Inspector Spence v Austar Constructions Pty Ltd

h Wales (Inspector McMartin) v Transfield Pty Ltd t/a Transfield Maintenance (No 2) [2001] NSWIRComm 289; (2001) 110 IR 160 Category: Principal judgment Parties: Ronald John Spence (Prosecutor) Austar Constructions Pty Ltd (Defendant) Representation: Counsel: Mr MJ Moir (Prosecutor) Mrs W Thompson (Defendant) Solicitors: WorkCover Authority of New South Wales (Prosecutor) Westside Law Firm (Defendant) File Number(s): IRC 1395 of 2011

Course of proceedings 1Austar Constructions Pty Ltd ("the defendant") pleaded guilty to an amended application for order on 3 April 2012. A sentencing hearing took place on 20 August 2012. At the conclusion of the sentencing hearing after I had reserved my decision, it became clear, during my deliberations, that there were a number of co-offenders whose matters were either before other members of the court or had already been sentenced by other members of this court: see judgment of Boland J President in Inspector Spence v Aleksic Carpentry Pty Ltd [2012] NSWIRComm 45 and Backman J in Inspector Spence v Shang [2012] NSWIRComm 86. 2Her Honour has currently reserved for sentence Matter No IRC 1398 of 2011, Inspector Ronald John Spence v Jackson Cai - Prosecution under s 9 of the Occupational Health and Safety Act 2000 ("OHS Act") and in the alternative pursuant to s 10(1) of the OHS Act. 3In these circumstances and particularly where neither party had put submissions to me in respect of the principles of parity, I caused the matter to be re-listed and requested submissions from the parties in respect of the following questions: Question 1: Do the principles of parity apply, or not, in circumstances where Justice Boland has dealt with a defendant in respect of a breach of the Occupational Health and Safety Act 2000 (see Inspector Spence v Aleksic Carpentry Pty Ltd [2012] NSWIRComm 45), arising out of the same factual circumstances as this matter? Question 2: In circumstances where it has come to the Court's attention that there are a number of prosecutions in respect of the same factual matters that resulted in this defendant being charged, what are the principles to be applied by the Court in determining sentences in respect of offences brought against the various defendants? 4It is convenient to dispose of question 2 at this juncture. I will discuss and consider the principles of parity later in this judgment. 5It was common ground that it was desirable that co-offenders should be dealt with by the same sentencing judge where that was possible. The reasons for this were summarised in Dwayhi v R; Bechara v R [2011] NSWCCA 67; 205 A Crim R 274 at [33] - [46]: [33]Different courts have emphasised the desirability of related offenders appearing for sentence at the same time before the same Judge, and the problems which may arise where that practice is not followed. [34]In Lowe v The Queen [1984] HCA 46; 154 CLR 606, Brennan J said at 617 that to "facilitate the comparison of conduct and antecedents it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time" . [35]In Postiglione v The Queen , Gummow J, at 320, referred to Brennan J's comment and, after mentioning the facts, observed that: "... this appeal does more than illustrate the problem that can arise in applying the parity principle to co-offenders where they are sentenced by different judges taking different views as to the relevant culpability of the two offenders in respect of those offences". [36]Dawson J said in Lowe v The Queen at 622: "No explanation was given to us or, apparently, to the Court of Criminal Appeal of the reason why the applicant and Smith entered their pleas before different judges at different times. The result was that, although they were co-offenders, they fell to be sentenced by different judges. Such a situation always carries with it a risk that there will be an unwarranted disparity between the sentences imposed and is to be avoided if at all possible. If it cannot be avoided, then at least the judge imposing the later sentence should inform himself of the sentence already imposed and the circumstances in which it was imposed. I hasten to say that Thomas J was so informed in this case." [37]In R v Mercieca [2004] VSCA 170, Winneke P observed at [6] that the sentencing of co-offenders by different judges "creates the potential for differing views being taken by different judges of sentencing facts which are common to all co-offenders" . [38]In R v Rodden [2005] VSCA 24, Vincent JA, at [28], stated succinctly the problems arising in this context: "Of course, it would have been more satisfactory if all of the persons involved in this matter had been tried and/or sentenced at the same time, and certainly by the same judge. This case demonstrates the kinds of tensions that can appear to arise in the criminal justice system when this does not occur. When a situation arises in which co-offenders are dealt with separately, there may and often are differences in the substratum of facts upon which the different sentencing judges act and the impressions formed by them with respect to the relative roles, levels of responsibility and prospects of rehabilitation of the individuals involved. This, of course, would flow, in part, from the different emphases which can be expected to be placed on aspects of the offending behaviour and the circumstances of the offenders concerned." ... [44]It is necessary for sentencing Courts and prosecutorial bodies to take steps to ensure, so far as it is reasonably possible, that related offenders are sentenced by the same Judge, and preferably at the same time following a single sentencing hearing. To reinforce this message, creation of relevant Practice Notes (by the Courts) and amendment to prosecution guidelines (by the Commonwealth and New South Wales Directors of Public Prosecutions) may be considered appropriate to give effect to the statements of Courts referred to above. [45]It ought be appropriate, as well, for sentencing and appellate courts to enquire of counsel for an offender, who seeks to rely upon the parity principle, as to the steps taken by that offender or his legal representatives to ensure that he or she was sentenced by the same Judge, and at the same time, as any related offender, if the case is one where there were different sentencing judges." [46]In my view, procedures of this type will serve the public interest in consistent and transparent sentencing of related offenders which forms, after all, part of the rationale for the parity principle itself.

Background 6The defendant is a small building company with little experience in major developments. 7On 18 December 2008 the defendant signed an agreement for the supply of management services with Multiplus Group Pty Ltd ("Multiplus"), a construction company that had developed and was managing the construction of 22 residential townhouses at 17-21 Kirkham Road Auburn in the State of New South Wales ("the site"). 8On 28 August 2009, Mr Victor Markovski, who was working on the site, either tripped on the surrounding hob of a penetration (an opening), or stepped directly into the penetration. Mr Markovski fell 3.7 metres onto the concrete floor of the car park basement. Some formwork material was lying on the concrete. 9Mr Markovski suffered severe head injuries, including a depressed fracture, a linear fracture and possible undisplaced fracture to his skull. He also suffered a lacerated tongue and severe bruising and tissue damage to the left side of his body from his feet to his head. He underwent surgery at Westmead Hospital to relieve pressure caused by a brain haemorrhage. 10Mr Markovski was discharged from the Westmead Hospital 13 days after the incident.

The charge 11In an amended application for order, the defendant was charged that contrary to s 10(1) of the Occupational Heath and Safety Act 2000 ("the OHS Act") that: having had control in the course of its trade, business or other undertaking of premises on 28 August 2009, located at 17-21 Kirkham Road, Auburn in the State of New South Wales used as a place of work ... FAILED TO Ensure by its acts and omissions as particularised below that the premises were safe and without risks to health to people who were not the defendant's employees, in particular, Victor Markovski, Slavisa Djukic and Dennis Preston, contrary to section 10(1) of the Act. The particulars of this charge were: a)The defendant at all material times had limited control over the premises. b)At all material times persons not employed by the defendant, in particular Victor Markovski, Slavisa Djukic and Dennis Preston, performed work at the premises. c)At all material times the defendant had control by virtue that it was the company that provided building management services for the construction of twenty-two townhouses at the premises. d)There was a risk of injury to non-employees working on the ground floor level at the premises of falling approximately four metres through an open, unsecured penetration to a concrete basement below. e)The defendant failed to ensure that the penetration on the ground floor level adjacent to Unit 22 of the townhouses being constructed at the premises ("the penetration") was securely covered. f)The defendant failed to ensure that the area where the penetration was located was inspected on the day of the incident to ensure that it was securely covered prior to non-employees commencing work in the vicinity of the penetration. g)The defendant failed to ensure that the persons working at the premises were warned of the risk of the inadequately secured penetration in that the defendant failed to implement: site specific inductions to inform persons of the presence and proximity of the penetration; and tool box talks to inform persons of the presence and proximity of the penetration. h)The defendant failed to ensure that a risk assessment which identified and considered the risks associated with working near an open, unsecured penetration was undertaken and that appropriate control measures to address these risks were implemented. i)The defendant failed to ensure that a safe work method statement was in place for working near an open, unsecured penetration as required by clause 227 of the Occupational Health and Safety Regulation 2001. As a result of the defendant's failures, non-employees present at the premises were placed at risk and, in particular, on 28 August 2009, Victor Markovski sustained severe head injuries which was a manifestation of that risk. 12I am satisfied, on the evidence, that the defendant is guilty of the offence as charged and that it was appropriate for the plea of guilty to be entered. It follows, therefore, that this judgment is concerned only with the question of penalty.

