Inspector Sharpin v A Team Concrete

PROSECUTOR Ms F Backman of counsel Solicitor: Ms H Cameron WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: FIRST, SECOND AND THIRD DEFENDANTS Mr R Reitano of counsel Solicitor: Mr C Zoppo Sparke Helmore

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION Coram: Staff J 25 June 2004

INSPECTOR JOHN SHARPIN v A TEAM CONCRETE (AUST) PTY LTD

Prosecution under s 8(1) of the Occupational Health & Safety Act 2000

Prosecution under s 26(1) of the Occupational Health & Safety Act 2000

INSPECTOR JOHN SHARPIN v A TEAM CONCRETE (AUST) PTY LTD

Prosecution under s 8(2) of the Occupational Health & Safety Act 2000

Prosecution under s 26(1) of the Occupational Health & Safety Act 2000

Prosecution under s 10(2) of the Occupational Health & Safety Act 2000

Prosecution under s 26(1) of the Occupational Health & Safety Act 2000 JUDGMENT [2004] NSWIRComm 182 1 This judgment concerns six prosecutions brought by John Sharpin, an inspector of the WorkCover Authority of New South Wales that arose following the tragic death of Mr James Gowans whilst performing concreting work at 19 Ash Road, Prestons in the State of New South Wales. The prosecutions are brought pursuant to ss 8(1), 8(2), 10(2) and 26(1) of the Occupational Health & Safety Act 2000 ("the Act").

2 The proceedings in matter Nos IRC 2515 and 2517 of 2003 are brought under ss 8(1) and 8(2) of the Act against A Team Concrete (Aust) Pty Ltd, the first defendant (referred to, for convenience, as "the sub contractor") which had been subcontracted by Boka Aluminium Windows Pty Ltd to perform concreting work at 19 Ash Road, Prestons ("the site").

3 Section 8 of the Act provides as follows: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace 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.

4 The proceedings in matter No IRC 2521 of 2003 are brought under s 10(2) of the Act against A Team Concrete Pty Ltd, the second defendant, (referred to, for convenience, as "the company") the owner of a concrete boom pump manufactured by Powercrete Australia Pty Ltd, model number T100-177-60 ("the pump"), attached to a vehicle with registration number QSV - 987 and supplied to the sub-contractor for use at the site.

5 Section 10(2) of the Act provides as follows: 10(2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used.

6 The proceedings in matter No IRC 2516, 2518 and 2522 of 2003 are brought under s 26(1) of the Act against Salvatore Cardile, the third defendant (referred to, for convenience, as "the director") a director of the sub contractor and the company, and the supervisor of the concrete pour at the site.

7 Section 26(1) of the Act provides as follows: 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. 8 The sub contractor employed a number of persons at the site including Mr Gowans, a general labourer, Mr Mende, a concrete pump operator and Mr Musumeci, a leading hand. The various proceedings were heard together since they arose out of the same underlying events and circumstances. It is convenient to deal with the proceedings together.

9 The charge laid against the sub contractor, pursuant to s 8(1) of the Act alleged a failure to: Ensure the health, safety and welfare at work of all its employees, in particular James Gowans, Michael Mende and Mario Musumeci, whilst undertaking concreting work, contrary to section 8(1) of the Occupational Health & Safety Act 2000.

10 The particulars of the charge were: a) At all material times the defendant employed a number of persons, including James Gowans, Michael Mende and Mario Musumeci. b) At all material times the defendant was pouring concrete for the floor of a building located at 19 Ash Road, Prestons in the State of New South Wales ("the site"). c) At all material times the defendant provided a concrete boom pump manufactured by Powercrete Australia Pty Ltd, model number T100-177-60 ("the pump"), attached to a vehicle with registration number QSV - 987 for use by its employees at the site. d) The defendant failed to provide and maintain a safe system of work for employees working at the site who were involved in performing concreting work. e) The defendant failed to ensure that employees did not work under or close to the boom of the pump. f) The defendant failed to ensure that plant, to wit, the pump, which was provided for use by employees was safe and without risks to health. g) The defendant failed to provide such adequate information as was necessary, to employees to ensure their health and safety whilst performing concreting work at the site. h) The defendant failed to provide such adequate training as was necessary, to employees to ensure their health and safety whilst performing concreting work at the site. i) The defendant failed to provide such adequate supervision as was necessary to employees to ensure their health and safety whilst performing concreting work at the site. j) The defendant failed to provide such adequate instructions as were necessary to employees to ensure their health and safety whilst performing concreting work at the site. k) The defendant failed to undertake an adequate risk assessment in relation to the concreting work performed at the site. l) As a result of the said failures James Gowans, Michael Mende and Mario Musumeci were placed at risk of injury. 11 The offence under s 8(2) laid against the sub contractor alleged a failure to ensure that persons not in its employment and in particular, Joseph Romeo, were not exposed to risks to their health and safety arising from the conduct of its undertaking, to wit, performing concreting work, while at its place of work, contrary to s 8(2) of the Act 2000.

a) At all material times the defendant was an employer. b) At all material times the defendant was pouring concrete for the floor of a building located at 19 Ash Road, Prestons in the State of New South Wales ("the site"). c) At all material times, the defendant contracted with Concrete Civil Pty Ltd for the provision of labour hire workers at the site including Joseph Romeo. d) At all material times the defendant provided a concrete boom pump manufactured by Powercrete Australia Pty Ltd, model number T100-177-60 ("the pump"), attached to a vehicle with registration number QSV - 987 for use by persons at the site. e) The defendant failed to provide and maintain a safe system of work for persons not in its employment working at the site who were involved in performing concreting work. f) The defendant failed to ensure that persons not in its employment did not work under or close to the boom of the pump. g) The defendant failed to ensure that plant, to wit, the pump, which was provided for use by persons not in its employment was safe and without risks to health. h) The defendant failed to provide such adequate training as was necessary, to persons not in its employment to ensure their health and safety whilst performing concreting work at the site. i) The defendant failed to provide such adequate information as was necessary, to persons not in its employment to ensure their health and safety whilst performing concreting work at the site. j) The defendant failed to provide such adequate supervision as was necessary to persons not in its employment to ensure their health and safety whilst performing concreting work at the site. k) The defendant failed to provide such adequate instructions as were necessary to persons not in its employment to ensure their health and safety whilst performing concreting work at the site. l) The defendant failed to undertake an adequate risk assessment in relation to the concreting work performed at the site. m) As a result of the said failures Joseph Romeo was placed at risk of injury.

13 The charge laid against the company which owned the boom pump alleged a failure to ensure that the plant was safe and without risks to health when properly used contrary to section 10(2) of the Occupational Health & Safety Act 2000.

14 The particulars of the charge were: a) At all material times the defendant owned a concrete boom pump manufactured by Powercrete Australia Pty Ltd, model number T100-177-60 ("the pump"). b) At all material times the defendant provided the pump to A Team Concrete (Aust) Pty Limited to perform concreting work at 19 Ash Road, Prestons in the State of New South Wales. c) The defendant failed provide adequate instructions and information in relation to the safe use of the pump to persons using the pump at work. d) The defendant failed to ensure that adequate inspections were carried out on the pump by a competent person. e) The defendant failed to ensure that crack testing was carried out on the boom of the pump. f) As a result of the said failures James Gowans, Joseph Romeo, Michael Mende and Mario Musumeci were placed at risk of injury.

