The Agreed Statement of Facts in each matter appear as an annexure to this judgment.
8 Continuing differences between Holdmark and the prosecutor led to a number of witnesses being called to give oral evidence. Inspector Cooper gave evidence about attending the construction site, making observations at the site and completing two factual reports. He took a number of photographs stating that he stood about 50 metres from the edge of the laneway in Vales Lane and standing close to where there was shattered windscreen glass on the roadway when he took certain photographs of the scaffolding and wire mesh covered or partly covered by shade cloth. He gave a description of drop-stripping as being a method to speed up the process by removing some of the supports and attempting to induce a collapse of the formwork. In adopting this method, a very large area of formwork could be dismantled at the one time - the falling of the formwork could be induced by tying, pulling or throwing timber at the props to bring about the collapse. On his inspection of level 4 of the building described as "D2" he noted that formwork supports had been taken out and that timber had been used to prop the formwork and that there were sections of the formwork that had been removed: this suggested to him that drop-stripping of the formwork was taking place in this area.
9 Kevin Fisher described stopping his utility in Vales Lane on 23 March 2004, hearing a noise behind his vehicle and then experiencing a large piece of timber crashing through his windscreen and bouncing off the steering wheel of his vehicle. He described his injuries and said that the incident had dwelt on his mind for the following 12 months: he had, however, not sought counselling or medical assistance. Mr Kevin Fisher gave a statement to the WorkCover Authority saying that after he had been taken from his vehicle and had been settled down, he looked up at the building but could not see anybody there. Approximately half an hour after the accident, he looked up again and saw two people putting what he thought was chain wire on the outside of the scaffolding where the scaffolding was lower than the scaffolding adjacent to it, at a point immediately above his utility. There was no shade cloth fitted to that part of the scaffolding where he saw people working.
10 David Fisher, Kevin Fisher's father, told of driving down Vales Lane on the morning of the accident. He did not see anything fall from the building but he saw a large piece of timber fall from the sky and saw it go through the windscreen of his son's utility. He then looked up at the building but did not see the timber coming from the building. He noticed that there was a section on the scaffolding where the shade cloth was missing and that section was in the vicinity of his son's vehicle. He could not recall if there was any wire mesh in that area at the time. In a statement given to WorkCover, Mr David Fisher said that after the timber hit his son's car, he looked up at the building and noted there was green shade cloth around the perimeter of it but that there was an opening at the top of the scaffolding where there was no green shade cloth. He thought that that opening was about 12 feet in width and up to 6 feet in height with a scaffold frame erected around the outside of the building.
11 Keith Marnies was a carpenter/joiner employed as a site supervisor at the Auburn Central site at the time of the incident. He was employed by Shaya Constructions being contracted to perform work for Holdmark. At the time of the accident, Mr Marnies was in a supplier's truck in Vales Lane and heard a bang on the roof of the utility behind him. He looked up and saw another piece of timber come down and pierce the window of the utility. The piece of timber was approximately 4 x 3 and was between two and three metres long. The timber had fallen from the Auburn Central building site. He looked up and observed that there was scaffolding on the side of the site but shade cloth had not been drawn across all the scaffolding. He could not recall if there was wire mesh on all the scaffolding. The part of the scaffold where there was no shade cloth was directly above the utility involved in the incident.
12 In a witness statement given to the WorkCover Authority, Mr Marnies said that after the first piece of formply hit the utility, making a large bang, he looked up and noticed a piece of timber falling off the building and "hurtling through the air". He stated that, when he first saw that piece of timber, it was on the building itself, approximately five or eight floors up and that it fell out of the building over the scaffolding and at that time there was no wire mesh on the outside of the scaffolding. The piece of timber fell straight down and speared through the front windscreen of the utility. Further, Mr Marnies said that, at the time of the accident, there was no safety mesh around the scaffolding but external scaffold had been erected. The area in which there was no mesh in place was approximately five to ten metres away from the entrance in Vales Lane or, more precisely, the entrance to the arcade of the site and was between five and eight floors in height. On being shown photographs of the scaffolding, Mr Marnies said that there was an area at the top of the scaffolding where, at the time of the accident, there was no green mesh or safety wire on the scaffolding which was approximately above the area where the accident had occurred. In cross-examination, Mr Marnies said, by reference to photographs of the site, that the second piece of wood came from the area where there was no cloth on the scaffolding and that the wood had come from in between the scaffolding bars.
