could put his tools away. Mr Tanner left the premises at about 3.00 pm with another labourer, Mr Flanagan, who had been working at the premises. When Mr Tanner and Mr Flanagan left the premises, Mr Murphy was the only person working or present at the premises. Work was generally not done on the site on Sunday. 23. On Sunday 6 January 2008, Tony Murphy drove to the premises and found Gerard Murphy lying on the ground in the area known as unit 3. Gerard Murphy was deceased. Gerard Murphy had suffered injuries to his head that were fatal. Gerard Murphy's injuries were found to be consistent with him having fallen from height. The roof of unit 3 was approximately 5 metres from the ground at the west side and approximately 4.5 metres from the ground where Gerard Murphy was found.
Falls Prevention 24. During the period 20 December 2007 to 5 January 2008, there was no adequate system of falls prevention in place while people, and in particular Gerard Murphy, were performing roofing work at heights. No handrails or scaffolding had been erected so as to ensure that people working at heights of greater than 2 metres were not at risk of falling. Cranes or lifts were not used at any time for roofing work at the premises, other than initially, when the safety mesh and roof sheeting was lifted to the top of the purlins. 25. People performing roofing work at the site were often working at heights without wearing any harnesses.
Systems of Work 26. The system of work used at the premises for roofing work involved lifting the safety mesh and 7 meter roofing sheets from the ground to the top of the purlins using a scissor lift. The metal roofing sheets were placed in stacks on the roof purlins. The safety mesh was then rolled out and stretched across the purlins in stages then fastened by drilling holes into the purlins, threading the mesh through the holes and tying it off. Metal roof sheets were then placed over the safety mesh and fastened to the purlins with screws. Unsecured roof sheeting was used as a platform to walk across the purlins while the safety mesh was installed section by section. By installing the safety mesh and roof sheeting section by section, rather than installing all of the safety mesh across the whole work area from the outset, there were sections of the work area that were left without any safety mesh in place. This approach resulted in the roofers walking on unsecured roof sheeting and jumping between the trusses without fall protection.
The Code of Practice 27. The 'Code of Practice Safe Work on Roofs, Part 1 - Commercial and Industrial Buildings' ('Code of Practice') applied in respect of work being undertaken at the premises. The Code of Practice provided that provision should be made to prevent people from falling if work was carried out within two metres of any edge of a new or existing roof from which people could fall a distance of more than two metres. The Code of Practice recommended the use of safety mesh and guardrails. Other methods, such as safety nets and scaffolding or a combination of them, were recommended, but only if safety mesh and guard rails could not be used. Further, the Code of Practice required that safety mesh be first cut to length from a roll and run out over the roof using a continuous rope system. The Code of Practice recommended a safe method of installation by using scaffold positioned at each end of a roof. Meshing out of the whole roof frame that was erected was to be completed before the roof was loaded with bundles of decking. The Code of Practice recommended that scaffolding, scissor hoists, safety nets or individual fall arrests systems be used to protect workers installing the safety mesh from falling from heights.
Action After the Incident 28. Following the incident, WorkCover issued CMS a Prohibition Notice (No. 144339) dated 15 January 2008 that required CMS to immediately cease working at heights and to develop, implement and maintain a safe system of work for working at heights. 29. After the incident, handrails as well as scaffolding were installed at the premises as a system of falls prevention.
