Inspector Reynolds v Ocean Parade Pty Ltd and Others

Industrial Relations Commission (NSW)|1994-03-10|Before: Schmidt J, Fisher CJ, Peterson JJ, Fisher J, Maidment J

CITATION: Inspector Reynolds v Ocean Parade Pty Ltd and Others [2007] NSWIRComm 231

Matter Number IRC 6333 of 2005 _______________________________

INSPECTOR WAYNE REYNOLDS Prosecutor

Matter Number IRC 6334 of 2005 _______________________________

PARTIES: INSPECTOR WAYNE REYNOLDS Prosecutor

Matter Number IRC 6335 of 2005 _______________________________

INSPECTOR WAYNE REYNOLDS Prosecutor

FILE NUMBER(S): IRC 6333, 6334 and 6335 of 2005

CATCHWORDS: Occupational Health and Safety - prosecution under section 8(2) of the Occupational Health and Safety Act 2000 - prosecutions under section 8(2) of the Occupational Health and Safety Act 2000 by operation of section 26(1) of the Act - penalties - construction industry - first offences - specific and general deterrence - foreseeability - penalties imposed - moiety - costs

LEGISLATION CITED: Crimes (Sentencing and Procedure) Act 1999 Occupational Health and Safety Act 2000

Independent Cargo and Wool Services Pty Ltd v Inspector Mingare (Unreported, Fisher CJ, Glynn and Peterson JJ, 10 March 1994) Inspector Roy Thomas Milligan v Roads & Traffic Authority (Industrial Court of New South Wales (Unreported, 29 August 1996, Fisher J) CASES CITED: Inspector Reynolds v Ocean Parade Pty Ltd and Others [2006] NSWIRComm 400 Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96 WorkCover Authority of New South Wales (Inspector Henson) v Kingstone Constructions Pty Limited and Brian Willis [2006] NSWIRComm 130 WorkCover Authority of NSW (Insp Callaghan) v Saunders Constructions Pty Ltd (Unreported, CT93/1062, 26 November 1993, Maidment J)

PROSECUTOR: Mr MP Cahill, counsel SOLICITORS: Phillips Fox LEGAL REPRESENTATIVES: DEFENDANTS: Mr I Neil SC SOLICITORS: Sydney Property Lawyers

INSPECTOR WAYNE REYNOLDS V OCEAN PARADE PTY LTD Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

INSPECTOR WAYNE REYNOLDS v RON SAYHOUN Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 (Act) by operation of section 26(1) of the Act

INSPECTOR WAYNE REYNOLDS v JOHN SAYHOUN Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 (Act) by operation of section 26(1) of the Act JUDGMENT

1 Judgment in these matters was given on 15 December 2006, with each of the three offences brought under the Occupational Health and Safety Act 2000 ('the Act'), being found proven. The offences arose out of events which occurred on 28 February 2004, when a boy, Kyle Ralphs, fell some 2.5 metres at a building site at The Entrance, where the defendants were involved in the construction of a 14 storey apartment building. (See Inspector Reynolds v Ocean Parade Pty Ltd and Others [2006] NSWIRComm 400.) This judgment deals with penalty. 2 The offences charged were: Matter Number IRC 6333 of 2005

On 28 February 2004, the defendant, at 9 Ozone Street, The Entrance in the State of New South Wales ( site ), being an employer, who had an undertaking to construct a fourteen storey apartment block known as the 'Mariner Apartments' at the site which was its place of work ( undertaking ), failed to ensure that people (other than the employees of the employer), including Kyle Ralphs ( injured person ), Shane Patman, Shane Labbett and Daniel Rendall, were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they were at the employer's place of work by reason that:

the defendant failed to ensure that the site was adequately secured against entry to the site by non-authorised persons; and

there was a risk of persons falling 2.5 metres through an open penetration on level 14 of the building under construction at the site as the open penetration was not securely covered or protected so as to prevent persons falling through.

