Inspector Roy Milligan v Manbead Pty Ltd

PROSECUTOR: Mr P.M. Skinner of counsel Mr G. Henderson, Solicitor Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT: Mr R. Moore of counsel Mr D. Lagopodis, Solicitor Cox Wiseman & Davidson

JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Tues 18 June 2002 IRC5055 of 2001 INSPECTOR ROY MILLIGAN v MANBEAD PTY LIMITED Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2002] NSWIRComm130

1 Inspector Roy Milligan of the WorkCover Authority of New South Wales brings this prosecution under the provisions of s15(1) of the Occupational Health and Safety Act 1983. The Application for an Order reads: It is alleged that the defendant, Manbead Pty Limited (ACN 068 376 590), an an employer, breached section 15(1) of the Occupational Health & Safety Act 1983 on 30 July 1999 at the 132KV/11KV switchyard located at BOC Gases Australia Limited, Five Islands Road, Cringila in the State of New South Wales in that it failed to ensure the health, safety and welfare of its employees at work, in particular Mark Pinney, Mark Hurt and Theo Phanis.

2 The particulars to the charge read as follows: (a) Failed to provide or maintain a safe system of work on or around the live 11 KV cables.

4 An agreed statement of facts was tendered and relevantly states: 3. At all material times the Defendant Manbead Pty Limited (ACN 068 376 590) was an incorporated company with its registered office located at David Carvona & Associates Suite 2, 61 Princess Highway Fairy Meadow in the State of New South Wales. 4. All at material times Transfield Pty Limited (ACN 000 854 688) was an incorporated company with its registered office located at 'Gateway' L128, 1 Macquarie Place Sydney in the State of New South Wales ( Transfield ). 5. At all material times Worley Limited (ACN 001 279 812) was an incorporated company with its registered office located at Level 7, 116 Miller Street North Sydney in the State of New South Wales ( Worley ). 6. At all material times the Defendant: (a) Contracted with Transfield and Worley to supply labour at the site. (b) Employed Mark Pinney, Mark Hurt and Theo Phanis ('the employees') as labourers at the site. 7. At all material times Transfield: (a) Entered into a joint venture with Worley; (b) Pursuant to such joint venture, contracted with BOC Gases Australia Limited to construct a new plant at the site. (c) Was an employer. (d) Pursuant to such joint venture, contracted with Interpad Pty Ltd ACN 002 405 932 for the provision to it of the services of Mr Joe Luczycki as supervisor at the site. 8. At all material times Worley: (a) Entered into a joint venture with Transfield. (a) Pursuant to such joint venture, contracted with BOC Gases Australia Limited to construct a new plant at the site. (c) Was an employer. (d) Contracted with Interpad Pty Ltd ACN 002 405 932 for the provision to it of the services of Mr Joe Luczycki as supervisor at the site. 9. On 29 July 1999 the employees of the Defendant were engaged by Transfield and Worley to excavate live 11 KV cables at the site. 10. Two trenches were excavated by the employees both parallel to each other in the north-south plane within the site to unearth and expose live 11,000 volt power cables following removal of the northern chain wire fence of that switchyard. 11. A jackhammer was issued by Transfield and Worley and was used to free heavy clay soil from within the trenches which covered the power cables. Shovels were used to remove the soil. Protective concrete tiles were below the clay soil immediately above the power cables. There were nine 11 KV power cables in the western side trench. Three cables were laid within a sand/cement mortar mix; one cable centrally located above, two in a triangular position approximately 13mm separating the cables within the sand/cement mortar mix. 12. A crowbar had been used by the employees in the process of uncovering the cables and was left in the western trench on the completion of work. In the eastern trench the power cables were laid in sand whilst in the western trench the power cables were laid in a sand/cement mortar mix. 13. On 30 July 1999, Joe Luczycki signed for the work permit and had supervised the sign on of each of the employees nominated on the permit. The work of exposing power cables from the mortar mix continued on the morning of 30 July 1999. Theo Phanis was working in the eastern trench. Mark Pinney and Mark Hurt were both working in the western trench. Mark Pinney was at the northern end while Mark Hurt was at the southern end of the trench. 