13 Michael Dalzell was a safety consultant employed on the Auburn Central site at the time of the incident, having spent 25 years in the construction industry. He and Roger Kazzi were both engaged on the site full-time in providing safety management systems. On the day of the incident, he was aware that Quality Formworks was performing work on the site. He was familiar with the method known as "drop-stripping", describing it as the removal of support and throwing things at the temporary support until the formwork collapsed. He was aware that process was prohibited on construction sites by the building code but had seen it performed on all sites on which he had worked. He saw that approach adopted twice at the Auburn Central site and drew it to the attention of several people, including Mr Kazzi and Mr John Nassif. A toolbox meeting was held with all formworkers on site with two WorkCover officials in attendance to explain the gravity of the situation if they continued to adopt that system. That meeting took place before the incident in Vales Lane on 23 March 2004. Mr Dalzell had observed Quality Formworks drop-stripping and had spoken to somebody from that company about the drop-stripping - he believed that was Mr Saliba. He warned Mr Saliba not to continue drop-stripping because it was against the law. He thought that warning had been in writing but he had spoken to Mr Saliba about the matter. Drop-stripping was becoming a serious issue once it was recognised that the practice was occurring on site. Mr Dalzell was not aware of who was responsible for the supervision of the different buildings on the project: he was not aware which foremen were in charge of which areas or which sub-contracts. There was an allocation of particular areas within the site but Mr Dalzell did not know the details of that allocation.
14 The Auburn Central site was described by Mr Dalzell as a "very large" site and on the day of the incident employed several hundred people. In relation to drop-stripping, Mr Dalzell said that the reason it was outlawed was that it could not be controlled. When drop-stripping was performed, the material just fell away wherever it wished to fall. On other jobs, he had seen material penetrate mesh and that, when falling, the material could go in all directions.
15 By reference to photographs, Mr Dalzell identified the place from which the timber fell as being the scaffolding directly above where the utility was parked. He said that, after the incident, he thought workers were extending the scaffolding equipment further along the face of the building which involved extending the mesh and the scaffolding itself. He was not sure but he did not think that the particular bay above the utility had mesh to that level. He formed the view that Quality Formworks were drop-stripping on the day. He did not believe he had authority to give any directions when he gave warnings to contractors or sub-contractors: he would only bring it to the attention of Mr Kazzi and keep a record in the notice book. He could not take any action himself in relation to a warning he had given.
16 In cross-examination, Mr Dalzell accepted that, prior to the incident, he had not issued any written notices to Quality Formworks in relation to drop-stripping. He was unsure of the identity of the people and for whom they were working: he had been mainly been concerned about drop-stripping being performed by a company called "REI Formworks" which appeared to be working more dangerously and it was given a written notice about ceasing to drop-strip. There had been a meeting with Quality Formworks concerning drop-stripping. Warning them against the practice which occurred prior to the incident on 23 March 2004. Mr Dalzell said that usually the shade cloth was fixed to wire meshing and, if stripping was being undertaken in the proper way, items would not escape from the building and fall to the ground. The problem with drop-stripping was that there was something of an explosion of items outwards when the formwork dropped. He agreed that, if stripping had been performed in a proper way, there was no possibility of anything falling on Mr Fisher's vehicle.
17 Roger Kazzi was a safety officer employed by Holdmark at the Auburn Central site project. He had been employed on that site as a safety officer for approximately 18 months at the date of the incident. He confirmed that a number of scaffolding companies were engaged on the site and that Quality Formworks was one such company. He was aware of the companies' practice of "drop-stripping" on the site including Quality Formworks and although he had not observed them using that practice, he spoke to Quality Formworks once or twice before the incident about adopting the drop-stripping practice and told them they would be removed from the site if the practice continued. He did not see Quality Formwork use that practice again after issuing the warnings nor was he told the practice was continuing.
