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[2011] NSWIRComm 108
Industrial Relations Commission (NSW)
2011-06-21
Staff J, Mr P
Original judgment source is linked above.
Prosecutor) Freehills (Defendant) File Number(s): IRC 1031 of 2008
Judgment 1Waco Kwikform Ltd ("the defendant") is a scaffold hire company in the business of erecting and dismantling scaffolding. A decision was made on or around June 2006 by corporations involved in operating the Douglas Mine ("the Mine") at Appin in New South Wales to have Southern Colliery Maintenance Pty Ltd ("Southern Colliery") contract the defendant to carry out relevant scaffold work at the Mine. Both Delta Mining Pty Ltd ("Delta") and Southern Colliery were parties to special service agreements with Illawarra Coal Holdings Pty Ltd ("Illawarra Coal") as agent for and on behalf of Endeavour Coal Pty Ltd ("Endeavour Coal"). Endeavour Coal was the leaseholder of "Consolidated Coal Lease 767" at the Appin Colliery, pursuant to which Delta and Southern Colliery each, independently of the other, supplied labour to Endeavour Coal. This occurred particularly for one of the mining areas within the Appin Colliery known as the "Douglas District". The work done within this district was known as the "Douglas Project". 2The defendant arranged for a subcontractor, Blue Water Scaffolding Pty Ltd ("Blue Water"), with whom the defendant had a longstanding labour subcontract agreement in place, to erect and dismantle scaffold at the Douglas Project. The defendant entered into a subcontract agreement with Blue Water. 3On 7 July 2006, at about 4.50 pm, Mr Kenneth Evans, an employee of Delta, fell, when sections of the decking boards on one of the platforms of the scaffold (Bay D), which had been erected by Blue Water, collapsed. Mr Evans sustained two dislocated shoulders, with fractures to his left shoulder and tendon tears to his right shoulder.
Amended application for order 4The amended application for order alleged that the defendant: failed to ensure that persons not in its employment, and in particular, Ken 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 its undertaking while at its place of work, contrary to s 8(2) of the Occupational Health and Safety Act 2000. 5The particulars of the risk were: 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. 6The particulars of the failure were:
Prosecutor's evidence 9Mr P Strickland SC, who appeared with Mr D O'Neil of counsel for the prosecutor, tendered an agreed statement of facts which provided: Participants
Evidence of Mr Danny King 31Mr Danny King, who gave evidence via a video link from Karratha in Western Australia, was required for cross-examination. He stated that he obtained his scaffolding certificate in 2008 and that he has been working as a scaffolder for approximately 10 years. He had been working as a scaffolder with Blue Water for approximately one year prior to the incident. Mr King stated that his brother did not indicate to him, or anyone else in his presence, that he was not particularly keen to erect the scaffolding in the Mine. He said he went to the defendant's office for an induction and a toolbox talk that he was " pretty much a hundred per cent I didn't see the transoms until the day that we erected them." 32Mr Johnson's evidence was that he took both Mr Stephen King and Mr Danny King into the yard and physically showed them an assembled 3.1m ledger or transoms and explained how they were to be installed. His evidence was that he had never seen 3.1m transoms before he went underground on 30 June 2006. It is an agreed fact that Mr Johnson showed Stephen and Danny King the 3.1m transoms. 33Mr King said that Mr Johnson did not show him how to assemble a 3.1m ledger, or 3.1m transom, or explain how to install one. Nor did Mr Johnson explain the pressings and how the ledgers were to be installed into the V-pressings. 34Mr Danny King was asked about the lighting in the Mine and gave the following evidence: Q. There's another part of his affidavit I want to ask you about. In your statement in January 2011 you indicated that you had worked underground erecting a scaffolding on one occasion before the Douglas project; do you remember that? A. Yes. Q. What was the lighting like in that particular project as compared to the lighting at the Douglas project? A. The lighting in the first underground job was pretty much lit up like a room, like the room you're in now; and the second job was in complete darkness. Q. On the first occasion did you need your head lamp torches to do the job? A. No. 35Mr Danny King's evidence was that his brother was not keen on going down in the lift and he told him that he felt uncomfortable. 36During cross-examination, Mr Danny King agreed that on 29 June 2006, he went through the SWMS that had been prepared by Blue Water and also the SWMS prepared by the defendant. He denied being taken into the yard with his brother and that he had seen the transoms until the day of the accident, apart from in assembled form. Mr King agreed that his brother ran the toolbox meeting on the day that the work was going to be done. At no point did he or his brother ask for lighting on either 30 June 2006, or when they returned to complete the job on 7 July 2006.
Defendant's evidence 37Mrs Thompson read an affidavit of Gary Raymond Johnson and Rodney Graham Mill, the General Manager for the defendant. Counsel also tendered: (i) a blank copy of a scaffold handover certificate/inspection report of the defendant; (ii) record of Interview between Mr David Macpherson and Alwyn Piggot, Inspectors, of the Department of Primary Industries (the DPI) and Gary Raymond Johnson signed 11 August 2006, and (iii) letter from Mr Johnson to the DPI mistakenly dated 7 July 2006 (but received by the DPI on 18 August 2006).