15 The offence under s 26(1) laid against a director of the companies alleged that Mr Cardile failed to ensure the health, safety and welfare of all its employees, and in particular James Gowans, Michael Mende and Mario Musumeci, whilst undertaking concreting work, is deemed to have contravened the same section pursuant to s 26(1) of the Occupational Health & Safety Act 2000. 16 The particulars of the charge are in the following terms: Particulars of the contravention of the defendant:

d) The defendant was at all material times a director of A Team Concrete (Aust) Pty Ltd ("the company"), an incorporated company whose registered office is situated at Demasi & Company Services Pty Limited, Suite 1, Norfolk Business Centre, 3-5 Norfolk Street, Liverpool in the State of New South Wales.

e) On 11 March 2002, at 19 Ash Road, Prestons in the State of New South Wales, the company did contravene Section 8(1) of the Occupational Health and Safety Act 2000 ("the said Act").

f) The defendant being a director of the company is deemed to have contravened section 8(1) of the said Act pursuant to section 26(1) of the said Act.

a) At all material times the company employed a number of persons, including James Gowans, Michael Mende and Mario Musumeci. b) At all material times the company was pouring concrete for the floor of a building located at 19 Ash Road, Prestons in the State of New South Wales ("the site"). c) At all material times the company provided a concrete boom pump manufactured by Powercrete Australia Pty Ltd, model number T100-177-60 ("the pump"), attached to a vehicle with registration number QSV - 987 for use by its employees at the site. d) The company failed to provide and maintain a safe system of work for employees working at the site who were involved in performing concreting work. e) The company failed to ensure that employees did not work under or close to the boom of the pump. f) The company failed to ensure that plant, to wit, the pump which was provided for use by employees was safe and without risks to health. g) The company failed to provide such adequate training as was necessary, to employees to ensure their health and safety whilst performing concreting work at the site. h) The company failed to provide such adequate information as was necessary, to employees to ensure their health and safety whilst performing concreting work at the site. i) The company failed to provide such adequate supervision as was necessary to employees to ensure their health and safety whilst performing concreting work at the site. j) The company failed to provide such adequate instructions as were necessary to employees to ensure their health and safety whilst performing concreting work at the site. k) The company failed to undertake an adequate risk assessment in relation to the concreting work performed at the site. l) As a result of the said failures James Gowans, Michael Mende and Mario Musumeci were placed at risk of injury. 17 The second offence under s 26(1) made against the director alleges that the defendant failed to: Ensure that persons not in its employment and in particular, Joseph Romeo, were not exposed to risks to their health and safety arising from the conduct of its undertaking, to wit, performing concreting work, while at its place of work, is deemed to have contravened the same section pursuant to section 26(1) of the Occupational Health & Safety Act 2000.

18 The particulars of the charge were: Particulars of the contravention of the defendant: a) The defendant was at all material times a director of A Team Concrete (Aust) Pty Ltd ("the company"), an incorporated company whose registered office is situated at Demasi & Company Services Pty Limited, Suite 1, Norfolk Business Centre, 3-5 Norfolk Street, Liverpool in the State of New South Wales.

b) On 11 March 2002, at 19 Ash Road, Prestons in the State of New South Wales, the company did contravene Section 8(2) of the Occupational Health and Safety Act 2000 ("the said Act").

c) The defendant being a director of the company is deemed to have contravened section 8(2) of the said Act pursuant to section 26(1) of the said Act. Particulars of the contravention of the company a) At all material times the company was an employer. b) At all material times the company was pouring concrete for the floor of a building located at 19 Ash Road, Prestons in the State of New South Wales ("the site"). c) At all material times, the company contracted with Concrete Civil Pty Ltd for the provision of labour hire workers at the site including Joseph Romeo. d) At all material times the company provided a concrete boom pump manufactured by Powercrete Australia Pty Ltd, model number T100-177-60 ("the pump"), attached to a vehicle with registration number QSV - 987 for use by persons at the site. e) The company failed to provide and maintain a safe system of work for persons not in its employment working at the site who were involved in performing concreting work. f) The company failed to ensure that persons not in its employment did not work under or close to the boom of the pump. g) The company failed to ensure that plant, to wit, the pump, which was provided for use by persons not in its employment was safe and without risks to health. h) The company failed to provide such adequate training as was necessary, to persons not in its employment to ensure their health and safety whilst performing concreting work at the site. i) The company failed to provide such adequate information as was necessary, to persons not in its employment to ensure their health and safety whilst performing concreting work at the site. j) The company failed to provide such adequate supervision as was necessary to persons not in its employment to ensure their health and safety whilst performing concreting work at the site. k) The company failed to provide such adequate instructions as were necessary to persons not in its employment to ensure their health and safety whilst performing concreting work at the site. l) The company failed to undertake an adequate risk assessment in relation to the concreting work performed at the site. m) As a result of the said failures Joseph Romeo was placed at risk of injury. 19 The third charge laid against the director alleged a failure to ensure that the plant was safe and without risks to health when properly used, is deemed to have contravened the same section pursuant to s 26(1) of the Occupational Health and Safety Act 2000 20 The particulars of the charge were: Particulars of contravention of the defendant:

a) The defendant was at all material times a director of A Team Concrete Pty Ltd, an incorporated company whose registered office is situated at Demasi & Company Services Pty Limited, Suite 1, Norfolk Business Centre, 3-5 Norfolk Street, Liverpool in the State of New South Wales. b) On 11 March 2002, at 19 Ash Road, Prestons in the State of New South Wales, the company did contravene Section 10(2) of the Occupational Health and Safety Act 2000 ("the said Act").

c) The defendant being a director of the company is deemed to have contravened section 10(2) of the said Act pursuant to section 26(1) of the said Act.

a) At all material times the company owned a concrete boom pump manufactured by Powercrete Australia Pty Ltd, model number T100-177-60 ("the pump"). b) At all material times the company provided the pump to A Team Concrete (Aust) Pty Limited to perform concreting work at 19 Ash Road, Prestons in the State of New South Wales. c) The company failed to provide adequate instructions and information in relation to the safe use of the pump to persons using the pump at work. d) The company failed to ensure that adequate inspections were carried out on the pump by a competent person. e) The company failed to ensure that crack testing was carried out on the boom of the pump. f) As a result of the said failures James Gowans, Joseph Romeo, Michael Mende and Mario Musumeci were placed at risk of injury. 21 The prosecutor tendered an amended agreed statement of facts for all matters. 22 To state the facts in an introductory way, on 11 March 2002 at about 7.15 am, Mr Gowans, Mr Romeo, Mr Mende and Mr Musumeci and the director were engaged in the process of pouring concrete into the centre of a floor slab at the site. Mr Gowans was holding a rubber hose which was attached to a concrete boom. The rubber hose was about three metres in length. The hose was attached to a concrete boom which was in turn attached to a truck. The boom was about 19 metres long constructed of steel and weighed approximately 1.5 tonnes. Mr Romeo was using a concrete vibrator close to the boom and was working close by where Mr Gowans was working. The concrete boom became detached from the turret of the pump unit on the truck when two trunnion retaining rings fractured. As a result, the boom collapsed striking Mr Gowans and Mr Romeo. Mr Gowans was fatally injured and Mr Romeo received severe injuries.

23 The agreed statement of facts tendered in the proceedings was in the following terms (formal parts and annexures omitted):

5. At all material times the First Defendant had been sub-contracted by Boka Aluminium Windows Pty Ltd to perform concreting work at 19 Ash Road, Prestons in the State of New South Wales ("the site"). 6. At all material times the First Defendant employed a number of personnel at the site, including:

a) James Gowans, 20 years of age, as a general labourer. b) Michael Mende, 31 years of age, as a concrete pump operator. c) Mario Musumeci, 34 years of age, as a leading hand. 7. At all material times the Second Defendant owned a concrete boom pump manufactured by Powercrete Australia Pty Ltd, model number T100-177-60 ("the pump"), attached to a vehicle with registration number QSV - 987 and supplied it to the defendant for use at the site. 8. At all material times the Second Defendant provided the pump to the First Defendant, A Team Concrete (Aust) Pty Limited, for use at the site. 9. At all material times the First Defendant used the pump to perform concreting work at the site. 10. At all material times the Second Defendant owned trucks, equipment and necessary tools for concreting work and did not have any employees. 11. The Second Defendant purchased the pump from Powercrete Australia Pty Limited approximately 5 years prior to the accident. The pump was used about once a week during the six months prior to the accident and prior to that was used 3 or 4 times a week. 12. Powercrete Australia Pty Limited purchased the pump in 1997 and completely re-conditioned the boom of the pump. Following re-conditioning it was examined by a consulting engineer and certified as satisfying the requirements of AS 1418-15 1994 for concrete boom placing pumps. 13. At all material times, the First Defendant contracted with Concrete Civil Pty Ltd for the provision of labour hire workers at the site including Joseph Romeo. 14. On 11 March 2002 at approximately 7.15 am, James Gowans, Joseph Romeo, Michael Mende, Mario Musumeci and the Third Defendant were performing concreting work at the site and the pump was pouring the first concrete load of ready mixed concrete into the centre of a floor slab at the site. 15. Mr Gowans was working underneath the boom of the pump and Mr Romeo was working close to the boom of the pump when the boom connection failed at the turret of the pump unit and fell to the ground striking them both. 16. A backhoe on site was used to sling and lift the boom off Mr Gowans and Mr Romeo who were then taken by ambulance to Liverpool Hospital. Mr Gowans did not recover from the head injuries he suffered and died at approximately 7.30 pm on the same day. Mr Romeo suffered fractures to his neck, shoulder and ribs and remained in hospital for one week. 17. At the time of the accident, the pump was set up on one side of the floor slab of the building under construction at the site and the boom of the pump extended into the middle of the slab. A laser guided screed was used to perform the finishing work for the concrete surface. The boom was about 19 metres long, constructed of steel and weighed approximately 1.5 tonnes. A rubber hose was attached to the third section of the boom and measured approximately 3 metres in length. The pump was attached to a white UD Truck, with registration plate QSV-987. The truck had four outriggers attached. 18. The Third Defendant was the supervisor of the concrete pour at the site. At the time of the accident, Mr Gowans was directing the flow of concrete by holding the flexible rubber concrete drop hose attached to the end of the boom. Prior to the accident, Mr Cardile was directing the flow of the concrete by holding the hose and then directed Mr Gowans to hold the hose whilst he went to talk to the agitator driver about the concrete being too wet. Mr Romeo was using the concrete vibrator close to the boom and Mr Musumeci was watching the laser guided screed work. 19. The concrete boom pump was being operated by Mr Mende, an employee of the First Defendant, with 10 years of experience in operating such pumps. Mr Mende was operating the concrete boom pump from a cable remote unit and was adjacent to the passenger side front outrigger which enabled a full view of the outboard end of the boom. 20. The pumping of concrete using a concrete boom pump requires the pump operator to position the flexible delivery hose at a location where concrete is to be poured. A person is positioned at the end of the hose and directs the flow of concrete by directing the end of the hose in the direction that the concrete is to flow. 21. The concrete boom pump was set up in a safe fashion. 22. On 11 March 2002 Inspector Wayne James attended the site and undertook a factual inspection, a copy of which is annexed and marked "A". Inspector James also took 17 photographs at the site, copies of which are annexed and marked "B". 23. On the same date, Inspector Sharpin issued a notice to the Second Defendant under section 70 of the Occupational Health and Safety Act 2000 for the pump to be taken to the WorkCover TestSafe facility in Londonderry for testing purposes. 24. Various tests and calculations were performed on the pump and boom by David Ng, head of the Mechanic Unit, TestSafe Australia, Reza Eftekhar, engineer employed by WorkCover and Michael Cheng, engineer employed by Workcover. The tests were to address the boom metallurgical material composition, the rotational force movements and other static and induced stress forces on the boom. Rexroth Pty Ltd conducted tests on the hydraulic components of the boom. 25. An engineering report was prepared by Michael Cheng on 30 April 2002 which concluded that the boom detached from the turret of the pump unit at the main trunnion connection. This was caused by the two trunnion retaining rings fracturing. One ring had approximately 45% fatigue fracture areas and the other ring approximately 20% fatigue fracture areas which had been growing for a considerable time prior to the accident. The ring with the 45% fracture front broke first causing an immediate overload failure to the other ring and the collapse of the concrete boom assembly. Mr Cheng also concluded that a proper inspection and maintenance program should have been able to detect the cracks before they grew to a critical size. A copy of photograph number A7 from the report is annexed and marked "C". 26. Reza Eftekhar, senior engineer of WorkCover, also prepared a metallurgical engineering investigation report dated 28 April 2002. Mr Eftekhar also concluded that the immediate cause of the accident was the two fatigue fractures in the trunnion retainer rings. Mr Eftekhar believed the fractures had been in place for a long time and could have been detected via inspection by a competent person. The reason for the fractures developing was found to be the inappropriate mechanical properties of the rings due to an error in material selection during the design, manufacture or repair of the boom. This inappropriate material selected was brittle and predisposed to the initiation of fractures. Copies of Figure 1 and Figures 4 to 9 from the report are annexed and marked "D". 27. Opinion is divided as to how the presence of the cracks that caused the failure of the trunnion rings could have been detected. Mr Leonard, managing director of Concrete Pump Parts Pty Ltd, believes that a magnetic particle crack test or dye penetrant crack test undertaken by an expert is required to identify the presence of such a crack. 28. Following the accident, documents were obtained from the pump which included the WorkCover NSW Code of Practice for Pumping Concrete and a safety manual issued by Schwing America, a concrete boom manufacturer. A formal log book system was not found. Documentation was located which contained pipe thickness test results on dates between 1 June 2000 and 20 February 2002. 29. The safety manual from Schwing America includes directions to: a) Avoid standing directly under or over the boom or the system pipeline. b) Have the boom inspected by a certified boom inspector on a regular basis. c) Ensure proper and timely maintenance of the boom. d) Inspect the boom for cracks and how to test for cracks in the boom. 30. Inspector Sharpin issued a notice under section 62 of the Occupational Health and Safety Act 2000 to the Third Defendant on 20 March 2002 for all records relating to the maintenance and repair of the pump. The documents produced did not indicate that the boom had ever had a formal inspection. The only work recorded on the boom was for tyre changes and electrical wiring repairs for the chassis only. 31. The First Defendant ensured that James Gowans, Michael Mende and Mario Musumeci had undertaken the general health and safety induction training for construction work and held the relevant green card . These employees had not undertaken work activity or site specific induction training. 32. The First Defendant did not provide adequate training or instruction for the safe pumping of concrete to persons not in its employment and in particular, Joseph Romeo. 33. The First Defendant did not provide adequate training or instruction for the safe pumping of concrete to its employees and in particular, James Gowans, Michael Mende and Mario Musumeci. 34. The Second Defendant did not perform any crack testing on the pump. 35. On or about 28 February 2002, Michael Mende took the pump to Concrete Pump Parts Pty Limited for a quotation inspection for repairs. No repairs were carried out on the pump by Concrete Pump Parts Pty Limited prior to the accident. 36. The three Defendants have no prior convictions under the Occupational Health and Safety Act 2000 or the Occupational Health and Safety Act 1983. 37. The three Defendants co-operated with the WorkCover investigation to the extent that interviews were conducted with the employees of the Defendants and the Third Defendant without the need for notices to be issued under section 62 of the Occupational Health and Safety Act 2000. 24 The agreed statement of facts annexed the following: a) a factual inspection report relating to the subject incident by Assistant Principal Inspector Wayne James dated 11 March 2002; b) 25 colour photographs showing location of the incident, the concrete boom pump, the power to boom connection, the instrument panel of the boom pump and broken rings welded to the turret or crown trunnion structure; c) three victim impact statements of Joseph Romeo dated 21 April 2004; d) a victim impact statement of Ms Jade Gowans, the partner of the deceased. 25 The defendant tendered three affidavits that were read. The first was by Andrew McColm, the New South Wales State Manager of Brief Group Pty Limited. This company is an occupational health and safety consultancy that develops and assists in the implementation of occupational health and safety management systems. The second by Gregory John Torzillo the General Manager of Flowcrete Concrete Pty Ltd, a company that builds, sells, maintains and services concrete pumping equipment. The third affidavit was that of Theo George Kotselas, a practising accountant who has acted for each of the defendants for the past three years. None of the deponents were required for cross examination. The defendants also tendered the WorkCover Authority Code of Practice for pumping concrete dated 1 March 1994 and a medical certificate of Dr L Susino, the third defendant's treating doctor who was not required for cross examination.

26 Mr McColm's affidavit detailed meetings with the director in 2002 after the accident and the work provided by his company to the defendants. This included:

a) between 7 and 15 April 2003 developing a safe work method statement for concrete boom pumping; b) between 7 and 14 May 2003 developing a plant maintenance, inspection and repair policy and procedure; c) between 8 and 12 August 2003 developing an occupational health and safety and injury management system; d) conducting a half day workshop for employees of the first and second defendant. 27 The affidavit of Mr Gregory Torzillo addressed the following matters: a) the involvement of his company with the defendants since 1989 which included some maintenance of plant owned by the defendants; b) in December 1999 a quote was provided for the six year inspection/service required for the 28 metre Schwing concrete boom pump KVM 28 (not the concrete boom pump involved in the offence); c) the work involved in servicing and checking the concrete boom pump including areas of potential wear of fatigue. d) the third defendant's continuing concern about the state of repair of his plant and his awareness of the dangers involved with the machinery; e) the third defendant's policy that maintenance was carried out on a regular basis by his operators and others. 28 Mr Kotselas' affidavit addressed the following matters:

a) the structure of the first and second defendant and their shareholding; b) the roles and work undertaken by the first and second defendant; c) the financial accounts of the first and second defendant demonstrating that the defendants were in a weak financial position; d) the liabilities of the defendants;

e) the corporate structure was guaranteed by the third defendant.