Prior Convictions 30. John Trevor Tanner (D.O.B 1 May 1939) has no prior convictions. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2011
Inspector Nikolovski
McCrudden
DELIBERATION 23The Court firstly considers the evidence as to the objective seriousness of each offence committed by the three defendants and does so as a primary consideration in undertaking the sentencing task. Counsel for Mr McCrudden, in particular, accepted that this task was informed by the decision of the Full Bench in Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (1999) 90 IR 467 at 474-475. So approached, the objective factors relevant to sentencing were: the maximum penalty prescribed by Parliament for the offence; the need for general and specific deterrence; whether the risk to safety was obvious and foreseeable; and, the nature of the offence having regard to whether safe working systems existed prior to the offence and/or whether there was a failure to supervise. 24In a frank submission, counsel for Mr McCrudden accepted that the offences of his clients "beyond doubt" were "objectively serious." Counsel for Mr Tanner accepted the same description as appropriate for the offence committed by his client. Counsel for Mr McCrudden submitted that there were differences, however, as to the relative culpability of Mr McCrudden and his company and Mr Tanner: Mr Tanner was to be considered more culpable because of his physical presence at the site. The prosecutor submitted that all defendants were approximately equal in their culpability in relation to this workplace accident. 25The concession made by counsel for the defendants as to the objective seriousness of the offences was properly made. A most frequent issue arising in the building and construction industry is working at height without effective protection against falls - this issue also arose at the Lawson site with tragic consequences. Importantly, there was one measure, laid down by appropriate standards and accepted as an industry practice, that would have avoided this accident and that was the requirement to lay the safety mesh across the roof before engaging in the installation of the insulation and later the roofing sheets. There is simply no explanation as to why that well understood industry practice was not followed on this site. There were other effective measures that would have protected against this particular accident or against the risks more generally particularised: safety harnesses or fall prevention equipment was not supplied nor its use enforced on the site; handrail and scaffolding was not installed around the perimeter of the building to prevent falls; scissor lifts or similar scaffolding type arrangements were not implemented to enable the safety mesh to be fixed; and, an appropriate risk assessment and an induction were not undertaken. These are all well recognised safety steps adopted to prevent falls in this industry but they were not undertaken at this site. It was entirely foreseeable that, without these safety procedures being adopted, there was a risk of very serious injury and possible fatal injury. The steps needed to address the risk of falling were not only simple and straightforward but were well- known as safety practices in the industry. These factors require the Court to conclude that in relation to each of the defendants, this was a most serious offence. 26As earlier indicated, counsel for the prosecutor submitted that, while there were differences in the activities undertaken by the defendants, their culpability was to be regarded as broadly equal. Counsel for Mr Tanner supported an assessment of that nature. Counsel for Mr McCrudden and his company, CJM, contested that assessment. CJM had an existing safe working system that, if followed, would have avoided this accident. The procedures adopted by CJM included laying down, in some detail, matters to be dealt with at a site induction to be conducted by the builder and how the work was not to be commenced until there was a risk assessment undertaken and a SWMS laid down by which the work would be performed. In addition, the Court had accepted, in the defended proceedings, that the fixed scaffolding and handrails were to be supplied and installed at the expense of Mr Tanner's company and that had not occurred. Mr McCrudden and CJM had prior experience of Mr Murphy's work and they knew him as a skilled roofer with over 25 years of working experience in the roofing industry. CJM had therefore taken steps to engage a well-qualified roofer of whom it had experience - it was not a case of CJM merely picking a roofer from the telephone book and engaging that person without further query or investigation. 27While these matters are all deserving of consideration, the most critical aspect of CJM's breach is the failure to take any steps to enforce the safety rules it had adopted. There was a failure to send anybody in a supervisory capacity to the site at the beginning of the work to ensure that the safety induction was carried out, that the SWMS was appropriately detailed and signed off and that the work was to commence by laying the safety mesh. The fact that this work was commenced close to the time that Mr McCrudden was to take annual leave and that there was only one other employee at the time who was able to supervise the work does not reduce the ultimate culpability of these defendants. If any person from CJM had attended the site, even shortly before work began, they would have seen immediately that the scaffolding was not present, that the safety mesh was not being applied across the whole of the roof structure and inevitably that would have led to enquiries about whether a risk assessment had taken place and what safe fall protection mechanisms were being adopted. When looked at in this light, CJM had a paper system that it was little equipped to enforce because it employed very few people itself and conducted its large business by use of sub-contractors. That very mode of business should have highlighted to CJM and Mr McCrudden that a system of inspections and audits had to be undertaken to ensure the safety system was being applied, even if that task, itself, was sub-contracted. 