Consideration
118The primary consideration, as set out in the above principles, and as acknowledged by counsel, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the agreed statement of facts and the evidence.
119The defendant had contracted with Southern Colliery to complete certain scaffold work in the Douglas Mine Project. The defendant subsequently subcontracted with Blue Water to erect scaffolding in the Mine. Blue Water and its employees, Stephen and Danny King had not previously worked with 3.1m extendable transoms and had only once erected scaffolding in an underground Mine before the incident.
120An essential feature of the erection of scaffold is that a proper inspection of the scaffold occurs, before use, so as to ensure that there is no fall risk. The failure by the defendant to ensure a proper inspection meant that if the scaffold had not been properly erected, there was a high potential for serious injury or death as a result of workers falling from the scaffold which was 3.3m above the ground. Had a proper inspection occurred, it would have been a relatively easy task to remedy the fault in the construction of the scaffold.
121Clause 58 of the Occupational Health and Safety Regulation 2001 required the defendant, as "an employer" to ensure that the scaffolding was inspected by a competent person for compliance with this Regulation before its first use.
122The defendant provided to its customer, Southern Colliery, a detailed OHS Management Plan ("the Plan") which set out the defendant's responsibilities and obligations for occupational health and safety on the site. Under the Plan, Mr Johnson was appointed as the site supervisor.
123Clause 3.1 of the Plan provided that:
Skilled and competent supervision will be provided for all work.
All Statutory Standards will be met.
Inspection programs will be provided for all work sites. All deficiencies will be reported and corrected.
124Clause 12.0 dealt with monitoring subcontractors. Clause 12.1 provided:
12.1 Subcontract Performance
Waco Kwikform recognise the importance of monitoring subcontractors performance in accordance with regulatory requirements and Waco Kwikform design and quality requirements.
The key elements of scaffold erection, alteration and dismantling will be monitored by our site Supervisors during regular inspections of the scaffolding.
Reports of the subcontractors performance will be made available to the principal contractor for their reviewing.
125The defendant did not attend the scaffolding site from when the work commenced on erecting the scaffold on 30 June 2006 to the date of the accident on 7 July 2006. Both the risk assessment process in which Mr Johnson from the defendant participated and the SWMS of both the defendant and Blue Water failed to identify the need to ensure there was a proper inspection of the scaffolding after completion, but before use, or how such an inspection should be conducted.
126Mr King, an employee of Blue Water, was not given any information or advice from Mr Johnson regarding the need to ensure that there was a proper inspection of the scaffolding after completion, but before use, or how such an inspection should be conducted.
127The Handover certificate provided by Mr King to the defendant was deficient in that it did not contain any checklist, or any guidance as to how to conduct an inspection of the scaffold. Mr King should have been provided with a Handover certificate containing a checklist which the defendant introduced approximately one month after the incident.
128The prosecutor submitted, and I agree, that it was an aggravating feature of this offence that the defendant failed to ensure a proper inspection of the scaffold notwithstanding the fact that Mr King had informed Mr Johnson, the defendant's site supervisor on 30 June 2006, that the scaffold did not comply with the Design Drawing. There was no dispute that Mr Johnson was notified of the changes to the height of the scaffold decks. This change was recorded in the Handover certificate itself on 30 June 2006 and 7 July 2006. Notification of this change should have alerted the defendant to the need for Mr Johnson, or the defendant's engineer, Mr Camus, to inspect the scaffold prior to its use. Mr Johnson's evidence was that there was no need to inspect the scaffold after he was notified of the change of heights of the deck because such changes are often required and "small changes in the height of a platform do not affect the structural integrity of a scaffold."
129During cross-examination, Mr Johnson was referred to the note in the Handover certificate which stated, "should the structure be tampered with, altered or modified or changed or in anyway whatsoever by other than a duly authorised representative of Waco Kwik Form this certificate will no longer be valid."