14. Verbal instruction was given to the employees by Joe Luczycki to use a hammer and cold chisel to remove the cement and mortar from around the live power cables. A crowbar was left leaning against the eastern side of the western trench where Pinney was working. It had been left in that position on the previous day, 29 July 1999. 15. On 30 July 1999 at approximately 7:30am, Mark Pinney apparently caused an impact with the three 11,000 volt power cables creating an earth fault. At the time, Pinney was using either a crowbar or chisel and hammer to excavate around the cables at the site. 16. As a result of the accident, Mark Pinney sustained shock and two small burns to each side of his back near the base of his armpits. He was transferred from the first aid station at the site to the Wollongong Hospital for treatment and monitoring. The safety vest he was wearing caught alight and was discarded at the site. 17. On 30 July 1999 the Prosecutor attended at the site and observed as follows: (a) At the Reactor Area of the 132KV/11KV switchyard, 132KV overhead transmission cables feeding into an enclosed yard fenced with steel posts and cyclone wire mesh. Secured to that fence were signs with the word DANGER in white on a red background and the words HIGH VOLTAGE in black letters on a white background. In the north-eastern corner of that enclosed yard was a gable roofed shed approximately 3 metres square. At the north-eastern corner of that fence was a hinged gate manufactured of steel pipe and steel cyclone mesh. That gate was secured in an open position in the north-south plan and parallel with the fence adjacent to the shed. Secured to the upper part of that gate was an Electrical Access Permit No. 1808 on A4 paper enclosed in a clear plastic envelope. Located to the east of that hinged gate post was another hinged gate post supporting a similar sized gate which was in an open position facing in the north-easterly plane. (b) On the eastern side of the fenced 132KV infeed yard was a semi-enclosed yard known as the 132KV/11KV switchyard where Transformer and reactors were located. On the western side of the switchyard at the edge of the dividing fence of the 132KV infeed yard there was an excavated trench running parallel with the fence from the normal closed gate position at the northern end running south for 4270mm where it made a 90 degree turn to the east. The trench was 1200mm wide and 1000mm deep. (c) On the bottom on that trench was a crowbar 30mm diameter x 1550mm long with a chisel shaped end 33mm wide with a heel at the other end 35mm wide. That crowbar had a smooth steel face on each side of the chisel face being devoid of rust whereas the shaft of that bar was of a rusty appearance. The face of the chisel closest to the ground had a fresh copper mark across the flat. The upper flat face of the chisel portion of that crowbar had a discolouration consistent with the arcing of a copper cable. The crowbar was lying at an angle of about 45 degrees to the lay of the trench. The chisel point of the bar was against the vertical face of a bench on the eastern side of the trench. The heel of that bar was on the western side of the trench. Approximately 15cm west of the chisel point of the bar was a round hole with three 11,000-volt cables, which had been subjected to extreme arcing which had vaporised those cables. The arcing had left a tell tale colouring of bronze appearance of the surrounding cement and sand mortar mix that those three cables had been laid in. (d) At the corner of the trench where it made a 90 degree turn from north-south to east-west on the north-eastern corner was a shovel, 4lb hammer and steel cold chisel. (e) Lying on the western upper edge of the trench were four orange/red coloured electrical cables. Lying in the southern side of the trench that ran east west were nine new 11,000 volt cables. At the eastern end of that trench was a sheet of timber particle board used as a traffic way. (f) At the northern end of the 132KV/11KV switchyard steel posts had been placed which supported a width of two red and one white banded plastic para webbing fencing which was attached to the steel gate post of the 132KV infeed yard. (f) On the eastern side of the north-south trench were the arcing of the 11,000 volt cables had occurred there was a stack of fourteen concrete tiles. To the east of that stack of concrete tiles there was a second trench also running north-south in that trench was a 2lb bull peined hammer.

