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[2011] NSWIRComm 105
Industrial Relations Commission (NSW)
2011-06-02
Staff J, Mr P
Original judgment source is linked above.
with Mr D O'Neil of counsel (Prosecutor) Ms B Obradovic of counsel (Defendant) Solicitors Crown Solicitor's Office (Prosecutor) Coleman and Greig (Defendant) File Number(s): IRC 1030 and 1036 of 2008
Judgment 1Stephen King ("the personal defendant") was the sole director of Blue Water Scaffolding Pty Ltd ("Blue Water"), a company involved in the erection and installation of scaffolding. 2On 7 July 2006, scaffolding erected by Blue Water collapsed at the "Douglas Project". This was the name given to work done in the "Douglas District" which was one of the mining areas within the Appin Colliery. The Appin Colliery is located on Douglas Park Road, Douglas Park, near Appin in the State of New South Wales. 3Waco Kwikform Ltd ("Waco") had previously worked as a subcontractor for Southern Colliery Maintenance Pty Ltd ("Southern Colliery"), who was engaged to supply labour to Illawarra Coal Holdings Pty Ltd ("Illawarra Coal") who was operating the Mine as agent for Endeavour Coal Pty Ltd ("Endeavour Coal"). Southern Collieries engaged Waco to do scaffolding work at the Mine. Waco subcontracted the scaffolding work to Blue Water. 4As a result of the collapse of the scaffolding, Kenneth Morris Evans, an employee of Delta Mining Pty Ltd ("Delta"), a company that supplied labour to the Douglas Project, dislocated both shoulders and fractured one when sections of the decking boards on one of the platforms of the scaffolding on which he was working collapsed. He fell approximately 3.3m onto a conveyor belt above which the scaffolding was built. 5On 19 December 2010, pursuant to s 601AB of the Corporations Act 2001 (Cth) (" CA Act "), Blue Water was deregistered upon the application of the Australian Securities and Investments Commission ("ASIC"). 6Blue Water pleaded guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 (" OHS Act "). The personal defendant also pleaded guilty to a breach of s 8(2) of the OHS Act by operation of s 26(1) of the OHS Act . A sentencing hearing was fixed for 2 June 2011. However, due to the deregistration of Blue Water, it was common ground that this Court had no jurisdiction to conduct a hearing or impose a fine on Blue Water. The prosecutor, therefore, sought that the matter involving Blue Water be adjourned to enable consideration to be given to making application to ASIC under s 601AH of the CA Act to have Blue Water reinstated. The sentencing hearing proceeded in respect of the personal defendant and judgment was reserved. 7The personal defendant, as the sole director of Blue Water was charged with failing to ensure that persons not in its employment, and in particular, Kenneth Evans; Aaron Morrison, Wayne Powell, Larry Tynan, Gary Nees and Matthew Withers were not exposed to risks to their health or safety arising from the conduct of Blue Water's undertaking while at its place of work. 8The particulars were as follows: Particulars of risk: A. Non-employees were exposed to a risk of falling through scaffolding. B. Non-employees were exposed to a risk of being struck by people or objects falling through scaffolding. The particulars of the failure were:
Prosecutor's evidence 15Mr Strickland tendered an agreed statement of facts, which provided:
Defendants' evidence 20Ms Obradovic read an affidavit of the personal defendant, who was required for cross-examination. 21After setting out his qualifications, noting that Blue Water was registered in August 2003, the personal defendant stated that he approached Waco to hire scaffolding. After hiring scaffolding from Waco on three to five occasions, Mr Gary Johnson, Sales Representative from Waco's Port Kembla Branchy, invited Blue Water to undertake subcontract work for Waco. The personal defendant signed a subcontractor agreement without obtaining any legal advice about the document and without fully reading it before he signed it. Blue Water carried out its first work for Waco on 24 October 2003. 22The personal defendant stated that when a job was coming up either Mr Johnson or Mr Eric Haggart, the Manager for Waco at Unanderra, would show the personal defendant the plans for the job and he would give them a quote. On other occasions, Waco would give the personal defendant the job and tell him what to quote. It was the personal defendant's usual practice that when he finished erecting the scaffolding, he would do a visual inspection. This was done mostly by standing a few metres back from the scaffolding to ensure everything was in order. At the conclusion of a job, the personal defendant would inform Mr Johnson of its completion. He recalled that on occasions Mr Johnson had visited the site where he had carried out work by driving past and checking that the job had been completed. He was aware of this because from time to time he received telephone calls from either Mr Johnson or Mr Haggart telling him about anything that he needed to rectify. 