Prosecutor's evidence 13Mr MJ Moir of counsel, who appeared for the prosecutor, tendered an agreed statement of facts ("ASF") which included annexed supporting documentation, as detailed at paragraph 102 of the ASF. The statement read as follows: ... THE PARTIES Multiplus Group Pty Ltd and 17 Kirkham Road Pty Ltd with Director Gao Geng HE known as Gordon GAO 3.Multiplus Group Pty Ltd was registered on 8 January 2007 with Directors Gao Geng He ("Gordon Gao") and Jianbei Liu. Jianbei Liu resigned as a Director on 11 September 2007. 4.17 Kirkham Road Pty Ltd was registered on 7 July 2008 with Directors Gordon Gao and Jeffery Wade. Jeffery Wade resigned as a Director on 14 July 2008. 5.19-21 Kirkham Road Pty Ltd ("19-21 Kirkham Road") was registered on 7 July 2008 with Directors Geoff Gao and Jeffery Wade. Jeffery Wade resigned as a Director on 14 July 2008. Geoff Gao was the brother of Gordon Gao. 6.Multiplus Group Pty Ltd changed name to 17 Kirkham Road Pty Ltd ("17 Kirkham Road") on 18 July 2008. 17 Kirkham Road retained the ACN 123 349 593 originally assigned by ASIC to Multiplus Group Pty Ltd. 7.17 Kirkham Road Pty Ltd changed name to Multiplus Group Pty Ltd ("Multiplus") on 18 July 2008. Multiplus retained the ACN 132 085 824 originally assigned by ASIC to 17 Kirkham Road Pty Ltd. 8.At all material times, Multiplus developed and managed the residential construction of 22 two-storey townhouses ("the project") at 17-21 Kirkham Road Auburn in the State of New South Wales ("the site"), and was a controller of the site. The project had an estimated completion cost of $4.3M. Demolition work for this project commenced at the site in approximately December 2008. 9.At all material times, 17 Kirkham Road had financial control of the site and was the legal owner of the property situated at 17 Kirkham Road Auburn. This property formed part of the site being developed and managed by Multiplus. 10.At all material times, 19-21 Kirkham Road was the legal owner of the properties situated at 19 and 21 Kirkham Road Auburn. This property formed part of the site being developed and managed by Multiplus. 11.At all material times, the persons working on the site did not know about the different companies that were involved in the project. Some of the persons knew about "Multiplus" or "Multiplus Group". 12.Gordon Gao stated that his company Multiplus is the company that "made the decisions to buy materials or make alterations to the plans". Gordon Gao stated in a letter dated 3 December 2009 that Multiplus "is the company managing the construction site" and "17-21 Kirkham Road Pty Ltd has the financial control". 13.At all material times, Gordon Gao resided at 1 Lovell Road, Eastwood in the State of New South Wales, and he controlled all payments relating to the site through his companies, Multiplus and 17 Kirkham Road. These included payments made by the two companies for construction materials, machinery and equipment, and sub-contractors engaged at the site. 14.Gordon Gao regularly visited the site in his capacity as the Director of Multiplus and 17 Kirkham Road, and he discussed safety issues in relation to the site with the Project Manager and the Site Manager. He also gave instructions to the Project Manager (Jackson Cai) and the Site Manager (Martin Shang) about safety and other matters relating to the project. 15.In his capacity as the Director of Multiplus and 17 Kirkham Road, Gordon Gao used at least two different signatures in correspondence and contractual documentation issued in relation to the project. 16.In approximately December 2008, Gordon and Geoff Gao engaged a friend of their father's, Zhong Jie Xie ("Peter Xie"), Director of Austar Construction Pty Ltd ("Austar"), to provide the Builder's licence for the development project and to provide a management team to co-ordinate and oversee the construction at the site. Austar Construction Pty Ltd with Director Zhong Jie XIE known as Peter XIE 17.At all material times, Austar was an entity who had limited control of the premises, for the construction of the 22 two-storey townhouses at the site. Austar was incorporated on 27 April 2005. 18.At all material times, Peter Xie of 11 Roberts Street, Strathfield in the State of New South Wales was the Director of Austar. 19.Austar was a small building company undertaking two other small constructions at the time, one in Peakhurst and one at Lakemba with little experience in a major development. 20.Austar signed an agreement with "Multiplus Group Pty Ltd" for the supply of management services on 15 December 2008. The agreement, in part, was for Austar to supply a project management team to provide management services for the project, including the management of work carried out by subcontractors. 21.The agreement stated that upon receipt of the occupation certificate from Auburn Council, Austar was to be paid the balance of $180,000 plus GST after the wages for Mr Cai, Mr Shang and the casual labourers had been deducted. 22.The agreement was signed by Peter Xie on behalf of Austar and Gordon Gao on behalf of "Multiplus Group Pty Ltd". Under the name of Multiplus, the agreement also included the Australian Business Number 37 123 349 593, which was the ABN of 17 Kirkham Road. 23.In approximately February 2009, Austar met with Jackson Cai and Yupeng Shang, known in these proceedings as Martin Shang, and Gordon Gao. Mr Cai and Mr Shang held out to Mr Xie that they had the qualifications and experience to provide the management services required at the site. In March and April 2009, Austar and Multiplus entered into agreements to engage the services of Jackson Cai as Project Manager, and Martin Shang as Site Manager. Mr Shang reported to Mr Cai. 24.Mr Xie spent little time on site. Mr Xie visited the site approximately twice a month. Mr Xie was not consulted or informed by the persons acting as the site management team on decisions that affected the site and the site safety, including by Mr Cai and Mr Shang. From time to time, Mr Xie spoke with Gordon Gao about safety issues relating to the site. Jackson CAI 25.At all material times, Jackson Cai of 4 Harrington Avenue, Carrington in the State of New South Wales was the Project Manager in relation to the site, and was a self-employed person. Alternatively, Mr Cai was a controller of the premises at all material times. 26.Mr Cai signed an agreement with Austar for project management on 2 March 2009. The agreement, in part, was for Mr Cai to monitor and supervise the construction process and to coordinate sub-contractors engaged at the site. The agreement was also signed by Gordon Gao on behalf of Multiplus on 2 March 2009. 27.The agreement stated that upon receipt of the occupation certificate from Auburn Council Mr Cai would receive $65,000 plus GST. 28.Mr Cai commenced work on site on 23 April 2009. He attended the site normally once per week. Prior to the incident, he last attended the site on 19 August 2009. 29.At all material times, Mr Cai held a Building Engineering degree from Shanghai University, China and was partway through a Builder's Course at Hornsby TAFE. He had prior experience in managing construction projects of similar size, including projects at Kogarah Town Square, the Newcastle Harbour Pier and the Hunter Valley Golf and Country Club. 30.Mr Cai's role was not "working at the site", but his duties were "doing office work or doing some organisation for the project", "monitor the project, progress and help Multiplus to organise the contracts". 31.Mr Cai stated that he was employed by Austar at the time of the incident, however this is refuted by Peter Xie. 32.Mr Xie stated that Multiplus would pay Jackson Cai and Austar would receive the balance through its agreement with "Multiplus Group" upon receipt of the occupation certificate from Auburn Council. However, in fact no monies were paid to Austar. 33.Gordon Gao refers to Jackson Cai as a "kind of subcontractor" to Austar. An invoice dated 30 August 2010 from Mr Cai to Multiplus for $65,000 tends to support this proposition. Mr Xie regarded Mr Cai to be a subcontractor to Austar. 34.Mr Cai was remunerated for materials he purchased in relation to the project by Multiplus and 17 Kirkham Road. It does not appear that he received any payment for services rendered by him until after the date of the incident. 