Inspector Vince Castro v Supreme Poultry & Chickens Pty Ltd & Anor

Second Defendant Peter Charles Attard

CATCHWORDS: Occupational Health and Safety - sentencing of corporate defendant and sole director under s 8(1) and s 26(1) of the Occupational Health and Safety Act 2000 - proper approach to sentencing in light of Markarian v The Queen considered - maximum penalty - systems of work - foreseeable risk to safety - general and specific deterrence - consequences of the breach - respective culpabilities - absence of prior convictions - early pleas of guilty - contrition and remorse - cooperation - industrial record - capacity to pay a fine - orders - penalties - costs.

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 2000 Occupational Health and Safety Regulations 2001

Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Inspector Frank Glass v BT Engineering Pty Ltd as Trustee of the Bruce Family Trust [2004] NSWIRComm 245 Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 CASES CITED: Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 Markarian v The Queen (2005) 79 ALJR 1048, Markarian v Regina (2005) 215 ALR 213 R v Thompson, R v Houlton (2000) 49 NSWLR 383, 115 A Crim R 104 Winchester (1992) 50 A Crim R 345 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited and Another (No 2) (2000) 99 IR 163

Prosecutor Mr M. Cahill, of counsel Solicitor: Criminal Law Practice WorkCover Authority of New South Wales LEGAL REPRESENTATIVES:

First and Second Defendants Mr S. Dooley, solicitor Solicitor: Dooley & Associates

• 21 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Inspector Vince Castro v Supreme Poultry & Chickens Pty Ltd [ACN 065 528 538]

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

Prosecution under s 8(1) and s 26(1) of the Occupational Health and Safety Act 2000

1 Supreme Poultry & Chicken Pty Ltd (the first defendant) operated a poultry processing business. In about mid-August 2002, it was relocating its business from 590 Great Western Highway, Arndell Park to a new premises. This undertaking included the stripping and partial dismantling of buildings located on the old premises. Peter Charles Attard, (the second defendant), was the sole director of the first defendant. 2 On 15 August 2002, the second defendant and a number of employees of the first defendant were at the old premises and engaged in stripping and dismantling various structures belonging to the first defendant. At approximately 2pm, one such employee, Garry Ian Pickard, was with the second defendant on the roof of the freezer room located inside the factory at the old premises. This freezer room was somewhere between 2 and 2.5 metres high and surrounded on three sides by panelling 30 to 40 centimetres high. The roof of the freezer room was not fitted with a guard rail or any scaffolding around its perimeter. Nor were any other fall prevention devices provided to Mr Pickard. At some point another employee of the first defendant, Scott Becker noticed that the roof of the freezer room was sagging. He informed the second defendant who then advised Mr Pickard that they should both get off the roof. The roof then collapsed. The second defendant prevented himself from falling by grabbing the top of one of the freezer room's side walls. Mr Pickard fell from the roof to the ground. After the fall, he was unconscious for a short period and was conveyed by ambulance to Nepean Hospital. According to the Agreed Statement of Facts tendered into evidence by the prosecutor, Mr Pickard died on 19 August 2002 at Nepean Hospital as a result of an intra-cranial infection arising from complications related to the head injuries which he had sustained as a result of the fall. The charges 3 The first defendant has been charged with an offence under s8(1) of the Occupational Health & Safety Act 2000. The second defendant has been charged with an offence under s 8(1) and s 26(1) of the same Act. Pleas of guilty were indicated in relation to both charges by both defendants before his Honour Boland J on 30 August 2004 following service of the briefs of evidence. On 1 March 2005, the defendants formally entered pleas of guilty to the charges. The charge against the first defendant 4 The charge under s 8(1) of the Act against the first defendant alleges a failure on 15 August 2002 to ensure the health, safety and welfare at work of all its employees, in particular, Mr Pickard. The offence is said to have been committed at 590 Great Western Highway, Arndell Park, New South Wales (the old premises). The first defendant's failure is particularised in the application for order as a failure to provide a safe system of work with respect to the stripping of plant and equipment from buildings and the partial dismantling and demolition of buildings and other structures; and, the failure to provide necessary information, instruction, training and supervision in relation to the work being undertaken at the old premises on that day. 5 Further details of the failure to provide a safe system of work are set out in the application for order. Rather than attempting a summary of these further details, I will set them out fully below:

(i) The defendant failed to undertake any or any sufficient investigation of the weight bearing capacity and stability of the roof of the freezer room in the factory prior to the commencement of 'the work'.