Further Particulars of the Offence 1. The defendant had an undertaking to construct a fourteen (14) storey apartment block at the site ('the building'). 2. The defendant employed Marlaine Nourry. 3. On 28 February 2004 the building had reached 14 levels. Access to the building was provided by a combination of a builders elevator, stairs and external scaffolding. 4. Prior to 28 February 2004 a two (2) metre high metal fencing had been erected on the northern and western boundaries of the site. These boundaries were street frontages. There were gates fitted to the fencing which could be locked with chains and padlocks. 5. On the southern boundary of the site was a block of residential units known as the Atlantis Apartments. 6. On 28 February 2004 the boundary between the site and the Altantis Apartments consisted primarily of a timber pailing fence, a section of which had fallen over or had been pushed over, thereby providing easy pedestrian access between the two premises. 7. On level 14 of the building there was a balcony which had a circular open penetration in the floor of approximately 2 metres in diameter ('open penetration'). Below this level was a tiled floor on level 13 which was approximately 2.5 metres below level 14. 8. Prior to 28 February 2004 the open penetration had been covered with a sheet of wire mesh which was secured to the floor however, on 28 February 2004 the wire mesh had been removed to allow other work to be performed and had not been replaced. 9. On 28 February 2004 there were two employees of a sub-contractor, Goldar Projects, installing Gyprock on level 6 of the building. 10. On 28 February 2004 at approximately 4.00pm the injured person, Shane Patman, Shane Labbett and Daniel Rendall gained access to the site via the boundary with the site and the Atlantis Apartments. They then made their way to the 14th floor of the building via the builders elevator and stairs. There was no representative or employee of the defendant on site at the time. 11. At approximately 4.30pm the injured person was walking backwards towards the open penetration when he fell a distance of approximately 2.5 metres through the open penetration landing on the tiled floor of the level below. 12. As a result of the incident the injured person sustained serious injuries including a fracture to his left shoulder and right arm, fracture to his nose, fracture and tendon damage to a finger and the loss of four teeth 13. Neither the injured person, Shane Patman, Shane Labbett nor Daniel Rendall were authorised to be at the site on 28 February 2004. 14. A general risk of injury to non-employees arose from the lack of a secure perimeter at the site and lack of a secured cover over the open penetration. 15. A specific and manifested risk of injury to the injured person arose on 28 February 2004 when the injured person gained access to the site and fell through the open penetration. 16. As a result of the failures of the defendant the injured person, Shane Patman, Shane Labbett and Daniel Rendall were exposed to risks of serious injuries. Matter Number IRC 6334 of 2005 The defendant, being a director and person concerned in the management of Ocean Parade Pty Ltd [ACN 054 749 245] (company), a corporation which was duly incorporated with its registered office at 300A Marsden Road, Carlingford, in the State of New South Wales, which company contravened section 8(2) of the Occupational Health & Safety Act 2000 (Act), in that on 28 February 2004, at 9 Ozone Street, The Entrance in the State of New South Wales (site), the company, being an employer, who had an undertaking to construct a fourteen storey apartment block known as the 'Mariner Apartments' at the site which was its place of work (undertaking), failed to ensure that people (other than the employees of the employer), including Kyle Ralphs ('injured person'), Shane Patman, Shane Labbett and Daniel Rendall, were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they were at the employer's place of work by reason that: 1. the company failed to ensure that the site was adequately secured against entry to the site by non-authorised persons; and 2. there was a risk of persons falling approximately 2.5 metres through an open penetration on level 14 of the building under construction at the site as the open penetration was not securely covered or protected so as to prevent persons falling through. AND The defendant is deemed to have contravened the same provision by operation of section 26(1) of the Occupational Health and Safety Act, 2000. Further Particulars of the Offence 1. The company had an undertaking to construct a fourteen (14) storey apartment block at the site (building). 