23The personal defendant's evidence was that when he was given a job by Waco, he did not argue or disagree with anything that was proposed by Waco because he did not want to stop receiving work. He was dependent on Waco for the work that Blue Water received. As time passed, Mr Haggart insisted that Blue Water employ more employees, or he would find another company to do the work for Waco. He also insisted that the personal defendant get office staff. The personal defendant stated that he did not want to do this because he did not want the extra stress and responsibility of running a bigger company, nor could he afford to pay extra employees. 24The personal defendant said that he first did a job at the Douglas Park Mine in October 2005. The first two jobs were above ground. His third job in March 2006 was the first underground job that he had carried out. It was done in a fully lit workshop and was a small job with scaffolding only a couple of bays wide. When the job for the Douglas Project came up, Mr Johnson advised the personal defendant that there was a job coming up which involved underground work. The personal defendant stated that he suggested that he engage one of the other subcontractors who had been "in the game" longer than he had because he was not keen to work underground. 25Mr Johnson informed the personal defendant that Mr Haggart wanted him to do the job and said "you can't argue with that". He took this to mean that if he did not undertake the work that Waco would stop engaging him. The personal defendant quoted for the work, however, he said he did not see the form of agreement before he started the work. 26On 21 June 2006, the personal defendant attended an induction at the Douglas Park Mine. He did not remember anyone during the induction talking to him about the need to, or how to carry out an inspection of the scaffolding. Nor was he ever told how to use a checklist in inspecting the scaffolding. 27On 29 June 2006, the personal defendant and his brother commenced work at the Douglas Project. It was pitch black in the mine and the only light that they had was a miner's torch on each of their helmets. He recalled another job that he had completed in another mine which was very well lit, he and his brother having had no problem in seeing their way around. However, on this job, he recalled thinking it was very difficult to see. He said when he advised Mr Johnson of this, he advised him to "take your time with the job." 28The personal defendant's evidence was that he did take his time, but it was so hard to work in the mine. He said that there was every chance that something would go wrong. He stated that he probably should not have started the job until he and his brother were given floodlights, or something like that. However, he said he could not talk to Mr Johnson or Waco about his concerns because he believed that they would have taken other jobs away from his company. His evidence was that he said to Mr Johnson: "I really don't like working underground and I really don't want to do it any more." Mr Johnson responded, "You'll be right, just take your time." 29Prior to starting work at the Douglas Project, the personal defendant was shown transoms by Mr Johnson that he would be using. They were 3.1m long. This was the first time that he had worked with transoms that long. Previously, he had only worked with 2.4m long transoms. He advised Mr Johnson of this fact. 30The personal defendant recalled that when Mr Johnson showed him the transoms and the drawings, he said to him "there have to be three ledgers in between the transoms in each bay. These ledgers will also line up." 31When the personal defendant commenced the work, it became obvious that only two ledgers could be placed in between the transoms in each bay. The V-pressings or "stars" would not line up for three ledgers. 32The personal defendant and his brother erected bays A, B, C, D and E on the first day in the presence of two workers from the mine, the personal defendant checked the scaffolding after erecting bays A to E, by using the torch on his helmet. He was only able to see the area upon which the light shone and was looking for such things as braces and handrails. 33The personal defendant's evidence was that shortly after leaving the mine on the first day, he had a conversation with Mr Johnson to the following effect: The personal defendant: The transoms are 500mm so you can't build in 500mm increments. I had to make the decks 1.0m apart. Also, I have only put two ledgers in because the stars would not line up for a third ledger to go in. Mr Johnson: The V-pressings should line up for ledgers to go in. The personal defendant: They don't. Mr Johnson: They should. 