35.Mr Cai prepared and signed the contracts between Multiplus and the subcontractors engaged at the site, including Auburn Form Works Pty Ltd and Aleksic Carpentry Pty Ltd. Mr Cai also prepared the agreements between Multiplus, Austar and himself, and Multiplus, Austar and Mr Shang. 36.Mr Cai prepared the Project Safety plan for the site. This plan stated that the estimated completion date of the project was March 2010. 37.Mr Cai consulted with and reported to Gordon Gao, not Peter Xie. Gordon Gao provided instructions to Mr Cai, and attended on Mr Cai weekly to discuss progress and issues with him. Yupeng SHANG known as Martin SHANG 38.At all material times, Yupeng Shang known as Martin Shang of 11/12 Pearson Street Gladesville in the State of New South Wales was the Site Manager in relation to the project, and was a self-employed person. Alternatively, Mr Shang was a controller of the premises at all material times. 39.Mr Shang signed an agreement with Austar and Multiplus on 5 April 2009 to be paid $600 plus GST per week, and that payment would be made from Multiplus directly. The agreement, in part, was for Mr Shang to assist Mr Cai in managing the project, including monitoring and supervision on site. 40.Mr Shang signed his contract to be the Site Manager on 5 April 2009. He attended the site on a daily basis. He supervised the activities of subcontractors engaged at the site. He consulted with and reported to Jackson Cai about the progress of the project, both over the telephone and when Mr Cai visited the site. 41.At all material times, Mr Shang held a Master of Engineering degree from the University of Sydney and a Contractor's Builder's licence. He had experience working on construction sites of a similar or larger size than the project. 42.Mr Shang received fortnightly cheques from Gordon Gao on behalf of Multiplus. 43.Mr Shang also received payment from 17 Kirkham Road on 9 September 2009. 44.Gordon Gao has stated that Mr Shang was a subcontractor, and has invoices dated between 27 June 2009 and 23 January 2010 submitted for services rendered by Mr Shang. Aleksic Carpentry Pty Ltd with Director Milivoje ALEKSIC 45.At all material times, Aleksic Carpentry Pty Ltd ("Aleksic Carpentry") was an employer whose undertaking was to supply and install timber framing at the site. Alternatively, Aleksic Carpentry was a controller of the premises at all material times. Aleksic Carpentry was incorporated on 12 May 2009. 46.At all material times, Milivoje Aleksic of 29 Fullerton Circuit, St Helens Park in the State of New South Wales was the Director of Aleksic Carpentry. 47.Aleksic Carpentry signed a contract for the "Supply and Installation of Timber Framing" with Multiplus on 27 July 2009. Mr Cai signed the contract on behalf of Multiplus and Mr Aleksic signed on behalf of his company. Mr Cai was authorised to sign the contract by Gordon Gao. Under the name of Multiplus, the agreement also included the Australian Business Number 37 123 349 593, which was the ABN of 17 Kirkham Road. 48.The agreement stated that Aleksic Carpentry would receive $200,000 plus GST, via agreed instalments, for the completion of the work. 49.Aleksic Carpentry had one full-time employee, Stephen Koutouzis, a third-year apprentice, and used casual employees or subcontractors when required. 50.There is no documentary evidence that Aleksic Carpentry engaged any employees. 51.Mr Aleksic had been present at the site for approximately three weeks prior to the incident. 52.Mr Aleksic's company had five subcontractors, Slavisa Djukic, Branko Kotur, Zeljko Alavanja, Mi Shu Lim, Alen Pupovac and two vocational rehabilitation persons, Dennis Preston and Victor Markovski (the injured person) on site at the time of the incident, who were supplied through another company known as Australian Personnel Management. 53.Mr Markovski and Mr Preston participated in a site visit prior to commencing work on 25 August 2009. Following this, it was arranged that Mr Markovski would attend the site on Mondays and Fridays. 54.Mr Markovski had limited experience on construction sites. He had been on long term unemployment benefits and had not worked since 2007. Serendipity (WA) Pty Ltd trading as Australian Personnel Management 55.At all material times, Serendipity (WA) Pty Ltd trading as Australian Personnel Management ("APM") was a provider of workplace rehabilitation, employment and psychological services, with offices in the State of New South Wales. APM was incorporated on 20 October 1993. 56.Mr Markovski was a client of APM. In August 2009, APM contacted Mr Aleksic to see if his company was interested in supplementing its labour force by using APM clients on vocational rehabilitation programs. 57.APM took approximately five clients, including Mr Markovski, to the site. Mr Markvoski was introduced to Mr Aleksic during this site visit. Mr Aleksic intended to pay Mr Markovski for his services at the site. However, Mr Markovski was not paid for the work he performed on the day of the incident. Auburn Formworks NSW Pty Ltd 58.At all material times, Auburn Formworks NSW Pty Ltd ("Auburn Formworks") was a small company which specialised in the installation and removal of formwork on construction sites. Auburn Formworks was incorporated on 17 October 2008. 59.Auburn Formworks signed a contract with Multiplus for the "formwork, steel fixing & concreting" on 20 April 2009. Mr Cai signed this contract on behalf of Multiplus. He was authorised to do so by Gordon Gao. Under the name of Multiplus, the agreement also included the Australian Business Number 37 123 349 593, which was the ABN of 17 Kirkham Road. 60.This contract set out that Auburn Formworks was to "form (and bolt down) all penetrations" and "cover all penetration on completion of the formwork deck" at the site. 61.Auburn Formworks had no employees at the time of the incident involving Mr Markovski. Abdul Hamdan, was one of two shareholders of Auburn Formworks, and he attended the site in the week leading up to the incident. Background 62.The site has a street frontage of approximately 65 metres and a depth of approximately 50 metres. 63.At the time of the incident, the project had progressed to the erection of some timber frames on a concrete slab located in the north-eastern area of the site, adjacent to Unit 22, approximately 65 metres from the site entrance gate on Kirkham Road. This concrete slab was the ground floor of the townhouses. There was a penetration in the concrete slab, which constituted the exhaust space for the basement car park beneath the concrete. The penetration measured approximately 700 mm x 700 mm. A similar penetration was located approximately 13 metres closer to the front of the construction site. 64.When the incident occurred, the flooring material for the second storey of the townhouses was in the process of being manually lifted by Mr Markovski, Mr Preston and Mr Djukic from the concrete slab ground floor area onto the second storey. 65.In the weeks prior to the incident, Auburn Formworks completed the falsework of the concrete slab, including the timber frame for both penetrations. These timber frames were positioned on the formply surrounding the penetrations and supporting the car park basement area below. The frame sat directly on the formply and no hole was cut in the formply. This resulted in the depth of the penetrations being only the thickness of the concrete slab, plus the height of the hob or collar surrounding the penetration, that is, from the top of the concrete to the formply supporting it from underneath, approximately 300 - 400 mm. The concrete was poured approximately three weeks prior to the incident. 66.Mr Aleksic recalled that on the day of the incident the formply was still beneath the concrete, but the hazard of a drop into the 350-400 mm hole was still present, so a compressed fibro floor sheet was placed over the hole. 67.Mr Djukic, one of the subcontractors engaged at the site, recalls that there had been no cover on the penetration since he had been on site about 1-2 weeks prior to the incident. Mr Djukic says that he assisted Mr Aleksic by placing a sheet of compressed fibro over the penetration a few days before the incident. 