13 As for the issue of foreseeability, the prosecutor referred to the gust of wind which was the immediate cause of the collapse of the wall. It was said that the occurrence of wind is not unusual in Sydney and it was foreseeable that a "green" wall hit by a sudden gust of strong wind would cause it to collapse. For my part, the submission advanced by the prosecutor appears to address the foreseeability of the accident, not the risk. It is the foreseeability of the risk to safety with which a court on sentence is concerned. The risk to safety relied upon was the risk of a fall from height said to result from the absence of catch scaffolding. The wall constructed by the bricklayers was a "green" wall and therefore prone to collapse if something or someone fell against it or otherwise came into contact with it in some way. In the absence of any fall protection, it is reasonably foreseeable that a worker who comes into contact with a "green" wall at a height several metres above ground would be placed at risk to his or her safety: see generally for discussion of the application of the principle on sentence, Inspector Stephen Charles v Premier Precast Pty Limited [2009] NSWIRComm 136 at [9]-[11].
14 As for specific deterrence, Mr Sewell volunteered in oral submissions that he no longer worked for himself, but worked for a company in Australia as a bricklayer. In a handwritten document prepared by Mr Sewell for the purposes of the sentencing proceedings, Mr Sewell explained that he no longer works as a sub-contractor, "preferring the stress-free life of a construction labourer". In the same statement, he said that he planned to return to his home in New Zealand in order to live, "and re-group". Given these matters, the Court may dispense with the need to include specific deterrence as a component of any penalty or fine to be imposed.
15 With regard to systems of work emphasising safety measures in place prior to the offence, Mr Sewell, in his statement, maintained that he had implemented adequate supervisory measures at the accident site. He also sought to remind the court that the bricklayers were highly qualified in their work having together accrued some 100 years experience as bricklayers in the construction industry. He said that all the bricklayers sub-contracted to him had been schooled in general construction, induction training, which included hazard identification, and risk assessment. He also explained:
As a group, we the bricklayers were mates who had worked together on a number of jobs over a number of years and trusted one another's judgment.
16 In my view, this material demonstrates that Mr Sewell had taken steps to ensure that a system of work was in place to enable the bricklayers to perform the work safely. His established method of communication by means of mobile phone when he was not present on site, has been referred to earlier.
17 The defendant faces a maximum penalty of $55,000.
18 A plea of guilty was entered by Mr Sewell at the earliest or first reasonable opportunity. I propose therefore to assess an appropriate discount of penalty for the utilitarian value of the plea of guilty. The discount of penalty will be awarded upon consideration of the issue of assistance provided by Mr Sewell to the prosecution authorities. This issue will be considered later in these sentencing reasons. Any further discount of penalty by reason of assistance provided will be reflected as a composite discount taking into account both the assistance and the early plea of guilty: SZ v The Queen (2007) 168 ACrimR 249 at [43] [44].
19 As a separate consideration from the utilitarian value of the plea, the defendant is also entitled to leniency in recognition of the remorse shown by the plea of guilty. The absence of prior convictions also entitles Mr Sewell to leniency normally extended to an offender who is otherwise not adversely affected.
20 The defendant also co-operated with WorkCover during the investigation.
21 It was acknowledged by the prosecutor that Mr Sewell provided substantial assistance to WorkCover during its investigation and prosecution of Northpac and Mr Commisso. Mr Sewell was instrumental in contacting Mr Ramsay whom the prosecutor had been unable to locate. Mr Ramsay was an important witness in the prosecution case against Northpac and Mr Commisso. Mr Sewell was also of assistance in locating James Ciliegi, the director of Northpac at the time of the accident. Mr Ciliegi, not the subject of any charge in relation to the events leading up to the accident, was also an important witness in the prosecution of Northpac.
22 In addition, Mr Sewell gave evidence for the prosecution in the proceedings against Northpac and Commisso. The prosecutor conceded that Mr Sewell's assistance in this regard was "substantial". Under s 23 of the Crimes (Sentencing Procedure) Act 1999, a court may impose a lesser penalty than it would otherwise impose on a defendant having regard to the degree of assistance rendered to law enforcement authorities. Under s 23(2), the Court must take into account a number of matters specified in the sub-section in its consideration as to whether to impose a lesser penalty under s 23(1).
23 Dealing with the matters nominated under s 23(2) as best I can, I make the following observations and findings. First, as already noted, the assistance given by Mr Sewell to both WorkCover and to the prosecution was acknowledged by the prosecutor in these proceedings, as "substantial". Mr Sewell was of "great assistance" according to the prosecutor in locating Mr Ramsay and prevailing upon Mr Ramsay to attend court and give evidence for the prosecution. Mr Sewell was also of assistance in locating Mr Ciliegi, whom the prosecutor described as being of "big assistance" in the proceedings against Northpac and Mr Commisso. Secondly, Mr Sewell also gave evidence on behalf of the prosecution in the proceedings against Northpac and Mr Commisso. According to the prosecutor, Mr Sewell's evidence in those proceedings, "came up to proof and went a bit beyond it and didn't try to say anything different in cross-examination". Mr Sewell also voluntarily attended court in order to give his evidence in the related proceedings. Thirdly, there is little likelihood, given my earlier observations on the application of specific deterrence, that Mr Sewell will commit further offences in New South Wales.