2. The company employed Marlaine Nourry. 3. The defendant was a director of the company and was concerned in the management of the company and in a position to influence the conduct of the company in relation to its contravention of the Act. 4. On 28 February 2004 the building had reached 14 levels. Access to the building was provided by a combination of a builders elevator, stairs and external scaffolding. 5. Prior to 28 February 2004 a two (2) metre high metal fencing had been erected on the northern and western boundaries of the site. These boundaries were street frontages. There were gates fitted to the fencing which could be locked with chains and padlocks. 6. On the southern boundary of the site was a block of residential units known as the Atlantis Apartments. 7. On 28 February 2004 the boundary between the site and the Altantis Apartments consisted primarily of a timber pailing fence, a section of which had fallen over or had been pushed over, thereby providing easy pedestrian access between the two premises. 8. On level 14 of the building there was a balcony which had a circular open penetration in the floor of approximately 2 metres in diameter ('open penetration'). Below this level was a tiled floor on level 13 which was approximately 2.5 metres below level 14. 9. Prior to 28 February 2004 the open penetration had been covered with a sheet of wire mesh which was secured to the floor however, on 28 February 2004 the wire mesh had been removed to allow other work to be performed and had not been replaced. 10. On 28 February 2004 there were two employees of a sub-contractor, Goldar Projects, installing Gyprock on level 6 of the building. 11. On 28 February 2004 at approximately 4.00pm the injured person, Shane Patman, Shane Labbett and Daniel Randle gained access to the site via the boundary with the site and the Atlantis Apartments. They then made their way to the 14th floor of the building via the builders elevator and stairs. There was no representative or employee of the company on site at the time. 12. At approximately 4.30pm the injured person was walking backwards towards the open penetration when he fell a distance of approximately 2.5 metres through the open penetration landing on the tiled floor of the level below. 13. As a result of the incident the injured person sustained serious injuries including a fracture to his left shoulder and right arm, fracture to his nose, fracture and tendon damage to a finger and the loss of four teeth 14. Neither the injured person, Shane Patman, Shane Labbett nor Daniel Rendall were authorised to be at the site on 28 February 2004. 15. A general risk of injury to non-employees arose from the lack of a secure perimeter at the site and lack of a secured cover over the open penetration. 16. A specific and manifested risk of injury to the injured person arose on 28 February 2004 when the injured person gained access to the site and fell through the open penetration. 17. As a result of the failures of the company the injured person, Shane Patman, Shane Labbett and Daniel Rendall were exposed to risks of serious injuries. Matter Number IRC 6335 of 2005 The defendant, being a director and person concerned in the management of Ocean Parade Pty Ltd [ACN 054 749 245] (company), a corporation which was duly incorporated with its registered office at 300A Marsden Road, Carlingford, in the State of New South Wales, which company contravened section 8(2) of the Occupational Health & Safety Act 2000 (Act), in that on 28 February 2004, at 9 Ozone Street, The Entrance in the State of New South Wales (site), the company, being an employer, who had an undertaking to construct a fourteen storey apartment block known as the 'Mariner Apartments' at the site which was its place of work (undertaking), failed to ensure that people (other than the employees of the employer), including Kyle Ralphs ('injured person'), Shane Patman, Shane Labbett and Daniel Rendall, were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they were at the employer's place of work by reason that: 1. the company failed to ensure that the site was adequately secured against entry to the site by non-authorised persons; and 2. there was a risk of persons falling approximately 2.5 metres through an open penetration on level 14 of the building under construction at the site as the open penetration was not securely covered or protected so as to prevent persons falling through. AND