5 Mr P.M. Skinner, of counsel, appeared for the prosecutor and Mr R. Moore, of counsel, appeared for the defendant. The prosecution tendered an Agreed Statement of Facts. The defendant relied upon an affidavit of Mr Vito Pennimpede, Company Director and Managing Director of the defendant company. Mr Pennimpede was called to give evidence. Also relied upon was the Transfield-Worley Method Statement and the BOC Gases Report of the incident. Financial records of the company were also tendered. 6 The defendant is a labour hire firm who provided workers to a Joint Venture called the TWJV (see Inspector Milligan v Transfield Pty Limited & Anor [2002] NSWIRComm125 published 17 June 2002). It contracted three of its casual employees to the TWJV as labourers. They were required by the Joint Venturers to dig up buried power cables on a Port Kembla site owned by a corporate entity called BOC Gases Australia Ltd. The BOC Air Separation Plant was to be upgraded. The planning and construction for the new plant was undertaken under contract by the Joint Venture.

7 The labourers were instructed by a supervisor, Mr Joe Luczycki, to work by using hammers, cold chisels and crowbars to expose the cables which had to be replaced. The cables were high voltage cables carrying 11KV. They were live with electricity at the time the workers were required to dig. The relevant electricity cables were buried in a hard mixture of cement and sand which had been broken by a jackhammer prior to the hand exposure of the cables.

8 In consideration of penalty the court must first assess the nature and quality of the offence, that is, the objective seriousness of the offence. As was held in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474): . . . in our view, it 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' . . .

The Full Bench further commented (at 476): . . . the proper approach is to first consider the gravity of the offence viewed objectively. 9 One of the defendant's employees, Mr Pinney, while performing the digging work to expose the cable, struck one of the cables. He suffered an electrocution. His injuries included shock and burns under each arm. As to the gravity of the offence, the Full Bench in Inspector Hannah v Wonar Pty Ltd, (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992) indicated (at 9): . . . 'a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences.' This breach had every prospect of serious consequences. 10 Mr Pennimpede, the Managing Director of the labour hire firm, the defendant to the charge, outlined the practice he followed once he allocated workers to a work site conducted by a Principal (the Joint Venture) in the following way: . . . when I first meet the employee, he comes in to see us and we have a general conversation about where he is going to be working and who the client is going to be. He is generally told words to this effect, that on these particular job site that we go to there is a site induction and depending on the size of the job site there is a job specific induction where he would be working in a certain area of the construction site. He was also told if at any time he has been given a task which he believes to be dangerous to notify [his] supervisor, let the supervisor know. If he does not get any satisfaction from that, he is to call me personally and I will visit the job site.

11 Mr Pennimpede had been providing labourers to the Joint Venture from 7 July 1999. Messrs Phanis and Hurt had been employed by the defendant on a casual basis from 1997 and Mr Pinney, the injured employee, had been hired in June 1999. Mr Pennimpede revealed before he allocated the three labourers to the worksite, he visited the job site with the Joint Venturers. He looked at the work and did not identify any dangerous aspects to it. He swore in his affidavit at para 37: I would ask that the Commission to take into account the extent of control I actually had over the manner in which work was to be performed on the BOC site by my employees as supervised by the TWJV. In particular in relation to the work in and around the 11kV cables. My ability to influence the manner in which work was performed was in the circumstances minimal. I accept that had I been contacted as to any concern by my employees or had otherwise observed the work I could have raised questions with the TWJV as to the work method. I did advise my employees that if any of them had any concerns as to the work to contact me. This included any concerns as to their safety. No such contact was made to me by any of Manbead's employees prior to the incident involving Pinney.

12 Mr Pennimpede took notice the Joint Venturers had a "Job Specification" document for the task. It was designed by the Joint Venturers. This gave him a degree of assurance all would be safe on site. Evidence revealed the defendant adopted the Joint Venturer's safety standards policy and the Joint Venturer's work method for the task. The defendant took no responsibility for the design of the work method or the training of his employees and passed that responsibility on to the Principal on site, that is, the Joint Venturers.

13 For this task, Mr Pennimpede took the employees to the site and stayed with them for between 15-30 minutes explaining the work. He introduced them to the TWJV safety officer, Mr David Saggers. Mr Saggers then took control of the labourers. From the time Mr Pennimpede left his employees on this site he had had no contact with them until he learnt of the incident at 10am on 30 July 1999, the day of the incident.

