Inspector Spence v Shang

System of work prior to the incident 9Austar was the project manager at the site. It used a Construction Project Safety Plan for occupational health and safety management (the Plan). The Plan identified Mr Shang as the site manager and Mr Cai as the project manager. 10According to the Prosecutor's Facts, the Plan, described as "relatively comprehensive", was defective in a number of respects. It referred, for example, to an "Occupational Health and Safety Co-ordinator", "2-way radios", and, a "site shed", none of which existed at the site. It 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. 11The Prosecutor's Facts record further safety procedures at the site which were either not implemented at all, or only partially implemented. For convenience, these are set out below: Site Induction and Recording 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. 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. No emergency procedures were established for the site. No hazard reporting procedure was established. Risk Assessment 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". 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. 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 Subcontractors provided Safe Work Method Statements (SWMS) but they were not followed nor were they used by site management, including Mr Cai and Mr Shang, to monitor the subcontractor's work. 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. There is no record of consultation or involvement of any subcontractors in safety walks or discussions. Instruction 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. There was no Toolbox Talk on the day of the incident. 12Aleksic Carpentry used a SWMS which identified as a control measure to be implemented, "Erect temporary handrail at edge of penetration". This SWMS was signed by Mr Shang on 17 August 2009. 13These matters show that to a significant extent the various safety procedures formulated by a number of entities involved in, or engaged at, the site were not implemented. At best, there was some partial implementation of some of those procedures. The Prosecutor's Facts, for example, attaches a number of "safety induction" forms some of which were signed by the inductees. As the Prosecutor's Facts disclose, the risk analysis conducted by Mr Shang was never implemented at the site, but if it had been, it would have addressed and controlled numerous hazards, such as, falling of personnel and materials through penetration. 14Under the Plan, Mr Shang, as the site manager, had direct responsibility for ensuring that health and safety standards at the site were maintained and implemented. These responsibilities included, but were not limited to, the following matters: Ensuring all necessary plant and equipment is provided to enable work to be carried out safely, ensuring such plant is maintained by appropriately qualified/competent persons. Ensure that contractors adhere to their health and safety obligations including safe work method statements. This shall be done either verbally or by written instruction, and if required ask the contractor to stop work. The action taken shall reflect the severity of the breach. Identify training needs of all workers and initiate training programs where necessary. Where training needs of Contractors are identified, communicate that need to them. Encourage contractors to use tool box talks, demonstrations, posters, etc to promote safety awareness on the project. 15The facts confirm that Mr Shang had daily operational involvement in the activities undertaken at the site. Nevertheless, the risk of falling through the penetration, which was known before the day of the incident, remained unchecked. Responsibility for this unchecked hazard lay with Mr Shang who was responsible for supervising the contractors engaged at the site, for monitoring the work performed there, and for dealing with site safety issues. 16Given the material placed before the court, a clear inference is available that the risk of falling through the open, unsecured penetration was reasonably foreseeable. Mr Shang has provided no explanation as to why this risk was allowed to remain unchecked for some period of time before the incident. According to Mr Djukic, there had been no cover on the penetration for about one or two weeks prior to the incident. The risk of persons falling through open, unsecured penetrations on building sites is well-known within New South Wales, a fact to which numerous sentencing judgments in this jurisdiction under the occupational health and safety legislation attest. According to the Prosecutor's Facts, Mr Shang had prior experience working on construction sites of a similar or larger size than the size of the project being undertaken at the time of the incident. 17Simple and readily available steps could have been put in place to control and eliminate the risk. These include some obvious measures identified by the prosecution in written submissions such as: Not permitting persons working at the site to work in close proximity to the open penetration. warning persons about the penetration. Conducting a risk assessment in relation to the risks associated with working near it. Implementing site inductions to inform persons of the presence of the penetration. Securing the penetration with a dedicated cover. 18Turning to the consequences of exposure to the risk, Mr Markovski fell 3.7 metres through the penetration onto a concrete slab. Although the consequences of the accident do not impact on the quantum of penalty, the seriousness of the risk to which Mr Markovski was exposed is a relevant factor to be taken into account by a Court when assessing the objective seriousness of an offence. 19When these objective factors are considered in combination, the Court is compelled to conclude that the offence is serious. 20General deterrence must also be taken into account in the sentencing process. As earlier noted, falls through unsecured penetrations at construction sites are well-known. Any penalty to be imposed for a breach of an offence involving risks of falling through penetrations must be of a severity sufficient to deter others from failing to detect and act upon such risks. 21On the other hand, specific deterrence has little, if any, application. Mr Shang informed the Court that he has not been working "for a few months". In a letter to the Court, Mr Shang advised that he intends to leave Australia with his family once these proceedings have been completed. 22Mr Shang has no prior convictions. He faces a maximum penalty of $55,000. 