34The personal defendant stated that he assumed from this conversation that Mr Johnson would be inspecting the changes that he had made as he was not coming back to the mine for a week. When the personal defendant and his brother returned to complete the work on 7 July 2006, they encountered further problems. The working platform was meant to be 3.1m wide and 2.4m long. There was not enough room to build the working platform to these dimensions because the mine wall was too close to the scaffolding. The personal defendant and his brother changed the width of the working platform from 3.1m to 2.4m and the height of the working platform was changed from 5.0m to 4.5m. 35The bays that the personal defendant and his brother were erecting on this day were bays F and G, which were the final two bays. The personal defendant did a similar check of these bays as he did for bays A to E. No one else checked the scaffolding on that day apart from the personal defendant. He did not recheck bays A to E as he had been working off those bays to finish off bays F and G. 36After the personal defendant left the mine, he telephoned Mr Johnson and said words to the following effect to him: The personal defendant: I've made changes to Bays F and G. There was not enough room to build as per the dimensions on the drawing. I changed the dimensions to 2.4m x 2.4m. Mr Johnson: Did that fit then? The personal defendant: Yes, just. Mr Johnson: Was that all you changed? And you checked it? The personal defendant: Yes. Mr Johnson: Then it should be ok. 37He stated that he assumed that Mr Johnson would inspect the scaffolding as in the past when he had completed jobs above ground, either Mr Johnson or Mr Haggart had driven past the sites to check the completed work. 38Later on 7 July 2006, Mr Johnson telephoned the personal defendant and advised him that there had been an incident at the mine and that someone had fallen off the scaffolding and Mr Haggart was not happy. 39Mr Haggart subsequently telephoned the personal defendant and said: Mr Haggart: There's been an incident. You're finished with us. It's all over. The personal defendant: What? It's all over for me? Mr Haggart: Yes. The personal defendant: Will you stick with me if there is an investigation? Mr Haggart: No. You're on your own. The personal defendant: What about my workers, what do I tell them. Mr Haggart: Not my problem. 40The personal defendant was not permitted to complete any of the jobs that he had with Waco at the time. Since that date, he has not spoken to any employee of Waco. 41The personal defendant stated that losing all the jobs with Waco "really crushed my spirit". He said he became very stressed and unhappy. He was sad all the time and felt "so hopeless". He did not go anywhere and he did not want to see anyone. He still often feels depressed and anxious and this affects him. He could not find work for over nine months and said that he had "so many debts to pay". 42Since the accident, Blue Water has not traded and the personal defendant was recently informed that the company had been deregistered. The last financial statement completed by Blue Water's accountant was dated 2008. A copy of that financial statement was annexed to the affidavit. 43In March 2007, the personal defendant started working as a casual with Capital and has continued to work for them. His work varies and he earns anywhere between $250 to $1000 gross per week. On numerous occasions over the last three years, he said that there had been many weeks where he had not worked at all. 44The personal defendant's assets are a Ford Falcon vehicle which he said was worth approximately $3000. He also owns his house which is valued at approximately $250,000. He has a mortgage of $225,000 on the house. The personal defendant and his partner have one child who was born in October 2008. His partner does not work. He also has a child from a previous relationship who lives with him on a week about basis. During oral evidence, the personal defendant listed his expenses as follows: Q. If I could ask you about your expenses, your monthly expenses? A. Yeah. Q. So you have a mortgage that you pay A. Yes. Q. each month. Do you know what the amount of that mortgage is? A. 1550. Q. You also have some water bills that you are responsible for? A. Yeah. Q. Do you know the amount of those water bills? A. Yeah. Q. That is about $100? A. Yeah. Q. Land rates are about a $100 a month? A. Yeah. Q. Electricity is about $150 a month? A. Yeah. Q. Petrol of about $400 a month? A. Yep. Q. You pay food of about $600 a month? A. Yeah. Q. You have a debt in relation to some roof maintenance that you did on a house? A. Yes. Q. And you are paying off that debt? A. Yes. Q. At $50 per fortnight? A. Yes. Q. Are there any other expenses that you have, your regular expenses which you haven't mentioned? A. Did you say phone? Q. You have a phone expense? A. Yeah. Q. What is that? A. About a hundred bucks a month. Q About $100. And you continue to be in casual employment? A. Yes. Q. And you still earn between $250 and $1,000 gross a week, depending on how much work you get? A. Yeah. Q. So on average your current annual income is between $38,000 and $42,000 gross, is that correct? A. Yes, that's over the last three years. Q. Over the last three years? A. Yeah, before that I was working with Blue Water. 