Evidence of Mr Johnson 38Mr Johnson, who was required for cross-examination, stated that from July 2000 to 9 March 2010, he was employed in various positions with the defendant including site supervisor, sales representative and branch manager. At the date of the incident he was employed as the sales representative/salesperson for the defendant's Port Kembla Branch. He reported to Mr Haggart, branch manager at Port Kembla. His responsibilities as a sales representative included discussing scaffolding needs with customers; undertaking inspections at customer sites for the hire of scaffolding; liaising with scaffolding companies in relation to obtaining scaffolding services for jobs, preparing occupational health and safety management plans for various jobs; preparing safe work method statements; conducting toolbox meeting with subcontractor scaffolding companies; liaising with customers in relation to project management of scaffold jobs, and liaising with subcontractors in relation to pricing and quotations with respect to scaffold jobs. Mr Johnson annexed to his affidavit a copy of his job description. At the date of the incident, he also undertook duties as a site supervisor and annexed a job description for this role. 39From approximately 2007 until 9 March 2010, he was employed as branch manager for the defendant's Newcastle Branch. 40Mr Johnson set out his employment history prior to working for the defendant. He noted that whilst he did not have a scaffolding ticket at the time of the incident, he had developed his expertise in relation to scaffolding erection and dismantling through his training on the job with the defendant. 41Mr Johnson stated that the defendant's solicitors had provided him with copies of statements prepared by Stephen and Danny King. 42On or about 14 July 2006, Mr Johnson was contacted by Mr Dave Loach, a supervisor from Delta in regard to scaffolding which was required for some underground work at the Mine to enable workers to access a high roof area of the Mine to install some mega bolts for stability. 43On or about 15 June 2006, Mr Loach forwarded a fax setting out the specifications for the required scaffolding and required that Mr Johnson attend the Mine on 19 June 2006 to participate in a risk assessment for the installation work. The date for the risk assessment was subsequently changed to 21 June 2006. 44On 19 June 2006, Mr Johnson prepared the Design Drawing of the scaffold for the Mine. In accordance with the defendant's processes, he sent the Design Drawing to the defendant's engineer, Mr Pedro Camus, for certification. He also called him to discuss the scaffolding specifications and intended purpose of the scaffold. A copy of the Design Drawing was annexed to the affidavit which was mistakenly dated "19.9.2006" instead of "19.6.2006". Mr Camus wrote the following notation on the Design Drawing: 'Maximum uniformly distributed load per bay is 20KN. Bracing as shown on plan. Scaffold must be made laterally stable.' 45After speaking with Mr Camus, and prior to the design being certified, Mr Johnson wrote the following notation on the Design Drawing: 'Timber boards times 2 to be placed on top of the steel boards to evenly spread load for roof bolter over the entire bay. Ledger to take out bow in 3.1m ledger transoms.' 46The Design Drawing was certified by Mr Camus on 19 June 2006. Mr Johnson stated that on at least one occasion on or before 19 June 2006, he had visited the location in the Mine in which the scaffolding was to be erected as part of the preparation of the Design Drawing. On these occasions, he used a helmet lamp/torch to review the location and prepare the Design Drawing. 47On 19 June 2006, Mr Johnson contacted Mr Stephen King to invite his company to submit a quotation for the erection and dismantling scaffold work for the Mine job. He provided Mr King with a copy of the Design Drawing for the purpose of providing the quotation. He said the defendant engaged Blue Water because it was available at the time of the job and had done three other jobs on the surface at the Douglas Projects and one in an underground workshop at the Mine prior to this time. Blue Water had successfully completed these jobs to the defendant's required standards. 48Mr Johnson said that at no time did Mr Stephen King express to him that he had any reservations in relation to undertaking the job at the Mine or working underground. Nor at any state, whether prior to or after providing a quote did Mr Stephen King raise any questions or concerns in relation to the Design Drawing or his capacity to erect the scaffolding as per the Design Drawing. 49Mr Johnson prepared a short form subcontract agreement between the defendant and Blue Water. 50On 21 June 2006, Mr Stephen King and Mr Danny King accompanied Mr Johnson to the risk assessment conducted at the Mine for the installation work. It went for approximately four hours. 51Mr Johnson said that it was difficult to understand that if Mr King had any reservations, he would have submitted his quote and agreed to erect the scaffolding and attend at the risk assessment. 52On 29 June 2006, Mr Stephen King and Mr Danny King attended the Port Kembla Branch where Mr Johnson provided them with the OHS Management Plan for the Mine job and inducted them into both the defendant's SWMS for the scaffold work. Mr Johnson denied that the defendant did not induct Mr Stephen King and Danny King into its system of work and safety systems. Mr Johnson stated that prior to June 2006 the defendant had engaged Blue Water Scaffolding for between about 50 and 100 scaffolding jobs in and around the Port Kembla region. The work included residential housing; multi storey buildings; a blast furnace project for Bluescope Steel and Mining, including a project at the Colliery located at Tahmoor. For about two years prior to the incident on 7 July 2006, the defendant engaged Blue Water as a subcontractor on at least a weekly basis. Accordingly, Mr Johnson stated that Blue Water, and in particular, Mr Stephen King was very familiar with the defendant's safe systems of work. 53By 7 July 2006, Mr Stephen King had attended two OHS conferences (on 17 May 2005 and 23 May 2006, conducted by the defendant for subcontractors it engaged. It was mandatory for subcontractors to attend these conferences which consisted of a four to five hour presentation by relevant OHS personnel in relation to OHS compliance issues and applicable OHS legislation. Mr Johnson annexed to his affidavit a copy of the subcontractor's signoff sheet for the conferences held on 17 May 2005 and 23 May 2006. 54On 29 June 2006, Mr Johnson said that Stephen and Danny King attended a meeting at the defendant's Port Kembla Branch, during which he inducted them into the entire defendant's OHS Management Plan and SWMS for the job at the Mine. This meeting went for approximately 1 to 1 hours. The defendant's OHS Management Plan for the job at the Mine was annexed to the affidavit. The SWMS of the Plan was signed by both Stephen and Danny King. Mr Johnson was aware that Stephen King had not worked with 3.1 ledgers transoms prior to this job. Mr Johnson stated that as part of the induction process, he took Stephen King and Danny King into the yard and physically showed them an assembled 3.1m transom and explained how to install them. Towards the end of the toolbox talk, Mr Johnson said that he had a conversation with Stephen King to the following effect: Gary Johnson: 'So you know how everything fits together and you're ok with the OHS Management Plan?' Stephen King: 'It's all good.' Gary Johnson: 'OK, please sign off on the toolbox talk.' 55At no stage prior to, during or after the risk assessment process did Stephen or Danny King raise any issues or concerns with Mr Johnson in relation to the lighting conditions associated with the Mine or the scaffolding job. Mr Johnson said that Stephen and Danny King had previously carried out work for the defendant in an underground workshop at the Mine. Although the workshop was lit, the lighting conditions were still relatively dark and both Stephen and Danny King had been required to use helmet lamps/torches to undertake the work. Mr Johnson did not specifically tell Stephen or Danny King at the meeting on 29 June 2006 that they would be erecting the scaffolding in the mine with only helmet lamps/torches. Having visited the site where the scaffolding was to be erected, Mr Johnson made an assessment that the use of helmet lamps/torches would be sufficient for the purposes of the particular job. He said the helmet lamps/torches used by Stephen and Danny King had two settings, high beam and low beam, and could be seen from a number of kilometres away in total darkness. Mr Johnson stated that if any issues had been raised in respect of the lighting, he would have arranged additional lighting to be supplied and if necessary, gone to the Mine to reassess the situation. 