28Mr Tanner's position was different. He was present at the site and knew that he had not supplied the scaffolding and handrails as the Court found he had agreed to do. His evidence to the contrary, given in the CJM/McCrudden proceedings, stretched credulity. He conducted no induction and did not actively step in to ensure that the SWMS was signed off, that Mr Murphy and the other roofing employees wore harnesses and installed the safety mesh as a first step as required by industry practice. While CJM and Mr McCrudden rely upon Mr Tanner's presence at the site leading him to be held more culpable, the different role of CJM and its failure to enforce its own system leaves the issue of culpability fairly finely balanced between the two groups of defendants. Mr Tanner's improbable story about who was responsible for the scaffolding may suggest that he should bear a higher level of culpability although it is to be accepted that the installation of scaffolding and handrails would have offered protection at the perimeter of the building, yet the ongoing risk was the laying of the roof insulation and roof sheeting where the safety mesh had not been laid first and the use of harnesses was not enforced. In balancing all of these considerations the Court concludes that Mr Tanner is to be considered more culpable than the other defendants, but not markedly so. 29As to general and specific deterrence, both factors will have a significant role to play in the setting of an appropriate penalty in each case. These cases again demonstrate the inherent dangers in working at height, especially in the building and construction industry, and the simple, well-known and available steps to avoid the risk. Significantly, Mr Tanner has been in this industry at a senior level for many years yet allowed a situation to exist in relation to the work of the roofers at the Lawson site that was totally unacceptable. Mr McCrudden has been very successful and has performed a large amount of work in relation to roofing, fascia and guttering but did not have anybody at the site to enforce the company system of safety. In relation to specific deterrence, Mr McCrudden and CJM continue to work in this industry - a significant consideration. Mr Tanner has continued to work in a supervisory capacity in the industry up until December 2010 although his company has been liquidated. At the time of hearing he had not obtained further employment and at the age of 72 it might be difficult for him to obtain future employment in the industry. It may be that members of his family will be able to provide some work of this nature and in recognition of that possibility, specific deterrence, in his case, will play a lesser role in the setting of an appropriate penalty. 30In relation to subjective factors, all defendants are first offenders and are entitled to the leniency that is customarily afforded that status. Mr Tanner has been involved in the building and construction industry for a very long time and has been involved in some very large projects during that period: it speaks well of his previous work methods that he had not come to attention or found to be in breach of safety legislation during that extensive period. CJM and Mr McCrudden have been working in the roofing industry since 2000 and have been involved in extensive works where yearly turnover has been in the millions of dollars. Again, the amount of work undertaken in the roofing industry without incident speaks well of their attention to safety as does their written safe working system that was in evidence before the Court. 31CJM and Mr McCrudden defended the proceedings and so no discount is available for an early plea. While that is so, neither CJM or Mr McCrudden are to be penalised at a higher level because they exercised their right to defend the proceedings. Mr Tanner did enter a plea of guilty but did so at a late stage, being on the first day of the hearing. Mr Tanner was then called as a witness in the prosecution case against CJM and Mr McCrudden. While Mr Tanner's plea was late, it was not totally devoid of benefit in terms of the length of the hearing. It is undoubtedly the case that, if Mr Tanner had continued with his matter, the Court would have spent considerably more time in investigating the systems and circumstances of Mr Tanner's involvement in the Lawson site. In those circumstances Mr Tanner should receive a discount of 10 per cent for his plea of guilty. 32Mr McCrudden and Mr Tanner have provided a number of references that speak highly of them both personally and professionally. They have previously operated at a high level in a dangerous industry and in different ways have demonstrated themselves to be good citizens as well as good corporate citizens. Importantly, they co-operated with the WorkCover investigation. In addition, on a proper assessment of the evidence, the Court is satisfied that Mr McCrudden and Mr Tanner have taken responsibility for this workplace accident and have exhibited contrition. These matters will be taken into account in mitigating the penalties. 