Inspector Richard Mulder v GRD Minproc Ltd

Industrial Relations Commission (NSW)|2008-04-24|Before: Kavanagh J, Ms J

CITATION: Inspector Richard Mulder v GRD Minproc Ltd [2008] NSWIRComm 82

Prosecutor: PARTIES: Inspector Richard Mulder Defendant: GRD Minproc Ltd

CATCHWORDS: Plea of not guilty - judgment as to penalty - liability already determined - Charge under s8(2) of the Occupational Health and Safety Act 2000 - head contractor - construction site - failure to ensure penetrations were safely covered - risk ongoing - design of covers inadequate - failure to warn young apprentice of risk - foreseeable risk to safety - contribution of third parties to the risk - general and specific deterrence - subjective factors considered - consistency of penalty

LEGISLATION CITED: Occupational Health and Safety Act 2000

Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Inspector Richard Mulder v GRD Minproc Ltd [2008] NSWIRComm22 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED: Markarian v R (2005) 215 ALR 213 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of NSW (Inspector Maddaford) v Coleman (2004) 138 IR 21

Prosecutor: Mr R. Reitano of counsel Solicitors: Mr H. Bell WorkCover Authority of NSW LEGAL REPRESENTATIVES:

Defendant: Mr H.J. Dixon SC with Mr. A. Gotting of counsel Solicitors: Mr S. Price/Ms J. Dennis Corrs Chambers Westgarth

Matter No IRC 1085 of 2006 INSPECTOR RICHARD MULDER v GRD MINPROC LTD Prosecution under s8(2) of the Occupational Health and Safety Act 2000

1 The WorkCover Authority of New South Wales brought a charge against GRD Minproc Limited under the s8(2) of the Occupational Health and Safety Act 2000 (the Act). The charge related to an incident on 12 July 2004 on a construction site at the UR-3R Facility, Eastern Creek in Sydney. It was found coverings of penetrations in Fan Room No. 1 on the site were inadequate. In a judgment of this court, Inspector Richard Mulder v GRD Minproc Ltd [2008] NSWIRComm22 (unreported decision of Kavanagh J, IRC1085 of 2006, 14 March 2008), the issue as to liability for the breach under s8(2) of the Act was determined and found proven. 2 At the hearing as to penalty, Mr R. Reitano, of Counsel, appeared for the prosecution. The prosecution tendered the Prior Conviction Record of the defendant company which revealed no prior convictions. 3 Mr H.J. Dixon SC with Mr A.B. Gotting of Counsel, appeared for the defendant. The defendant tendered an affidavit affirmed 28 March 2008 by Mr David Henderson, GRD Minproc's Group Manager, Construction and Health, Safety and Environment with annexures. These annexures included numerous documents detailing company work procedures designed to ensure safety on the defendant company's construction sites.

The Facts 4 GRD Minproc was principal contractor at the construction site of the UR-3R Waste Facility at Eastern Creek. It bore the onus for safe working at its worksite under the Act. On 12 July 2004, an employee (Mr Sadik) of one of the defendant's sub-contractors fell 4.4 metres to a plenum chamber below Fan Room No. 1. He was an indentured apprentice and had worked with the sub-contractor only six months. In its judgment as to liability, the Court made findings of fact in areas that remained in dispute between the parties after an agreed statement of facts was tendered in evidence. The circumstances of the incident were described in the Agreed Statement of Facts as follows: 19 On 12 July 2004 at approximately 1.45pm Sadik and Riley were attempting to move a 12m Colorbond Aramax roof sheet to place it upon timber provided to make room for the next roof sheet which required brackets to be fixed. They proceeded to slide the sheet along with Riley pulling the sheet and Sadik pushing it from the other side. [Whilst pushing the sheet Sadik placed one foot on the mesh configuration covering a penetration. The mesh configuration slipped and tipped beneath Sadik's foot exposing the penetration. Sadik lost his balance and fell through the penetration down to the concrete plenum floor approximately 4.4 metres below. The penetration was approximately 820mm in width]. 20 The incident was witnessed by Riley. Riley attempted to grab Sadik as he fell but was unable to reach Sadik in time. Following the incident Riley looked into the penetration through which Sadik had fallen. It was dark but he could see that Sadik was lying still. He called out but received no response. He then sought assistance from co-workers working in a boom lift at the western end of the fan room. A ladder was obtained to access Sadik and first aid notified]. 21 As a result of the incident on 12 July 2004 Sadik suffered from a broken left forearm with medium nerve injury. Sadik was off work from 12 July 2004 to 9 September 2004. Sadik returned to work under suitable duties from 9 September 2004. 5 In its judgment as to liability, the Court discussed the system chosen to cover the penetrations when it considered all four particulars ((a)-(d)) relied upon by the prosecution in support of the charge as follows:

Particular (a) - As to the failure to ensure the penetrations in Fan Room No.1 were properly secured The court held: 50 . . . I conclude from the expert evidence, the system chosen allowed the mesh to slip with the application of force and the penetration could be opened in a number of varying circumstances. Dr Casey's view was that it would not have been possible for a person to fall through the mesh correctly affixed. However, if the reo-bars were not equidistant one from the other and if the ties were not double knotted - if one or more of a number of such variables were in place - then the mesh could slide off the top of the flange and uncover the penetration thereby revealing the known risk. The risk of a fall through the penetration was neither impossible to anticipate nor entirely speculative. It was a known risk. If one or more of the number of variables to the "idealised" system occurred, the mesh was vulnerable to the application of force. . . . 53 There was evidence from Mr Fahey of Arenco that after the incident three or four penetration covers in Fan Room No.1 were found to be cut. An order had been given to open some of the covers to assist in the rescue of Mr Sadik. Evidence from inspections carried out before the incident (later revealed in detail) saw no loose ties nor hanging bars. From these facts it is not possible to conclude the covers had been cut prior to the incident. In either circumstance, whether the system of covering the penetrations was unsafe such as to allow the cover to slip or the covers were cut by an unknown person prior to the incident (which from the evidence appears unlikely), the defendant is liable for failing to ensure the penetrations were safely secured.

54 In order to be satisfied there was failure by the defendant company to ensure the system chosen to secure the penetrations in Fan Room No.1 was not safe, it is not necessary for this court to determine which factor in a number of possible variables actually caused the penetration cover to slide off.

55 Therefore, there was a clear casual connection between the risk of a fall of 4.4 metres and the failure of the defendant, by its act in choosing the system of coverage of the penetrations, to adequately secure the penetrations.

Particular (b) - As to the failure to ensure a proper and appropriate inspection The court held: 68 The defendant failed in its obligation to properly inspect the penetrations. The numerous inspections carried out by the defendant or under its auspices, by contractors, provided further opportunities to recognise and remedy defects in the system chosen to secure the penetrations. However, such inspections were generally by sight. From the visual inspections conducted prior to the incident the witnesses were able to say the ties were in place and the bars were not hanging loose. However, such an inspection could never identify the fact, as revealed by Dr Casey, that if some/all of the ties were not threaded correctly they could, with force, fail. I accept from Dr Casey's evidence that standing on the mesh would not have revealed the insecurity as the mesh would have resisted the force of a body weight pressing down. Further, no inspection required a check the reo-bars were placed equidistant one from the other.

69 Given the variables identified by Dr Casey, a "proper" inspection would have required the defendant to: ensure each tie had a double pony tail knot; ensure the reo-bars were placed equidistant one from the other; ensure the mesh had not been cut on one side of the covering and each mesh tie was in place. The inspections were not of this identified rigor - perhaps because of the assumption the system was safe so long as the mesh was tied with wire to the reo bars. There was, as a matter of fact, a failure to appropriately inspect the area of Fan Room No.1 so as to identify the known risk was on-going.

Particular (c) - As to the failure to warn of the risk of inadequately secured penetrations The court held: 70 . . . There was a failure to warn as to the known risk provided by the penetrations be they adequately secured or not. From the evidence, Mr Sadik and Mr Riley did not have the recognised hazard identified to them. There was an obligation to warn of a known hazard . I do not accept the obligation to warn arose only if the employer knew the penetrations were not properly secured. In a situation where the penetrations were not properly secured there was an obligation on the defendant to warn of the ongoing risk.