18 On the morning of the incident, he was elsewhere on the site and did not witness the timber falling. He was not aware of Quality Formworks performing drop-stripping that day but he presumed that they had been involved in the practice. After the incident, a further notice was issued to the sub-contractors warning against the practice of drop-stripping; that notice was also sent to Quality Formworks. It was his recollection that Quality Formworks probably continued working on the site after the incident and were not removed from the site. In cross-examination, Mr Kazzi agreed that there were a number of formwork companies working on the site, not all involved in drop-stripping, but there were others besides Quality Formworks involved in that practice. There was a meeting with WorkCover inspectors and scaffolders at which a warning was given against using the practice. Mr Kazzi thought that there had been a written warning given to Quality Formworks before the incident warning against adopting the practice of drop-stripping. At the time of the incident Holdmark had persons available to supervise the work of sub-contractors being allocated to look after a particular group or groups of sub-contractors. At the time of this incident, Mr Kazzi was not aware who had the task of keeping a supervisory eye on Quality Formworks. On the day of the incident, he did not actually see anyone from Quality Formworks drop-stripping but he formed the view that had occurred. He accepted that, after the incident while Quality Formworks continued to work, it had probably finished up its work and eventually moved off site.
19 Bashar Maarabani was employed by Holdmark on 23 March 2004 and worked on the Auburn Central project as a site supervisor. On that day, he had been working in that capacity for approximately two years and was also a senior site foreman. Part of his role and responsibilities included managing contractors. He considered the project to be a large construction site and on any particular day there would be between 50 and 80 people working on the site. There were five blocks of the building under construction.
20 The incident took place outside block D and, although Mr Maarabani was the general foreman, the supervisor for that block on that day would have been "floating around" the trades, and there could have been a few supervisors looking after formworking and bricklaying. There was one foreman employed for each trade.
21 Prior to the incident, Mr Maarabani had witnessed Quality Formworks engage in drop-stripping and had issued an instruction that they were to cease that practice - that was a verbal instruction. He was not able to recall the number of occasions, but thought that this had occurred once or twice. After those warnings there was a mass meeting at which the formworkers were advised that anybody caught drop-stripping would be immediately dismissed from the site. The safety committee also put up signs at the site stating that anybody caught would be dismissed immediately. This meeting was held prior to the incident and a similar meeting was held after the incident. Mr Maarabani said he was aware that Quality Formworks was drop-stripping at the time of the incident. When asked why they were not removed from the site, he said that after the initial warnings there had been no further occurrence of the practice until the incident.
22 In cross-examination, Mr Maarabani said that on the day of the incident about 300 squares were being stripped of formwork and that it was possible to remove a large part of that area at one time by drop-stripping. It was not unusual to drop-strip in smaller areas and reduce the task to two or three sections. After the incident, Quality Formworks remained on the site but only to finish up its work. The site continued for another one or two years after the incident.
23 On the day of the incident, Louis Esho was employed by Quality Formworks as a labourer at the Auburn Central site. His work involved cleaning up and providing material for the formworkers but he was not involved in the actual task of erecting or dismantling the formwork. By reference to photographs in evidence, Mr Esho described the work he was performing at building D and said that he was working on the bottom level, that others from Quality Formworks were working above him at the same time, cleaning up and doing that type of work. He said there were persons from Quality Formworks stripping formwork on the level above which sounded like timber and plywood were falling and that sounded like drop-stripping, or they have could have been be lowering the timber from the side for it to fall but bringing it down safely bit by bit. He was not on that level and he did not see what was happening.
24 Mr Esho was aware of the timber falling off the building and falling to the road when he heard yelling. He noticed that there was a section on the higher level of the scaffolding where there was no mesh around the scaffold, meaning an absence of green shade cloth. There was scaffolding and, in part, it had wire mesh and green shade cloth covering it. There was scaffolding and the wire fence but no green mesh. He returned to where the timber had apparently fallen through and had placed plywood around it which was at an angle between the slab and the scaffolding at the edge. In cross-examination, Mr Esho said that there were a number of formwork companies working on the site in the same area in which he was working. He confirmed that he was aware that drop-stripping was taking place because of the noise and the sound of the timber and plywood falling. He was not aware of who was carrying out that drop-stripping but he could hear it.
25 For the defendant Holdmark no evidence was called. In the case of Quality Formworks and Mr Saliba, Mr Saliba provided an affidavit, gave oral evidence and was cross-examined, particularly in relation to his financial circumstances.