56Mr Johnson said that at no time prior to the incident did Stephen King or Danny King indicate to him that either of them had any issues in relation to the installation of three ledgers in each Bay of the scaffolding where such ledgers were required, nor did they indicate that the V-pressings did not line up with the ledgers, nor did they indicate any concerns in relation to the work to be undertaken in the Mine, or complying with the Design Drawing. 57On 30 June 2006, Mr Johnson spoke with Stephen King after he had completed the first stage of the job. He said: "How's everything going down there with the job?". Stephen King said: "Yeah, it's all good, it's all good Gaz. The trannies at five hundred. I have to build a deck a metre apart not five hundred." Mr Johnson replied: That is no problem". 58Mr Johnson said that after completing the work on 7 July 2006, Mr King advised him that: "Everything's good." 59Mr Johnson was informed by Mr Paul de Leeuw of Southern Colliery about the incident at about 4.00pm on 7 July 2006. When advised that there had been an incident, Mr King was unable to explain why he had not installed the ledgers in the scaffolding in accordance with the Design Drawing. Mr Johnson denied that Mr Stephen King had told him on 30 June 2006 that he had "only put two ledgers in because the stars would not align up for a third ledger to go in." He said if he had been informed of this he would have promptly taken steps to investigate further why the ledgers did not line up with the V-pressings and taken corrective action. 60Mr Johnson said that changes to the height of a scaffold deck occur relatively frequently in the erection of scaffolding. As part of its practices, the defendant prescribes that its standards were only to be increased by up to a maximum of two times the width of the base. He could not recall if this practice was documented, but knew this to be the practice because he was advised of it by Mr Camus. He recalled Stephen King informing him on 30 June 2006 of the change in the deck height. However, as it was only 500mm, in his opinion, it had no impact on the structural integrity on the scaffolding and did not create any safety issues. 61Mr Johnson stated that in accordance with the subcontract agreement, Blue Water was required to erect and dismantle the scaffold in accordance with AS/NZS1576:1995 and AS/NZS4576 of 1995 which specifically provides that a handover certificate is to be completed by the organisation responsible for the erection of the scaffolding. 62Mr Johnson stated that this had occurred in relation to almost all previous scaffold jobs carried out by Blue Water. The one exception was where a customer asked for its own engineer to sign off on the Handover certificate. 63Mr Johnson acknowledged that he was nominated as the defendant's site supervisor for the scaffold job at the Mine, but mistakenly listed as the subcontractor's site supervisor in the defendant's OHS Management Plan. Mr Stephen King's responsibilities as a subcontractor site supervisor and leading hand for the job were also set out in the OHS Management Plan. These responsibilities included "ensuring that all works are conducted in a manner that is safe and without risk to employees (sic) health and safety. Mr Stephen King was to personally supervise the job underground. As the defendant's site supervisor, "I was the nominated person who was responsible for facilitating the erection work at the site generally, but not to supervise the erection work itself." Mr Johnson said that Mr Stephen King was aware of the supervision arrangements for the job. 64Mr Johnson denied that during a conversation before the work commenced, Mr Stephen King informed Mr Johnson that he did not feel that comfortable working underground and asked if another company could be engaged. He said if such a conversation had occurred, it would have alerted him to immediately consider whether Blue Water was suitable to perform the job at all and, if necessary, to have taken steps to engage another subcontractor. 65Mr Johnson was extensively cross-examined by Mr Strickland. Mr Johnson denied that Mr King told him he did not like him working underground and that he did not have a choice as to whether he did the work or not. Mr Johnson agreed that Bays F and G were at an angle to Bays A to E and this also raised a safety issue which he noticed as soon as he saw the scaffolding with an inspector from the Department after the incident. 66Mr Johnson denied that the defendant was responsible for ensuring that there was a proper inspection of the scaffold after it was built. He said that he did not understand that the defendant had pleaded guilty to that precise allegation. His evidence was that he had probably spoken about the incident every day with Mr Mill, the Manager of the defendant, for about two months after the accident. He said that Mr Mill did not express any concern about his conduct leading up to the accident, nor that he had done anything wrong. Mr Johnson agreed that he had prepared the defendant's OHS Management Plan for Southern Colliery and that the Plan stated that he was the site supervisor. Despite the defendant's Management Plan requiring all site supervisors to have an intermediate scaffolding certificate from NSW TAFE, Mr Johnson agreed that he did not hold such a certificate. Mr Johnson disagreed that Stephen and Danny King were not familiar with working in underground mines, although he accepted that he was aware that they had only worked underground on one previous occasion. He agreed that he was aware that they had not used 3.1 ledger transoms previously. He disagreed that working underground using only a headlamp torch presented any challenges for the Stephen and Danny King. However, he further disagreed that the site would have been unfamiliar to them because it was dark. Mr Johnson was shown the scaffold checklist, but he could not recall if he gave a copy of the checklist to Mr King before he commenced work on the Douglas Project. Mr Johnson was unable to recall whether in the discussions during the risk assessment meetings the need to conduct a proper inspection of the scaffolding, was raised with the Kings. He agreed that there was nothing in the SWMS of the defendant in respect of the need to undertake a proper inspection of the scaffold after it was erected. He agreed that it was highly unlikely that he had discussed the need to conduct a proper inspection of the scaffold with Stephen and Danny King. 67Mr Johnson agreed that he had not included in his statement that Mr Stephen King had informed him that he had only inserted two ledgers in each Bay, rather than three. Mr Johnson could not recall that discussion. Mr Johnson was not prepared to concede that it was almost impossible to recall everything that occurred over five years ago. His evidence was that if there was anything to do with the scaffold structure, he would recall it. He said the reason for this was that if anything was said about the scaffold structure, alarm bells would have started ringing for him. Mr Johnson was asked whether, in light of there being a change to the height of the scaffolding of the Bays, that should have increased the need to ensure that a competent person came to inspect the scaffolding after it was completed. He rejected this proposition. Mr Johnson accepted that if went down to look at the scaffolding after it was completed, he would have immediately discovered that the ledgers in Bay D were missing. Mr Johnson agreed that the employees from Delta were not competent to undertake a proper inspection of the completed scaffolding and that the defendant did not arrange a proper inspection of the scaffolding after Blue Water had completed the work.