29 The WorkCover code of practice for pumping concrete referred to inspection and maintenance in cl 4.

30 Clauses 4.2 to 4.4 deal with inspections and maintenance on a daily, monthly and yearly basis respectively as follows: 4.2 Daily Manufacturer's instruction manuals recommend that specific tasks should be carried out daily. Any repairs or replacements should be in accordance with the manufacturer's recommendations. Only trained and competent personnel should carry out inspections, repair or replacement. 4.3 Monthly All pipeline, including reducers, bends, hose and couplings should be inspected monthly using ultrasonic testing for metal parts and areas likely to be subjected to wear. Rubber hose and couplings should be visually inspected. Records of the pipeline inspection should be kept in the log book or on site in the case of fixed pipeline installation. 4.4 Yearly Concrete placing booms and pumps and all other associated equipment, except pipelines, should be inspected once a year by a competent person and the results entered in the log book. This is in addition to the daily visual checks and inspection by the operator prior to the commencement of the equipment being used.

31 Clause 4.5 provided as follows: 4.5 Six year maintenance program After six years of operation there should be a thorough check of all areas of potential wear or fatigue. This inspection should include but not be limited to: a. The complete stripping and inspection of the slew ring or king post assembly. b. The replacement of the slew ring bolts.

32 It will be recalled that the concrete pump was purchased from Powercrete Australia Pty Ltd approximately five years prior to the accident by the second defendant.

33 I am satisfied, on the evidence, including the agreed statement of facts that the pleas of guilty were properly made. Verdicts of guilty are entered and the defendants are convicted of the offences.

34 Ms F Backman of counsel submitted that the primary factor to be considered when determining an appropriate sentence is the objective seriousness of the offence charged. In the case of prosecutions under the Occupational Health & Safety Act 1983 ("the OHS Act 1983"), this proposition has been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence": Lawrenson Diecasting Pty Ltd v WorkCover of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474, 475.

35 Ms Backman submitted that the respective culpabilities of the three defendants (which must be separately addressed) are "approximately or broadly equal" referring to Inspector Alwyn Piggott v JCS Engineering Fabrications Pty Ltd and Advantage Personnel Pty Ltd (unreported, Wright P, President, IRC 1712 of 2001 and 1713 of 2001 31 December 2003).

36 Particularly in cases of a serious breach of the Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty, to the gravity of the offence itself: Lawrenson Diecasting at 475.

37 The prosecutor submitted that the maximum penalty for the first and second defendants prescribed by Parliament for the offences at the time they were committed (11 March 2002) was $550,000.

38 The maximum penalty for the third defendant was $55,000.

39 In fixing an appropriate penalty in the present case, Ms Backman submitted: an objective feature is the need for general deterrence as this is one of the main purposes of punishment: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388; Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 at 59-60; (2000) 49 NSWLR 610 at 643.

40 The prosecutor submitted that the need for specific deterrence assumed greater significance where an offender conducts a large enterprise which involves inherent risks to safety: Capral Aluminium Ltd at 60, 61.

41 The prosecutor submitted that the risk of injury was reasonably foreseeable: WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Another (2000) 95 IR 383 at 450.

42 Ms Backman submitted in this regard that the immediate cause of the collapse of the concrete boom was the fracture of the two trunnion retainer rings. These rings were found, upon expert analysis, to have developed fatigue cracks. One ring had a fatigue fracture area of approximately 45% and the other ring had a fatigue fracture area of approximately 20%. Expert analysis further revealed that the fractures had been in place and had been growing for a considerable period prior to the accident. In the opinion of the experts, a proper inspection and maintenance programme would have resulted in detection of the cracks or fractures before they grew to a critical size. Where there is a risk to safety that was reasonably foreseeable, this adds to the overall seriousness of the offence: McDonalds Australia Limited at 452; WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (1999) 101 IR 261 at 267.

43 The prosecutor submitted another factor demonstrating the seriousness of the defendant's offence is the measures which could have been implemented, thereby avoiding the risk of injury. Referring to paragraphs 25 and 26 of the amended statement of facts Ms Backman submitted that a proper inspection and maintenance could have and should have detected the fractures.

44 The gravity or otherwise of the potential risk to safety flowing from a breach of the Act is relevant as a measure of the gravity of the breach and the culpability of a defendant: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 79,80; WorkCover Authority of New South Wales (Inspector Benbow) v Converquip Pty Limited (2001) 106 IR 258 at 269.

45 It was submitted by Ms Backman that more recently a Full Bench of the Commission had reaffirmed this principle in overturning the sentence imposed at first instance in Inspector Neil Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 at [62] where it was said by the Full Bench: His Honour erred by attaching no significance to the fatality arising from the accident. This was relevant to considering the seriousness of the risk occasioned by the respondent. See for example Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority (NSW) (Inspector Kelsey) v University of Sydney (unreported, Matter No CT 1280 of 1995, 2 April 1997 at 10, Capral at 650 and WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Ltd and Another (2000) 95 IR 383 at 428-429. We consider that the fatality in this case was indicative of the risks to safety relevant to the assessment of the gravity of the offence.

46 As to the subjective features in mitigation the defendant has no prior convictions and co-operated with WorkCover in its investigations of this matter to the extent that Section 62 notices were not required in order to conduct interviews with employees of the sub contractor and with the director.

47 Ms Backman submitted that the defendants are entitled to have taken into account, as mitigating the objective seriousness of their offences, their pleas of guilty: R v Winchester (1992) 58 A Crim R 345 at 350, per Hunt CJ at CL, Smart and Grove JJ, concurring. Where a defendant enters a plea of guilty in this Court, it is appropriate to apply the guideline judgment in R v Thomson; R v Houlton (2000) 115 A Crim R 104 at 138; State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218; Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181; Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435.

48 In relation to the aspect of leniency (as a separate consideration from utilitarianism), the pleas have been entered in circumstances where the prosecution cases in relation to the offences would be described as strong. Ms Backman submitted where, for example, the plea has been entered in recognition of the inevitability of conviction, the extent of leniency to be afforded by way of discount on sentence may have much less weight: Winchester at 350; see also R v Ellis (1986) 6 NSWLR 603 at 604; R v Carter [2001] NSW CCA 245 at [13].

49 Ms Backman submitted that in respect of the three victim impact statements prepared by Joseph Romeo, Mr Romeo was a primary victim as defined in s 26 of the Crimes (Sentencing Procedure) Act 1999 ("the CSP Act").

50 In addition to the statutory requirement set out in the CSP Act: s 21A(2)(g), Ms Backman submitted that it is well established by authority that a sentencing judge is entitled to take into account on the question of sentence the impact of a crime on victims generally: R v Henry (1999) 46 NSWLR 346 at 380, 381; R v Ponfield (1999) 48 NSWLR 327 at 338; R v Sanderson [2000] NSW CCA 512 (8 December 2000); R v S R Kessey [2001] NSW CCA 469 (23 November 2001); R v Totten [2003] NSW CCA 207 (14 August 2003); R v Newman, R v Simpson [2004] NSW CCA 102 (19 April 2004).

51 Mr Reitano did not take issue with the statement of general principles applicable to sentencing as submitted by the prosecutor.

52 Mr Reitano submitted that the "real gravamen" of the offence lay in the state of the plant that was being used. It was contended that the risk of the existence of the fatigue factors and the subsequent collapse of the boom was not an obvious one in the sense that the relevant fractures had not been identified or located prior to 11 March 2002. The fact that in 1997 the reconditioned pump was examined by a consulting engineer and certified as satisfying the requirements of Australian Standards 1418-15 for concrete boom placing pumps is relevant in this respect. As the pump had not been in operation for six years, the six yearly inspection/service requirement in respect of the pump had not been undertaken. Mr Reitano submitted that it was notable that such a six yearly inspection would have included a report on whether or not there were any indications of cracking in the boom.

53 It was submitted that the existence of the risk in question cannot be said to be one that goes without saying or to be so obvious that requires the defendant's attention. Mr Reitano acknowledged that despite this there was a risk and the defendant was required to take steps to guarantee the safety of workers and others working in or about the boom in respect of that risk. It was accepted that the consequent exposure to that risk is obviously serious having regard to Mr Gowan's tragic death.

54 In respect of deterrence Mr Reitano submitted a fine would operate as both a specific and general deterrent. In the case of a specific deterrent, counsel reminded the Court that the defendants are first offenders and have taken specific steps designed to ensure that incidents of this kind are not repeated in the future.

55 Mr Reitano submitted that the principle of totality should be applied to substantially reduce the penalty that would be applied having regard to the objective similarities between the offences in question. In this regard, counsel helpfully referred the Court to various authorities including WorkCover Authority of New South Wales v Waugh and Another 59 IR at 100; Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 339; Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 where the Commission viewed the offences in a global way. This approach was adopted by Fisher P in WorkCover Authority of New South Wales v Sarkem Ltd and ICI Operations Limited (unreported, 27 February 1998) and in WorkCover Authority of New South Wales v Nicholson's Air Service Pty Limited and Agair Development Pty Limited (unreported, Fisher J, President 8 April 1998) and WorkCover Authority of New South Wales (Inspector Robinson) v Bosnjack Holdings Pty Limited and anor, Staunton J, [2002] NSWIRComm 295.