The defendant is deemed to have contravened the same provision by operation of section 26(1) of the Occupational Health and Safety Act, 2000. Further Particulars of the Offence 1. The company had an undertaking to construct a fourteen (14) storey apartment block at the site (building). 2. The company employed Marlaine Nourry. 3. The defendant was a director of the company and was concerned in the management of the company and in a position to influence the conduct of the company in relation to its contravention of the Act. 4. On 28 February 2004 the building had reached 14 levels. Access to the building was provided by a combination of a builders elevator, stairs and external scaffolding. 5. Prior to 28 February 2004 a two (2) metre high metal fencing had been erected on the northern and western boundaries of the site. These boundaries were street frontages. There were gates fitted to the fencing which could be locked with chains and padlocks. 6. On the southern boundary of the site was a block of residential units known as the Atlantis Apartments. 7. On 28 February 2004 the boundary between the site and the Altantis Apartments consisted primarily of a timber pailing fence, a section of which had fallen over or had been pushed over, thereby providing easy pedestrian access between the two premises. 8. On level 14 of the building there was a balcony which had a circular open penetration in the floor of approximately 2 metres in diameter ('open penetration'). Below this level was a tiled floor on level 13 which was approximately 2.5 metres below level 14. 9. Prior to 28 February 2004 the open penetration had been covered with a sheet of wire mesh which was secured to the floor however, on 28 February 2004 the wire mesh had been removed to allow other work to be performed and had not been replaced. 10. On 28 February 2004 there were two employees of a sub-contractor, Goldar Projects, installing Gyprock on level 6 of the building. 11. On 28 February 2004 at approximately 4.00pm the injured person, Shane Patman, Shane Labbett and Daniel Rendall gained access to the site via the boundary with the site and the Atlantis Apartments. They then made their way to the 14th floor of the building via the builders elevator and stairs. There was no representative or employee of the company on site at the time. 12. At approximately 4.30pm the injured person was walking backwards towards the open penetration when he fell a distance of approximately 2.5 metres through the open penetration landing on the tiled floor of the level below. 13. As a result of the incident the injured person sustained serious injuries including a fracture to his left shoulder and right arm, fracture to his nose, fracture and tendon damage to a finger and the loss of four teeth. 14. Neither the injured person, Shane Patman, Shane Labbett nor Daniel Rendall were authorised to be at the site on 28 February 2004. 15. A general risk of injury to non-employees arose from the lack of a secure perimeter at the site and lack of a secured cover over the open penetration. 16. A specific and manifested risk of injury to the injured person arose on 28 February 2004 when the injured person gained access to the site and fell through the open penetration. 17. As a result of the failures of the company the injured person, Shane Patman, Shane Labbett and Daniel Rendall were exposed to risks of serious injuries. 3 Evidence was called by the defendants from Mr John Sayhoun. 4 Section 8(2) of the Act provides:

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 5 Section 26(1) of the Act provides:

26 Offences by corporations - liability of directors and managers

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 6 It was common ground that this was a first offence for each defendant and that accordingly, the maximum penalties were $550,000 for the corporate defendant and $55,000 for the individuals. 7 The case advanced for the prosecutor was that relevant to an assessment of the objective seriousness of the offences was that a portion of the fence at this building site was known to have been down, making it readily foreseeable that members of the public such as the young boys here in question would gain access to the site. It was also foreseeable that once at the site, that they would seek to gain access to the upper levels of the building, which gave views of the surrounding area and the sea. In the circumstances, given the existence of an unguarded hole in the roof slab of the building, the risk which materialised was both readily foreseeable and involved a real prospect of serious, if not, grave injury. 8 The evidence showed that the defendants were aware of the risks presented by the site. Fall risk constituted by unguarded or inadequately guarded penetrations is a notorious risk in the building industry (See Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96 at [25]). 9 It followed that the defendants' failures constituted serious breaches of the obligations imposed by the Act. The neglect of simple well known precautions was an additional and significant matter of aggravation. (See Inspector Roy Thomas Milligan v Roads & Traffic Authority (Industrial Court of New South Wales (Unreported, 29 August 1996, Fisher J) and Independent Cargo and Wool Services Pty Ltd v Inspector Mingare (Unreported, Fisher CJ, Glynn and Peterson JJ, 10 March 1994).) 10 This was not merely a case of failure to implement and maintain proper systems, because, on the admission of Ron Sayhoun, he was aware that the fencing had been down on the day of the incident and on other occasions in the preceding weeks. The age of the injured boy and the extent of the injuries sustained should also be taken into account. (See ss 21A(g) and (h) Crimes (Sentencing Procedure) Act 1999.) 11 The steps taken after the incident were submitted to be a 'two edged sword', indicating the ease with which the defendants could have addressed the risk in question prior to the incident (See WorkCover Authority of NSW (Insp Callaghan) v Saunders Constructions Pty Ltd (Unreported, Maidment J, CT93/1062, 26 November 1993).) 12 It followed that both general and specific deterrence had a role to play in sentencing, especially given that the defendants continued to operate in the building industry. 13 As to subjective factors, it was accepted that the defendants had co-operated in the investigation and that they had no record, so were entitled to the lenience normally extended to a first offender (s 21A(3)(e) Crimes (Sentencing Procedure) Act). There was also evidence of good corporate citizenship. 14 As to parity, it was submitted that the criminality of the two personal defendants would be regarded as similar, notwithstanding their different responsibilities for the corporate defendant's safety obligations. 15 The case advanced for the defendants was that the circumstances of the defendants shared some similarities with the defendants dealt with by Staunton J in WorkCover Authority of New South Wales (Inspector Henson) v Kingstone Constructions Pty Limited and Brian Willis [2006] NSWIRComm 130) and that a similar approach would be adopted in sentencing the defendants here. 16 It was submitted, however, that the offences here in question were objectively less serious, given the evidence of these defendants' approach to their obligations under the Act. It was argued that the evidence was such that the penalties to be imposed would fall within the low range. This conclusion flowed from the evidence as to the defendants' general approach to risk assessment; site security and site access and the corporate defendant's safety policies and processes, which had ensured that on this very substantial building project, the only reportable injuries sustained by anyone, had been those sustained by Kyle Ralphs. It followed that the systems in place had otherwise been effective. It was also relevant that in the case of these defendants, there had been no suggestion on the evidence, of prior trespass on the site by any children. 17 It was further submitted that the risk which had materialised had resulted from a single, isolated lapse. While the risk was foreseeable, it was also relevant to be considered that there had to be a conjunction of a number of circumstances, for the risk to materialise. Those factors included a section of the perimeter fence being down, while a group of boys, determined to enter were in the vicinity of the site; who were prepared to trespass onto two properties to gain access to the site, even though they were each conscious that they should not have entered. These factors pointed to the conclusion that this offence was less serious than those dealt with in Kingstone. 18 It was also argued that on the evidence, specific deterrence would not have a large role to play in the penalties imposed, given that these were not defendants who had ignored their safety obligations. The records of each defendant also supported that approach. As to general deterrence, the evidence as to their approach to their obligations also suggested a smaller role for general deterrence than might otherwise be the case. 19 Also to be taken into account was that the corporate defendant was a family company and that the effect of any penalty would be born by the family members. As between the two individual defendants, it was submitted that on the evidence it would be concluded that the criminality of Mr Ron Sayhoun must be judged as greater than that of Mr John Sayhoun. Consideration 20 Consistently with the Crimes (Sentencing Procedure) Act, a determination of the sentences here to be imposed must be approached from a consideration of the nature and seriousness of the offences in question, together with aggravating and mitigating factors. Section 21A of the Crimes (Sentencing Procedure) Act provides: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (d) the offender has a record of previous convictions, (e) the offence was committed in company, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity.