130Mr Johnson's evidence was that Mr King was authorised to alter the Plan as a duly authorised representative of the defendant. However, Blue Water was a subcontractor, not a "duly authorised representative of Waco."
131Irrespective of whether Blue Water or Mr King, was a representative of the defendant, Mr King was not authorised to make any changes to the design of the scaffold. Mr King's evidence was that on 29 June 2006, Mr Johnson told him: "This has been designed by an engineer. Everything must be built exactly as you see it on the Plan." Mr King's evidence in this respect was not challenged and accepted by Mr Johnson.
132In light of Mr King's notification to Mr Johnson of the changes to the design, he was entitled to believe that the defendant would inspect the scaffold as well. In these circumstances, it was incumbent upon the defendant to conduct its own inspection of the scaffold.
133In addition, Mr King's evidence was that he notified Mr Johnson on 30 June 2006 that he had only inserted two ledgers in each Bay rather than the three ledgers as required by the Design Drawing because the stars or V-pressings would not line up for a third ledger to go in. Although this conversation is disputed by Mr Johnson, I prefer the evidence of Mr King. I found him to be an honest and reliable witness. On occasions, I found Mr Johnson to be evasive and defensive and unwilling to make any admissions as to wrongdoing. I reached this view, particularly after again reading the evidence of both Mr Johnson and Mr Stephen King. Mr Johnson's evidence of what Mr Stephen King said to him during a conversation on 7 July 2006 is clearly a reconstruction. Mr Johnson's evidence was that upon learning of the accident, he said to Mr King: "Steve, what did you do? What happened? You didn't put ledgers in the last Bay" and Stephen King replied: "Yeah, I fucked up".
134As at 7 July 2006, Mr King did not realise he had not put any ledgers in Bay D. He believed that he had put two ledgers in each Bay as he had earlier advised Mr Johnson.
135Mr Johnson was asked about the ledgers in cross-examination. His evidence was:
Q. I want to suggest that another thing he (Mr Stephen King) mentioned was the fact that he had only inserted two ledgers in each bay rather than three?
A. No, I don't recall that.
...
Q. I want to suggest to you that after and I accept you don't agree with this but after Mr King said I have only put two ledgers in because the stars would not align up for a third ledger to go in, you said to him, the V pressings should line up for the ledgers to go, Mr King said they don't and you said they should?
A. No, I can't recall that conversation.
136The standard of proof to be applied in sentencing by a sentencing judge was considered in R v Olbrich [1999] HCA 54; (1999) CLR 270 at 281 where the High Court observed a sentencing judge:
... may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
137However, as the High Court observed in Weininger v R [2003] HCA 14; (2003) 212 CLR 629, care needs to be taken in respect of whether formal proof may be required regarding certain facts and matters relevant and known to the Court in a sentencing hearing. The High Court (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Callanan JJ) observed at 21 - 23:
[21] To frame the relevant question in terms of the onus and standard of proof may also suggest that the only material which may be treated as being "known to the court", and on which the judge may act in sentencing an offender, is material revealed by the plea or verdict of guilty, admission by the offender, or evidence received on the sentencing hearing. The use of the phrase "known to the court", rather than "proved in evidence", or some equivalent expression, suggests strongly that s 16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase "known to the court" should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted.
[22] In addition to the points just made about what is known to the sentencing judge, there is another important feature of fact finding in sentencing which must be recognised. Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.
[23] Further, a sentencing hearing is not an inquisition into all that may bear upon the circumstances of the offence or matters personal to the offender. Some matters may be fixed by the plea or verdict of guilty although, even there, there may be ambiguities (as for example, in some homicide cases where a verdict of manslaughter is returned). Many of the matters relevant to fixing a sentence are matters which either the prosecution or the offender will draw to the attention of the sentencing judge. Some matters will remain unknown to the sentencing judge. The question then becomes, what use is the sentencing judge to make of what is known, and of the matters urged by the parties? This is not just a series of choices for the judge between alternatives. Not only may some things be unknown, some will concern matters in which a range of answers may be open.