45He said there is very little money left over after these expenses are paid. 46During cross-examination, the personal defendant acknowledged that he had given an undertaking to give full and frank evidence for the Crown in accordance with a statement which was attached to the document contained in his undertaking. The personal defendant was given an opportunity to read the 14 page statement attached to his undertaking and confirmed that it was true and accurate. 47The personal defendant acknowledged that he had signed, together with his brother, a record of a toolbox talk that was conducted by Mr Johnson of Waco on 29 June 2006. Under "Comments and points raised" was written "work method statements & work under ground, observe all managers rules & listen to Delta men." The personal defendant did not recognise this to be his writing. 48The personal defendant's evidence was that he did not remember attending a toolbox talk on the day before the work began. His evidence was " I didn't attend, I think just me and Danny done this one." 49The personal defendant said that he did not look at the Waco Safe Work Method Statement during the toolbox meeting on 29 June 2006. He had seen it before 29 June 2006 at a meeting with Waco. 50The personal defendant was taken to Blue Water's Safe Work Method Statement. He acknowledged under the heading "Hazards" there was no entry that related to ledgers. The Safe Work Method Statement did identify as a potential risk "scaffold ties bracing". The personal defendant explained the difference between ledgers and bracing as: The bracing runs, like, diagonally up the scaffold to take the sway out of it, and the ledgers runs horizontally with the scaffolding, the same, the boards run the same way as the boards, long ways with the boards. 51The personal defendant acknowledged that he had become familiar with the Australian/New Zealand Standard Guidelines for scaffolding (AS/NZS 4576:1995) as a result of his attendance at TAFE. The personal defendant was taken to a drawing of the scaffolding prepared by Waco and was specifically referred to a notation on the drawing which read "Ledger to take out bowing in 3.1m ledger transoms." His understanding of this notation was that ledgers had to be put in between the transoms to prevent a fall through "the trannie". "The trannie" means "transit" and was accepted by the personal defendant that he did not insert any ledgers in Bay D and he was unable to explain why this had occurred. He said he was not aware of the checklist contained in AS/NZS 4576:1995 and that he did not have any checklist at all underground with him when he carried out the work. Despite participating in a risk assessment, he could neither recall ever having spoken about inspecting the scaffold, nor there being any reference to using a checklist similar to that found in the Australian Standard. 52The personal defendant did not recall ever speaking about inspecting the scaffolding at any meetings that he attended with Waco. He was also taken to a Waco Scaffold Handover Certificate ("the Certificate"), the majority being in his handwriting. The Certificate was dated 29 June 2006, however, the personal defendant's evidence was that it was written on 30 June 2006. Although no entry was made on the Certificate in respect of whether the work passed inspection with both the "yes" and "no" box remaining empty, the personal defendant said that at the end of the day he conducted a visual inspection using the light of his miner's lamp. He stood at the base of the scaffolding and looked at it for approximately "two to five minutes". There was no other lighting available in the mine and if the headlamps had been switched off, it would have been completely dark. 53The personal defendant agreed that he did not look at the scaffolding, component by component. He agreed that he should have completed the "passed inspection" box on the Certificate. The Certificate was signed by two employees of Delta, Mr Greg Meath and Mr Clayton Love, who were with the personal defendant at the time that the Certificate was completed. The personal defendant said that neither of these employees asked any questions or made any comments about the inspection of the scaffolding. His evidence was: Q. Did they ask you any question or make any comment about your inspection of the scaffold? A. No. Sorry when I was inspecting the scaffold I just said to one of them that I was just inspecting it and I am giving the handover like if they wanted to have a look at whatever and they said they don't know anything about scaffolding so pretty much you tell us it is all right then it is all right. 