68.On 28 August 2009, there was no dedicated secure cover over the penetration. Floor sheeting, either timber and compressed fibro or a combination of both, had been placed over the penetration. The Incident 69.On Friday 28 August 2009, Mr Markovski started at the site at approximately 6:45 am. He assisted other workers at the site, moving building materials and cleaning the site. 70.Mr Shang left the site due to illness at some point during the morning of 28 August 2009. 71.At approximately 2.30pm that day, Mr Markovski, Mr Dennis Preston and Mr Slavisa Djukic were instructed by Mr Aleksic to pass the floor sheets from the ground floor concrete slab located adjacent to Unit 22 to other persons working for Aleksic Carpentry positioned on the second storey. Mr Markovski and Mr Preston were at one end of the compressed fibro sheet with Mr Djukic at the other end. They lifted the sheet and moved toward the other employees located on the second storey. 72.Mr Markovski apparently stepped forward and either tripped on the surrounding hob of the penetration or stepped directly into the penetration. Mr Markovski fell 3.7 metres onto the concrete floor of the car park basement below and onto some formwork material that was lying on the concrete. He may also have hit the side of the penetration on his descent. 73.Mr Djukic immediately informed Mr Aleksic about Mr Markovski's fall. 74.Mr Aleksic and others then went down into the car park via some internal stairs and found Mr Markovski lying on the ground. He was conscious but not moving. He was bleeding from the mouth and head. 75.Mr Markovski was then placed onto a formply sheet and removed from the car park to an area close to the site gate. 76.Mr Preston rang the emergency number and requested an ambulance. Police, WorkCover and the CFMEU were also notified. Ambulance officers treated and stabilised Mr Markovski at the site before transporting him to Westmead Hospital. 77.Mr Cai and Mr Shang were not on site at the time of the incident. 78.Mr Cai and Mr Shang arrived at approximately 5:40 pm that day. 79.Inspector Hayden inspected the site and took photographs. Inspector Hayden formed the opinion that the site had several serious safety-related issues and served a Prohibition Notice on Mr Cai as Austar's representative on site, effectively stopping any productive work. Injuries 80.Mr Markovski suffered severe head injuries, including a depressed fracture, a linear fracture and possible undisplaced fracture to his skull. He also suffered a lacerated tongue and severe bruising and tissue damage to the left side of his body from his feet to his head. He underwent surgery at Westmead Hospital to relieve pressure from within the skull caused by a brain haemorrhage. 81.Mr Markovski was discharged from hospital 13 days after the incident. Steps taken following the Incident 82.Within a few days after the incident, Gordon Gao visited the site to discuss remedial work in response to the Prohibition Notice. He also conducted a meeting at the site with Mr Cai and Mr Shang to discuss safety issues, and he instructed Mr Cai to conduct an investigation into the incident. He also directed Mr Cai to work full-time at the site. 83.Mr Cai produced an incident report on 2 September 2009. This report described the incident in some detail, but did not investigate why there was no secure cover over the penetration. The report bears the signatures of Mr Cai and Mr Aleksic. 84.On 3 September 2009, Inspector Hayden received a facsimile from Austar signed by Peter Xie noting that the incident arose "due to the breakdown of our onsite safety control". Mr Cai stated that he prepared this letter and arranged for Mr Xie to sign it. Systems of Work Prior to the Incident 85.Austar used a Construction Project Safety Plan, as the Occupational Health and Safety Management Plan for the site. The plan identified Mr Cai as the Project Manager and Mr Shang as Site Manager. The last revision date was 4 September 2009. The previous revision date was 10 May 2009. 86.The plan whilst relatively comprehensive refers to various positions and systems that were not applicable to the site, for example references to "Occupation Health and Safety co-ordinator", "2 way radios" and "site shed", none of which existed. 87.The plan also referred to the adequate provision of PPE at the site, however Mr Markovski was not wearing a helmet, gloves or proper boots on the day of the incident. 88.Aleksic Carpentry used a Safe Work Method Statement ("SWMS") which identified "Erect temporary handrail at edge of penetration" as a control measure to be implemented. The SWMS was signed by Mr Aleksic on 10 August 2009 and by Mr Shang on 17 August 2009. Mr Cai also signed the SWMS on behalf of Austar. Site Induction and Recording 89.The site induction consisted of completion of a form. Not all persons on site completed these forms. Mr Markovski did not complete a site induction. 90.The site induction forms were in English. Mr Hamdan could not read English. 91.No system was in place to record planned or actual events. Mr Shang did not utilise a daily attendance sheet, so no record of who was on site on any particular day can be ascertained. 92.No emergency procedures were established for the site. 93.No hazard reporting procedure was established Risk Assessment 94.The Project Safety Plan refers to an "Ongoing Risk Analysis". The date that this analysis was conducted by Mr Cai and Mr Shang is shown as "22 February 2004". 95.If the analysis provided was implemented and followed, it would have addressed and controlled the numerous hazards identified after the incident. These hazards include falling from heights, lack of handrails, access and egress to the concrete area, slips, trips and falls, hazardous substances, and falling of personnel and materials through penetrations. 96.The plan identifies Mr Cai as being responsible for the implementation of "an effective Health & Safety System", "Monthly Safety Report" and "Site Registers". There is no record of any such reports or registers being kept in relation to the site prior to the incident. Subcontractors Requirements 97.Subcontractors provided Safe Work Method Statements, but they were not followed nor were they used by site management, including Mr Cai and Mr Shang, to monitor the subcontractor's work. 98.Site management, including Mr Cai and Mr Shang, did not ensure that all subcontractors complied with their workers' compensation obligations, by not ensuring that the Subcontractors Statement for workers' compensation were provided. 99.There is no record of consultation or involvement of any subcontractors in safety walks or discussions. Instruction 100.No consultation was established and there appears to be no evidence of regular or comprehensive consultation, even via Toolbox Talks. Toolbox Talk sheets were provided, but those prior to the incident have no subject matter and only one or two names as persons in attendance. 101.There was no Toolbox Talk on the day of the incident. The following supporting documentation is annexed: a)Colour photographs taken by Inspector Darren Hayden on 28 August 2009; b)Colour photographs taken by Inspector Jim Alison on 11 September 2009; c)Factual Inspection Report of Inspector Darren Hayden dated 10 September 2009; d)Austar Constructions Project Safety Plan dated 4 September 2009; e)Contract between Austar Constructions Pty Ltd and Multiplus Group Pty Ltd dated 15 December 2008 and signed 18 December 2008; f)Subcontractor agreement between Austar Constructions Pty Ltd, Jackson Cai and Multiplus Pty Ltd dated 2 March 2009; g)Subcontractor agreement between Austar Constructions Pty Ltd, Martin Shang and Multiplus Pty Ltd dated 5 April 2009; h)Site induction training records for various workers signed by Martin Shang and dated between March-October 2012; i)Improvement Notice 7-187752 addressed to Austar Constructions Pty Ltd dated 31 August 2009, served to Jackson Cai and copied to Martin Shang; j)Facsimile correspondence from Austar Constructions to Inspector Hayden dated 3 September 2009; k)Prior convictions certificate for Austar Constructions Pty Ltd.