(ii) The defendant failed to prepare a safe work method statement or work plan with respect to 'the work' to be performed at the site.

(iii) The defendant required and/or permitted its employees to work at heights in excess of 2 metres without ensuring that those employees were provided with and were using fall protection, including but not limited to properly installed guard rails, scaffolding and/or fall restraint devices.

(iv) The defendant required and/or permitted its employees to work on top of the freezer roof without ensuring, through the provision of temporary support or otherwise, that the roof was strong enough to support the workers together with the plant, equipment and materials that were being moved across the roof. 6 Further details of the failure to provide necessary information, instruction, training and supervision appearing in the application for order provide as follows:

(i) The defendant failed to warn its employees that, in the absence of additional support, the roof of the freezer room was liable to collapse whilst they were undertaking work on top of the freezer roof.

(ii) The defendant failed to provide its employees any occupational health and safety induction training relevant to "the work" that was being performed by the defendant's employees on that site.

(iii) The defendant failed to engage a competent person to supervise the demolition work performed at the site. The charge against the second defendant 7 The second defendant has been charged with an offence under s 26(1) and s 8(1) of the Act. The charge relies on the same factual circumstances as the s 8(1) charge against the first defendant and the particulars in both charges are identical. The charge under s 26(1) is brought against the second defendant on the basis that he, being a director of the first defendant, is deemed to have contravened s 8(1). Prosecutor's evidence 8 At the sentence proceedings, the prosecutor represented by Mr Cahill of counsel, tendered an agreed statement of facts against both defendants. The document annexed various materials comprising:

(i) a report by Marcus A. Stoodley, PhD FRACS, in relation to the circumstances surrounding the infection developed by Mr Pickard and the apparent failure, at least in the early stages, of Mr Pickard's admission to the hospital to diagnose a scalp laceration and a compound depressed skull fracture;

(ii) a document headed "Factual Inspection" signed by the prosecutor and dated 21 August 2002;

(iii) a bundle of 23 photographs taken by the prosecutor of the old premises on 19 August 2002. 9 According to the agreed statement of facts, on the day of the offence, the first defendant's employees and the second defendant were in the process of stripping metal trusses and timber beams from the roof of the factory. These items were then transported across the roof of the freezer room which was inside the factory premises to the ground. The trusses were 20 feet long and the beams were approximately 5 metres long. 10 The agreed statement of facts reveals that the first defendant did not, prior to commencing the work, obtain advice as to whether the freezer roof could sustain the proposed loads and persons working on it who were using it as a work platform. Nor was a work method statement or work plan prepared by the first defendant with respect to the work to be performed. The employees engaged in the task on the day of the offence had not received any occupational health and safety induction training as required by Part 8.2 clauses 213 and 214 of the Occupational Health & Safety Regulations 2001 (the 2001 Regulations). The second defendant, who was supervising the work, was not qualified to supervise "demolition work". 11 The prosecutor also tendered at the sentence hearing an Australian Standard namely AS2601-1991 entitled "The Demolition of Structures". The relevance of the tender, the Court was informed, was to direct attention to the definitions of "demolition" in the 2001 Regulations and in the Standard, which definitions the prosecutor intended to submit, conformed to a description of the work being undertaken by Mr Pickard and other employees at the time of the offences. I note in passing here that the 2001 Regulation specifically provides that an employer must ensure that demolition work is carried out in accordance with AS2601-1991. 12 The Court was informed by Mr Cahill that neither defendant had any prior convictions. Defendants' evidence 13 The defendants, jointly represented by Mr Dooley, solicitor, relied on four affidavits. The first affidavit was sworn by the second defendant on 28 February 2005. In the affidavit, the second defendant describes himself as involved in the poultry processing industry. The first defendant was incorporated in 1994 or 1995. All employees of the first defendant, including Mr Pickard, underwent "on the job" training when they commenced employment. This "on the job" training according to the affidavit included safety-related matters such as:

(a) general matters relating to working in a poultry processing business including safety related matters;

(b) emphasising to all staff, for example at site inductions, that safety is the number one priority;

(i) be aware of their surroundings and not to run when they are in a hurry;

(ii) not to work close to others who are using sharp items, including knives;

(iii) move away from the work at meal breaks and have their break at designated meal break locations;

(iv) use items, including various tools and utensils in the safest way;

(vi) work in teams and gain an understanding of their role in the team. 14 In addition, the second defendant said he encouraged consultation and feedback among the employees. Also, prior to any task being carried out, discussions, he said, were held in order to settle on an appropriate work method. During those discussions, he gave detailed and specific instructions. He also endeavoured to be supervising on site at all times. 15 In relation to the relocation of the business to the new premises and the tasks being undertaken to facilitate that process, the second defendant said that he decided that he and other employees would assist in the removal of certain items for transportation to the new premises at Shanes Park. This entailed, for example, dismantling and removing some of the roofing over the freezer rooms. On 15 August 2002, the second defendant recalled that he and Mr Pickard were standing on top of the freezer room undoing bolts and passing trusses down to people standing below. Access to the roof had been gained by use of a stepladder. Shortly before he felt the roof sag he said to Mr Pickard "get down". Mr Pickard, however, wanted to continue working. The second defendant repeated the request to Mr Pickard a few times and was himself in the process of climbing down from the roof when it collapsed. He grabbed hold of the side wall. He turned around and saw Mr Pickard lying on top of the collapsed freezer. An ambulance was called and he followed it to Nepean Hospital and stayed with Mr Pickard for a while. He returned the following day on Saturday but Mr Pickard was sleeping. At some stage he said Mr Pickard developed an infection at the site of a cut on the head which was operated on but the operation was unsuccessful. Mr Pickard was placed on a life support system on Sunday which was switched off later that day. He passed away on Monday morning. 16 The second defendant also gave evidence in the sentencing hearing. He agreed that he was the sole director of the first defendant and that at the time of the offence he controlled and was responsible for the first defendant. The degree of control and responsibility extended to the work being undertaken at the old premises on the day of the offence. He also conceded that at the time, he and Mr Pickard commenced the task of dismantling the roof by means of utilising the roof of the freezer room as a work platform. He agreed that he did not undertake any risk assessment beforehand or employ anyone else to undertake such an assessment. He agreed that no steps had been taken to reinforce the freezer roof prior to the work being undertaken, and, that at that time, neither he, nor Mr Pickard, held any building trades qualifications. 17 The second defendant also said in both his affidavit and in his oral evidence that prior to the incident he had seen a number of people walking on the roof and he was unaware that there was any risk of the roof collapsing. 18 He also told the Court that Mr Pickard had been a close friend and that his death had deeply affected him. He had been unable to sleep and had attended counselling. He has remained good friends with Mr Pickard's wife and his sister, Sandra Russell, who also works for him, as does Ms Russell's husband, Stephen John Russell. Mr and Mrs Russell also swore affidavits on the defendants' behalf on 25 February 2005. In those affidavits, they confirmed their employment with the first defendant and the close relationship which had existed between the second defendant and Mr Pickard. Mr Russell also attested to a number of safety initiatives introduced by the second defendant, for example, the use of stainless steel troughs to catch the blood from slaughtered chickens so that the floors did not become slippery. Mr Russell also recounted an episode when the second defendant refused to allow a contractor to continue working until he used a safety harness. 19 The defendants also relied on an affidavit sworn by Louie Torre on 25 February 2005. The affidavit annexed a reference signed by Mr Torre. The reference detailed dealings between the first defendant and Mr Torre, the first defendant's external accountant, and, attested to the first defendant's dedication to safety practices during its eleven years of trading. Mr Torre also describes the second defendant as extremely hardworking and a person who prides himself on having a safe workplace and one who takes his role of employer very seriously. 20 In addition to the affidavits read in the defendants' cases on sentence, a letter written by Marian Skeers described the second defendant as one of the most safety conscious people she knew. Also tendered on behalf of the second defendant was a certificate in the second defendant's name dated 15 May 2003 certifying that the second defendant had fulfilled all the requirements for the course in OH&S Risk Management for Supervisors and Managers. 21 Documentation in relation to the first and second defendants' financial affairs was also tendered. The documentation consisted of financial accounts and tax returns of the first defendant for the years ended 30 June 2002, 2003 and 2004, as well as the second defendant's personal income tax returns also for the years ended 30 June 2002, 2003 and 2004. The records also indicated that the second defendant owns 100% of shares in the first defendant, and, property at 970 Mulgoa Road, Mulgoa with an estimated market value of $1.3 million. Consideration