33In all cases the defendants asked for their particular financial circumstances to be taken into account. CJM and Mr McCrudden produced financial records to indicate that, in the last financial year the company had made a loss from a turnover in excess of $3 m and Mr McCrudden's taxable income had been substantially reduced. Part of the company's poor financial result was attributed to the $170,000 now spent on employing supervisors to ensure the company's safety systems are enforced at its work places. Although the prosecutor did not cross-examine on this material it was pointed out that there was little evidence as to the assets of either Mr McCrudden or CJM although they appeared to be still involved in a very lucrative business. 34This financial material is to be considered in the context of the operation of the Fines Act 1996 whereby the Court is to consider such information regarding the means of the accused that is reasonably and practicably available to the Court What information is reasonably and practicably available to the Court will vary with the assessed ability of the defendant to place material before it. In the case of CJM and Mr McCrudden, although losses have recently been incurred, both are well placed to provide much more information to the Court concerning their overall financial circumstances, including their assets. There is no detailed information about Mr McCrudden's personal financial situation although there is evidence that both Mr McCrudden and CJM have not performed well financially in the last two years. 35That level of financial information does not permit the Court to make an informed assessment of their capacity to pay a fine that reflects the objective seriousness of the offence. The Court will proceed, however, on the basis that currently there is being endured a period of reduced earnings and to that extent, there is likely to be some reduced capacity to pay the appropriate fine: that level of capacity to pay, indefinite as it is, is likely to be more than adequately met by an application, at least in the first instance, made to the Registrar, seeking payment of the ultimate fine by way of instalments. 36Mr Tanner's case presents different considerations. He became bankrupt on 8 April 2009 and is likely to be released from bankruptcy in April 2012, reflecting the nominal term of the bankruptcy order. The evidence is that Mr Tanner is not currently earning any money and has not worked in the building and construction industry since December 2010. He is likely to apply for Social Service payments in the near future. At the age of 72 his capacity to obtain work as a supervisor in the building and construction industry must be relatively low although it is possible that members of his family may be able to secure some work for him but that has not occurred during the past five months. The evidence of Mr Tanner and his wife is that they have no other assets apart from their home which is under a considerable mortgage. Mr Tanner's daughter and her husband who also live with Mr and Mrs Tanner are meeting those mortgage payments. 37The Court, as presently constituted, has previously raised concerns about the appropriateness of imposing a significant fine upon a person who has no capacity to pay it (see Inspector Batty v Brian John Goldsmith [2009] NSWIRComm 72; Inspector Victor Larobina v Ibrahim & Soliman [2007] NSWIRComm 198; and in relation to a severely reduced capacity to pay a fine: Inspector William Hopkins v Michael Wherritt t/as M J Wherritt Concrete Pumping Services [2002] NSWIRComm 16). 38In WorkCover Authority of New South Wales (Inspector Dall) v R & D Enterprises (Newcastle) Pty Ltd (2001) 110 IR 469 , Hungerford J spoke of the difficult task of determining an appropriate penalty in circumstances where the evidence disclosed the economic pressures on the defendant were heavy. In that matter his Honour stated: In R v Rushby [1977] 1 NSWLR 594 at p 598, the balancing process involved in sentencing was dealt with by Street CJ by reference to what the Court of Appeal in New Zealand said in R v Radich [1954] NZLR 86 at p 87 as follows: On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment. 39In Inspector Batty v Goldsmith at [39] et seq reference was made to R v Aref Rahme (1989) 43 A Crim R 812 at 86 et seq and the discussion undertaken by Finlay J (with whom Studdert J concurred). In that discussion his Honour noted that the imposition of a large fine involved a number of considerations and that it was trite to say that a court generally should not impose a fine which the offender does not have the means to pay. Reference was made to R. v Fox (1987) 9 Cr.App.R.(S.) 110 at 114 where it was stated that there were a number of matters to be considered, including the principle that a sentence must always be linked with the particular circumstances of the offender as well as the particular circumstances of the offence: a sentence derives its character of justice or injustice from a combination of those two sets of factors. 