Defendant's evidence 14Mrs W Thompson of counsel, who appeared for the defendant, read an affidavit of Zhong Jie Xie, also known as Peter Xie, who is the sole Director and shareholder of the defendant. He was not required for cross-examination. 15From 1987, Mr Xie was employed as an engineer for high rise buildings. He had held a builder's licence since 5 August 2000. He stated that he had undertaken numerous building and construction work for small sites and small scale projects, usually consisting of single dwellings. 16Mr Xie holds a bachelor degree in Civil and Structural Engineering from Fuzhou University in China and has completed a Diploma course in Building and Construction. 17Australian Securities and Investments Commission ("ASIC") records disclose that the defendant was registered on 27 April 2005. Mr Xie was responsible for the day to day operations and control of the defendant. The defendant is self-employed. 18Mr Xie detailed his involvement with the Project at the site. His understanding was that at the commencement of the project in or around late 2008, the site was under the management of a company known as Living Developments (Aust) Pty Ltd. 19He said that Mr Gao Geng He, also known as Gordon Gao, was formerly a director of Living Developments. Mr Gao is also the Director of Multiplus. The other Director resigned in 2008. Mr Xie stated he developed and managed the residential construction of the project and was the controller on the site. 20In or about late 2008 or early 2009, Mr Gao's father contacted Mr Xie and asked him to help his son (Mr Gao) who he had never met. 21Mr Xie stated that he had known Mr Gao's father for approximately 20 years. A few days after he had been contacted by Mr Gao's father, Mr Gao came to speak to him about the Project. His evidence was that he asked him to "do the project" and he responded "I am only familiar with small sites and projects. This project is too big for me to manage". 22Mr Gao then asked him if he knew anyone who could help with the project and Mr Xie contacted Mr Jackson Cai, who advised him that he had the expertise and knowledge to manage the project. Mr Xie introduced Mr Cai to Mr Gao and they agreed to the terms of services to be provided. As part of the arrangement between Mr Cai and Mr Gao, Mr Martin Shang was engaged as Site Manager for the project. 23A contract was drafted by Mr Cai. He approached Mr Xie with a signed copy of the contract and said "I know this is something between me and Gordon [Mr Gao] but because you introduced me to Gordon I have to put Austar in the contract". 24Mr Xie stated that all payments for expenses and wages relating to the Project were paid directly from Multiplus to Mr Cai, Mr Shang and other contractors. Mr Xie would attend the site approximately twice monthly. On those occasions he said he did not stay for any length of time. He went to the site to observe and see how things were being done on such a large scaled project and to get a feel of the worksite environment. He stated that he never assumed any role in which he had the direct control, management or decision-making on any aspect of the project. 25Mr Xie acknowledged that the circumstances of the incident were as set out in the ASF. He said that when he spoke to Mr Cai to ask him about the injuries suffered by Mr Markovski, he said "don't worry about it at all. It has nothing to do with you." His evidence was he was told nothing about the incident, how it occurred or what injuries were sustained by the worker. 26Mr Xie has had no contact with the injured worker. However, on behalf of the defendant, he expressed his sincere regret and remorse for the injuries sustained by Mr Markovski. He stated he was "remorseful of everything that has happened and how more stringent safety measures were not undertaken at the site to prevent his injuries from occurring." 27His evidence was he was assured by Mr Cai that he would take care of everything. Mr Xie stated that as far as he was aware, safety measures were addressed in response to the notices issued by the WorkCover Authority of New South Wales ("WorkCover"). He said that he was aware the site was closed for one day to allow all the issues to be rectified that had been raised by WorkCover and that following an inspection by WorkCover, the Project continued. 28The defendant continues to carry out building and construction work for small projects. Mr Xie stated these projects consist of renovation or building work for single residential houses. As the sole director, he mainly does all the work himself with some assistance from casual workers from time to time. 29Mr Xie stated that he had not received any payment, financial benefit, or compensation whatsoever, in terms of the Project. 30Mr Xie stated that the project had detrimentally affected him in terms of his work and private life. He stated prior to agreeing to assist Mr Gao, he discussed the matter with his wife. He stated she was concerned because of the size of the project and was reluctant for him to get involved. As a result of the incident, he stated that he had frequent arguments with his wife and they separated approximately two years ago. He has two children aged 16 and 10, one suffering from a serious illness. 31Mr Xie annexed to his affidavit the financial statements for the defendant for the financial years ending 30 June 2009, 30 June 2010 and 30 June 2011. No application was made under the Fines Act 1996.

Relevant principles 32The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS Act. Their Honours stated at [8] - [15]: [8]The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9]In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' [10]The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: '[I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... [11]The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) ("Capral") 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: 'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.' [12]On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: 'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd [1999] 92 IR 188 (at 209 - 210) in these terms: '... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.' [13]It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" (Capral at 650; 66). On that point the Full Bench in Capral stated: 'We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).' [14]The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: '[B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.' [15]In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: '[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).'

Consideration 33The primary consideration as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence, as set out in the ASF and the evidence. 34Without repeating what is contained in the ASF, in considering the seriousness of the offence, it is relevant to set out the following important matters. 35On 15 December 2008, the defendant entered into an agreement with Multiplus for the supply of management services in respect of the project at the site. These services included the management of work carried out by subcontractors. Multiplus managed the construction of the 22 townhouses and controlled the site. 36The agreement stated that upon receipt of the occupation certificate from Auburn Council, the defendant would be paid a fee. The defendant was to be paid the balance remaining of $180,000 plus GST for its services. The wages for Mr Cai ($65,000 plus GST, and Mr Shang $600 per week plus GST), and the cost of casual labourers was to be deducted from the defendant's fee. The defendant arranged for Mr Cai to be the Project Manager at the site and Mr Shang to be the Site Manager. 37As noted in the ASF, Mr Cai asserted, after the incident, he was an employee of the defendant. This assertion was refuted by Mr Xie in his WorkCover interview (ASF [31]). The description Mr Cai gave of his relationship with the defendant in the agreement between Multiplus, the defendant and himself dated 2 March 2009 was that of a subcontractor. In a related matter: Inspector Spence v Aleksic Carpentry Pty Ltd [2012] NSWIRComm 45, Mr Cai was found to be self-employed (at [5]). 38Mr Shang was a self-employed person who signed an agreement with the defendant and Multiplus on 5 April 2009 to act in the role of Site Manager at the Project (ASF [38] - [39]). 39Mr Xie, the sole Director of the defendant, would attend the site approximately twice monthly, for short periods of time. From time to time, he spoke to Mr Gao, a director of Multiplus about safety issues (ASF [24]). Mr Xie was not consulted or informed by Mr Gao, Mr Cai, or Mr Shang on decisions that affected the site and site safety (ASF [24]). 40It is also an agreed fact that the defendant and Mr Xie had limited control of the premises (ASF [17]). The contractors engaged included Aleksic Carpentry Pty Ltd ("Aleksic"), who supplied and installed the timber framing at the site and Auburn Formworks NSW Pty Ltd ("Auburn Formworks") who carried out the installation and removal of formwork. Both these companies contracted with Multiplus, not the defendant, for work. 41Some weeks prior to the incident, Auburn Formworks completed the formwork for the concrete slab, including the timber frame around the penetrations. Apparently a penetration was left uncovered (ASF [67]). The penetration constituted the exhaust space for the basement car park. It measured approximately 700mm x 700mm. A similar penetration was located approximately 13m closer to the front of the construction site. The contract between Multiplus and Auburn Formworks required that "form (and bolt down) all penetrations" and "cover all penetration (sic) on completion of the formwork deck" at the site. 42The penetration was subsequently covered by a compressed fibro floor sheet. This cover remained over the penetration up to the date of the incident. No secure and fixed cover was provided in the intervening period. 43The absence of any secured covers over the open penetrations created an obvious and foreseeable risk to all persons working in the vicinity of the open penetrations. The risk that a person could fall through an open penetration is obvious. The penetration was open on the day of the incident, as the fibro floor sheet used to cover the penetration had been removed while certain other work was being performed. 