Particular (d) - As to the result of the defendant's failures, other persons working at the construction site were placed at risk The court held: 50. . . . The risk of a fall through the penetration was neither impossible to anticipate nor entirely speculative. It was a known risk. If one or more of the number of variables to the "idealised" system occurred, the mesh was vulnerable to the application of force.

The mesh did in fact slip when Mr Sadik applied force. Whether one or more of the variables mentioned by Dr Casey was in place on the day of the incident or whether the cover had been previously cut by persons unknown (unlikely on the evidence), the system failed. The defendant had an absolute obligation to ensure a safe workplace and to ensure the penetrations in Fan Room No.1 were safely secured. It failed.

As to the defence raised under s28(a) of the Act The court held: 80 The court accepts that had the penetrations been properly secured the defendant would have ensured the risk of a fall through the penetrations would not have materialised. The defendant asserted the method chosen to cover the penetrations together with the expressed concern by the qualified Site Safety Committee in its weekly June 2004 inspections and the assurances given through the other many inspections conducted on site, there was no act or omission by the defendant that led to the incident. The risk of a fall could not thereby have been foreseen and therefore the incident was not reasonably foreseeable. I reject the defendant's submission.

81 The system of mesh, reo-bars and tie-wire chosen to cover the penetrations was shown to be susceptible to force and to slide off the penetrations if any one or more of a number of variables were in place. The system was therefore unsafe. As the penetrations were not properly secured on the day of the incident I find it was reasonably foreseeable a fall could occur. The incident was also foreseeable given the failure to warn the employees, including a young apprentice, of the known risk posed by the penetration, especially a penetration not safely secured. While I have found there was a failure in the inspections to identify the risk was ongoing - a risk existed and continued - I do not accept the failure to properly inspect the penetration covers added to the reasonable foreseeability of the incident. The penetrations were an obvious and continuing risk if not appropriately secured. The quality of the inspections contributed to the breach but not to the foreseeability of the offence. The defendant failed to ensure the method they employed to alleviate this obvious risk was effective. The failure to warn of the risk posed by the penetrations added to the foreseeability of the incident. I find therefore in the circumstances present on the day of the incident it was reasonably foreseeable a person could fall through the penetration.

82 Once the finding is made the incident was reasonably foreseeable, as said in St Hilliers, there must be under s28(a) a determination as to whether it was reasonably practicable to guard against an incident. Weighed against the "effort cost and difficulty" of ensuring safety, was it reasonably practicable for the defendant to have acted as it did, or differently? The different factors have more or less significance, again depending on the facts and circumstances. Evidence revealed that after the incident the defendant determined the mesh covering the penetration be welded to the flange. There was little cost, difficulty or trouble for the defendant to take the necessary alternative steps to avert the risk. Other measures therefore were available and reasonably practicable for the defendant to adopt which would have alleviated the mesh slipping and eliminating the risk of exposing persons at the defendant's place of work to the risk of a possible 4.4 metre fall through a penetration in Fan Room No.1 into the plenum chamber below.

83 I find it was reasonably practicable for the defendant to comply with its obligations under s8(2) of the Act to ensure that persons were not exposed to risks from the conduct of the defendant at its workplace . . . Relevant Principles 6 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8(2) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor. The court could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 7 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand and the need to avoid a mathematical approach on the other. Such an approach involves the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 8 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 9 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to compel attention to occupational health and safety issues so that persons are not exposed to risks to their health, safety and welfare at the workplace. Of particular significance to sentencing is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia: . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, … (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) . . .