14 The evidence revealed except for the check of the work site and oral instructions as to the recognition of "risk" this defendant had no formal safety procedures in place. He adopted and accepted, with a sense of security, the Principal's site safety standard and work methods.

15 A labour hire firm's obligations under the Occupational Health and Safety Act 1983 have been addressed in WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Limited (2001) 110 IR 34. The court, in that matter, examined a similar relationship between a labour hire firm and the Principal to whom it provided a workforce. In Anytime, the Principal on site defined the task and the employer (the labour hire firm) placed reliance upon the quality of the work safe procedures put in place by the Principal. That sense of security in the Principal's procedures, as adopted by the labour hire firm, was found to be misplaced. The Principal's system of work was found to be unsafe and employees of the labour hire firm were exposed to a risk to their safety which led to injury. The court said: At [26]: As an employer the defendant company has an absolute obligation to provide a risk free work environment for its employees. ... Large corporations, once they contract out their work must empower, within the contractual relationship, the contractor to play a role in the decision-making process even if it is the Principal's defined safety procedures that are followed for the risk assessment of the task and the design of the work method to be adopted. At [29]: While a contractor must be involved in the development of work safe practices on industrial sites on which their employees are sent to work, commensurate with their responsibilities and liabilities under the Act, so too the Principal, on whose worksite the task is performed, must carry a significant burden especially if, in the circumstances, it takes the primary responsibility for devising the system of work.

At [30]: In an assessment of the gravity of this offence the defendant company assumed none of its responsibilities. The employer had a false sense of security as to safety on this work site arising from his perception the Principal had in place a comprehensive safety awareness practice and task specific worksafe procedures. This created a serious risk to the safety of its employees. 16 The nature of this defendant's breach was similar to that discussed in Anytime. As an employer, this defendant had an independent responsibility to ensure, in the development of any general site safety policy and any specific work method adopted for a task to be performed by its employees, such procedures met with its, the employer's, own safety standards, and the obligations it bears as an employer under the Occupational Health and Safety Act 1983.

17 The identification of any risk to safety in the performance of the task in accordance with a chosen system of work is the responsibility of the employer. The defendant failed to have any input into the system of work adopted. The ideal is that any "systems" model adopted also have layered upon it a "behavioural" standard. The behavioural standard empowers employees, in both the planning stage and in the performance of the task, to identify any risk to safety and legitimises any employee's appropriate action taken to avoid the identified hazard. This employer told his employees to complain if they identified danger but he had in place no independent, general, site-safety standards in which he instructed and trained his employees to assist them to recognise a work hazard. The presumption, in the procedures followed by this defendant, was that its casual employees were of themselves properly trained and instructed. The obligation is on the employer to so train and instruct. Further, the defendant passed over to the Principal all its obligations to supervise its workforce.

18 I find the circumstances reveal this is a serious breach of the Act.

19 In mitigation of penalty a number of subjective features to the offence have been placed before the court for its consideration. As the Full Bench stated in Lawrenson Diecasting (at 474): . . . subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence.

The Full Bench cited (at 474) with approval the passage of the judgment of Fisher CJ in Haynes v James Glass & Aluminium Pty Limited (unreported, CT91-772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce.

20 The defendant company is a small organisation employing up to eight people. The company earns income also from hiring out a labour force and, as the financial records reveal, from hiring out heavy duty equipment with an operator. It has been difficult to interpret the financial records placed before the court. How much of the company's income is expended on salaries and administration is obscure. It is fair to say the company averages a turnover up to $1 million. As an economically small operation, if one allows the salaries of eight casual employees plus administration expenses to be taken out of income, it is not a substantive company generating significant profits. In Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] 99 IR 163 (at 176) Wright J, President said when considering the individual circumstances of a defendant in the Court's consideration of penalty at paragraph 11: 11.7 The Defendant is also entitled to have its capacity to pay taken into account in determining the appropriate monetary penalty to be imposed. It is submitted that the Court should first determine the penalty to be imposed by reference to the gravity of the offence, together with the subjective factors referred to above which the Court finds relevant and then, having determined the appropriate penalty, the Court has a discretion to reduce that penalty if it is satisfied, on the evidence, that the Defendants' financial circumstances warrant such a reduction.