56 Mr Reitano submitted that the Commission was entitled to take into account the fact that any fine imposed on any of the defendants would essentially be borne by the third defendant relying upon the approach adopted by Schmidt J in Inspector Dunlop v Robert Shone Constructions Pty Ltd [2002] NSWIRComm 222.

57 As to subjective considerations, it was contended that the defendants had entered a plea at the earliest opportunity available, particularly having regard to the fact that the charges in each matter were amended by the prosecutor, the defendant had expressed contrition and co-operated with WorkCover in both its investigation and the conduct of the proceedings; the defendant had put in place steps to ensure that incidents of this kind will not occur again in the future; the defendant has a good record in respect of safety; no prior offences and that significant weight should be attributed to its record particularly having regard to the size of its operations and the dangerous industry in which it operates.

58 Finally, Mr Reitano submitted that the Commission would have regard to s 6 of the Fines Act and the limited means of the defendant to pay any fine; that it is a small family company and that the defendants are only exposed to the higher range of penalties because of their corporate status.

59 In reply to Mr Reitano's submissions concerning totality, Ms Backman submitted that it was open to the Court to impose one penalty.

60 The principles applicable to the determination of penalty in proceedings brought under the Occupational Health & Safety Act 1983 are now well settled. Although these offences are brought under the Occupational Health & Safety Act 2000 neither counsel made any submission that I should depart from the principles established by decisions of this Court under the Occupational Health & Safety Act 1983.

61 The primary factor to be considered in determining the appropriate sentence is the objective seriousness of the offence charged: see for example, Lawrenson Diecasting Pty Ltd and Fletcher Constructions (Australia) Ltd.

62 These authorities direct attention to an objective assessment of the "nature and quality of the offence": see Lawrenson Diecasting at 473-474. The nature and quality of an offence are to be determined in the light of the well known purpose to which the Act is directed, that being, the prevention of risk to the health, safety and welfare of persons whilst at work. The relative seriousness of the offence must reflect the scale of penalties set by the legislature. The maximum penalty for the first and second defendant is $550,000 and $55,000 for the third defendant.

63 The nature and quality of an offence may often be reflected in the steps taken by a defendant to meet the obligations imposed upon it by the Act. It is for this reason that the degree of foreseeability of a risk (the risk being the subject of the offence) is a factor of considerable significance in determining the appropriate penalty: see Capral Aluminium at [82].

64 Whilst the true nature of the penalty lies in the nature and quality of the offence and not merely the result of the offence, I agree, with respect, with what Hungerford J said in Wong v Melinda Group Pty Limited (1998) 82 IR 118. At 131 his Honour stated: However, 'the occurrence of death or serious injury manifests the degree of seriousness of the relevant detriment to safety': per Hungerford J in Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456 and 'the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability': per Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 at 5.

65 Hill J in WorkCover Authority of New South Wales (Inspector Kelsey) v The University of Sydney [1997] NSWIRComm 44 dealt with the relevance of the actual consequences of the breach as follows: While the gravity of the breach in a particular case may not necessarily be reflected in its actual consequences, the gravity of the consequences or likely consequences is nevertheless relevant in determining the gravity of the risk. In Hannah v Wonar Pty Limited (1992) 34 AILR 377 the Full Court stated: 'The primary factor falling for consideration in relation to penalty, is the nature and circumstances of the offence. The result of the circumstances may be relevant in a very limited way, in the sense that it may illustrate the seriousness of the act or omission involved in the breach of statutory duty being assessed. Obviously 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.'

66 Hannah was followed in Waugh at 96-97 and Lawrenson Diecasting at 476.

67 The purposes to which the Act are directed are also very relevant to considerations of specific and, in particular, general deterrence: see Capral Aluminium at [71]-[80].

68 It is also appropriate to have regard to the degree of foreseeability in assessing the level of culpability of the defendants. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Lawrenson Diecasting at 476; Capral Aluminium at 81.

69 This brief statement of the law has been undertaken to set out what has informed the determination of penalty having regard to the nature of the business conducted by the defendants now dealt with.

70 An offence under ss 8(1), 8(2) and 10(2) of the Act will be regarded as more serious than it otherwise might have been if the risk to safety was obvious or reasonably foreseeable and reasonably practical steps were available to avoid the risks, but these steps were not taken.

71 In the present case the defendant submitted that the risk of the existence of fatigue factors and the subsequent collapse of the boom was not an obvious one in the sense that the relevant fractures had not been identified or located prior to 11 March 2002. The fact that in 1997 the reconditioned pump was examined by a consulting engineer and certified as satisfying the requirement of Australian Standards ("AS") 1418-15 for concrete boom placing pumps is relevant in this respect. As the pump had not been in operation for six years, the six yearly inspection/service requirement in respect of the pump had not been undertaken. It was submitted that it is notable that such six yearly inspection would have included a report on whether or not there were any indications of cracking in the boom. However, the safety manual provided by the American manufacturer Schwing America included directions to: a) avoid standing directly under or over the boom or the system pipeline; b) have the boom inspected by a certified boom inspector on a regular basis; c) ensure proper and timely maintenance of the boom; d) inspect the boom for cracks and to test for cracks in the boom.

72 There was some controversy among the experts as to whether the cracks in the trunnion retainer rings would have been detected prior to the incident. Mr Leonard, Managing Director of Concrete Pump Parts Pty Ltd, believed that a magnetic particle crack test or dye penetrant crack test undertaken by an expert was required to identify the presence of such cracks.

73 Mr Reitano submitted that it was not clearly beyond doubt that simply looking at the equipment would have disclosed the cracks. Mr Reitano cautioned the Court against speculating, that simply looking at the equipment would have disclosed the cracks. The evidence of Mr Cheng, an engineer, was that one ring had approximately 45% fatigue fracture areas and the other approximately 20% fatigue fracture areas. Mr Cheng's conclusion was that a proper inspection and maintenance programme 'should' have been able to detect the cracks before they grew to critical size. This, I take to be a reference to before they broke. Mr Eftekhar, a senior engineer with WorkCover, believed the fractures 'could' have been detected by inspection of a competent person.

74 There was no documentation produced or found during the course of the investigation of the defendants which indicated the boom, the subject of the accident, had ever had a formal inspection. The only work recorded on the boom was for tyre changes and electrical wiring repairs for the chassis only.

75 Walton J in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 (at 27) observed: 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), 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 (at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at 17) and University of Sydney (at 16). The proper test of foreseeability in these circumstances is not whether a lawyer or engineer could conceivably have foreseen the risk which existed but whether or not the ordinary jury person or reasonable observer could have done so: WorkCover Authority of (NSW) (Inspector Kelsey) v University of Sydney (unreported, Hill J matter No CT 1280 of 1995, 2 April 1997 at 11).

76 The standard of foreseeability is objective, but it is not necessary that the precise causal circumstances of exposure to the risk and the consequent accident were reasonably foreseeable: Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 364; University of Sydney.

77 In Inspector Hannah v Rice Growers Co-Operative Ltd (unreported, CT90/88, 20 November 1990), Fisher P commented, in relation to an offence under s 15 of the Act, that (at 7-8): "It was true that it may be difficult to anticipate the way in which even an obvious and avoidable risk may work itself out. Most serious accidents are not anticipated. This does not excuse any employer from a failure to employ a safe system of work incorporating obvious and desirable safety measures."

78 Applying the test for foreseeability, namely, the reasonable observer or the reasonable jury person, I am satisfied beyond reasonable doubt that a proper inspection and maintenance programme could have and should have detected the fatigue fracture areas on the trunnion retaining rings before they grew to critical size and in those circumstances, I find that the risk was foreseeable.

79 The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the accident, such as having the boom inspected by a certified boom inspector on a regular basis; ensuring proper and timely maintenance of the boom and inspecting the boom for cracks and the method for testing for cracks in the boom were all directions set out in the safety manual provided by the American manufacturer. In addition, the defendant should have, as part of providing adequate training, ensured that employees whilst performing concreting work, avoided standing directly under or over the boom or system pipeline. These steps are relevant to assessing the seriousness of the offence in this case: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 36.

80 In my opinion, it was reasonably practicable for the first defendant to comply with the provisions of ss 8(1) and (2) of the Act. Similarly, I find it was reasonably practicable for the second defendant to comply with the provisions of ss 10(2) of the Act.