Consideration 10 In a consideration as to penalty, the court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence" (Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474) ad idem with the view expressed in Markarian). 11 The defendant asserts it took important steps to ensure safety and the offence committed is not in the worst category of offences. The steps taken included: it had appointed a construction manager; it had a systematic and comprehensive site safety system in place prior to the incident; it had a particular site safety plan; it required its contractors to comply with its safety plan; it required daily inspections of the contractors' work areas; such inspections were in fact conducted; it had identified the hazard posed by the penetrations in Fan Room No. 1; its site safety committee met regularly; the safety committee designed safety measures and ensured they were followed-up; its employees and the site safety committee were satisfied the penetration covers secured the penetrations in Fan Room No.1; inspections by its officers and its sub-contractors were satisfied the work area was safe and its officers on site, namely, its safety officer, its mechanical supervisor and its civil engineering supervisor were active on site. 12 I have considered the above submission and have determined the defendant failed in its duty to ensure a safe workplace. However, while this was a serious offence given the safety precautions taken it is not in the worst category of offences. The court found in the judgment as to the defendant's liability (as recited above) the method of covering the penetrations with the ties being tied correctly and the bars placed equidistant was safe, but in the particular circumstances related to the covering over one penetration in Fan Room No.1 on the date of the incident, the method was proven unsafe. Additionally, the system for inspecting the penetration covers was not sufficiently rigorous to discover the on-going risk to safety. There was also no warning issued to the employees of a sub-contractor regarding the on-going risk. The defendant company carried an absolute obligation to ensure the elimination of a known risk to safety at its place of work. 13 It was held by Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5) and is apposite in the circumstances of the present case to state: The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant . . .

The potential risk was most serious and the risk became a reality when a young and new apprentice fell 4.4 metres through the penetration in Fan Room No. 1 on the UR-3R site and suffered injury. 14 The defendant carries an additional burden of responsibility for ensuring the safety of young and inexperienced employees on its worksite and this is reflected in the seriousness of the offence. In WorkCover Authority of NSW (Inspector Maddaford) v Coleman (2004) 138 IR 21, the Full Bench said at [96]: . . . we wish to highlight the responsibilities that are associated with the employment of young people, who are for the most part industrially inexperienced and particularly vulnerable. . . . We note and adopt in this regard what was said by the court in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 (at [230]): ... the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, ... must enhance the seriousness of the offence.

As to the vulnerability of young workers see also: WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd (t/as Style Wise Interiors) (2002) 113 IR 78 at [100]; Inspector Paul Wade v Litchfield Roofing (Australia) Pty Ltd [2005] NSWIRComm 394; WorkCover Authority of New South Wales (Inspector Dubois) v James Nicholas Denson; JB Metal Roofing Pty Limited and Garry James Denson [2007] NSWIRComm 119 at [64]-[65]. 15 As to the question of foreseeability, I take guidance from the decision of the Full Bench in Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [81]: . . . 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 & 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/as 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: see Camilleri's Stock Feeds (32 NSWLR 683 at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at 17) and Work Cover Authority of New South Wales (Inspector Kelsey) v University of Sydney (unreported, Hill J, CT95/1280, 12 April 1997 at 16)."