11.8 It is incumbent upon the Court to ensure that the ultimate result finds an appropriate balance between the objective seriousness of the subject offences and the Defendants' subjective features. In so doing, it is essential that: "[The] Court ... not reduce a sentence so that [the] sentence becomes unreasonably disproportionate to the nature and the circumstances of the offence[s]." R v Huang (1995) 78 A Crim R 111. . . . and at paragraph 27: As to the financial position of the defendants, it is to be accepted in terms of general sentencing policy that the means of a defendant are relevant. This consideration may, in appropriate cases, involve a careful examination of the means of the defendant, and consideration of the means of the defendant in fixing the amount of any penalty or fine: see for example Ferguson v Nelmac Pty Limited (at 206 - 207, 209); R v Rushby [1977] 1 NSWLR 594 at 598; WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 335. This is, in any event, required by s6 of the Fines Act 1996 as it was by the predecessor provision in the now repealed s 440AB of the Crimes Act 1900. It is to be observed, however, that a consideration of the means of the defendant with the conclusion that a heavy fine may be a burden on the defendant and its financial resources does not necessarily preclude the imposition of a heavy penalty: Ferguson v Nelmac Pty Limited at 209; Department of Mineral Resources of NSW v AM Hoipo & Sons Pty Ltd (2000) 99 IR 137. See also R v Rahme (at 86-87) and Sgroi v Queen at 201. I take into account the financial records of this company revealed by Mr Pennimpede. However, the defendant pleads guilty to a serious breach of the Occupational Health and Safety Act 1983.

21 Consideration is also given to the fact that after the incident occurred, the defendant gave assistance to Mr Pinney and spoke to his parents. The defendant is aware after doing some casual work, Mr Pinney travelled overseas. It is alleged the effect of the injuries was a short term disability.

22 Other features have been placed before the court as to subjective elements of this offence. There is no recorded conviction against the defendant who has operated in a high risk industry on construction sites for a few years. I perceive this as a good industrial record.

23 The elements of deterrence, both general and specific deterrence, must be weighed into a consideration as to penalty (see Capral Aluminium Ltd v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29). The defendant has admitted it must put in place a defined general safety policy and train and instruct its employees in basic safety standards. As a contractor, if it chooses to adopt a Principal's site safety procedures and work method, it must have input into both their design and the procedures adopted for implementation. It must be able to defend any site safety policies and procedures as its own. I accept Mr Pennimpede was aware of a need to empower his employees in a situation where they could identify a risk to safety. I accept he warned them to identify any hazard and outlined to them a procedure to follow if they so identified a risk. The defendant sent them onto a worksite where, as the employer, it had had no input into the safety standards adopted on site or any input into the specific design of the work method. However, the evidence revealed the defendant sent employees onto a worksite who were not properly trained to identify risk. The company now acknowledges, as the employer, it has obligations to provide safe working. While the court heard expressions of concern and commitment, the court saw little evidence, as yet, of any real endeavour by this defendant to fully develop its own safety policy. There was no evidence produced as to how it was to ensure an input if it determined it would adopt as its own a Principal's safety systems.

24 In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), as relied upon in Capral Aluminium, consideration of deterrence in the application of penalty was applied to breaches under the Occupational Health and Safety Act, 1983 by Hungerford J who stated: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that is, to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive. 25 The defendant further submits, in mitigation as to penalty, it entered an early plea of guilty to the charge. In the guideline judgment of R v Thompson; R v Houlton (1999-2000) 49 NSWLR 383; and 2000 115 A Crim R 104, the Court of Criminal Appeal held the full benefit and discount for the utilitarian value of an early plea of guilty should be given to pleas entered at the earliest opportunity and should rarely be given after a matter has been set down for trial. In Cameron v The Queen [2002] HCA 6, the High Court held when a defendant accepts responsibility for a crime and shows a willingness to facilitate the course of justice, the Court in the assessment of the value of such a circumstance must consider ". . . whether the plea was entered at the first reasonable opportunity". The effect of Cameron on the guideline judgment in Thompson was recently considered by the Court of Criminal Appeal in R v Sharma [2002] NSWCCA 142. The court held that the reasoning in Cameron was not applicable in New South Wales because the common law principles enunciated there have been modified by statute. It held s22 of the Crimes (Sentencing Procedure) Act 1999, renders it mandatory that a sentencing judge in New South Wales take into account both "the fact" of the plea of guilty and "when" it was made. The Chief Justice held on behalf of the Court in Sharma the statutory reference to "the fact" of the plea does not direct attention to the subjective intention of the person pleading guilty nor is the element of timing, reflected in the reference to "when" a plea was made, a reference only to subjective elements. The Chief Justice concluded the reasonings in the guideline judgment of Thompson are still of full force and effect in New South Wales.