Evidence of Mr Rodney Mill 68Mr Rodney Mill, is the current Managing Director of the defendant, having been appointed to that position in June 2010. He was required for cross-examination. He has been employed by the defendant since June 1992. 69Mr Mill set out his current role, responsibilities and his personal history. The defendant is an unlimited Australian public company which forms part of an international corporate group, Wack International Ltd. Mr Mill was appointed a director of the defendant on 13 April 2006. 70The defendant provides scaffolding equipment and services to a number of industries both throughout Australia and New Zealand. It has operated its business in the Australian scaffolding industry since 1984. Scaffolding is supplied to customers operating businesses which undertake large commercial and residential construction, mining and petrochemical, civil engineering and entertainment projects. 71Mr Mill listed 12 large construction projects in New South Wales where the defendant had been responsible for the design, supply and erection/dismantling of scaffold. The defendant operates in all Australian States with 18 branches, 16 distributorships and one manufacturing plant. It has obtained ISO accreditation in the form of Quality Assurance certification pursuant to AS/NZS ISO 900:2000 ("AS/NZS") and is a member of the Australian Standards committee in relation to scaffolding. 72At any one time, including the date of incident, the defendant hired scaffolding components to its customers for use at approximately 1200 sites nationally, including approximately 300 sites throughout all parts of New South Wales. 73The company currently employs approximately 360 employees and engages approximately 123 subcontractors to undertake work throughout Australia. Of these, approximately 118 employees and approximately 30 subcontractors undertake work in New South Wales. 74As at 7 July 2006, the defendant employed approximately 399 employees and engaged approximately 89 subcontractors to undertake work throughout Australia. Of these, approximately 86 employees and approximately 31 subcontractors undertook work in New South Wales. 75Mr Mill set out the processes and procedures implemented and undertaken by the defendant as at 7 July 2006 in relation to the engagement of subcontractors. This included that the defendant engaged reputable contractors to undertake scaffolding work who were assessed on the basis of work on previous jobs; whether the subcontractor complied with the relevant rates and allowances applicable to previous jobs; whether the subcontractor engaged licensed scaffolders and the subcontractor's ability to comply with the defendant's safety policies. 76It assessed the competence and reputation of subcontractors by obtaining feedback from principal contractors who were responsible for supervising the jobs on which the subcontractors were: observing the subcontractors through the defendant's site/project supervisors, or sales representatives who visited the sites on a regular basis and by reviewing whether there had been any complaints made by WorkCover in relation to particular subcontractors which had been brought to the defendant's attention. 77The defendant's sales representatives were responsible for obtaining quotes from various subcontractors (selected from a pool of experienced subcontractors) and subsequently engaging an appropriate subcontractor to perform the work. 78As at 7 July 2006, the defendant's Design Drawings were prepared by relevant sales representatives in consultation with the defendant's engineer (who at that time was Mr Camus). The Design Drawings set out and provided all the relevant specifications necessary for an experienced subcontractor to erect a scaffolding structure which was safe for use. 79From about 31 October 2003, the defendant and Blue Water had in place a labour subcontract agreement which set out the general terms and conditions that would apply in regard to scaffold erection and dismantling services as required by the defendant from Blue Water from time to time. 80The defendant entered in short-form subcontract agreements to provide details of the job, including price and scope of works. Each job was subject to the terms and conditions in an overarching labour subcontract agreement. A copy of the subcontract agreement was annexed to the affidavit. 81Mr Mill stated that Mr Stephen King was the principal of Blue Water and had held advanced scaffolding qualifications and had 12-13 years' experience in the scaffolding industry. 82Between 2003 and 2006, the defendant had engaged Blue Water for the purpose of undertaking scaffolding erection and dismantling work on approximately 52 different jobs (comprising 44 residential housing, 4 min-related, 3 commercial and 1 civil). The 4 mine-related jobs all involved work undertaken at the Douglas Park Mine. One of these jobs was undertaken by Blue Water on or about 7 March 2006 in an underground workshop. Mr Mill stated that on or about 14 June 2006, Delta approached the defendant to discuss scaffolding needs for work to be performed at the Douglas Park Mine. It received a fax from Delta setting out its requirements and requesting that the defendant and Blue Water attend the Mine to participate in a risk assessment for the installation work. The Design Drawing was prepared by Mr Johnson on 19 June 2006 and provided to Mr Camus for certification. A copy of the Design Drawing was annexed to the affidavit. Also annexed was a copy of the hire agreement between the defendant and Delta. An agreement was ultimately made by the defendant and Blue Water, rather than the defendant and Delta or other companies involved in the project because it was administratively difficult for Illawarra and/or Endeavour to contract directly with the defendant and Delta did not want to contract with the defendant on Illawarra Coal's or Endeavour's behalf. 83A quote was provided by Blue Water and on 19 June 2006, a short-form contract agreement between the defendant and Blue Water was reached. 84On 22 June 2006, the defendant provided Southern Colliery with the proposed hire agreement between the defendant and Blue Water, together with the original OHS Management Plan for the job which had been prepared by Mr Johnson. The hire agreement was signed on behalf of Southern Colliery on 23 June 2006. Changes were subsequently made to the OHS Management Plan to address insurance issues raised by Southern Colliery. Copies of these agreements were annexed. Mr Mill stated that Mr Johnson prepared the defendant's OHS Management Plan for the scaffolding work at the Mine, as he was the defendant's site supervisor for the job. Mr Stephen King was nominated to be the subcontractor site supervisor for the scaffolding work. 85Clause 11.2 of the OHS Management Plan stated: All Site Supervisors and subcontractor employees on site will have the following minimum certificates: - Intermediate Scaffold Certificate from TAFE (or equivalent) OHS General Induction Where a scaffolder is undergoing training for their scaffold certificate (With a supervisor) they will have a record of their competencies. 86Mr Mill referred to relevant Australian Standards applicable to scaffolding work to be performed at the Mine which included AS/NZS 1576:1995 - Scaffolding; and AS/NZS 4576:1995 - Guidelines for scaffolding. Copies of these Standards were annexed to the affidavit. 87Section 12.3 of AS/NZS 4576:1995 provided, among other things, that a scaffold handover certificate should be signed by, or on behalf of, the organisation responsible for the erection or alteration of the scaffold. Blue Water was the organisation responsible for the erection of the scaffold. 88Under the OHS Management Plan, Blue Water was the subcontractor engaged for the erection work and responsible for completing the scaffold handover certificate. Such certificates are completed in triplicate. One copy is provided to the client; one copy is returned to the defendant with the subcontractor's invoice for the work, and one is retained by the subcontractor. 