23There are subjective features which serve to mitigate to some extent the objective seriousness of the offence. In oral submissions, Mr Shang, with the assistance of an interpreter, acknowledged that it was his priority to consider possible risks. He sought to qualify this concession, however, by volunteering that this was his first time as a site manager and he was in the process of learning. This explanation tends to contradict the Prosecutor's Facts which assert that Mr Shang had prior experience working on construction sites undertaking projects of a similar or larger size. The Prosecutor's Facts do not further explain what role Mr Shang undertook at those sites, that is, whether he had any supervisory or other safety responsibilities at those sites. However, it is the Court's view that any person in the same or similar role as Mr Shang would have and should have detected the obvious risk posed by the unsecured penetration if exercising reasonable diligence at the site. The risk was known to exist prior to the offence by two other workers at the site and it was part of Mr Shang's responsibilities at the site to supervise the workers and deal with safety issues. 24The absence of prior convictions entitles Mr Shang to leniency not normally extended to offenders otherwise adversely recorded. 25Mr Shang's plea of guilty was entered at an early stage of the proceedings, as conceded by the prosecution. The prosecution also submitted that the plea of guilty was entered in the face of a strong prosecution case and constituted therefore, a "recognition of the inevitable". This latter submission may demonstrate an absence of contrition. The timing of the plea, however, is relevant to a quite different consideration, namely, the utilitarian value of the plea. Given that the plea was entered at a "relatively early stage", the Court considers that a discount of 25 per cent of the penalty to be imposed is warranted. 26The prosecution also acknowledged that Mr Shang co-operated fully with the WorkCover Authority in its investigation of the incident, including his participation in an interview and the provision of certain documentation. This factor will be taken into consideration in mitigation of penalty. 27Mr Shang, in oral submissions, asked the Court to take into consideration when imposing a fine that his wife had given birth to a daughter earlier this year and she is no longer working. Mr Shang informed the Court that he is no longer working. After the sentence hearing, Mr Shang forwarded some financial records under cover of a letter, endeavouring to show that he has little money to pay a fine. The records consist of the following: Letter from the St George Bank dated 21 December 2010 concerning the approval of a residential home loan in the name of Mr Shang's wife for the sum of $466,400. Financial information tables also dated 21 December 2010 relating to the above loan. Letter from Brookfield Australia Investments Limited dated 10 October 2011 concerning the commencement of parental leave by Mr Shang's wife on 3 January 2012. Letter from the Australian Government Family Assistance Office dated 16 February 2012 granting a claim for paid parental leave for Mr Shang's daughter. Copy of birth certificate of Mr Shang's daughter dated 12 March 2012. 28At the sentence proceedings, the Court explained to Mr Shang that any reliance on a reduced capacity to pay a fine must be supported by financial records and/or sworn evidence. At the request of the Court, the prosecution undertook to explain to Mr Shang what sort of financial records would be required to establish to the Court's satisfaction his capacity to pay a fine. Mr Shang was given a short period of time in which to assemble any records he wished the Court to take into account and send copies of those records to the Court and to the prosecution. At the same time, Mr Shang was informed that the prosecution, once in receipt of those records, would be given an opportunity to approach the Court if it wished to make any submissions based on the records. 29In written submissions, sent to the Court after receiving a copy of Mr Shang's records, the prosecution submitted that Mr Shang had not provided sufficient relevant information to enable the Court to properly consider his financial capacity to pay a fine. In particular, the prosecution emphasised that Mr Shang had not provided any recent bank statements, tax returns, or any other details of personal assets or investments. Nor had he provided any property valuation or any details of the current balance of the loan. It was also pointed out by the prosecution that Mr Shang's assertions that he left his job in October 2011, and that he borrowed money from family and friends, were unsupported by documentation. 30In these circumstances, the prosecution submitted that it would be inappropriate and unsafe for the Court to rely on the records produced by Mr Shang as a basis for applying s 6 of the Fines Act 1996 by reference to an asserted incapacity to pay any fine imposed. 31Given the paucity of relevant documentation placed before the Court, I am unable to properly consider whether Mr Shang lacks the capacity to pay any fine which may be imposed. The evidentiary onus to establish this matter lies on a defendant on the balance of probabilities. In the absence of material, Mr Shang has not discharged this onus. 32In any event, the Court regards the offence as objectively serious. The Prosecutor's Facts, in summary, record that Mr Shang kept no records of who was on site on any particular day. The Plan referred to an "Ongoing risk analysis" which was conducted by Mr Shang and Mr Cai on 22 February 2009. However, the analysis was never followed, nor implemented. Subcontractors were required to provide SWMS, but these were not followed up or used by site management, including Mr Shang, to monitor the work. There was no evidence of any regular or comprehensive consultation with subcontractors, for example, via toolbox talks. Toolbox talk sheets were provided, but they contained no subject matter and recorded only the names of one or two persons in attendance. 33These matters attest to the objective seriousness of the offence. There are numerous statements in this jurisdiction to the effect that even where a defendant establishes by means of appropriate documentation that he, she, or it has a reduced capacity to pay a fine, that consideration does not necessarily result in the Court not imposing a heavy penalty as a reflection of the objective seriousness of an offence: see, for example, Wright J in Ferguson v Nelmac Pty Limited (1999) 92 IR 188. Other statements in this jurisdiction emphasise the primacy of the objective seriousness of an offence which necessitates careful scrutiny of a defendant's financial situation where reliance is sought to be placed on a reduced capacity to pay a fine: see, for example, Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority (Inspector Glass) (2001) 106 IR 435; [2001] NSWIRComm 190. 34Finally, on the issue of costs, the prosecution informed the Court that in due course its costs of these proceedings "need to be dissected from proceedings taken against other defendants arising out of the same incident".

Orders 35The Court makes the following orders: (1) The defendant is convicted of the offence under s 9 of the Occupational Health and Safety Act 2000 and fined $12,000 with a moiety to the prosecutor. (2) The defendant is to pay the reasonable costs of the prosecutor as agreed or in the absence of agreement as assessed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2012