81 The Full Bench of the Commission recently succinctly reaffirmed the principle that the gravity or otherwise of the potential risk to safety flowing from a breach of the Act is relevant as a measure of the gravity of the breach and the culpability of a defendant. In Weathertex Pty Limited the Full Bench said at [62]: His Honour erred by attaching no significance to the fatality arising from the accident. This was relevant to considering the seriousness of the risk occasioned by the respondent. See for example Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority (NSW) (Inspector Kelsey) v University of Sydney (unreported, Matter No. CT 1280 of 1995, 2 April 1997 at 10), Capral at 650 and WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Ltd and Another (2000) 95 IR 383 at 428-429. We consider that the fatality in this case was indicative of the risks to safety relevant to the assessment of the gravity of the offence.

82 In respect of this aspect of the matter the relevant aggravating factors are that the injury caused by the offences was fatal in the case of Mr Gowans and substantial in respect of Mr Romeo in so far as it demonstrates the nature of risk.

83 As for questions of deterrence, I accept the contentions of the prosecutor that issues of both general and specific deterrence are, as a general rule, relevant and important in the assessment of penalty in an offence brought under the Act. The principles surrounding questions of deterrence have been authoritatively reviewed by the Full Bench in Capral Aluminium at [71]-[80].

84 The Full Bench said particularly at [73]: Although general deterrence and specific deterrence have differing purposes or aims, the varying aims of deterrence are particularly relevant in occupational health and safety prosecutions in light of the objects and terms of the Act. As Hungerford J in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 said: "the fundamental duty of the Court in this important area of public concern ... [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."

85 In WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25 Walton J Vice-President reaffirmed the application of general deterrence in the context of breaches of the Act. His Honour said at [69]: The purpose of the Act is well known and often referred to in judgments of this Court. In my view, it is important, when considering notions of general deterrence, that the Court be cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work. The goal is the prevention, deterrence and punishment of breaches of health and safety requirements.

86 I propose to adopt his Honour's approach in determining sentence in this matter.

87 In my view the propensity for the defendants to re-offend is not high. The death of Mr Gowans came as a tremendous shock to the director. He has been under medical treatment since the accident for which he blames himself. The director was holding the hose shortly before Mr Gowans took over from him. The accident has awakened in the defendants an understanding of the need for constant vigilance when it comes to issues of safety in the workplace. It is the defendants' first offence. I note the first defendant was established in approximately 1986. The defendants no longer operate boom pumps of this kind having sold the two remaining pumps. The one involved in the incident has not been used since 11 March 2002. I therefore do not propose to include in the penalty a significant element for specific deterrence.

88 Each defendant is entitled to mitigation in penalty for subjective features, these include that the defendants pleaded guilty and when the plea was entered: s 22 of the Crimes (Sentencing Procedure) Act. The defendants' guilty pleas were entered at the earliest opportunity and in those circumstances, I propose to discount any penalty by 25% for the utilitarian value of that plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383.

89 Mitigating factors that are relevant include the defendants' good character, the assistance provided to WorkCover in the investigation of the incident and the remorse of the third defendant who is, in reality, the person behind both corporate defendants and, it was submitted, now the only shareholder. The defendants have also revised their safe working systems and other relevant safety policies after the incident, although the defendants do not do this kind of work any more. The defendants have no prior convictions.

90 The first and second defendants are relatively small companies. The director, since separating from his wife in June 2002, is now the only shareholder and any fine, in reality, will be borne by the director.

91 The financial position of the first and second defendants may be summarised as follows:

Financial Year Ended Loss Profit (First Defendant) 30 June 2001 $209,408.76 30 June 2002 $15,451.20 30 June 2003 $215,082.39 31 March 2004 $ 37,630.81

The accounts also indicate that no income was generated for this period as the concrete pumping division had wound down. Financial Year Ended Loss Profit (Second Defendant) 30 June 2001 $ 3,249.81 30 June 2002 $ 874.49 30 June 2003 $ 15,215.58 31 March 2004 $124,564.51

During the period to 31 March 2004 the financial accounts include the sale of one concrete pump for the sum of $100,000.

92 Section 6 of the Fines Act 1996 provides: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

93 In Ferguson v Nelmac Pty Limited (1999) 92 IR 188, Wright J President, at 209 observed: The financial position and more particularly the means of the defendant should be taken into account in relation to the question of penalty. ... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty.

94 I have borne this observation by his Honour in mind in ultimately determining an appropriate penalty in these matters.

95 Mr Reitano submitted that the principle of totality should be applied to substantially reduce the penalty that would be applied having regard to the objective similarities between the offences in question.

96 In this regard Mr Reitano referred the Court to a decision of the Full Court of the former Industrial Court of New South Wales in Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 457 where the Court said: In a number of cases decided under the OH&S Act where the corporate structure of the defendant has been shown to be little more than the means of distribution of earnings arising from personal exertion, or where, as a matter of corporate structure, the burden of any fine levied would fall on one person or one family group ownership, the Court has seen it appropriate to impose a fine substantially less than if the corporation was functioning as a company with assets of a substantial kind: see Gordon v MIJO (NSW) Pty Ltd; Ford v Worrah Ridge Pastoral Pty Ltd (unreported, Bauer J, 23 September 1994, matter no CT 1109 of 1993); Robins v C T Plumbing Pty Ltd (unreported) Fisher P, 16 December 1991, matter no 522 of 1991 and Mauger v Kromar Engineering Pty Ltd (1993) 47 IR 359. We consider that as precedent has developed, there are two strands to the consideration of fines under the OHS Act. The first comes into play when the defendant is an individual and there is no corporate structure. Where the defendant is a company with the structure as above considered, the principles and approach adopted in the cases above cited are to be applied.

97 The Court concluded at 458 by saying: We have come to the view on the evidence that the connection between the two companies was so intimate that it is permissible to view the offence in a global way.

98 The principle in Haynes was applied by Staunton J in Bosnjak Holdings Pty Ltd. At [26] her Honour cited the above authority noting that in the case before her the prosecutions arose out of a single accident and the same facts. Her Honour concluded that, in the circumstances of the case before her, she would adopt the "common sense" approach and apply one penalty at [38]. Haylen J adopted a similar approach in setting an overall penalty and dividing it equally between two defendants in Inspector Brian Dell v Baradine Sawmilling Co Pty Ltd, Inspector Brian Dell v Gunnedah Timbers Pty Ltd [2002] NSWIRComm 304.

99 Mr Reitano urged that the Court adopt a similar approach here, submitting that essentially the person who will be punished by any fine imposed is the third defendant being the person behind both corporate defendants and now the only shareholder.

100 Ms Backman acknowledged that it was open to the Court to impose one penalty.

101 The principle of totality was stated by a Full Bench in Waugh at 100 where the Court said: The principle of totality allows a Court in sentencing to avoid a straightforward arithmetical addition of sentences appropriate to each individual offence where the offences are similar, thus avoiding doubling of the penalty by enabling the judge to consider a single overall penalty which includes the circumstances of a second or further offence.

102 Walton J Vice-President examined the principle of totality in McDonald's Australia Limited at 454 to 460. His Honour referred to the well known decision of the Court of Appeal in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 in which the Court of Criminal Appeal adopted the statement of principle by Street CJ in R v Holder [1983] 3 NSWLR 245 at 260. His Honour set out this principle and then referred to Postiglione v The Queen (1997) 189 CLR 295 at 307, 308, where McHugh J stated the principle as follows: The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v The Queen [(1992) 33 FCR 536 at 541] O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi [unreported, CCA of SA, 20 April 1998]: "There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect". The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences: see also the judgment of Kirby J at 341.

103 Walton J Vice-President then said at 456: More recently, in Pearce v The Queen (1998) 72 ALJR 1416 at 1424, the High Court discussed the application of the principle of totality, but in the context of an offender facing two charges arising out of a single episode, that is breaking into a victim's home and beating him. Woods J, in a recent discussion of this decision in Judicial Officers Bulletin , vol 11, No 5 (June 1999), describes the operation of the principle thus: "When an offender stands for sentence in relation to several offences, it will invariably be necessary to pay regard to the principle of totality". The principle formulated in these cases does not, on its face, assist the defendants' contention. The principle of totality enunciated in these decisions operates in circumstances where a single defendant was convicted of a number of offences. The principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences imposed for each offence is a just and appropriate measure of the total criminality involved. However, the present matter does not concern a single offender facing multiple charges, but two defendants facing different charges. There is a common substratum of facts, but the defendants, as was conceded by Mr Harmer, have different "contributions".