In considering the statutory defence under s28(a) of the Act, the court in Inspector Richard Mulder v GRD Minproc Ltd found the offence foreseeable. Therefore, the foreseeability of the offence must be reflected in the defendant's culpability for the offence. The court held at [81]: The system of mesh, reo-bars and tie-wire chosen to cover the penetrations was shown to be susceptible to force and to slide off the penetrations if any one or more of a number of variables were in place. The system was therefore unsafe. As the penetrations were not properly secured on the day of the incident I find it was reasonably foreseeable a fall could occur. The incident was also foreseeable given the failure to warn the employees, including a young apprentice, of the known risk posed by the penetration, especially a penetration not safely secured. While I have found there was a failure in the inspections to identify the risk was ongoing - a risk existed and continued - I do not accept the failure to properly inspect the penetration covers added to the reasonable foreseeability of the incident. The penetrations were an obvious and continuing risk if not appropriately secured. The quality of the inspections contributed to the breach but not to the foreseeability of the offence. The defendant failed to ensure the method they employed to alleviate this obvious risk was effective. The failure to warn of the risk posed by the penetrations added to the foreseeability of the incident. I find therefore in the circumstances present on the day of the incident it was reasonably foreseeable a person could fall through the penetration. (emphasis added). 16 The defendant submitted given the court has recognised the chosen system could have been safe and as the defendant was not on notice it was unsafe, the offence is not one in which the defendant contumeliously disregarded or ignored a known safety risk. The court has found the risk of a fall through an improperly secured penetration was foreseeable in the circumstances. I accept, however, where there was an endeavour to alleviate the risk through the particular designed system of coverage for the penetration, the risk was not foreseen. 17 The contribution by third parties to the identified risk to safety is relevant to the court's consideration as to the objective seriousness of the offence. The rigor applicable to site safety design and the required inspections was of paramount importance to ensure the safety of the sub-contractors employees. Neither this defendant nor other contractors challenged the limitations in design of the covering chosen to eliminate a known and identified risk. The inspections carried out by the defendant and its sub-contractors only re-enforced the assumption the design was adequate to eliminate the risk and to ensure a safe worksite. 18 Evidence revealed while a design which required the perfect equidistant placement of the bars and correct knotting of the tie-wire was safe, any variation in such placement could cause a movement of the mesh off the penetrations. A cursory glance or a casual kick does not meet the necessary level of caution required of an inspection to demonstrate whether the covering of a penetration was safe. On the day of the incident, under the system chosen by the defendant, there was not a rigorous inspection sufficient to recognise the lack of security over the penetration in Fan Room No. 1. 19 The activities of third parties at the site therefore did contribute to the defendant's breach of the Act. A sub-contractor has been convicted and sentenced for failing to ensure a safe worksite for its employees under s8(1) of the Act (see Inspector Richard Mulder v Axis Metal Roofing Pty Ltd [2008] NSWIRComm 28). Additionally, another contractor who acted in the capacity of the defendant's Construction Manager and the company through which his services were hired and for which he was a director, have also each been convicted of a breach of the Act (see Inspector Richard Mulder v Process Engineering Group Pty Ltd and Anor [2008] NSWIRComm 36). The actions or omissions of these parties in failing to properly inspect the worksite contributed to the risk to safety if not to the foreseeability of the offence (see Inspector Richard Mulder v GRD Minproc Ltd at [80]). As such, there is mitigation to the objective seriousness of this defendant's breach of the Act. (As to contribution see also the Full Bench in Lyco Industries Pty Limited v WorkCover Authority of (NSW) (Inspector Buggy) (2006) 159 IR 82 at [26] approving WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited & Anor (2000) 95 IR 383 at [103]). 20 A level of deterrence must be factored into the consideration as to penalty. The principles relevant to deterrence were recited by the Full Bench in Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 at [74] where it was said: . . . the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both 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, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at [40]-[43]) we would expect such cases to be very rare . . . 21 The defendant company still operates in the industry so an element of specific deterrence is relevant. The defendant had a commitment to site safety both before and after the incident as evidenced by its comprehensive safety system. The system now requires continual review and updating. Senior management personnel are contributors to the various designs chosen for site safety and there is engagement of specialist occupational, health and safety officers since 2002 (as opined by Mr Henderson, currently GRD Minproc's Group Manager, Construction and Health, Safety and Environment. The defendant has an appropriate focus on occupational, health and safety. Given the court's acknowledgment of the defendant's pre-existing site safety system now reviewed and secure, there is little fear of the company re-offending. The consideration of specific deterrence as an element in penalty is therefore limited. 22 Regarding general deterrence, once again the construction industry must be reminded of the need for the regular and thorough examination of all systems designed for safe working. The obligation to ensure rigorous re-evaluation of the systems chosen for safe working must be emphasised. The requirement to warn employees of identified hazards, especially if among the employees there are vulnerable, young apprentices, is also important to reiterate to the construction industry. 23 In considering subjective factors in mitigation of the offence, the company has existed as a public company since 1981 and has no prior convictions. Since 2002, GRD Minproc and its subsidiaries have been involved in 16 construction projects, including several in Western Australia, one in New Zealand, several in Zambia and other African nations and the United Kingdom. 24 At the time of the incident, the defendant employed or engaged approximately 150 employees and sub-contractors to work at its construction site. At the time of the incident, the defendant and its subsidiary companies employed or engaged 330 employees across Australia and 380 persons worldwide. 25 As at February 2008, the defendant engaged over 600 persons across Australia and with its subsidiaries, over 1050 persons worldwide. 26 The court accepts the defendant took its occupational, health and safety obligations seriously both prior to and after the incident. This was reflected in the defendant's extensive occupational, health and safety system in the form of its HSE Plan which was rigorously enforced upon its contractors. Those contractors complied with the requirements imposed upon them. The court has before it affidavit evidence and a comprehensive collection of documents which record a well planned safe working system. 27 After the incident and before work recommenced, the defendant ensured the penetration covers were welded down to prevent them from being untied or moved. It was a simple step to ensure safety and not costly. The rectification procedure, I accept, ensured site safety. 28 While the defendant entered a plea of not guilty, it also co-operated with the prosecutor in agreeing to the tender of a Statement of Agreed Facts in the defended hearing. Additionally, the defendant conceded it was the employer and the site was a place of work for the defendant. I accept the defendant co-operated with the WorkCover Authority on the day of the incident, including providing documentation to WorkCover to inspectors at that time. 29 The defendant does not have any prior convictions for offences in New South Wales or any other jurisdiction in Australia. The maximum penalty is $550,000. 30 The defendant has a good safety record, given the extensive nature of its operations in Australia and across the world since 1981. The defendant has expressed remorse over the incident, including to Mr Sadik. The defendant contributes significantly to projects beneficial to the community by way of educational scholarships and charitable donations. It is a good corporate citizen. 31 The factual circumstances which gave rise to this prosecution are substantively the same as prosecutions brought against Axis Metal Roofing Pty Ltd (IRC1086 of 2006), Process Engineering Group Pty Ltd (IRC1090 of 2006) and Mark Joseph Griffith (IRC1091 of 2006). A consideration of the respective culpabilities of the prior offenders charged with breaches of the Act arising out of this incident is relevant to ensure the principle of equal justice is applied in consideration as to penalty. Regarding the distinction between parity and consistency, the Full Bench observed Capral at [62]-[63] and [66]: [62] It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and this is not relevant in this matter.... [63] When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 where Hunt CJ at CL said (at 371): "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612: 'The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.' " . . . [66] The principle of consistency is relevant to this appeal, as it is a reflection of the notion of equal justice, a fundamental element in any rational and fair system of criminal justice: see, for example, R v Henry (1999) 46 NSWLR 346 at 353 where Spigelman CJ said: "12. As I indicated in Jurisic , the purpose of a guideline judgment is to foster consistency in sentencing. The importance of consistency was well expressed by Mason J in Lowe v The Queen (1984) 154 CLR 606 at 610 - 611: 'Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.' " and see also R v Howland (1999) 104 A Crim R 273 per Spigelman CJ.