26 Mr Saliba was almost 58 years of age, was married and had six children ranging in age from 15 years to 23 years. He said three of the children were still dependent. He described how he had arrived from Lebanon in 1969, had returned to Lebanon and again came to Australia in 1983. He had been employed in a variety of businesses working as a labourer and working in factories in manufacturing work. He had also worked as a taxi driver but from 1986, he started working in the building industry. From 1986 to 1997 he worked for T & T Formwork as a formworker and carpenter and learned the job, having no formal qualifications. The jobs that he worked on with T & T Formwork varied from three storeys to high-rise buildings. In 1997, he set up his own formwork business in partnership with a nephew. This work involved three storey buildings, high rise development and commercial development involving 50 to 60 units and the construction of up to 80 units. That partnership dissolved in 2002 and Mr Saliba started his own company, Quality Formworks. He was the sole director of the company and traded on his own, with the company carrying out eight or nine large jobs since its commencement with some jobs having in excess of 100 units. The company had been involved in developments of up to 23 storeys as well as smaller jobs. He stated that the company had never had any claims made against it nor had any claims been made against him personally. There were no workers compensation claims, personal injuries claims or prosecutions and he had always maintained the required insurances for the business.
27 Quality Formworks had been engaged on the site originally as a sub-contractor to another formwork company but, when that company left the site, Quality Formworks took over and was paid directly by the developer Holdmark but without a contract.
28 Mr Saliba then described the difficulties he experienced in being paid and in having a dispute with the developer, leading to the company having tax and GST liabilities unpaid with thousand of dollars being incurred in interest and penalties. Mr Saliba said that the majority of money from the developer, when it was paid, was used to pay taxation and GST arrears, wages and the cost of running the project. The company had lost hundreds of thousands of dollars worth of formwork and materials on the job.
29 At the time of giving evidence, Mr Saliba said he was not working, that there had been little work for the company and so he had decided to shut it down. The company remained registered as the result of a tax debt in excess of $90,000. Mr Saliba said that he last worked two and a half to three years ago and, although he had continued to quote for jobs, he was not willing to work at a rate where there would be no return. Recently, he had sold the family home in Merrylands as he was unable to meet the mortgage repayments. The house was sold for $586,000 but, after payment of the mortgage, agent's commissions and other fees, he and his wife were left with approximately $27,000 - that money was used to pay other debts and living expenses incurred by the family. Mr Saliba said he had numerous debts both personal and business that had accrued over the last few years. He stated that he owed in excess of $200,000 to friends and family that had assisted him with paying the debts.
30 There was a development at The Entrance in which he was involved with four partners. The development involved the building and sale of 41 residential units. He described himself as the second largest shareholder in the development with all his savings and money being directed into that venture. While the building of the units was completed, because of a drop in the real estate market, the sale of the units had stalled. Proceeds from the units sold had been used to pay back the development and construction loan on the property and only three or four units had been sold in the last 18 months. He tried to obtain Centrelink benefits but, because of The Entrance investment did not qualify for those benefits. This was so, even though he had no access to money and was unable to obtain any income from the development. He was of the view that eventually the bank would take control of the property under the mortgage arrangements. Apart from his financial circumstances, as a result of financial stress, he found his health was deteriorating and he was also a diabetic.
31 In relation to the incident, Mr Saliba stated that at the time that the drop-stripping was undertaken by employees of Quality Formworks he was not present on the site. He accepted full responsibility for the lack of supervision at the time and stated that when he returned to the site he had no option but to allow the drop-stripping to continue as the areas where his employees were working had become too unstable to reverse the work that had been commenced. He further accepted that, if he had been present on the site, the incident would not have occurred and that he would not have allowed his relatively inexperienced team to adopt the drop-stripping procedure.
32 In relation to his present living circumstances, his sons worked and gave money to the family so that they could live and pay the rent on the house of $400 per week. In relation to the financial documents concerning Quality Formworks, the tax returns and balance sheets were with the accountant. Mr Saliba had tried to obtain copies but the accountant would not give him copies because Mr Saliba owed him $10,000. He said that he had a present bank overdraft of $15,000 but had no money in any bank account.
33 In cross-examination, Mr Saliba said that the units at The Entrance had originally been priced between $500,000 and $600,000 but were now being offered for $280,000 to $300,000. Of the 41 units only 12 had people living in them and the remainder were not occupied and had not been offered for rent. He had personally invested over $900,000 in the project and had borrowed $540,000 from the bank. The cost of the development was approximately $11.5 million and he owed the bank $520,000. He owned seven or eight of the units but the company debt on the units with the bank was $7 million for the development company. He had been unable to obtain work and his wife did not work. All the family lived with him and his sons were paying the rent and giving him money to live on.