104 His Honour then went on to consider the decision of the Full Court of the Industrial Court of New South Wales in CI & D and at 459 said: Nevertheless, the approach adopted by the court in CI & D does not sit comfortably with the principle of totality as stated in Holder, Camilleri's Stock Feeds and Postiglione and as applied in Pearce. Whilst the charges against the corporations in CI & D (and the assessment of penalty) were heard concurrently (and the defendants should have been assessed having regard to the principle of parity, which I have earlier discussed) the matter essentially concerned prosecutions brought against different corporate defendants for different offences under the Act. The principle of totality operates to ensure that the total criminality of a defendant in relation to an incident is properly and justly assessed. It is difficult to envisage how the principle, so expressed, can be used to measure the criminality of more than one defendant no matter how closely related. The principle of totality can be distinguished from the principle of parity which is directly relevant to the assessment of the appropriate penalty for co-offenders. Upon the basis of the authorities I have earlier referred to, the principle of totality would not require the sentencing of the defendants to be undertaken upon the basis that they were effectively treated as a single entity facing two charges.

105 His Honour went on to observe at 459: It is not entirely clear that the decision in CI & D would suggest any contrary approach. On one view, the decision in CI & D is based upon the unusual circumstances applying in that matter where both defendants had supervisory responsibility for the employees concerned. In any event, the decision is in my view, distinguishable from the factual circumstances in this matter.

106 In this matter there is a connection between the defendants. One company is the owner of plant and machinery. The other company employs the labour. The third defendant is a director of each of the companies.

107 There are, however, a number of significant differences in this case from CI & D. Firstly, the premises in CI & D were owned by one company and leased directly to the subsidiary company and both companies had direct responsibility for the employees. Here the first defendant carried out the contracting pumping services and was the employer of a number of persons including Mr Gowans. The second defendant was the owner of premises, plant, equipment and machinery. A third company, A Team Concrete Group Pty Ltd, which was not the subject of prosecution was established in July 2002 following the separation of the third defendant from his wife. This company undertook the placing and finishing of concrete.

108 Furthermore, the offences in this matter are not the same as between the defendants. Here, the first and second defendants face a higher maximum penalty than the third defendant. The first defendant faces charges under ss 8(1) and 8(2) whilst the second defendant faces a charge under s 10(2). The third defendant faces three charges under s 26(1).

109 In my view, the companies had separate roles and functions and despite having similar directors and shareholders (prior to the separation of the third defendant and his wife), are separate corporate entities. In respect of the first defendant, there were originally two shareholders, the third defendant and his wife. The second defendant had 7,500 shares issued. The third defendant held 3,750 shares. The third defendant's former wife had 3,749 shares and the third defendant's daughter, one share.

110 I prefer the approach adopted by Walton J Vice-President in McDonald's Australia Limited. In my view, the principle of totality does not require the three defendants to be treated as effectively one entity facing offences under ss 8(1), 8(2), 10(2) and 26(1) of the Act for the purposes of the assessment of penalty and therefore the principle of totality should not be applied in this matter. Rather, there should be a proper weighing of the respective culpabilities of the defendants and, in this regard, attention should be paid in properly measuring the actual culpability of each defendant in relation to the detriment to safety involved in the accident. Where there are overlapping responsibilities, then the Court will ensure that there occurs a proper apportioning of responsibility by the respective defendants.

111 However, a Full Bench of this Court held in Warman at 341 that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should, nonetheless, adopt "an approach to sentencing which shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe" where common factual circumstances exist giving rise to the charges. It should be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour.

112 The decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606. At 610 Mason J referred to the principle 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."

113 I propose to apply the principle of parity or equal justice in the assessment of penalty in these matters particularly in respect of the offences brought against the third defendant.

114 I turn now to deal with the three victim impact statements prepared by Joseph Romeo pursuant to s 30 of the CSP Act.

115 Part 3 Div 2 of the CSP Act deals with victim impact statements. Section 28 is in the following terms: 28 When victim impact statements may be received and considered (1) If it considers it appropriate to do so, the Supreme Court, Industrial Relations Commission or District Court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. (2) A victim impact statement may also be received and considered by the Supreme Court when it determines an application under Schedule 1 for the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule. (3) If the primary victim has died as a direct result of the offence, the Supreme Court, Industrial Relations Commission or District Court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. (4) Despite subsections (1), (2) and (3), the Supreme Court, Industrial Relations Commission or District Court: (a) must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and (b) must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so. (5) The Supreme Court, Industrial Relations Commission or District Court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate. (6) In relation to a victim impact statement given by a family victim, this section applies to a Local Court in the same way as it applies to the Supreme Court, Industrial Relations Commission and the District Court.

116 Regulation 12 of the Crimes (Sentencing Procedure) Regulations 2000 ("the Regulation") expressly provides that a victim impact statement may be tendered to the Court only by the prosecutor in the proceedings before the Court.

117 Section 26 of the CSP Act defines "primary victim" in relation to an offence as a person against whom the offence is committed; or a person who was a witness to "the act of actual or threatened violence, the death or the infliction of the physical bodily harm concerned", being a person who has suffered personal harm as a direct result of the offence.

118 The prosecutor submitted that Mr Romeo was a primary victim falling within either one or both of the categories found in s 26 of the CSP Act.

119 Section 21A(2)(g) of the CSPAct provides: The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial.

120 Mr Romeo's injuries sustained as a result of the collapsing concrete boom striking him on 11 March 2002 were substantial. Mr Romeo suffered fractures to his neck, shoulder and ribs and remained in hospital for one week.

121 Mr Romeo described upon regaining consciousness after the accident, that he felt as though he had been crushed. He was in extreme pain and felt numb. Mr Romeo now suffers from a permanent stiff and painful neck; sharp aching pains in his neck; pain across his shoulders and down his right arm and into his hand; a burning, stinging pain which is like having a permanent sunburnt feeling on the right side of his neck, towards the bottom of his face, across his right shoulder and down his right upper arm and halfway down his chest. This pain is constant. There is also a constant numb feeling in his right arm and a sharp aching pain in the joint of his right shoulder.

122 Mr Romeo said he gets a tired aching pain in his upper back and neck when he tries to carry things or use his arms. He examples helping his wife to carry shopping bags, carrying his daughter's school bag for a short distance, trying to iron clothes or looking down when cutting food.

123 Mr Romeo's sleep is disturbed because of the pain and discomfort he experiences in bed which, on occasions, causes him to wake up and swear or cry. Mr Romeo suffers a lot of headaches and on occasions, dizziness and feeling sick. Mr Romeo has also experienced a problem with his right knee, on occasions getting sharp pain when he walks and turns.

124 Mr Romeo described how he becomes very angry when he thinks about the accident. The following also cause Mr Romeo to get upset and angry: seeing his injuries in the mirror and the changes that this has caused to his body; thinking about how he used to be before the accident and that he is no longer able to enjoy the things he loved, for example, working, keeping fit, exercising, swimming a lot, gardening, fishing, the beach and surf. Mr Romeo is also upset about having to ask his family for financial help.

125 Mr Romeo said that he thinks about Mr Gowans, his family and the accident every day and finds it difficult to concentrate. Mr Romeo did not think he was going to survive.

126 It is well established by authority that a sentencing judge is entitled to take into account on the question of sentence the impact of a crime on victims generally: R v Henry (1999) 46 NSWLR 346 at 380, 381; R v Ponfield (1999) 48 NSWLR 327 at 338; R v Sanderson [2000] NSWCCA 512 (8 December 2000); R v S R Kessey [2000] NSWCCA 469 (23 November 2001); R v Totten [2003] NSWCCA 207 (14 August 2003); R v Newman, R v Simpson [2004] NSWCCA 102 (19 April 2004).

127 In R v Newman, R v Simpson, Shaw J (not dissenting on this issue with McColl JA, Howie J) said at [93]: The question before this court, is, however, whether the penalty imposed by the sentencing court was manifestly excessive. In assessing this, it is relevant in my opinion to take into account that the victim whose home was invaded was significantly injured, requiring stitches to various parts of his body, a fractured cheekbone, broken ribs and a bruised kidney and also incurred nerve damage to his face.

128 The Court was referred to the second reading of the Victims Legislation Amendment Bill where a clear distinction between the impact of an offence on family members and between primary victims for the purposes of determination of an appropriate sentence was made by the Attorney General and Minister for the Environment, Mr R Debus. During the debate in the New South Wales Legislative Assembly on 21 May 2003, Mr Debus commented (Hansard, Legislative Assembly at p 926): The Victim Impact Statement presently serves two distinct purposes. In the case of family victims, where a family member has died as the result of an act of violence, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering but it also has a role to play in the determination of the appropriate sentence to be imposed by the court. The statement will explain to the court the extent of the impact the crime has had on the victim's life.