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) the offender was provoked by the victim, (d) the offender was acting under duress, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, (j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability, (k) a plea of guilty by the offender (as provided by section 22), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23). (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence. 21 What arises for consideration is a failure to address what was plainly a serious risk to safety, of an obvious kind. The attraction which building sites have to children, is generally well known, and must be especially so for builders. That attraction has, no doubt, existed as long as there have been youngsters and building work, to excite their curiosity. That the Act would require builders to ensure the safety of children, by making sure that they are not able to trespass onto dangerous building sites, can be no surprise in our society in 2007, given the obligations imposed by the Act and its predecessor, since 1983. 22 The 14 storey building under construction at this site, was not at lockup stage. The state of the perimeter fence, on the day in question, did not prevent unauthorized access to the site. The boys were able to walk in, albeit from a neighbouring property, over a section of fallen fence, which was not visible from the street. Once there, they had no problem getting to the roof of the building. There, the hole in the floor through which Kyle Ralphs then fell some 2.5 metres to the floor below, was not secured in the way required by the safety assessment which the corporate defendant had earlier conducted. The hole had been left uncovered. Even on the defendants' case the grid was inadequately secured, so that it could easily be moved. Even on Mr Ron Sayhoun's own evidence, he was able to move the grid by himself. 23 The risk of injury which here materialised was both obvious and foreseen. It was the risk that a person could fall to the floor below, if access to the site was not controlled and the hole on the top floor of the building, was not securely covered. 24 The site was unsupervised when the four boys gained access to it on a summer's Saturday afternoon. Having easily gained access to the site, over a section of fallen fence, the boys then just as easily made their way to the 14th floor, by using the lift, which had been left operational for the workers who had been left on site. That this site would be an attractive place for a group of young boys at a loose end on the weekend, was obvious. The roof of the building provided a good view of the surrounding area, including the oval next door where cricket was being played and out to the ocean nearby. What happened then was entirely foreseeable. Kyle Ralphs became concerned that he had been seen by police in the street below; the police station was next door. He backed away from the edge of the building, falling through the uncovered hole, as his friends shouted a warning. He tried to turn to grab onto something as he fell some 2.5 metres to the floor below, landing on his face and suffering considerable injuries, as a result. 25 The Act required the defendants to protect trespassers such as these curious young boys, from the risk of injury which materialised for Kyle Ralphs. There was no question that the risk was one which could easily have been prevented, by the defendants taking obvious steps, which were readily available to them, by keeping the fence secure and the hole on the 14th floor securely covered. Indeed, the risks had been foreseen. 26 It follows that while these were first offences, they were relatively serious ones. There can be no doubt that the manifestation of this risk could have resulted in consequences worse than they in fact were. These are all matters which must be taken into account in fixing penalty. 27 Also to be taken into account is the defendants' record. In each case it was undoubtedly a very good one. The corporate defendant has operated as a builder since 1992, without any breach of its obligations under the Act. Mr John Sayhoun has worked extensively in the building industry in this State for over 40 years, having constructed over 4,000 villas, townhouses, three story home units and high rise residential developments up to 15 levels. Mr Ron Sayhoun has worked in the industry for over 20 years. 28 The evidence also showed that these defendants had not simply ignored their obligations under the Act. The corporate defendant had both paper systems in place and had taken steps to operate the systems in practice. On Mr John Sayhoun's evidence, the defendants had not been aware of any children gaining access to the site, before the day in question. Apart from Kyle Ralphs, no other reportable injury was sustained on this very substantial building project, either before or after this incident. It follows from the evidence that these safety systems, when properly operated, were effective in ensuring safety. Most regrettably, in the light of those undoubtedly good practices and records, the systems fell down on this occasion, in circumstances where Mr Ron Sayhoun was aware that a section of the fence had fallen and that the penetration in the floor of the 14th level was not secured, as the corporate defendant's systems required. 29 I accept that all of this evidence is relevant to the element of specific deterrence, which must be taken into account, in fixing penalty. That evidence and the evidence of the steps taken by the defendants after the incident, have led me to conclude that specific deterrence has a smaller role to play in the penalty here to be imposed, than would otherwise have been the case. 30 As for general deterrence, I take the view that it must feature in the penalties here imposed. It cannot be overlooked, as Boland J observed in Thiess Pty Ltd (No 2), that:

25 The construction industry is a notoriously dangerous industry and prosecutions in that industry under the Occupational Health and Safety Act, many of which involve falling from heights , continue to constitute a significant proportion of the cases coming before the Commission in Court Session. There is a strong case for including an element in the penalty in this case for general deterrence.