DELIBERATION
34 In relation to the offences committed by Quality Formworks and Mr Saliba, it was common ground that they were first offences and, in the case of the corporation, attracted a maximum penalty of $550,000 and, in the case of Mr Saliba, attracted a maximum penalty of $55,000. In relation to both defendants, the prosecutor submitted that this was a serious offence. The evidence showed that the adoption of drop-stripping meant that there was no control of the material falling and that, literally, it could explode in all directions. It was for that reason that it was prohibited by the Code of Practice. This large piece of timber had been projected from the Auburn Central building site and was capable of inflicting very serious injury on people using Vales Lane. The inherent dangerousness of drop-stripping meant that the risks associated with that practice were clearly foreseeable. The evidence supported a finding that this piece of timber went through the wire mesh, or a gap in it. Mr Saliba, as the principal of Quality Formworks, was aware of the prohibition against drop-stripping and had been warned by Holdmark against using that practice on the site before this incident. Despite those circumstances, he left his workers in the hands of his young and inexperienced sons on the day of the incident when that prohibited practice was adopted.
35 General deterrence required significant recognition in the penalty to be set having regard to the fact that this was a breach of a code and the evidence of the continuing practice of contractors to adopt the drop-stripping method of removal of formwork. In relation to specific deterrence, it was accepted that Mr Saliba was in financial difficulties and, although the business had not operated for a number of years, the evidence was that he was still seeking contracts although being unable to obtain any work. There was no evidence of Mr Saliba and Quality Formworks introducing training or addressing the use of this prohibited practice after the incident: the evidence supported a finding that verbal warnings at least had been given to Quality Formwork prior to the accident.
36 The prosecutor accepted without reservation that the principle of totality applied to the offences of the corporation and Mr Saliba as the director of the corporation. The risks particularised were essentially the same for the s 8(1) offence as for the s 8(2) offence.
37 In relation to subjective factors, apart from the prior good record of the company and Mr Saliba, there were early pleas of guilty and there was co-operation with the investigation conducted by the WorkCover Authority. While it was conceded that both the company and Mr Sabila were experiencing financial difficulties the prosecutor submitted there was a marked lack of detailed information before the Court so that it was very difficult to give the defendants the benefit of the discretion available under s 6 of the Fines Act 1996
38 In submissions for Quality Formworks and Mr Saliba, the seriousness of the offence was accepted - that fact was clearly in mind when the defendants entered their pleas of guilty on the first return of the summons before the Court. The defendants accepted that it was Mr Saliba's lack of supervision that was the central element in this offence. If he had been present, he would have prevented the accident. Mr Saliba was aware of the dangers and the foreseeable risks of adopting the drop-stripping practice which was not a practice he encouraged, but he had a number of new employees and they had taken their own course while he was absent. It was said to be important to note that there was no written warning prior to the accident and had there been a real problem with Quality Formworks engaging in this practice, the systems adopted by Holdmark would have resulted in a written warning notice being issued.
39 In relation to subjective factors, there was an early plea and there were no prior convictions. The company had been in operation since 2002 but now had no employees and no work. Mr Saliba's evidence supported a finding that there was little chance of either the company or Mr Saliba re-offending. In relation to the defendants' capacity to pay the fine, this was a one-man business and there were no assets of the company or Mr Saliba personally available to pay the fine. The Court was requested to take into account that any penalty against the company would be a penalty ultimately borne by Mr Saliba.
40 The prosecutor submitted that the offence committed by Holdmark under s 8(2) centred on the failure of the company to properly supervise the works and to prevent the adoption of drop-stripping by the contractors and sub-contractors. A previous warning against this practice had been delivered to Quality Formworks but, contrary to the policy of Holdmark, Quality Formworks was not removed from the site. The evidence was that the safety officer, in issuing these warnings, had no authority to do anything else but deliver the warning and make a note of it.
41 By its plea, Holdmark had accepted the particulars of the charge as amended. There was some considerable delay in reaching an Agreed Statement of Facts which centred particularly upon the extent to which there was mesh and shade cloth erected on the building where Quality Formworks was removing the formwork. It was accepted that it was not clear on the evidence where the timber came from: it was on level 4 and either went through or over the scaffolding. There was evidence that, when drop-stripping was adopted, the formwork could explode and was not able to be controlled. Drop-stripping had been observed at this part of the site before the incident.