89Mr Mill observed that Mr King completed (or purported to complete) a scaffold handover certificate for the scaffold work carried out at the Mine on 30 June 2006 and 7 July 2006. A copy of the scaffold handover certificate No 17854, mistakenly dated 29 June 2006, contained the Handover certificates for both 30 June 2006 and 7 July 2006. 90Mr Mill set out the systems for subcontractor training and monitoring of compliance which were in operation as at 7 July 2007. These included inductions for subcontractors which were provided at two levels. Firstly, occupational health and safety conferences for principals/leading hands of subcontractors; the defendant's site/project supervisors and sales representatives known as "Subbies conferences". These were initially conducted annually, which changed at the beginning of 2009. In 2006, the defendant conducted two "Subbies conferences" that year to provide subcontractors with greater flexibility and opportunity to gain an understanding of the defendant's safe systems of work. A copy of the presentation material for the "Subbies conferences" conducted on 17 May 2005, together with attendance records which included Mr Stephen King were annexed to the affidavit. Also annexed was material presented to the "Subbies conference" on 23 May 2006, which was attended by Mr Stephen King. 91Inductions were also held in respect of the defendant's SWMS for each project. At the end of the induction the subcontractor was required to sign the SWMS and was provided with a copy of it and other relevant documents so that the subcontractor could then ensure that each of the employees who were to work on the particular project were in turn inducted into the SWMS. 92After the induction into the SWMS, the site/project supervisor or sales representative may attend the site on a periodic/regular basis to facilitate the progression of scaffolding works at the site and to monitor the subcontractor's compliance with the SWMS. The frequency depended upon the complexity of the job. Mr Mill stated that Mr Johnson was in daily contact with Blue Water during the erection process to check whether there were any issues or concerns with Blue Water's compliance with the SWMS and its ability to erect the scaffolding as designed. Due to the underground location of the worksite and the induction protocols at the Mine, Mr Johnson's ability to readily access the site was limited. Further, the incident occurred only a matter of hours after Blue Water had completed the erection of the scaffold. Under the system in place, the defendant's site/project supervisor was not responsible for supervising on a day-to-day basis the work undertaken by subcontractors, or the subcontractor's employees. This responsibility resided with the principal of the subcontractor. 93Mr Mill set out the defendant's post incident response, which included the defendant, immediately after the incident, taking a number of steps to prevent any similar incident occurring at the Mine, including: (a) undertaking an inspection of the scaffolding at the Mine. Gary Johnson attended the Mine and conducted his inspection with a DPI inspector; (b) warning the DPI Inspector and relevant Mine managers (including Ian Sheppard, Deputy Mine Manager) that the scaffold was unsafe and advised that access should be restricted until rectification works could be completed; (c) meeting with relevant personnel from the Mine to discuss the required rectification work and Endeavour's investigation into the incident; (d) engaging a new subcontractor to perform the relevant rectification work on the scaffold; (e) arranging for Gary Johnson and Pedro Camus, Waco's then Engineer, to inspect the completed scaffold after the rectification works were completed; and (f) revising and amending its pro-forma scaffold handover certificate to incorporate a more detailed inspection checklist which was more aligned to the checklist from the AS/NZS 4576:1995 and the checklist Waco typically used for 30-day scaffold inspections. 94Mr Mill stated the defendant had also taken the following steps with respect to its operations generally: (a) requiring the principles (or, where the principal is unable to attend, a senior scaffolding employee such as a foreman or leading hand) of all subcontractors to attend monthly meetings organised and run by Waco to discuss safety-related issues. Leading hands of the subcontractors are also encouraged to attend. Subcontractors are warned that a failure to attend these meetings places them at risk of not being provided with further or ongoing work from Waco; (b) disciplining subcontractors who Waco's site/project supervisors or sales representatives observe (during the course of their inspections of sites in accordance with the procedures outlined above in paragraph 57), as having failed to (or failed to ensure that their employees) comply with Waco's safe systems of work. For example, this would include removing subcontractors from sites and refusing to provide work to subcontractors whoa re observed to not comply with Waco's safe work method statements; (c) reinforcing the "sign off" procedures for subcontractors who are currently engaged by Waco. Subcontractors are not paid for their services until all relevant paper work, including the safe work method statement, has been appropriately executed by the subcontractor and the subcontractor's employees; (d) undertaking audits in relation to all of the sites throughout Australia at which Waco's scaffolding was being used, and implementing a comprehensive and ongoing auditing system; (e) reinforcing the requirement that relevant Waco employees undergo risk management document training; (f) reinforcing safety training of subcontractors and relevant Waco employees through the processes outlined above in paragraph 54. From about December 2006, the Subbies conferences were initially supplemented by, then ultimately replaced in 2009 by a system of monthly safety training conducted at Waco branches throughout Australia. In 2009 and 2010, Peter Pade also provided additional presentations at the Port Kembla Branch in relation to OHS. Annexed is (was) a copy of the material presented at the OHS Subcontractor Safety training conducted at the Port Kembla Branch on 28 April 2009 and 27 July 2010; (g) implementing a system of providing safety bulletins, training programs and alerts to subcontractors and Waco employees as required from time to time (including, for example, training sessions in relation to the safe use of harnesses in New South Wales and SMS alerts to all subcontractors notifying them of high-wind conditions on any particular day); and (h) undertaking periodic re-induction and re-training of Waco's site/project supervisors and sales representatives. Annexed to this affidavit is (was) a copy of Waco's OHS Training Record (with respect to operations in New South Wales and covering both employees and subcontractors) from 2002 to 2011. 95Mr Mill stated that the defendant had co-operated with the Department and that the defendant and its management deeply regretted the incident and injuries sustained by Mr Evans, an employee of Delta. 96Representatives of the defendant made enquiries of Delta as to the recovery of Mr Evans. Mr Mill stated that on a personal note, he had been deeply affected by the incident. Due to his background and dedication to safety, especially in the construction field, any incident is abhorrent to him. He has investigated incidents over the years which have resulted in injuries or death to employees. His philosophy has always been to treat any structures supplied by the defendant as though it was his wife, daughters or sons that would be on or around the structure. 97Mr Mill set out the defendant's general approach to workplace safety. He stated that the defendant had developed and maintained a comprehensive, organised and systematic approach towards achieving compliance with its obligations in its operations. Systems in place prior to and at the time of the incident included the defendant's directors and senior management undertaking responsibility of overseeing and managing the defendant's operations in New South Wales including discussing occupational health and related issues at the defendant's monthly meetings, which were attended by the Directors and senior executives. Sales meetings are held on a weekly basis and regularly attended by the Sydney OHS Manager. 