44On the day of the incident, Mr Shang had left the site in the morning due to illness. The supervision of contractors at the site normally provided by Mr Shang as Site Manager, was not delegated by himself or Mr Cai to any other person in his absence. Mr Cai was not present at the site on the day of the incident. Mr Xie was also not present at the site, nor was he informed of Mr Shang's illness. 45Although Aleksic used a Safe Work Method Statement ("SWMS") that identified: "Erect temporary handrail at edge of penetration" as a control measure to be implemented to avoid the risk of persons falling through any penetration at the site, this had not occurred. 46There was no evidence before the court that the defendant was at any time appointed as the principal contractor of the site by the legal owner of the property pursuant to Regulation 210(2) of the Occupational Health and Safety Regulation 2001 (now repealed) ("the Regulation"). Only the owner of the site, pursuant to the Regulation, could appoint the principal contractor at the relevant time of the defendant's involvement with the project. 47The defendant accepted that the objective seriousness of the risk of a person falling through an unprotected penetration in the formwork was high. 48Mrs Thompson submitted that the following matters mitigated the objective seriousness of the defendant's contravention: a.Safety measures were taken to secure the safety of the premises prior to the incident. Austar arranged for two qualified and experienced subcontractors, Mr Cai and Mr Shang to assist Mr Gao in the management of the Project. b.Mr Gao, not Austar provided the instructions and directions to Mr Shang and Mr Cai for the progress of the Project. c.A Project Safety Plan was provided by Austar. d.Aleksic Carpentry provided a SWMS's that provided a control measure for a penetration. e.The contract between Multiplus and Auburn Formworks required all penetrations to be covered and bolted. f.Mr Xie would visit the site approximately twice a month but had limited control over the day to day management of the site. g.Mr Shang did conduct site inductions for some of the subcontractors working at the site. h.Austar was not informed of the absence of Mr Shang on the morning of the incident or that no other supervisor was appointed in his place. i.The circumstances of the incident as set out at paragraphs [65] - [66] and [71] - [72] of the Agreed Facts shows that the penetrations had been covered in a temporary manner prior to 28 August 2009. That company had been working at the site for approximately three weeks prior to the incident. It was at the direction of Mr Aleksic that the cover was removed just prior to Mr Markovski falling. Up to that point, although the penetration had only a temporary cover, it was sufficient to have prevented Mr Markovski from falling. 49Mrs Thompson also referred to the evidence that the defendant used a construction project safety plan as the occupational health and safety management plan for the site. It referred to ongoing risk analysis by Mr Cai and Mr Shang. The plan identified the following hazards: falling from heights, lack of handrails, access and egress to the concrete area, slips, trips and falls, hazardous substances, and falling of personnel and materials through penetrations. 50The plan identified Mr Cai as being responsible for the implementation of "an effective Health & Safety System", "Monthly Safety Report" and "Site Registers". There is no record of any such reports or registers being kept in relation to the site prior to the incident. Although subcontractors were provided with SWMSs, they were not followed. In addition, there was no evidence of regular or comprehensive consultation including toolbox talks. 51I accept the existence of systems of work in place prior to the incident are relevant to assessing the objective seriousness of an offence: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at [25]. 52The prosecutor submitted that the defendant's conduct constituted a significant breach of s 10(1) of the OHS Act, albeit, not a breach at the most serious end of the scale of possible breaches because of the limited day to day involvement of the defendant. 53It is appropriate to consider the contribution of other parties aside from the defendant in determining this matter. The purpose of such consideration is not to reduce the culpability of the defendant in any sharing or proportionate way of an overall penalty, but rather as a factor assisting in the determination of the real culpability of the defendant for the offence charged: WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316 at [46]. 54The contribution of other entities may also be considered in mitigation: Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 at [241]. 55In Inspector Spence v Aleksic Carpentry Pty Ltd, Boland P observed at [23] - [25]: [23]As the prosecutor further submitted, the corporate defendant performed the role of a subcontractor with direct responsibility to ensure that proper safety standards were implemented and maintained at the site. Under the contract dated 3 August 2009 between Multiplus and Aleksic Carpentry for the supply and installation of timber framing the corporate defendant was responsible for taking immediate corrective action to eliminate and control hazardous work conditions. The corporate defendant was also responsible for instructing the subcontractors engaged at the site, for monitoring their work and dealing with site safety issues. [24]In performing that role, the corporate defendant failed to take appropriate steps to address an obvious and known risk to persons working at the site, namely, the risk of injury to non-employees working on the ground floor level at the premises of falling approximately four metres through an open, unsecured penetration to a concrete basement below. I agree with the prosecutor that the risk to which Mr Markovski, Mr Djukic and Mr Preston were exposed was both self-evident and grave. [25]I also accept the prosecutor's submission that the personal defendant performed the role of a site/operations manager with direct responsibility to ensure that the instructions he gave to Mr Markovski, Mr Djukic and Mr Preston did not expose them to the risk of physical harm. At the time of the incident, the personal defendant was the most senior person with authority at the site, and he issued the work directive, which directly led to Mr Markovski falling through the penetration. 56In my view, the culpability of this defendant was less than that of Aleksic and Multiplus. 57The foreseeability of the risk of a person falling through an open penetration while working in the vicinity of an unprotected and unsecured penetration is an obvious and foreseeable risk. I accept the defendant's submission that the facts show that the period of time from when the temporary cover over the penetration was removed, and the time of Mr Markovski's fall, was within a very short timeframe. The immediate risk did not arise until Mr Aleksic gave the direction for all floor sheets to be lifted. The risk prior to this event was the risk associated with an unsecured covering over the penetration. 58It is obvious that simple and readily available steps could have been put in place by the defendant to control and eliminate the risk. This would have included forbidding persons working at the site from working in close proximity to the open penetration; warning those persons about the penetration; conducting a risk assessment in relation to working near the penetration; implementing site inductions to inform persons of the presence of the penetration and securing the penetration with an appropriate cover and ensuring that guard rails were placed around the penetration. 59The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at 646; (2000) 99 IR 29 at [81] - [82]; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd; Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at [79].

General deterrence 60I consider it is appropriate to once again draw attention to the need for employers and contractors in the building industry to be constantly vigilant of the need to ensure that employees and non-employees are not exposed to risks to their health and safety by falling through open penetrations. 61In Inspector Spence v Aleksic Carpentry Pty Ltd, Boland P observed at [35]: ... Falling through penetrations in buildings under construction has been the subject of a worrying number of prosecutions in this jurisdiction: see, for example, Inspector Yeung v Thiess Pty Ltd [2003] NSWIRComm 325; Inspector Yeung v Wideform Constructions Pty Ltd [2003] NSWIRComm 380; Inspector Richard Mulder v Process Engineering Group Pty Ltd and Anor [2008] NSWIRComm 36; Inspector Gjaltema v Errington and MJ Baker Constructions Pty Ltd [2010] NSWIRComm 37; Inspector Richard Mulder v Axis Metal Roofing Pty Ltd [2008] NSWIRComm 28; Inspector Hinton v Mono Constructions Pty Ltd [2011] NSWIRComm 148; Inspector Yeung v DJD Masonry Contractors [2003] NSWIRComm 236; Inspector Dunlop v Robert Shone Constructions Pty Ltd [2002] NSWIRComm 222; (2002) 118 IR 267; Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v Bradley Tracey and Others [2010] NSWIRComm 106; Inspector Gelonese v Ghevondian & Hyecorp Construction Pty Ltd [2010] NSWIRComm 12; and Inspector Gjaltema v Sebastian Builders & Developers Pty Ltd [2010] NSWIRComm 144. 62I respectfully agree with his Honour's observations. It is, therefore, appropriate that I include in the penalty an element for general deterrence.

Specific deterrence 63I accept in light of the evidence given by Mr Xie, this is not a case which calls for the imposition of some additional significant punishment aimed at deterring the defendant from further offending against the OHS Act and/or for the purpose of compelling the defendant's attention to occupational health and safety issues, so that persons are not exposed to risks to their health and safety. The defendant has taken steps to eliminate and/or minimise the risks that arose on 28 August 2009. 64As the defendant is still operating in a dangerous industry, I include a component in the penalty for specific deterrence.