32 I consider the culpability of this defendant as principle contractor greater than that of other offenders convicted of breaches under the Act arising from the same incident at the UR-3R site on 12 July 2004. The other offenders were sub-contractors on site. This defendant was responsible for the design, operation and implementation of all occupational health and safety systems at its place of work. I accept it ensured through its Health Safety and Environment Plan, all contractors on its worksite adopted and complied with its system for safe working. However, the defendant's managers and the site safety committee which was formed and conducted under its auspices, were responsible for the design, assessment and inspection of the system chosen for the covering of the penetrations in Fan Room No. 1. The defendant conducted inspections of these mesh coverings of the penetrations and required its contractors to also inspect. The mesh coverings chosen under the defendant's plan failed to remove the risk to safety and inspections by its officers who, while concerned with safety, failed to ensure an employee of a sub-contractor could work with safety at its worksite. Accordingly, the defendant bears a greater culpability as head contractor for its breach under the Act. 33 In accordance with the principles of consistency in sentencing and equal justice, which require the court to give weight to appropriate differences between offenders, I find this defendant has a greater culpability for the offence which is to be reflected in the penalty imposed. I do not however accept that this is an offence in the worst category. The penalty must reflect the seriousness of the offence balanced also with evidence of the awareness and concern by the defendant for safe working as demonstrated by its comprehensive pre-incident and adjusted post-incident site safety system. 34 Taking into account the above subjective features of the offence but giving weight to the objective seriousness of the offence, the defendant is fined in the sum of $90,000. 35 The defendant shall pay the prosecutor's costs as agreed or assessed with leave to approach.

Orders 36 The Court makes the following orders: 1. In Matter No. IRC1085 of 2006, I find the defendant guilty of the offence as charged.

The defendant is fined in the sum of $90,000 with a moiety to the WorkCover Authority of New South Wales.

There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.

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