42 In this case, there was a prior conviction and Holdmark faced a maximum fine of $825,000. There was no evidence called by Holdmark and so there was nothing before the Court as to what steps had been taken to address the deficiencies in its system. It was to be noted that the evidence showed that the supervisors could not identify the relevant workforce although they were allocated to supervise particular trades. The Court had no indication as to what steps were taken by the defendant since the accident to address its safety system generally or particularly arising from this accident. There was, however, co-operation with the investigation by the WorkCover Authority and, although the defendant had initially entered a not guilty plea, it had ultimately altered that plea in response to an Amended Application for Order that reduced the number of particulars of the offence. If the case had gone to full hearing there would be in the order of 22 witnesses required and a hearing of at least five days.
43 For Holdmark, it was readily conceded that there could have been most severe consequences as a result of this large piece of timber falling from the building site. Holdmark's failure was the lack of adequate supervision of the work being performed by Quality Formworks. Quality Formworks had performed drop-stripping previously and had been warned not to continue that practice. In acting that way, the defendant had demonstrated the correct attitude towards safety and there had also been a meeting before the accident with the WorkCover inspectors present when all formworkers were told not to perform drop-stripping and that if they did so, they would be removed from the site. It was important to realise that nothing had happened between that meeting until the incident requiring removal of a formwork company. In addition, there had been a written warning given to another formwork contractor banning the practice of drop-stripping but there was no such written warning in relation to Quality Formworks. The inference to be drawn was that Quality Formworks was not an habitual offender or not as significant an offender as, for example, REI Formworks and therefore the level of supervision would not need to be so high in relation to its work. Quality Formworks was not a serial offender requiring a necessarily high level of supervision.
44 Contrary to the submissions for the prosecutor that there was some ambiguity about how and where the large piece of wood came from when it fell from the building site, it was submitted that the timber fell at approximately the place where Inspector Cooper had found the broken windscreen glass on the roadway in Vales Lane. It was known that Quality Formworks were performing its drop-stripping on building D2. It was also clear from the evidence that the wood came over a significant distance, approximately 10 metres on the D1 side of the building. That suggested that Mr Marnies' evidence was correct, namely, that the wood came over the scaffolding that had no wire mesh at all and which formed part of building D1. That position was at least 10 metres from where the drop-stripping occurred. The significance of those matters was that it was not possible to foresee (or it was in the low range of foreseeability) that dropping formwork would splinter and travel such a distance so that it was not caught by the wire mesh and shade cloth in the immediate vicinity of the drop-stripping work. Put simply, it was much harder to anticipate that event would occur. The evidence of Mr Dalzell was that in the course of drop-stripping, construction material might fly for several feet - there was no evidence that it would fly for ten metres or more. These factors reflected on the degree of culpability of Holdmark and the seriousness of its offence.
45 Another factor to be considered was that Mr Saliba was well experienced in the formwork process and knew that the practice of drop-stripping was prohibited and had been warned against using that practice on the site. He had not been left to his own devices on the site but he had been given specific directions as to what was expected by Holdmark.
46 In summary, each of the defendants accepted the seriousness of the breach and the seriousness of the risk to safety arising from the circumstances in which this large piece of wood was propelled off the building site and fell into the laneway adjoining the site. It was fortunate that Mr Fisher suffered only slight injuries but those injuries do not determine the seriousness of the breach: here, the risk was at the highest level and in other circumstances might have led to substantial permanent injury or even a fatality.
47 In relation to Quality Formworks and Mr Saliba, both defendants were well aware that under the relevant Code drop-stripping was prohibited and that it was inherently dangerous. The defendants had received at least one warning (and possibly more) from the builder prior to the accident but it appears that drop-stripping was a practice adopted by a number of the formworking companies on the site. It was a serious enough problem for the builder, Holdmark, to convene a meeting of contractors with the assistance of WorkCover inspectors to emphasise the dangers associated with such a practice and why it was prohibited on the site. Mr Saliba said that if he had been present on the site then drop-stripping would not have occurred but he says nothing about the earlier oral warning given to his company and the circumstances in which that act of drop-stripping occurred. The evidence goes close to but does not permit a conclusion to be reached that the defendants were repeat offenders in relation to drop-stripping and the defendants' prior record suggests that it was unlikely to be the normal or usual practice of the defendants. Why it had occurred before on this site and why it occurred on the day of the incident involving Mr Fisher is simply not explained by the evidence.