98The operation of the defendant's OHS management systems involve a highly consultative process and are based on the Minerva Consulting Group's Integrated Safety Management System ("ISMS'). Under the ISMS which are communicated to employees, there are nine inter-related components which include Policy and Planning; Hazard identification and Risk Assessment and Communications. 99The defendant also has an occupational health and safety policy which is endorsed by its senior managers. This policy sets out the standards and objectives expected of all employees in the company regarding the safety and welfare of both employees of the defendant and those at other sites which may be visited by employees of the defendant. In addition to the OHS policy, the defendant also has other OHS policies and procedures contained in its Policies and Procedures Manual, which was annexed to the affidavit. 100The defendant has an extensive risk management program, details of which are contained in the defendant's Risk Management Manual and the Policies and Procedures Manual located within the Hazard Identification and Risk Assessment sections of the ISMS. The defendant conducts monthly branch inspections and regularly reviews its performance from a safety perspective and submits its systems and processes to audit. 101Up until 30 June 2006, the audit process of the defendant's systems was linked with WorkCover's Premium Discount Scheme. In 2005, the defendant successfully passed all four audits and therefore obtained the maximum premium discount. Minerva, a company which is accredited by the WorkCover, conducted the audits. Mr Mill stated that all the defendant's employees are comprehensively trained in relation to OHS in the workplace. Mr Mill annexed a copy of the Training and Development Flow Chart which outlined the defendant's training regime with respect to employees. 102In 2009, the defendant developed an Induction Training Manual for all of its scaffolders and scaffolders of its subcontractors in New South Wales to further reinforce training. 103Each of the defendant's branches in New South Wales has an active OHS committee which meets on a monthly basis. The defendant has developed and implemented a safe work method statement which complies with the relevant Australian Standards and Codes of Practice. Employees and subcontractors are also provided with information and guidelines in relation to the safe handling and use of scaffolding. It also provides principal contractors at the sites on which the defendant's scaffolding is being used with OHS management plans, which include the defendant's safety policy and a scaffold verification statement approved by the Department. 104The defendant also has in place subcontractor agreements which clearly set out the responsibilities of the subcontractors, including responsibilities in relation to safety compliances associated with the handling of the defendant's scaffolding. 105The defendant regularly consults with subcontractors on an ongoing basis in order to facilitate their compliance with the defendant's safety policies and procedures. 106Mr Mill stated that as a corporate citizen, the defendant provides support to various community organisations and projects. It does this not only via cash donations, but also through the provision of free labour transport and equipment for charitable fundraising events Australia wide. Mr Mill listed 20 organisations/clubs which the defendant supports. 107During his oral evidence, Mr Mill said that the defendant's system of having "Subbies conferences", "were converted from having larger 'Subbies conferences' as a primary source of training to monthly meeting - tool box meetings and 'Subbies meetings' and supplemented by the 'Subbies conferences' as well." Subcontractors are provided with materials on occupational health and safety, safety alerts and regulatory requirements." 108After the incident, Mr Mill's evidence was that the defendant changed the scaffold Handover Certificate and inspection report. It now has a short checklist of what is to be checked before the Handover Certificate is provided. A subcontractor is required to submit the Handover Certificate into the defendant's office within 48 hours. Audits are also now periodically carried out when supervisors go to the defendant's sites. There is also mandatory audits each month in the branch and the national occupational health and safety manager visits each branch and ensures that the audit process is being utilised. 109During cross-examination, Mr Mill's evidence was that the new Handover Certificate and inspection report was introduced a matter of months after the incident. Mr Mill stated that he had had a number of discussions with Mr Johnson about the incident, but he did not believe that Mr Johnson had done anything wrong, or failed in his obligations. Mr Mill accepted that Mr Johnson was the defendant's site supervisor and that he did not hold an intermediate scaffold certificate despite the defendant's occupational health and safety plan requiring that a supervisor hold such a certificate. 110Mr Mill gave further evidence that immediately after the licensed scaffolder signs off for the job which is compliant with AS/NZS 4576:1995, there should be no reason why the scaffold should not be used under normal circumstances with the defendant's supervisor being able to gain access and inspect it during the course of the next day or so. He said that the timing of the defendant's supervisor depended on whether he was able to do it straight away, or sometimes it may be a day or so later, depending on whether the supervisor was inspecting scaffold at other sites. 111Mr Mill was asked about an earlier prosecution of the defendant which related to an incident involving a failure by the defendant to provide supervision of its contractors. This incident occurred in January 2006. The defendant pleaded guilty and the matter was determined by Backman J, who imposed a penalty of $120,000. Mr Mill acknowledged that there were similar flaws in the defendant's occupational health and safety system in June and July 2006, although his evidence was the system of safety was improved progressively from January 2006. 112Mr Strickland took Mr Mill to paragraph 64 of his affidavit which sets out the improvements to the system of safety introduced by the defendant which I have set out earlier in summarising his evidence. He acknowledged that all of the improvements had been introduced after the incident in July 2006. He could not recall if an audit was undertaken in respect of Blue Water's work after it was completed on 7 July 2006. 113Mr Mill was shown his affidavit sworn 3 December 2009 relating to the earlier prosecution of the defendant. He agreed that paragraph 48 of that affidavit which set out the steps taken by the defendant in light of the January 2006 incident where identical, with the exception of paragraph (f), to those contained in his present affidavit at paragraph 64. 114Mr Mill's evidence was that the defendant was seeking to reinforce the safety system, particularly in respect of sign-off certificates because safety was ever changing. His evidence was that he believed that the defendant had taken "a tremendous amount of steps since the incident in January 2006." 115In re-examination, Mr Mill stated that the incident in January 2006 involved the use of a winch and that the SWMS provided by the defendant had not addressed the use of a winch or prevented its use. 116Mr Mill was taken to the Handover certificate in respect of scaffolding and acknowledged that it had at the bottom of the certificate it read: NOTES This approval should reflect the structure at the time of inspection. In assessing the structure, you should refer to: Australian Standard Scaffolding AS1576 Guidelines for Scaffolding AS4576 Waco Kwikform design and quotation Waco Kwikform Guidelines for Safe Use of Scaffold Waco Kwikform procedures on Tie Patterns (refer overleaf) and Needle Set Out. Should the structure be tampered with, altered, modified or changed in any way whatsoever by other than a duly authorised representative of Waco Kwikform this Certificate will no longer be valid.