138Clearly, the prosecutor is required to prove beyond reasonable doubt whether the conversation occurred between Mr Johnson and Mr Stephen King in respect of the ledgers which would lead to a finding that this was an aggravating factor. However, it must be borne in mind that not every factor is aggravating.
139Mr King's evidence is consistent with the statements that he gave to the Department when interviewed on 18 August 2006. An additional matter that has led me to prefer the evidence of Mr Stephen King over that of Mr Johnson is that Mr Johnson refused to concede that both Mr Stephen King and Mr Danny King were unfamiliar with working in an underground mine even though he knew as at 30 June 2006 that they had only worked once previously in an underground mine, that being in a workshop.
140However, the Handover certificate made no mention that there had only been two ledgers inserted rather than three. Although Mr King admitted in his evidence that there were other matters that he did not include in the Handover certificate, I am not prepared to find beyond reasonable doubt, that Mr Johnson was advised by Mr King that he only placed two ledgers in some of the Bays instead of three.
141Mr Mill accepted that there should have been an inspection of the scaffold by Mr Johnson. Although curiously, his evidence was that it should have occurred shortly after the scaffold was completed, that being, within one or two days. The critical issue is that an inspection should occur prior to the use of the scaffold to avoid any risk to safety of employees who will be using the scaffold. Although Mr Mill's evidence in this respect does not impact on the objective seriousness of the offence, it does illustrate a lack of understanding of avoiding an unsafe scaffold and raises questions in respect of the importance of specific deterrence and the rehabilitation of the defendant.
142The defendant has accepted, as part of its plea, that it did not review the Handover certificate issued by Mr King on either 30 June 2006 or 7 July 2006. The system in place prior to the incident in relation to the inspection of scaffold was dealt with in the evidence of Mr Johnson and Mr Mill. The system relied on the subcontractor engaged to erect the scaffold to carry out the inspection and complete the Handover certificates.
143At the time of the inspections of the scaffold made by Mr Stephen King, the Handover certificate did not contain a detailed inspection checklist as used for the 30 day inspections required under the relevant Australian Standard AS4576.
144Mr Johnson in his oral evidence agreed that no checklist was provided to Mr King before commencing the work underground. He also agreed that the SWMS developed for the job made no reference to the need for a proper inspection to be conducted and the issue was not raised at his meeting with Mr Stephen and Danny King on 29 June 2006.
145Furthermore, it needs to be borne in mind that Mr King was working with 3.1m transoms, which he had not previously installed. In such circumstances, the expectation that he would have placed a notation on the Handover certificate, should have been obvious to him.
146The failure of the defendant was to review the Handover certificate issued by Mr Stephen King on both 30 June 2006 and 7 July 2006. Any review of the certificates would have brought to the attention of the defendant that the box headed "passed inspection yes/no" was left blank for both days.
147As set out in the agreed statement of facts, the defendant accepted that it did not conduct its own inspection of the scaffold erected by Blue Water, or ensure that Blue Water had properly conducted its inspection prior to the Handover certificate being provided to the Mine operators by Mr Stephen King. The defendant also failed to ensure that Blue Water erected the scaffolding in accordance with the Design Drawing and in particular, installed all of the ledgers required to be installed. The defendant failed to review the Handover certificate completed by Mr Stephen King to ensure it was completed directly prior to it being provided to the Mine operators. Accordingly, it was unaware at the time of the incident that Mr King had not indicated on the Handover certificate whether or not the scaffold "passed inspection".
148In mitigation, the defendant relied on a notation on the Handover certificate used by Mr King, which provided at the bottom of the front page, a section entitled "Notes". I have referred to what was contained in the "Notes" earlier in this judgment (at [116]). It included that in assessing the structure to be approved, the person doing inspections should refer to the "Australian Standard Scaffolding AS1576 and AS 4576 - Guidelines for Scaffolding"; the design and quotation; and the "Waco Kwikform Guidelines for Safe Use of Scaffold".