54The personal defendant could not recall if he showed the certificate to Mr Johnson, although he did recall speaking to him after the job was completed. His evidence was that he was confident that he informed Mr Johnson that he had only put two ledgers in because the star braces would not line up for a third ledger to go in. His evidence was that when he informed Mr Johnson that he had changed the design drawing, he assumed that he would check it because the drawing had been prepared by an engineer and he had changed it. 55The Certificate also contained a second record of inspection which occurred on 7 July 2006 when the personal defendant completed the work by erecting the final two Bays of the scaffolding. Again, the "passed inspection" box remained blank. The personal defendant's evidence was that he did not re-check the work that he had previously carried out on 30 June 2006. He limited his inspection to the further two Bays, undertaking inspection on the same basis as he had done previously. 56The personal defendant stated that all the years he has worked, he has never had any complaints about his work. Blue Water was only involved in one incident when an employee cut his leg when he slipped and hit his leg on a transom. 57The personal defendant stated that he was very sorry that this incident occurred at the Douglas Project and that he should have insisted on working in better lit conditions. He said he should have had someone else check the work as well because he made a mistake in not putting in the ledgers in Bay D. He did not see that they were missing when he checked the work and if someone else had checked the work as well, they may have noticed the problem. 58He said he has not done any jobs through Blue Water since the date of the accident. There is not a day that goes by that he does not think about that job or the fact that he and his brother "as well as the guys that had the accident were not badly hurt".
Relevant principles 59The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS 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 60The primary consideration, as set out in the above principles, and as agreed by counsel, requires a determination of the objective seriousness of the offences. This involves examining the nature and quality of the offences as set out in the agreed statement of facts and the evidence. It is therefore relevant to set out some of the important matters that emerge from the agreed statement of facts and the evidence. 61The personal defendant as a director of Blue Water entered into an agreement with Waco to erect scaffolding in the mine, without floodlights, that formed part of the Douglas Project. The defendants failed to comply with the design drawing of the scaffolding provided by Waco. In relation to Bay D, there was a total failure to insert any ledgers in Bay D. This failure created the risk of serious injury or death to non-employees of Blue Water. The risk was workers falling from Bay D to the floor of the mine, a distance of 3.3m. 62Ms Obradovic conceded the objective seriousness of the offences to be in the mid to high end of the range. I agree with this assessment. However, Ms Obradovic submitted that there were a number of difficulties under which the defendants and Mr Danny King worked in erecting the scaffolding. These were: a) that they had very limited lighting, and apart from the cap lamps attached to their helmets, they worked in total darkness; b) they had only worked underground on one previous occasion, in circumstances which were substantially different and included a well lit working area; c) they had never worked with extendable transoms; d) they were unable to construct the scaffolding in accordance with the design drawings and had to alter the way the scaffolding was built; and e) Stephen King did a visual inspection of Bay D on the day it was completed and had notified Waco Kwikform Ltd of the difficulties encountered in erecting the scaffolding. 63In my view, the factual matters set out in a), b) and c) are mitigating factors which I propose to take into account in sentencing. However, it was the factors set out in paragraphs d) and e) which created the risk, that being, the failure to insert ledgers in Bay D, not the fact that they could not insert the three ledgers as required in Bay D, which resulted from a failure to comply with the design drawing. 