Principles 117The 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 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.
Foreseeability 157The 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 offence: 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]; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at [27]. 158It was reasonably foreseeable that if there was no inspection, or a system that ensured a properly completed scaffold Handover certificate was provided to Southern Colliery by its subcontractor Blue Water, that there was a high risk that workers would fall from height from the scaffold if it had not been properly erected. 159The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the accident is relevant to assessing the seriousness of the offence: Kembla Coal and Coke at [27]. 160The defendant introduced various simple remedial steps after the incident, which are set out in the evidence and the agreed statement of facts. Mr Mill also set out the systems which were in place at the time of the incident which failed to ensure the safety of persons not in the employ of the defendant. 161I reject the prosecutor's contention that evidence provided by Mr Mill of its existing systems as at the date of the incident supports a finding that the defendant was seeking to avoid culpability and continuing to engage in an attitude of disobedience, or lacked remorse in relation to the conduct to which it had pleaded guilty. Care needs to be taken in ensuring that the charge and particulars were confined to a failure to undertake a proper inspection and that the scaffold was used before a properly completed Handover certificate was provided. The particulars of the charge do not allege that the defendant was responsible for supervising on a day-to-day basis the work undertaken by subcontractors or their employees. 162I further accept that the steps taken by the defendant as outlined by Mr Mill in his evidence after the incident, demonstrate the defendant's diligence in undertaking prompt steps to rectify the relevant risks so as to prevent further similar incidents occurring. The defendant accepted that its systems in place at the date of the incident were flawed. Taken as a whole, in my view, the evidence of Mr Mill as the Managing Director of the defendant, provides evidence of the recognition by the defendant of the objective seriousness of the offence.
Deterrence 163In addition to the factors relating to the offence, the Court is required, in fixing penalty, to consider the need to deter others from committing the same crime and to deter the defendant from re-offending. In Capral at [71] - [80], the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that included an element of general deterrence. 164I consider it is appropriate to once draw attention to the need for employers and contractors working in any industry where scaffolds are regularly erected and dismantled that they must comply with the Australian Standard. Employers and contractors must ensure that a proper inspection of the scaffold, after it is built and prior to it being used, occurrs. Furthermore, it is encumbent upon employers and contractors to ensure a properly completed Handover certificates are provided. It is therefore appropriate that I give weight to the need for general deterrence in determining penalty. 165In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following the incident are relevant, as is the propensity for the defendant to re-offend. I accept that this is not a case which calls for the imposition of some additional specific punishment in deterring the defendant from further offending against the OHS Act and for the purpose of compelling the defendant's attention to occupational health and safety issues so that employees and contractors are not exposed to risks to their health and safety. 166I include an element in the penalty for specific deterrence.
Subjective considerations 167There are a number of relevant subjective considerations. These include in accordance with s 23A(3) of the CSP Act that: (I) the offender was a person of good character, (II) the offender is unlikely to re-offend, (III) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (IV) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), (V) a plea of guilty by the offender; (VI) assistance by the offender to law enforcement authorities. 168In respect of the defendant's remorse, Mr Strickland referred the Court to Pham v R [2010] NSWCCA 208 and in particular the observations of Simpson J, with whom Macfarlan JA and Hall J agreed. Her Honour observed at [29]: Remorse and contrition are matters traditionally taken into account in sentencing. They are taken into account because they are thought to be indicative of prospects of rehabilitation. However, it is rare that an offender who has been apprehended and who faces punishment is not remorseful and contrite. But remorse and contrition of themselves are not necessarily indicative of any attitude towards the offence, as distinct from apprehension and the prospect of punishment. Remorse and contrition referable to the likelihood (or inevitability) of punishment are not indicative of rehabilitation prospects. 169Mr Strickland submitted that the defendant, in light of the evidence of Mr Mill, did not have an insight into its breach of the OHS Act . The basis for this submission was that in circumstances where the defendant's breach of the OHS Act occurred at least in part because of the specific failures or omissions by Mr Johnson, the defendant's attitude towards Mr Johnson indicated a failure to accept full responsibility for its actions. 170Mr Mill's evidence was that he did not believe that Mr Johnson had done anything wrong. In Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124 Boland J stated at [76]: The authorities establish that remorse and contrition can be demonstrated, particularly in the case of a corporation, by a variety, or combination, of factors. This can include, although not be limited to: the defendant entering a guilty plea ( WorkCover Authority (NSW) (Inspector Lai) v Rexma Pty Ltd [2008] NSWIRComm 78; 172 IR 210 at [29]); the assistance provided to the victim or the victim's family ( WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57; 99 IR 284 at [35]); and an express statement of remorse or contrition by someone duly authorised to make such a statement on behalf of a defendant, although any statement must be assessed in light of the defendant's conduct ( WorkCover Authority of New South Wales v Hitchcock [2005] NSWIRComm 34; 139 IR 439 at [39]). 171In the present matter, I find the defendant has demonstrated remorse and contrition by: the plea of guilty; the actions taken after the incident to further improve the systems in place in relation to the training of contractors (now a monthly training program); and the expression of remorse on behalf of Mr Mill to the injured worker. 172I also accept that after incident in July 2006, the defendant commenced a process of reviewing its OHS systems and implementing changes and improving its training programs. The process which had commenced after January 2006 was continued after the incident in July 2006, including the introduction of audits and monthly meetings. There is some force in Mrs Thompson's submission that defendant operates nationally, has over 1200 sites across Australia and there was a practical element in effecting national change of the defendant's occupational health and safety systems after the incident in January 2006. Clearly, it had not remedied all of the systematic issues that were being considered for implementation prior to July 2006. However, it had commenced a process of change after the January 2006 incident, which involved a fall through an open penetration. 173I accept the defendant is entitled to a finding of good corporate citizenship and good character. This is not case where the defendant, as is clear from the evidence, showed a disregard to safety and had no established systems in place. 174I allow a discount of 25 per cent for the plea of guilty in accordance with the principles outlined in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104. I also find that the defendant co-operated with the investigation by the Department of Investment and Industry, New South Wales. 175Mrs Thompson acknowledged that in this matter, a number of parties have been prosecuted for offences against the OHS Act arising out of the same factual circumstances. Counsel submitted that each defendant had different and overlapping responsibilities. The particulars provide the key reference point for the role of the defendant in this incident. I take into consideration that it was the defendant who contracted directly with Southern Colliery to provide the scaffolding. It was the defendant who contracted directly with Blue Water to erect the scaffolding and therefore it had the most direct responsibility of the entities which have been prosecuted for ensuring that there was a proper inspection of the scaffolding after it was erected and prior to it being used. It was also required to ensure that a properly completed Handover certificate was provided by Mr King to Southern Colliery. Its culpability, in my view, was greater than that of Delta, the employer of Mr Evans, who pleaded guilty to a similar charge. Delta was offered, but declined the scaffold work, because it did not have the skills or expertise to install the scaffold. This led to Southern Colliery contracting the defendant to undertake the work. 176These factors together with the defendant's prior record of convictions and the more extensive assistance provided to the prosecuting authorities by Blue Water and Delta, are further distinguishing matters in respect of this defendant and other entities which were involved in the incident and prosecuted.