40In Batty v Goldsmith reference was also made to a decision of Lloyd J sitting in the Land and Environment Court in Environment Protection Authority v Ableway Waste Management Pty Ltd and anor [2005] NSWLEC 469. At [59] Lloyd J dealt with the defendant's bankruptcy and the operation of s 6 of the Fines Act and the requirement to take into account the defendant's means to pay a fine. His Honour concluded that, although presently bankrupt, the defendant would not always necessarily be so restrained and may well be able to find remunerative work in the future. His Honour concluded that the appropriate course was to impose a fine but to postpone its operation so that it did not become payable until he was "likely to have found his feet." His Honour reduced the fine by 30 per cent to take into account all mitigating factors and postponed the operation of the order for the payment of the fine because of the defendant's clear inability to pay at the present time. The orders for payment of the fine were postponed for 24 months. 41Having regard to Mr Tanner's bankruptcy and lack of ongoing employment and also taking into account his age and his likely capacity to obtain other than limited employment as a supervisor in the building and construction industry in the future, the Court concludes that this is an appropriate case in which to reduce the fine having regard to those matters and to postpone the payment of the fine until he is able to regain his feet financially, a period the Court would estimate to be some six months after the nominal period of his bankruptcy expires in 2012. This is also an appropriate case to consider the costs as part of the penalty (see EPA v Barnes [2006] NSWCCA 246 at [78]; Morrison v Centennial Coal Company Ltd [2010] NSWIRComm 4) 42In relation to both Mr McCrudden and Mr Tanner, applications were also made pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999, namely, that the Court finds the defendant guilty of an offence but directs that the relevant charge be dismissed or that the charge be dismissed on condition that the person enter into a good behaviour bond for a term not exceeding two years. In Mr McCrudden's case his previous good character was relied upon although it was accepted that an order under s 10 was difficult to obtain where, as in this case, the offence is objectively serious. While it was accepted that the offence was not trivial, the whole of Mr McCrudden's case was said to present extenuating circumstances, especially in relation to the relative culpability of the two individual director defendants. In relation to Mr Tanner, it was submitted that there was abundant evidence of a financial nature as to Mr Tanner's reduced circumstances such that it was to be regarded as inexpedient to inflict any further punishment on him. He was unlikely to offend again given his age and his circumstances. It was accepted that the offence was "very serious." 43It has been noted in argument that decisions at Full Bench level in this Court had pointed out the difficulty placed in the way of granting a s 10 order where a serious offence was involved. To a similar effect was the judgment of Spigelman CJ in Thorneloe v Filipowski (2001)52 NSWLR 60 where his Honour noted a line of authority for the proposition that it would be a rare case when a dismissal of a case pursuant to the provisions of the then s 556A was seen as appropriate in relation to an environmental offence, especially one involving of the Clean Waters Act 1970 . A similar formulation has been applied by the Land and Environment Court in a number of cases and has been reflected in this Court's approach to offences under the then s 15 of the Occupational Health and Safety Act 1983. 44There is no doubt that s 10 of the Sentencing Act is available in proceedings such as these and cannot be written out of existence by the application of a strict and unyielding policy approach. The present cases, however, involve such a serious dereliction of the duty to ensure the safety of employees at the workplace as to make a s 10 order of any form quite inappropriate. The small number of identified relevant factors appear to the Court to be more appropriately taken into account in mitigating the level of penalty rather than leading to a conclusion that an order available under s 10 of the Sentencing Act should be made in either or both cases. The applications for such orders are therefore rejected. 45One further matter requires attention. At the conclusion of the proceedings, the prosecutor handed up five Victim Impact Statements from members of Mr Murphy's family. Those statements were made by Ms Kate Murphy (Mr Murphy's sister); Mr Keiran Murphy (a son of Mr Murphy); Ms Cheryl Murphy (Mr Murphy's wife of 23 years); Ms Amy Murphy (Mr Murphy's daughter) and Mr Tony Murphy(another son of Mr Murphy). Having determined to enter convictions against the defendants in these proceedings, pursuant to the provisions of s 28 of the Crimes (Sentencing Procedure) Act, the Court considers that it is appropriate to receive and consider each of the Victim Impact Statements. The capacity of victims to place before the Court their statements as to how the loss of a family member has affected their lives serves to remind sentencing Judges that the loss of a family member through a workplace accident can lead to ongoing difficulties in the lives of those left behind and that time often does not heal the wounds of loss. The Court extends its sympathy to Mr Murphy's family and while acknowledging that these words are inadequate to soften their loss, nevertheless, their statements have been read and the extent of their loss and grief thereby appreciated.
(1999) 90 IR 464
(2001) 52 NSWLR 60
(2001) 110 IR 469
(1999) 90 IR 467