Parity 65Recently, the High Court of Australia in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462, considered the principles attached to "equal justice" and the parity principle. The majority, French CJ, Crennan and Kiefel JJ (Heydon and Bell JJ dissenting) held that both concepts apply to the interpretation of statutes and require, so far as the law permits, that like cases be treated alike. The majority observed at [28], [29]: [28]"Equal justice" embodies the norm expressed in the term "equality before the law". It is an aspect of the rule of law. It was characterised by Kelsen as "the principle of legality, of lawfulness, which is immanent in every legal order." It has been called "the starting point of all other liberties." It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." (emphasis in original) [29]Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like offenders should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. 66The majority also observed that in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, and in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; (1997) 145 ALR 408; (1997) 71 ALJR 875, that the court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. However, the majority after noting the decision of Campbell JA in Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at 588 - 589 [201] - [203] stated at [30]: [30]... Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged. 67The Full Bench of this court considered the parity principle in Fidoto Pty Limited v Inspector Patton [2010] NSWIRComm 171; (2010) 200 IR 41. The Full Bench referred to an earlier judgment of a full bench in Warman International v WorkCover Authority of New South Wales (1998) 80 IR 326 where the court held that although the defendants were prosecuted under different sections of the OHS Act, they should be dealt with consistently and that the principles of parity as discussed in Postiglione applied to sentencing for OHS contraventions: see Warman at 340 - 341. The Full Bench observed at [16] - [17]: [16]... While principles of parity and consistency are aspects of equal justice, care has to be taken in identifying that which is appropriate to be compared. As recognised in Postiglione, co-offenders' different sentences may reflect different degrees of culpability or their different circumstances. ... [17]... Here, the mere difference in monetary penalties, properly understood, does not lead to a conclusion that there is an unjustified discrepancy. Indeed, in Postiglione, Dawson and Gaudron JJ stated (at 302) "A proper comparison includes a consideration of all components". In this sense, the applicant's submissions rely merely upon a mathematical approach and do not give any recognition to the importantly different circumstances between the two defendants. 68At [19], the Full Bench observed: [19]During the discussion of the appropriate approach to the circumstances that arise in this matter, it has already been observed that a mere difference in a monetary amount does not, of itself, necessarily amount to an unjustifiable disparity or discrepancy in the sentences. This was the approach of the Court of Criminal Appeal in R v Salcedo [2004] NSWCCA 430 at [62]: The parity principle reflects the proposition that consistency of punishment is of fundamental importance in the administration of justice: Lowe v R, above, at 610 per Mason J (as he then was). As it turns upon the perception that discrepancies in sentence may give rise to a "justifiable sense of grievance" or "give the appearance that justice has not been done" (Lowe v R, above, at 610 per Gibbs CJ (with whom Wilson J agreed)), the principle is not attracted on appeal unless it can be demonstrated that there is a manifestly excessive or marked disparity between the sentences imposed on co-offenders. Mere disparity is not sufficient to attract appellate review: Lowe v R, above, at 610 per Gibbs CJ, at 611 per Mason J, at 624 per Dawson J (with whom Wilson J also agreed). Thus it should be accepted, as the Crown submitted, that mere disparity is not sufficient to attract the parity principle. 69It was common ground that the principles of parity apply to the present matter. The prosecutor submitted that the following similarities could be identified between the defendant and the Aleksic defendants: i.Both were involved in the same or similar conduct which constituted breaches of s 10(1) of the Occupational Health and Safety Act 2000 ("the OHS Act"). ii.The sentencing of the Aleksic defendants was not based upon a significantly different body of evidence, with the Agreed Facts in each matter being substantially identical. iii.Both continue to operate in the construction industry. iv.Both fully co-operated with the WorkCover Authority in and about its investigation of the ncident. v.Neither has any prior conviction. vi.Findings were made that Aleksic defendants (like Austar Constructions) included "the smallest of corporations" and they "were working on a site where the overall control lay in the hands of others (at [28]). vii.A finding was made there was no material assistance provided by the Aleksic defendants to the injured worker (at [40]). viii.The Aleksic defendants' attention to safety on the site was "woefully inadequate" (at [27]), while Austar Constructions did not play any active role in site safety matters, despite the company being the appointed building management company for the site. ix.Both did not take reasonably practical steps to eliminate or control the same particularised risk - such as ensuring the penetration was securely covered - to ensure the workers' safety on the site. x.The burden of any fines imposed will be carried by the sole directors of Aleksic Carpentry and Austar Constructions. 70Mrs Thompson submitted that the defendant did not agree with the prosecutor's contention in (i) above. Counsel submitted that there were different levels of control, different roles and different responsibilities that constituted the s 10 breach for the defendant, compared to Aleksic. In respect of contention (viii), counsel observed that it was important to bear in mind the degree of control that the defendant had and the role that it played. The defendant entered a plea of guilty in recognition that it did not discharge all of its responsibilities in its role. Counsel submitted that Boland J's finding that the Aleksic defendants' attention to safety was "woefully inadequate" (at [27]) did not apply to this defendant. Similarly, counsel submitted in respect of contention (ix), that the extent of controls and responsibilities could be distinguished between this defendant and Aleksic. I agree with these observations. 71Counsel for the prosecutor submitted in his written submissions that the following differences could be identified between this defendant and the Aleksic defendants: 17.On the other hand, the following differences can be identified between Austar Constructions and the Aleksic defendants: i.A finding was made that Aleksic Carpentry Pty Ltd had "direct responsibility to ensure that proper safety standards were implemented and maintained at the site" (at [23]) and that Mr Aleksic "performed the role of a site/operations manager with direct responsibility to ensure that the instructions he gave to Mr Markovski, Mr Djukic and Mr Preston did not expose them to the risk of physical harm" (at [25]). ii.The director of Aleksic Carpentry Pty Ltd was the most senior person with authority at the site at the time of the incident, and he issued the work directive which directly led to the injured worker falling through the penetration (at [25]). iii.The sentencing judge was unable to conclude that the Aleksic defendants had shown remorse and found that Mr Aleksic blamed the injured worker for creating the hazard (at [40]), whereas Austar Constructions has expressed remorse. iv.The Aleksic defendants received a 17.5 per cent reduction of their sentences for their pleas of guilty. v.The site safety signage identified the name and contact details of Austar Constructions, whereas the Aleksic defendants were contracted by the developer of the site to supply and install timber framing at the site. 18.In the present proceedings, a number of similarities can also be identified between Austar Constructions and Yu Peng Shang, including that both expressed remorse for their conduct; both fully assisted WorkCover in its investigation; neither has any prior conviction; and both were involved in the same or similar conduct amounting to breaches of ss 10(1) and 9 of the OHS Act respectively. 19.On the other hand, the following differences can be identified between Austar Constructions and Yu Peng Shang: i.Mr Shang, as an individual, faced a maximum penalty of $55,000, whereas Austar Constructions faces a maximum penalty of $550,000. ii.A finding was made that Mr Shang "performed the role of site manager" (at [3]) and that he "it was part of Mr Shang's responsibilities at the site to supervise the workers and deal with safety issues" (at [23]). iii.Mr Shang no longer intended to continue working in the construction industry (at [21]). iv.A finding was made that Mr Shang "provided no explanation as to why the pleaded risk was allowed to remain unchecked for some period of time before the incident" (at [16]) whereas the facts show that Austar Constructions had a limited degree of daily operational involvement in the activities undertaken at the site. 72Mrs Thompson did not take issue with the differences identified by the prosecutor between the co-offender, although counsel did not accept that this defendant should only receive a 17.5 per cent reduction in sentence for its early plea. 73It was also common ground that this defendant, the Aleksic defendants and Mr Shang, together with other parties who have been charged in relation to the same factual matters but not sentenced, are co-offenders engaged in the same or similar conduct. 74It is apparent from the earlier sentencing judgments to which reference has been made that all the offences occurred on the same day, at the same place, involved the same particular risk and the same injured person. Further matters that point to the overlapping nature of the offences have been set out in respect of the similarities and differences identified by the parties as set out above. 75The principle of parity which is applicable in this matter, requires the court to consider whether there are any appreciable differences in the culpability of the defendants: Inspector Ching v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73; WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd t/a Transfield Maintenance (No 2) [2001] NSWIRComm 289; (2001) 110 IR 160. 