Parity 177The principle of parity which is applicable in this matter was succinctly stated in the joint judgment of Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 at 301-302 as follows: The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. 178Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
Victim Impact Statement 179Mr 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. 180Some 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." 181In 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 182The principles that apply as to when costs will be awarded in proceedings was recently considered by the Full Bench of the Industrial Court in the matter of State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 3) [2011] NSWIRComm 76 at [15] - [24]. Those principles are relied upon by the defendant in these proceedings and in particular the principle stated at [22] that it may be appropriate to deprive a successful party of costs, or a portion of the costs, if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument. 183Unless another order is more appropriate, costs follow the event and the successful party will be awarded the costs of the proceedings: Oshlack v Richmond River Council (1998) 193 CLR 72 at [97]. The basis of the principle is to compensate the successful party for the expense of being put to the necessity of litigation. This principle is set out in r 42.1 of the Uniform Civil Procedure Rules 2005. 184Mrs Thompson referred to the matter of El-Ansary v El-Raghy [2002] WASC 51 where it was held that when awarding costs, a court may take into account the fact that unnecessary cross-examination had delayed the proceedings and in that matter a proportion of the party/party costs of the respondent were reduced to take this fact into account. 185In Inspector Dugdale v Fluid Tech Hydraulics Pty Ltd (No 2) [2011] NSWIRComm 88, the Court followed the reasoning of the High Court in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, as discussed in Inspector James v Ryan [2010] NSWIRComm 63. The Court held that a defendant who pleads guilty, but successfully contests a discrete issue during proceedings, is able to seek a costs order in regards to that discrete issue. The defendant in that matter had indicated an intention to plead guilty to a breach of s 11(1)(a) of the OHS Act . During the proceedings, and notwithstanding the indicative plea of guilty, a controversy arose because between the parties concerning a discret issue in the particulars of the charge (that Fluid Tech Hydraulics Pty Ltd had recevied confirmation that ordered components were suitable for a high pressure oxygen line). That issue was litigated over a two day period and the defendant's position was upheld. The defendant then entered a plea of guilty to the amended application for order, and sought a costs order in its favour in respect of the contested issue. The prosecutor was ordered to pay the reasonable costs of the defendant incurred in the litigation of the discrete issue. Otherwise, the defendant was ordered to pay the costs of the prosecutor. 186Applying these principles to the present proceedings, it was contended by Mrs Thompson that the prosecutor should not receive all of its costs for the sentencing hearing for the following reasons: (i) the oral evidence of Stephen and Danny King was not required given the particulars of the charge and the agreed facts and the admissions made in relation to both; (ii) the prosecutor's decision to tender all of the statements made by Stephen and Danny King, but relevantly not Mr Johnson, raised issues that are not relevant to the charge but nevertheless required the defendant to deal with those matters by way of evidence from Mr Johnson; (ii) the extensive cross-examination of Mr Mill ought not to have been required. 187Mr Strickland submitted that on a proper application of the principles found in the above cases, the defendant should be ordered to pay the prosecutor's costs. Senior counsel submitted that the prosecutor was required to tender the statements of Stephen and Danny King, having been informed of certain matters that were relevant to the sentencing proceedings. Both statements were tendered to the Court, consistent with prosecution guidelines, as it was contended that it was not for the prosecutor to conceal from the Court, matters that he considered were of some relevance. This was clearly the case in respect of the dispute regarding the ledgers. Therefore, the prosecutor was entitled to call upon that evidence in endeavouring to establish an aggravating factor. 188Mrs Thompson also required both Stephen and Danny King for cross-examination, as she was so entitled. Turning to the evidence of Mr Johnson, Mr Strickland submitted that the defendant did not invite the prosecutor to tender Mr Johnson's statement. Had that occurred, it would have been tendered by the prosecutor. 189Mr Johnson's statement was tendered to the Court, without objection, by the defendant. 190The third basis advanced by the defendant as to why the prosecutor should not have all its costs paid was what was characterised as the lengthy cross-examination of Mr Mill. In my view, Mr Mill's cross-examination could not be described as lengthy. It concluded in approximately 45 minutes, excluding the adjournment of the second day of the sentencing hearing, due to the illness of counsel for the defendant. The sentencing hearing was completed in one and a half days, which, although significantly lengthier than the usual half to one day taken for sentencing hearings, there were a number of disputed evidentiary issues. 191In light of the above observations, I am not persuaded to exercise my discretion to vary the usual order in respect of costs. 192As the defendant has prior convictions, the maximum penalty is $825,000. 193Taking into account all of the above matters and the evidence relied upon by the parties, I impose a penalty of $120,000. 194The prosecutor seeks costs and a moiety, which I propose to grant.
Orders 195I make the following orders:
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: 18 August 2011
Inspector Regan
Waco Kwikform Ltd
[2002] WASC 51
(2000) 49 NSWLR 610
(2000) 99 IR 29
(1999) 92 IR 8
(1990) 170 CLR 534
(1999) 90 IR 464
(2005) 141 IR 465
(1998) 193 CLR 72
(1997) 189 CLR 295
(2000) 49 NSWLR 383
(2003) 212 CLR 629
(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
[1990] HCA 59