26 I have examined the particular circumstances and timetable in which this plea was entered and find this an early plea of guilty sufficient to attract the discount allowed of 25 per cent for the utilitarian value of the plea.

27 As this is the defendant company's first breach of its obligations under the Occupational Health and Safety Act 1983, it faces a maximum penalty of $550,000. I accept the defendant co-operated fully with the WorkCover Authority in the investigation of this incident.

28 However, the community demands rigorous adherence to occupational health and safety standards from its employers. The legislature has expressly reflected the community's demand with the obligations it has imposed on employers through the Occupational Health and Safety Act 1983. The company proffers, and the court accepts, the defendant's commitment to safe working. The court accepts there will now be prepared by the defendant company a refined general safety policy and specific safety awareness training programme for its workers to assist in their recognition of risks and hazards. While the defendant now accepts, as the employer, it is responsible for the adoption of site-specific safe work methods on sites to which it sends its workforce it must speedily address its own policies and procedures to ensure safe working standards. Mr Pennimpede indicated he would seek professional advice in the formulation of these policies and procedures. The defendant must also ensure such standards are implemented through any policies and procedures on the worksites of a Principal to whom it supplies labour.

29 This breach of the Occupational Health and Safety Act 1983 was examined in prosecutions brought against the Joint Venturers, Transfield and Worley. The question as to the application of the principle of parity in sentencing arises. The principle of parity was discussed by the Full Bench in Warman Ltd v WorkCover Authority (1998) 80 IR 326 (at 340-341): We also accept that the principle of parity in sentencing as discussed by the High Court in Postiglione -v- The Queen has application to sentences imposed under the O H & S Act. In that context it is appropriate to have some regard to the sentences imposed by Hungerford J on Drake Personnel Ltd, the direct employer of two of the injured workers. In Postiglione the High Court was concerned with an appeal against sentence which raised questions of comparison between the sentence imposed on a principal party in a conspiracy compared with that imposed on the appellant, who was subordinate in that conspiracy. Dawson and Gaudron JJ (at 411-412) said: 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 [ Lowe -v- R (1984) 154 CLR 606 at 610-11 per Mason J]. 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 [ Lowe at 617-18 per Brennan J]. 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- R, 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' [ Lowe especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy 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.'

That principle was referred to by Mason J in Lowe -v- The Queen (at 610) as follows: `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. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.' 30 The same circumstances have given rise to the prosecutions against the Joint Venture though the breaches pleaded against them were pleaded under s16 of the Act. I find, in setting penalty, it is proper to reflect on the notion of equal justice. The other two companies were large employers with significant financial resources. However this company is but a small operation. Nonetheless, evidence revealed the large corporations directed attention to safety issues, if with some error, whereas this company adopted, with little input, the Principal's policies and procedures. All these factors are taken into account and the court accepts there are differences in the circumstances before it both in the level of culpability and the financial status of this defendant.

32 In mitigation of penalty, all the subjective circumstances as to the breach are considered as is the 25% discount allowed for the utilitarian value of the plea. Given the serious nature of the offence, the need for the defendant to be more proactive in developing policies and procedures for safe working and, acknowledging the financial status of the defendant, such circumstances do not persuade the court to preclude the imposition of a heavy penalty for this breach.

33 The defendant is fined in the sum of $55,000 with a moiety to the WorkCover Authority.

34 There has been agreement between the parties as to the quantification of the costs in the sum of $7,000. I order the defendant to pay costs as agreed at $7,000.

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