64Although I am prepared to accept that the personal defendant did an inspection on the day of the accident, such inspection did not accord with what was required by the Australian Standard. I found the personal defendant to be a witness of candour who did not attempt to cavil with the proposition put to him by Mr Strickland that the inspection was inadequate. In my view, and I find, the inspection of the scaffolding was inadequate and should not be taken into account as a mitigating factor. Even if the defendants did not have the Australian Standard requirements for an inspection available at the very minimum they should have had a checklist. In order to ensure the health and safety of non-employees, the defendants should have thoroughly checked the scaffolding, component by component. Had this occurred, it is most likely he would have found that there were no ledgers in Bay D. 65Mr Strickland properly conceded that the focus and plans provided to the defendants which were supposed to ensure that the scaffolding was safe also failed. I accept that this is also a relevant matter to take into account. Furthermore, there appears to have been no material in the risk assessment which occurred between 1 June 2006 and the date of the incident that required any of the other parties involved in the Douglas Project to assist the defendants with an inspection, the checking of the ledgers, or the provision of a checklist. The personal defendant provided employees from Delta with a Handover Certificate. They raised no issues with him, despite the fact that the Handover Certificate was not completed in respect of the entry dealing with "passed inspection". Similarly, upon informing Waco that he had changed the design drawing, no inspection was carried out by employees of Waco. 66Clearly, it was readily foreseeable that if no ledgers were inserted in Bay D in accordance with the design drawing, there was a high risk that a worker would fall a considerable height from the scaffolding. 67Furthermore, the existence of simple and straightforward remedial steps which could have been taken by the defendants to avoid the risk to safety is relevant to assessing the seriousness of the offences: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at [27]. In addition, the existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offences: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [81] and Kembla Coal and Coke Pty Ltd at [27]. 68In this matter, Mr Evans suffered serious injuries and has been unable to return to work in his previous position in the mining industry.
General deterrence 69I consider it is appropriate in this case to once again draw attention to the need for employers and contractors in the Mining and other industries where scaffolding is required to be erected, to be constantly vigilant of the need to ensure that workers are not exposed to risks of falling through or the collapsing of scaffolding. 70I am mindful that in fixing an appropriate penalty, that the need for general deterrence is one of the main purposes of punishment and therefore must be considered: see Capral at 388. However, I agree with the observations of Boland J President in Inspector Yeung v Thiess Pty Ltd (No 2) (2004) NSWIRComm 96 where his Honour in citing R v Jenkins [1999] NSWCCA 110 stated: It is clear from the Full Bench's consideration in Capral Aluminium that general deterrence is a major consideration in occupational health and safety cases but I do not consider the Full Bench was suggesting it should be allowed to override, to an impermissible degree, the offender's favourable subjective circumstances, particularly that the defendant is unlikely to re-offend: R v Jenkins [1999] NSWCCA 110 at [38] per Simpson J. I include an element in the penalty for general deterrence.
Specific deterrence 71In relation to specific deterrence, Ms Obradovic submitted that the need for these defendants to be specifically deterred by a significant fine was minimal, if indeed specific deterrence was at all relevant in the circumstances. 72Counsel observed that Blue Water was not operating and has not traded since July 2006. It has been deregistered by ASIC and subsequently reregistered, in effect, to enable these proceedings to be determined. The personal defendant is not a director of any other company and has not been a director of any other company in the scaffolding business or in a similar business in the mining or building industry. I accept that this is not a case that calls for the imposition of some additional significant punishment aimed at deterring these defendants from further offending against the OHS Act and/or for the purpose of compelling the defendants' attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety.