48 I accept the prosecutor's submission that general deterrence should play a significant role in the setting of an appropriate penalty in relation to these defendants. In relation to specific deterrence, the evidence suggests that the company and Mr Saliba are unlikely to work again in this industry, although Mr Saliba speaks about quoting for jobs (although unable to successfully tender for any job). The fact that he has not worked for nearly three years suggests that the likelihood of working in the industry in this capacity is relatively low. In those circumstances, specific deterrence will form a relatively small part of the penalty imposed on these defendants.
49 In relation to subjective factors, I accept that there was an early plea and both defendants are entitled to a discount of 25 per cent in recognition of that fact. The early plea was also evidence of the defendants' contrition. The defendants have no prior convictions and, although Quality Formworks is a relatively recent business, Mr Saliba has worked in the building and construction industry for a considerable time without coming to notice. Both defendants are entitled to receive consideration for their good industrial record and their co-operation with the WorkCover Authority.
50 The prosecutor properly conceded that the principle of totality had a significant role to play in recognition of the fact that the s 8(1) and s 8(2) breaches relate to the same incident and were in substance particularised in the same terms. Having regard to the seriousness of the breach and the discounts for subjective factors, Quality Formworks should be fined $83,500 for each offence and Mr Saliba should be fined $8,000 for each offence. Upon the application of the totality principle, the total criminality of the offences committed by Quality Formworks is met by a fine of $83,500 and that sum should be equally divided between the two offences. Similarly, in relation to Mr Saliba the total criminality of his offences is met by a fine of $8,000 and that sum should be equally divided between the two offences.
51 A difficult issue then arises as to the application of s 6 of the Fines Act. In McColl v John Watson Building Services Pty Ltd and anor (2004) 137 IR 310 a Full Bench noted that the Court was obliged to take into account the means of a defendant to pay a penalty and that the imposition of a fine on a corporation may have different ramifications to the imposition of a fine on an individual where imprisonment or some other penalty may be available as an alternative sanction. Importantly, it was said that, where a defendant wished to rely on the provisions of the Fines Act to temper the amount of monetary penalty, that defendant bears the onus of putting such evidence in support of the application as is appropriate and also bears the onus on the balance of probabilities of satisfying the Court as to the truth of such evidence and its relevance to the fixing of a penalty. A corporate defendant is to fully disclose its financial state. In that case, the Court noted that there was no evidence by way of profit and loss statements and no balance sheets provided to the Court so as to satisfy the Court in relation to the current assets and liabilities of the company and to allow an assessment of the impact that a monetary penalty might have on the company's activities and viability. There was no evidence as to whether profit from prior years' activities had been accumulated. A failure to put material of that detail would result in circumstances where the appropriate application of s 6 of the Fines Act could not be undertaken and must fail.
52 The circumstances of this case, however, are different. The prosecutor accepted that the financial circumstances of the defendants are poor. Mr Saliba had not worked for nearly three years and the company had a sizeable taxation debt. Mr Saliba had recently been forced to sell the family home and was unemployed, with rent being paid by his sons who worked a few days a week in the building and construction industry. Mr Saliba was unable to obtain social services because of his involvement in a development project at The Entrance and a downturn in the property market had severely reduced the value of that investment and the vast majority of the units had not been sold. Mr Saliba gave evidence that he owed his accountant $10,000 and that the records of the company and his own personal financial records were refused to him by his accountant and thus he was in no position to present them to the Court. A summons for production had not been issued to Mr Saliba's accountant and no explanation given for not taking that step. While Mr Saliba was cross-examined as to these matters and no suggestion or submission made that he was other than truthful in the answers he gave on his oath, the prosecutor nevertheless submitted that the financial evidence was not sufficient to warrant the exercise of the discretion under s 6 of the Fines Act and that this case was governed by the approach of the Full Bench in McColl.
53 The financial circumstances of the defendants raise a very difficult issue: here the evidence establishes that the company, with Mr Saliba as the sole director, was the means by which he undertook employment and undoubtedly this approach was taken because there was some taxation benefit in conducting his business in that way. It is, nevertheless, a one person business.