24 In SZ v The Queen, at [43] and [44], the Court held that generally sentences should give only a single combined discount for both a plea of guilty and assistance. Assistance of the nature and extent rendered by Mr Sewell clearly facilitated the public interest in encouraging offenders to co-operate with authorities and to give evidence against other offenders alleged to have committed offences against Occupational Health and Safety legislation, in order to bring those offenders to justice. Mr Sewell's assistance in this regard may be characterised as assistance of a very high order (see SZ v The Queen at [46] citing with approval R v Sukkar [2006] 172 ACrimR 151 at [50], [54], [56]). Given these matters, a combined discount of sentence, taking into account the utilitarian value of the early plea and the assistance provided by Mr Sewell, of 45%, would not be inappropriate.
25 Mr Sewell also relied upon two written testimonials in the sentence hearing. The first testimonial is contained in a statutory declaration dated 13 June 2008 and signed by Jani Olavi Suominen. Mr Suominen is a former construction supervisor for Northpac. Mr Suominen stated that in his professional dealings with Mr Sewell over a four-year period, Mr Sewell was both professional and considerate "in his interpretation of work safety practices" and, "compromising the safety of his fellow workers was never an issue". The second testimonial was provided by Mr Ciliegi in a statement dated 6 October 2008. Mr Ciliegi said "his company" had worked with Mr Sewell for over eight years. The company to which he referred is presumably JKN Constructions Pty Limited, as it appears on the letterhead. Mr Ciliegi writes:
Dennis has always shown his insistence that all matters relating to OH&S in the workplace especially on Building Sites be strictly adhered to and we have always found him to fully co-operate when we as Builder needed adherence to the code.
He has always provided us with safe work method Statements and attended Tool Box Meetings on site and we have no hesitation in giving this recommendation.
26 The statements attest to Mr Sewell's good character, as well as his willingness to ensure the safety of workers under his supervision in the workplace. The statements were not challenged by the prosecution during the sentence proceedings. I therefore accept them and they will be taken into account in mitigation of penalty.
27 Mr Sewell has also asked the Court to take into account his means to pay a fine. The financial records relied upon in support of the request go to November 2008. They include bank statements, one of which shows a nominal credit amount of $8.39 as at November 2007. A statement of earnings from a former employer between the period 1 and 29 October 2007 shows a net income during that period of $3,072. Mr Sewell said he had not lodged a personal income tax return since 30 June 2002. He also has a personal loan in the sum of $1,500 from Adam Smith Financiers with a closing balance as at 15 November 2007 of $1,529.59. He estimates he owns second-hand work equipment to the value of $3,000. He is in receipt of a letter of demand from Australian Taxation Office dated 25 August 2007 requiring immediate payment of $27,387.11. The documents reveal that Mr Sewell has a limited capacity to pay a fine. The prosecution has not contended otherwise.
28 Mr Sewell asked the Court to make an order under, "s 10 where a conviction is recorded but there is no financial penalty or only a nominal fine". The request as it has been framed suggests that what Mr Sewell is seeking from the Court is an order under s 10A of Crimes (Sentencing Procedure) Act 1999. The prosecution did not object to the Court entertaining the making of such an order. Given the prosecution's approach to the making of such an order, the substantial subjective factors present in the defendant's favour, and taking into account the overriding consideration of the objective seriousness of the offence, it is, in my view, appropriate to make an order under s 10A of the Act. Such an order would reflect a finding that the offence is serious enough to warrant a conviction, but not so serious, taking into account all objective and subjective considerations, as to result in the imposition of a fine of any substance. An order under s 10A would also not offend against the purposes for which the section was inserted into the Act, namely, to overcome situations where an inappropriate sentence has been imposed, such as a nominal fine, or where the offence is not trivial, or it is inconvenient to impose any further penalty, for example, where the offender is already serving a term of imprisonment and any fine imposed would be rarely recovered. Section 10A was inserted into the Crimes (Sentencing Procedure) Act 1999 in 2006. In the second reading speech for the amending Act, a spokesperson on behalf of the Attorney-General explained the purposes of s 10A as follows:
Schedule 1.9 makes a number of amendments to the Crimes (Sentencing Procedure) Act 1999. Item [1] creates a new sentencing option for courts by inserting new section 10A providing that the court may decline to make any further sentencing order other than the recording of a conviction against the person. This option addresses an anomaly in the sentencing regime to overcome situations where inappropriate sentences have been imposed such as fines of 50c. Imposing very small nominal fines costs the courts, and State Debt Recovery Office, more to administer and recover, than the value of the fine; and where the offender is already serving a sentence of imprisonment, the fine is rarely recovered in any event. This amendment will address such cases.
29 The prosecution has sought costs in the amount of $15,000. I decline to make the Order. The defendant has not expressed agreement with the making of an order for costs in that amount. The Court will, instead, make the usual order as to costs.
Orders