Subjective factors 73The relevant subjective factors include a plea of guilty at the earliest available opportunity. I propose to allow a discount of 25 per centre for the utilitarian value of the plea: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104. 74I also take into account the defendants' remorse. 75The defendants co-operated with the Department in its investigation of the breach and the personal defendant signed an undertaking to co-operate with law enforcement agencies and to give full and frank evidence for the Crown in any court proceedings involving other parties associated with the Douglas Project. 76Mr Strickland acknowledged that the personal defendant had assisted the prosecuting authorities in providing an additional statement and that his brother had also provided an additional statement which have been served on other defendants. 77Section 23 of the CSP Act enables the Court to impose a lesser penalty than it would otherwise impose on a defendant having regard to the assistance rendered to law enforcement authorities. It is clearly in the public interest for offenders to co-operate with authorities and give evidence against other offenders alleged to have committed offences against the OHS Act . 78Section 23 provides: 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons-state the amount by which the penalty has been reduced for each reason. (5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence. 79In R v AD [2008] NSWCCA 289; [2010] ALMD 4187; (2008) 191 A Crim R 409, Harrison J (Beazley JA and Hislop J agreeing) considered whether the trial judge had erred by making excessive allowance for special circumstances in anticipated assistance to be given to the Crown by a defendant in imposing a sentence and considered the relationship between those matters that are called up by an application of s 23 of the CSP Act . His Honour referred to R v Z [2006] NSWCA 342; (2006) 167 A Crim R 436; Kauwenberghs v R ; [2008] NSWCCA 98; (2008) 186 A Crim R 197; S v R [2008] NSWCCA 186; (2008) 186 A Crim R 505 at 814 and SZ v R (2007) NSWCCA 19; (2007) 168 A Crim R 249 at 251 - 259, all being cases where an issue arose as to whether or not the sentencing judge erred in failing to give an appropriate discount for assistance to the authorities. 80In SZ v The Queen , the Court held that the component of the discount for future assistance needs to be quantified with a degree of precision. This enables the parties to know exactly what the position is and will also enable an appellate court to deal appropriately with any review brought by the Crown in the event that such promise is not fulfilled (at [51]). 81The Court was also referred to R v El Hani [2004] NSWCCA 162 (at [43]) where it was observed "the range of discount normally appropriate for assistance has been held to be 20 per cent to 50 per cent." The cases usually cited for such a range include R v Cartwright (1989) 17 NSWLR 243; R v Chu (unreported, Court of Criminal Appeal, NSW, 16 October 1998). 82The Court in R v El Hani also acknowledged, as did Latham J in R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 that there will be cases in which a combined or composite discount of more than 50 per cent is called for (at [52]). At [53] the Court observed that in light of the authorities to which it had referred and particularly given the statutory mandate contained in s 23(3) of the CSP Act, a combined discount exceeding 50 per cent should be reserved for an exceptional case. 83In essence, the authorities confirm that a combined discount of more than 50 per cent is to be reserved for exceptional cases. It appears that exceptional circumstances would include a defendant that has been convicted and the penalty includes a period of imprisonment and due to the assistance that he/she has given to the authorities, his/her imprisonment will be in isolation and therefore unusually burdensome. Additional factors may include the defendant's personal circumstances including his or her mental state. Some of the authorities refer to the potential suffering of a defendant who, through incarceration is "at the risk of permanent reprisals." 84In light of these factors, particularly that the personal defendant is not facing a custodial sentence, Mr Strickland submitted that the range of any discount should be between 25 to 40 per cent. In my view, it is the principle found in the above authorities and the provisions of s 23 of the CSP Act that provides the basis for a significant discount of the penalty. An additional factor in this matter is that the personal defendant's business has been adversely affected. 85Ms Obradovic submitted that it was open to this Court, given the great assistance that the personal defendant has and will continue to provide to the prosecutor, together with the other subjective factors that a discount of up to 50 per cent was available. 86I propose to allow a combined discount, taking into account the future assistance to be provided by the personal defendant, of 50 per cent. As I observed in Inspector Gjaltema v Errington and MJ Baker Constructions Pty Ltd [2010] NSWIRComm 37 at [65], I see no reason why this discount should not also apply to Blue Water.
Fines Act 1996 87The personal defendant gave evidence of his financial position and that Blue Water was a deregistered company, although it has now been restored to the register. Section 6 of the Fines Act 1996 ( "Fines Act ") provides that in the exercise of the discretion of a court to fix the amount of a fine, the Court is required to consider "such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration. The evidentiary onus in establishing the financial situation of the defendants lies with the personal defendant, noting that Blue Water has not traded since 2006. In my view, this onus has been satisfied in this case. I have earlier set out the financial position of the personal defendant. However, as was observed by Wright J in Ferguson v Nelmac Pty Ltd (1999) 92 IR 188, the financial situation of the defendants should not cloud the central issue, which is to impose a fine commensurate with the seriousness of the offence. His Honour observed at 209: The financial position and more particularly the means of the defendant should be taken into account in relation to the question of penalty ... Whilst I accept that imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the court not imposing a heavy penalty. 88In Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 353, Stein J considered the significance of the fact that the corporate defendant had ceased to trade. His Honour held: Whether a person or company's financial circumstances will sound in mitigation of penalty however will very much depend on the particular facts and circumstances... So far as the company is concerned all I know is that it is no longer trading. It is difficult to see how its largely indefinite financial circumstances should mitigate the fine to any appreciable extent. It is not in receivership and could possibly trade again. In any event, the means of the company may not have the same impact on third parties as with an individual defendant.