129 The view that the impact of an offence on a family member, as opposed to a primary victim, should not be considered in the determination of the sentence to be imposed was first expressed in R v Previtera (1997) 94 A Crim R 76 at 84-85 where Hunt CJ at CL said: A victim impact statement was provided by the deceased's son. I acknowledge its receipt, and I sympathise with him (and with his sister) for their tragic and senseless loss. He describes his own and his sister's reactions to the murder in moderate and compassionate terms, and I note what he has to say. S 23C(3) of the Criminal Procedure Act 1986 provides, however, that I must not consider that statement in connection with the punishment to be imposed upon the prisoner unless I consider that it is appropriate to do so ... In my opinion, however, it could never be appropriate to take a statement of that nature into account in sentencing the offender in such a case.

130 His Honour went on to explain why, observing at [86]: In cases where the victim is still alive - that is, the victim directly injured by the offender's criminal act, victim impact statements will no doubt serve the useful purpose in the criminal courts of establishing the consequences of the crime upon that victim. A problem arises, however, in those cases - such as the present - where the crime involves the death of the victim. The consequences of the crime upon the victim (death) has already been proved (or admitted) by the time the offender comes to be sentenced. It may be that, in the case of a slow lingering and painful death, information from the family would be relevant, but that would be a very rare case. The present case is certainly not such a case. The law already recognises, without specific evidence, the value which the community places upon human life, that is why unlawful homicide is recognised by the law as a most serious crime, one of the most dreadful crimes in the criminal calendar. It is regarded by all thinking persons as offensive to fundamental concepts of equality and justice for criminal courts to value one life as greater than another. It would therefore be wholly inappropriate to impose a harsher sentence upon an offender because the value of the life lost is perceived to be greater in the one case than it is in the other. Even in the rare case where the family of the victim in a death case will be able to provide material which is relevant to sentencing the offender, the form in which the statute requires the victim impact statement to be presented means that it is both unsworn and unable to be tested. This presents a particular difficulty for the Crown if that information is to be put forward as a matter of aggravation.

131 Boland J recently endorsed the view that a victim impact statement given by a family member, where the breach of the Act involved death, must not affect the sentence imposed: see Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [43]. Haylen J adopted the same approach in Inspector Simpson v Tomago Aluminium Co Ltd (unreported, 27 April 2004, matter No 5351 of 2003).

132 Neither of these cases appears to have specifically considered s 28(4) of the CSP Act. This section provides the court with a discretion to consider a victim impact statement given by a family member. This section provides that the Court must not consider a victim impact statement unless it has been given by, or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and must not consider a victim impact statement given by a family victim in connection with the determination of the punishment of the offender unless it considers that it is appropriate to do so. (A "family victim" is defined as meaning a member of the primary victim's immediate family where the primary victim has died as a direct result of the offence).

133 Section 28(4) was recently considered in R v Slack [2004] NSWCCA 128 where Sperling J, with whom Grove and Simpson JJ agreed said at [60]-[61]: ... The implication is that a victim impact statement may, in the discretion of a court, be received and taken into account as evidence of harm caused by the offence and, in that way, as evidence relevant to the determination of punishment by sentence. ... and whilst s28 also, by implication, allows the court to take a victim impact statement into account in determining the appropriate punishment by sentence, the weight to be given to such a statement is for the court to determine. In RKB (NSW CCA, 30 June 1992, unreported) it was acknowledged that a sentencing court is required to take into account the impact of criminal behaviour on the victim or victims of such behaviour but, it was said, what is required is an objective assessment of the crime's effect.

134 Mr Romeo, in my opinion, falls within both definitions of "primary victim" found in s 26 of the CSP Act. Mr Romeo was a person against whom an offence was committed and a person who was a witness to the death of Mr Gowans. It is therefore, in accordance with the well established authorities referred to, appropriate for this Court to take into account on the question of sentence the impact of the offences on Mr Romeo.

135 A victim impact statement by Ms J Gowans was received by the Court. Ms Gowans described upon being told of Mr Gowan's death, of confusion, emotional turmoil, shock, devastation, not being able to breathe, spinning rooms, unbearable pain and struggling to protect her unborn child. The next day her feelings changed. Ms Gowans described being angry, sad, bitter, scared and depressed about what happened to Mr Gowans. Ms Gowans said that she feels cheated. Cheated that Mr Gowans wasn't there for the birth of their son, to see his first smile, the first steps and that the list goes on and will keep going on for the rest of her life.

136 In light of s 28(4)(b) of the CSP Act, I do not think I am constrained from taking into account the contents of the victim impact statement from Ms Gowans in coming to a conclusion as to what is the appropriate sentence in this case. The question is whether it is appropriate to do so. I accept the general reasoning of Hunt CJ at CL in Previtera, Boland J in Foamex and Haylen J in Tomago Aluminium Co Ltd. However, the legislation does leave it open, in an appropriate matter, for the Court to consider a victim's impact statement given by a family victim.

137 Mr R Debus, Attorney General and Minister for the Environment, during the second reading of the Victims Legislation Amendment Bill in the Legislative Assembly on 21 May 2003 (at page 926) commented: On the one hand, the Government supports the admissibility of victim impact statements by immediate family members, because that provides a forum for the victim's family to assist in the healing process in the aftermath of the crime that has affected them. On the other hand, the Government agrees with the views of then Justice Hunt to the extent that, to use his words: "It is ... offensive to fundamental conceptions of equality and justice ... to value one life as greater than another". That would be the result of a harsher sentence on the accused made on the basis that, in some way, the death of a person who was, say, young and surrounded by a loving family and friends is more serious than, say, the death of a person who was alone, unhappy and elderly.

138 Victim impact statements presently serve two distinct purposes. In the case of family victims, where a family member has died as a result of a breach of the Occupational Health & Safety Act 2000, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering, but it also has a role to play in the determination of the appropriate sentence to be imposed by the Court. The statement will explain to the Court the extent of the impact the crime has had on the victim's life.

139 I respectfully agree with the reasoning of Hunt CJ at CL in Previtera that a court should not, in cases involving death, permit a victim impact statement to affect the sentence. I have considered the statement from Ms Gowans and formed the view that it would not alter the penalty which I think is otherwise appropriate in these matters in all the circumstances of the case.

140 However, it is appropriate that the Court extends its sympathy to Ms Gowans and her son Kyle and acknowledges the devastating effect that James' death has had on them.

141 As was observed by Boland J in Foamex at [43], the receipt of a victim impact statement given by a family victim "assists this Court in driving home to those responsible for workplace safety the devastating consequences that may flow from failing to ensure they provide and maintain a safe workplace".

142 As I observed at the beginning of my consideration of these matters, the primary factor to be considered by the Court in determining the appropriate sentences is the objective seriousness of the offences charged. Any matters which aggravate the objective seriousness and any matters which mitigate their seriousness must also be taken into account.

143 In assessing penalty, I have taken into account the objective seriousness of the offence and the matters raised by the defendants in that regard. The matters raised in mitigation going to subjective factors have been given significant weight for each of the defendants. In this regard, I propose to allow a discount of 25% for the utilitarian value of the guilty plea and a further 10% for the additional subjective factors. I have applied the principle of parity with respect to each defendant.

144 For the foregoing reasons, with regard to the offences under s 8(1) and 8(2) of the Act (for the first defendant), I consider an appropriate penalty, allowing for a discount of 35% to be $100,000. I consider an appropriate penalty with regard to the offence under s 10(2) of the Act, (for the second defendant) allowing for a discount of 35%, to be $55,000,

145 With regard to the offences under s 26(1) of the Act (for the third defendant), I consider an appropriate penalty, allowing for a discount of 35%, to be $10,000. I make it clear that the penalty imposed would have been greater but for the factors in mitigation raised by the defendants including the steps taken by them after the accident. The prosecutor should have a moiety of the fine and costs. ORDERS No IRC 2515 of 2003 and IRC 2517 of 2003 - Inspector John Sharpin v A Team Concrete (Australia) Pty Ltd

In these matters, I make the following orders: 1. The defendant is convicted of the offences as charged. 2. I impose a penalty of $100,000. 3. I allocate a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, as determined in accordance with the rules of the Court. No IRC 2521 of 2003 - Inspector John Sharpin v A Team Concrete Pty Ltd

In this matter, I make the following orders: 1. The defendant is convicted of the offence as charged. 2. I impose a penalty of $55,000. 3. I allocate a moiety to the prosecutor.

4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, as determined in accordance with the rules of the Court. No IRC 2516 of 2003; IRC 2518 of 2003 and IRC 2522 of 2003 - Inspector John Sharpin v Salvatore Cardile

In these matters, I make the following orders: 1. The defendant is convicted of the offences as charged. 2. I impose a penalty of $10,000. 3. I allocate a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, as determined in accordance with the rules of the Court.

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