31 Mr John Sayhoun described the defendants' general approach to the obligations imposed by the Act, including in relation to employees and subcontractors. He also described the steps taken by the three defendants after the incident, including the fast tracking of certain aspects of the building work, alterations to scaffolding stairs; and changes to daily site inspections. There can be no doubt that the defendants responded properly and promptly to the risk which had materialised. They had also earlier co-operated with the investigating authority, another matter to take into account in fixing penalty. 32 I was unable, however, to come to the conclusion that much light was thrown on the appropriate penalties for these offences by the decision in Kingstone. That prosecution concerned an incident on a building site where a residential house was being constructed. It had reached lock up stage and a young boy was injured when he had climbed to an alcove above an entry door, in order to retrieve a hat. He was injured when the fibre sheeting on the alcove collapsed and he fell some 2.73 metres to the ground. The site had not been enclosed by a perimeter fence; an appropriate policy in relation to fencing was not in place; only a visual risk assessment had been conducted and it was known to the defendants that children had been trespassing on the site. While her Honour concluded that the offence fell in the 'mid range of seriousness' (at[42]), the penalty imposed was at the lowest end of the scale - $35,000 for the corporate defendant and $5,200 for the individual defendant. This flowed after a plea and a 25% discount (at [47]). Those penalties reflected some 6.36% and 9.45% of the maximum penalties of $550,000 and $55,000 respectively. 33 Discounts do not arise for consideration in these cases, as all three charges were defended. 34 I am satisfied that proper penalties, reflecting the objective seriousness of these first offences, as well as the aggravating and mitigating factors which I have mentioned, are $82,500 for the corporate defendant, $8,250 for Mr Ron Sayhoun and $6,600 for Mr John Sayhoun. 35 In coming to those penalties, I have also taken into account the evidence as to the nature and scale of the defendants' substantial operations in the building industry, albeit it appears to be a family company owned by the two defendants and by Mr John Sayhoun's wife. While it follows as a matter of logic, that the penalties fixed will as a practical matter be borne by that family, there was no suggestion of any inability or difficulty in paying any penalty properly to be imposed by the Court for these offences. 36 In fixing those penalties, I also accepted the defendants' submissions in relation to the two individual defendants, namely that the evidence must lead to the conclusion that Mr Ron Sayhoun had the greater criminality for what here occurred. Both individual defendants, each directors of the corporate defendant, had responsibility for the corporate defendant's safety obligations under the Act. Mr John Sayhoun's responsibilities were concerned with the establishment and implementation of the safety systems which the corporate defendant had devised and implemented. Mr Ron Sayhoun also had responsibility for the day to day operation of the site. 37 In any safety scheme operated by a corporation, there must be individuals who are given the responsibility of ensuring that day to day, the established safety systems are being operated in a practical sense. On the evidence, this was Mr Ron Sayhoun's role and it was he who took a chance on a departure from the applicable systems. 38 On the evidence, on the day of this incident, it was he who was aware that the perimeter fence was not complete and that the penetration on the top floor of the building was not secured. It was he who failed to take the steps necessary, to rectify these departures from what the corporate defendant's safety systems required, before he left the site. True it was that there had, to that point, been no known trespassing on the site. That was no doubt as a result of the safety systems being implemented and maintained. True it was that it required an unforseen series of events, namely that a group of inquisitive boys came along, who tried to gain access to the site, through adjoining premises, for the risks in question to materialise. Nevertheless, as has so often been pointed out in the authorities, the obligations imposed by the Act require that defendants be proactive, to ensure that such risks are prevented from materialising. It was Mr Sayhoun's failure to ensure that the perimeter fence was reinstated and that the penetration in the top floor was secured, as the safety systems required, which permitted the risk here in question to materialise, resulting in the very serious injuries which Kyle Ralphs sustained and which the defendants were obliged to protect him from. That must be reflected in the penalties respectively imposed on the two individual defendants. Orders

39 For the reasons given, I make the following orders:

I convict each defendant of the offence charged.

I impose the following penalties: s $82,500 in Matter IRC Number 6333 of 2005, with a moiety to the prosecutor s $8,250 in Matter IRC Number 6334 of 2005, with a moiety to the prosecutor s $6,600 in Matter IRC Number 6335 of 2005, with a moiety to the prosecutor

The defendants are to pay the prosecutor's costs, as agreed or assessed. Failing agreement, these matters may be referred for assessment of costs. Such an application should be directed to the Registrar in the first instance.

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At a glance

Court

Decision date

Before

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Judgment (36 paragraphs)

Parties

Cases Cited (3)