Victim Impact Statement 89Mr Evans provided a victim impact statement setting out the impact upon him and his life as a result of the injuries suffered in the incident. Mr Evans stated after falling several metres onto a moving conveyor belt, he sustained two dislocated shoulders, with fractures to his left shoulder and tendon tears to his right shoulder. 90Some of the consequences arising from the incident included "he did not have a decent night's sleep for over three months after the incident due to the pain in both shoulders"; "was unable to shower and dress myself without help for a considerable time"; "after six months of rehabilitation I had to have a reconstruction of my right shoulder"; "unable to drive my car for two months after the accident and also after the operation"; "underwent almost three years of physiotherapy and rehabilitation"; "suffered some emotional and psychological issues which have lessened over a period of time. This affected my marriage but things are all good now"; "loss of income while on workers compensation and unable to do overtime"; "unable to work in the mining industry again"; "unable to surf due to the pain and discomfort it causes"; "unable to do any work or activity above shoulder height due to pain and discomfort"; "disappointment and resentment towards the people responsible"; "they did not contact me to apologise or enquire about my health at all after the accident." 91In Inspector Sharpin v A Team Concrete (Aust) Pty Ltd [2004] NSWIRComm 182 at [138] I observed: Victim impact statements presently serve two distinct purposes. In the case of family victims, where a family member has died as a result of a breach of the Occupational Health & Safety Act 2000, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering, but it also has a role to play in the determination of the appropriate sentence to be imposed by the Court. The statement will explain to the Court the extent of the impact the crime has had on the victim's life.
Costs 92In respect of the question of costs, Mr Strickland submitted that the prosecutor did not wish to pursue any costs order against the personal defendant. The reason for that was that any such order would lack utility because there was no doubt, on the material tendered before the Court that the personal defendant did not have the capacity to pay any order for costs. 93Mr Strickland had similar instructions in respect of Blue Water. Senior counsel submitted: ... again we don't seek any order as to costs. We do so in these exceptional circumstances; (a) the defendant company was effectively a one man company, that it is not trading, indeed it was deregistered and then reregistered; (b) there was no evidence whatsoever and we accept there was no evidence whatsoever, that steps were taken by Mr King to deregister the company in order to avoid any consequences as a result of this hearing and indeed we accept that is not the case. Not only is the company not trading, but does not have any capital or funds to meet any order for costs, and for those reasons we don't seek orders for costs but submit that ought not have any precedent for any other company which may be deregistered or any precedent value for any other defendant in this case, 94After giving proper weight to the appropriate seriousness of these offences, together with the subjective factors to which I have referred and taking into account the financial situation of the defendants, I impose a penalty of $4000 on the personal defendant. I impose a penalty of $40,000 on Blue Water. 95I note that s 10 of the Fines Act provides that the defendants can apply to the Industrial Registrar for time to pay any fine. Should such an application be made, I would encourage its favourable consideration by the Industrial Registrar.
Orders 96I make the following orders: Matter No IRC 1030 of 2008
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: 12 August 2011
Inspector Regan
King
(2000) 49 NSWLR 610
(2000) 99 IR 29
(1999) 92 IR 8
(1993) 78 LGERA 349
(1999) 92 IR 188
(1999) 90 IR 464
(1989) 17 NSWLR 243
(2000) 49 NSWLR 383
(2005) 141 IR 465
(2004) 60 NSWLR 168
(1999) 90 IR 432
(1993) 47 IR 1
(1996) 83 IR 446
(1998) 82 IR 118
(1999) 90 IR 397
(2000) 99 IR 163