149There were a number of additional conflicts in the evidence given by Mr Johnson and Mr Stephen King. They were whether Stephen King had expressed reservations to the defendant about working underground; whether representatives of the defendant told Stephen King that he would not get any further work if he did not agree to do the scaffold work; whether Stephen King was aware of the lighting conditions in the Mine and what Stephen King told Mr Johnson about the scaffolding Blue Water had erected on 30 June 2006 and 7 July 2006.
150The prosecutor contended that it was important to resolve these conflicts because they went to the overall culpability of the defendant. However, in my view, in light of the alleged failures of the defendant, the relevant conflict requiring resolution is whether or not Mr Johnson had been informed of the fact by Mr King that only two ledgers had been put in the Bays. The balance of the issues of conflict in the evidence, in my view, do not have a great deal of relevance to the specific charge. I have determined that the prosecutor has failed to establish beyond reasonable doubt, that Mr King informed Mr Johnson that he had only put two ledgers into the Bays. A resolution of the remaining conflicts in the evidence, in my view, does not ultimately assist in the resolution of this issue which is capable of being resolved independently of the other areas of conflict.
151The risk identified in the charge is the risk of having persons exposed to a risk of falling through scaffolding and of persons being struck by objects falling from the scaffold. The risk of falling from a scaffold at height is well known in the industries where scaffold is used. By entering the plea, Mrs Thompson submitted, the defendant accepted that the objective seriousness of the risk pleaded was high.
152Mrs Thompson submitted that the following factual matters were relevant to the mitigation of the objective seriousness and the nature and quality of the offence.
153The agreed facts and evidence show that the erection of the scaffold had been planned for a period of time and a number of steps had been taken to ensure appropriate safety measures were in place. Stephen King was provided with the design diagram to quote for the job. On 21 June 2006, a risk assessment was conducted at the Mine and the participants included Stephen King and Danny King; Mr Johnson; Dave Loach, a supervisor employed by Delta and three Delta operators as well as a geotechnical engineer for the Douglas Project. SWMS were prepared on 28 June 2006. On 29 June 2006 Stephen King and Danny King were taken through the SWMS by Mr Johnson. On 29 June 2006 Stephen King and Danny King attended the regional office of the defendant for a pre-job meeting. The OHS Management Plan was discussed, as were the requirements for the erection and dismantling of the scaffold. Mr Johnson physically showed the 3.1m transoms and the V-pressings where additional ledgers were to be installed in order to take the bow out of the ledger transoms. Stephen King was instructed by Mr Johnson to take the OHS Management Plan to the Mine for the work on 30 June 2006 and to hold a toolbox meeting with the Delta operators who were to assist Blue Water by providing labour. Stephen King did not hold a toolbox meeting as instructed.
154Stephen King had attended prior to the meetings in June 2006, the defendant's OHS conferences designed for subcontractors on 17 May 2005 and 23 May 2006. At these conferences subcontractors were provided with information about the defendant's OHS systems and recent legislative requirements. That material was annexed to the affidavit of Mr Mill. Relevantly, Mr King received that training some five weeks prior to the incident.
155I would add to this that the Design Drawing contained a handwritten notation " Ledger to take out bow in 3.1m ledger transom". This notation clearly draws attention not only to the fact that the ledgers were to be inserted to support the transoms, but explains to the person erecting the scaffold that it is to take out any potential bow. Mr King's evidence was that he did refer to the Design Drawing, however he could not recall how many times he had referred to the drawing.
156The above matters demonstrate that the steps taken by the defendant prior to the incident indicate a defendant who is proactive in respect of occupational health and safety and who had endeavoured to identify risks and implement measures to eliminate or control the risks it had identified in order to secure the health and safety of persons not in its employ.