76Consistent with the parity principle, it is therefore appropriate for the court in this matter to make reference to the different roles and responsibilities of the offenders. In R v Sukkar [2011] NSWCCA 140, it was observed at [36]: To the extent that the grounds do not raise the parity principle they seem only to deal with the proper approach to sentencing for a joint criminal enterprise particularly where the co-offenders have different roles in the enterprise. Although the starting point is that the offenders were parties to the same joint criminal enterprise, and that should not be lost sight of, (Johnson & Ors v R; Moody v R at [4]), and that one should not identify the differences in the roles with any precision (R v Hoschke [2001] NSWCCA 317 at [18], R v JW [2010] NSWCCA 49 at [161], Johnson v R; Moody v R at [11]), it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced (R v JW at [161], and see Johnson v R; Moody v R at [4] and [94], Regina v Darwiche [2006] NSWSC 1167 at [74], Regina v Rick Barry Swan [2006] NSWCCA 47 at [72] and [74]). 77The court is therefore entitled to take into account the sentences imposed upon co-offenders such as the Aleksic defendants and Mr Shang and the reasons for those sentences: see Rae v R [2011] NSWCCA 211 at [68]. In Aleksic, the penalty imposed upon was $120,000. A fine of $15,000 was imposed upon Mr Milivoje Aleksic, a director of Aleksic. Backman J imposed a fine of $12,000 upon Mr Shang. 78It has been observed that the earlier sentences become a mandatory element in the process of assessment to which appropriate weight should be given depending on all the circumstances: see R v Chandler; Chandler v R [2012] NSWCCA 135 where Basten JA observed at [5]: ... This involves no inflexible rule, breach of which constitutes error, but is merely part of the evaluative exercise to be reviewed under the principles articulated in House v The King [1936] HCA 40; 55 CLR 499. To treat disparity as a form of error in itself is to risk departing from a proper understanding of the sentencing process, as discussed in Markarian v The Queen [2005] HCA 25; 228 CLR 357, one result of which may be to inflict a further level of complexity on the sentencing process. 79In my view, and I find, that the roles and responsibilities of this defendant are distinguishable from that of the Aleksic defendants and Mr Shang. In particular, it is clear that this defendant played a lesser role in implementing and maintaining site safety standards than the other co-offenders who have been sentenced. The factual matters that I have set out earlier identifying the differences between this defendant and the co-offenders operate to determine and to distinguish the overall culpability of this defendant from the co-offenders that have been prosecuted. This distinction permits the court to impose a different penalty to that imposed upon the Aleksic defendants. I note, however, the recognition of the contribution of other parties to the relevant risk does not permit the court to apportion culpability for the purposes of sentencing. In WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd, Hungerford J observed at [48] - [50]: [48]It will be therefore apparent, I think, that Mr Phillips' submission was dangerously close to what I have referred to as apportioning a total penalty as between persons said to be responsible for the occurrence of the accident. I am unaware of any such approach in the sentencing process and, I think, it should be stated as plainly as may be that it is an approach leading to error. To the extent that Mr Phillips relied upon the parity principle in sentencing to support such a submission, I am of the view that that principle does not require a sharing or apportionment of culpability (and hence of sentence) but rather is designed to ensure that there should not be a marked disparity between sentences given to co-offenders for the offence for which they have been respectively found guilty. As Mason J, as his Honour then was, commented in Lowe v R (1984) 154 CLR 606 at pp 610-611 : Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. 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. [49] Brennan J added in that same case (154 CLR at p 617) : The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences in unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. [50] In Postiglione v R (1997) 189 CLR 295 at p 301, Dawson and Gaudron JJ cited the above comments from Lowe with approval and emphasised that the parity principle was concerned with treating like with like to do equal justice but, "in the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances". I see no support in the parity principle, or in sentencing principles generally, which would support the notion suggested here that a sentence should be fixed at a level lower than what it otherwise would have been for the offence because other persons may also have committed an offence in relation to the particular incident. 80I respectfully agree with his Honour's observations. 81As I have already observed, this is the only matter in my list that arises out of the incident which occurred on 28 August 2009 at the site. This fact, together with the fact that other co-offenders have already been sentenced, in my view, creates a difficult task for me as the sentencing judge in respect of this defendant. Applying the principles of parity and taking into account all matters and all evidence, I therefore propose to adopt a conservative approach in determining penalty. 82I note that neither party put submissions to me that I should not proceed to sentence this defendant.

Subjective factors 83The defendant entered a plea of guilty to an amended charge, which obviated the need for a complex trial that would have, most probably, taken some weeks of court time. In this respect, the High Court of Australia in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, per Gaudron, Gummow, and Callinan JJ, stated: [23]Although the original charge specified the elements of the offence charged, it was not reasonable to expect the appellant to plead to an offence which wrongly particularised the substance to which the charge related. And that is so even if the identity of the substance would not have affected sentence. In this regard, it should not be assumed that the appellant knew that the sentence would be the same regardless of the nature of the substance. [24]More importantly, the appellant should not have been expected to acquiesce in procedures which might result in error in the court record or, indeed, in his own criminal record. At the very least, a plea of guilty to a charge wrongly particularising the substance he had in his possession would not necessarily provide the basis for a plea of autrefois acquit to a subsequent charge specifying the correct substance. Kirby J further stated at [75]: ... The test is not the time when theoretically or physically a prisoner might have pleaded. The test is when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced. That question is to be answered in a reasonable way, not mechanically or inflexibly. And at [77]: ... It is unreasonable to penalise an accused person for failing to plead guilty earlier to an incorrectly particularised charge. 84In the Court of Criminal Appeal's guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, the Court held at [160]: ... (iii)The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. 85Spigelman CJ, with whom other members of the Court agreed, said at [155]: The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 86Wood CJ at CL said at [163]: ... I consider these guidelines to properly reflect the mitigating circumstance associated with the utilitarian value of a guilty plea. Adherence to them, in the absence of compelling reason to the contrary, can only assist to secure greater certainty and equity in sentencing practice. 87In R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326 Sperling J, with whom Beazley JA and Carruthers AJ agreed, after referring to the abovementioned passage from the Chief Justice and Wood CJ at CL in R v Thomson; R v Houlton stated at [64]: In my view, where an offender pleads guilty immediately upon charges being reduced by the Crown, that is "an exceptional case" justifying a discount at or close to the top of the range, notwithstanding that the proceedings have long since been set down for trial. To hold otherwise would offend against considerations of equity to which Wood CJ at CL referred. In addition to the saving in the cost of a trial, the fact that the complainant was spared the stress of giving evidence was also a relevant consideration. 88In Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189 (at [47]), Boland J held that where the amendments led to a material change in the nature of the charge, as was the case here, a plea entered after those amendments should attract the maximum 25 per cent discount for the utilitarian value of the plea. 89I allow a discount of 25 per cent for the plea of guilty in accordance with the principles outlined in R v Thomson; R v Houlton; R v Gorman, and Rodney Morrison v Wambo Coal Pty Ltd. See also generally Cameron v The Queen; R v S Y & Anor [2003] NSWCCA 291. 90The defendant expressed its contrition and remorse through Mr Xie at an early stage after the incident, in a letter forwarded to WorkCover dated 3 September 2009. 91Mrs Thompson submitted that the sole director of the defendant, Mr Xie is its "alter ego". Counsel also submitted any penalty imposed upon the defendant will in effect be borne by Mr Xie. Counsel emphasised that the defendant entered into the arrangement with Multiplus despite its lack of experience in large scale projects of this kind because of the friendship Mr Xie had with Mr Gao's father. It received no financial benefit whatsoever for the whole of the project. 92I propose to take these matters into account. 93In addition, the prosecutor accepted that the defendant had fully co-operated with the investigation by WorkCover. 94I find that the defendant, for the reasons already outlined in this judgment, is unlikely to re-offend. I note that the defendant has no prior convictions. 95The maximum penalty in respect of the defendant is $550,000. Taking into account the seriousness of the offence, the evidence, the approach I have decided to take in respect of parity, and the subjective factors referred to earlier, I impose a fine of $50,000. 96The prosecutor seeks a moiety and costs, which I propose to grant.

Orders 97I make the following orders: 1.The offence is proven and a verdict of guilty is entered. 2.The defendant is convicted of the offence, as charged. 3.The defendant is fined an amount of $50,000 with a moiety thereof to the prosecutor. 4.The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, as assessed.

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