22 Following the decision of Markarian v The Queen (2005) 79 ALJR 1048; Markarian v Regina (2005) 215 ALR 213 and the analysis of that decision by his Honour Justice Boland in Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266, I propose to adopt the approach to sentencing in this matter as set out by Justice Boland in Howie Herring & Forsyth. In that latter decision his Honour concluded (at [39] - [40]):

In the absence, however, of any clear indication in Markarian that a sentencing court may not use a two-stage approach to sentencing and may not give separate consideration to the objective circumstances of the crime (in fact at [38] in the joint judgment it appears to be said that this may be justified) and given that the implications of Markarian for the approach required by Lawrenson Diecasting [ Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ing [1999] 90 IR 464] were not fully debated before me, especially as to the statutory context in which sentencing occurs in this jurisdiction, I am disinclined to depart from the approach required by Lawrenson Diecasting .

The approach I have taken, therefore, is that required by Lawrenson Diecasting. The guideline judgment in R v Thomson [ R v Houlton (2000) 49 NSWLR 383] continues to be one this Court is required to take into account and it is appropriate that I indicate a discount at least for the utilitarian value of the guilty plea. In the light of Markarian it is necessary that I take into account all relevant considerations in sentencing (which has always been part of the jurisprudence) and "make a value judgment as to what is the appropriate sentence given all the factors of the case" subject to the approach required by Lawrenson Diecasting . Amongst the objective and subjective factors I am required to take into account are those in ss 21A, 22 and 23 of the Crimes (Sentencing Procedure) Act . I do not consider it is any longer appropriate to take the approach of determining an amount of penalty based on the relevant objective considerations and deducting from that amount allowances for the individual subjective factors. Maximum Penalty

23 The Court was informed by the prosecutor represented by Mr Cahill of counsel during the sentencing proceedings that neither defendant had prior convictions. The maximum penalty therefore applicable to the first defendant, being a corporation at the time of the offence, is $550,000. The maximum penalty applicable to the second defendant is $55,000. Systems of work

24 What the evidence has clearly disclosed in relation to these matters is the defendants' lack of experience in relation to the type of work being undertaken at the time of the offence. Nor were any systems, procedures or methods for conducting the task of stripping and dismantling the factory roof discussed, devised or implemented prior to work being undertaken. The defendants' relevant experience was in the poultry processing business. In relation to that activity it appears, and the second defendant's affidavit makes clear, that the defendants had systems in place including "on the job" training with emphasis on safety related matters. The second defendant readily conceded in his oral evidence during the proceedings that at the time of the offence the freezer room was being used by him and Mr Pickard as an elevated work platform but that he undertook no risk assessment in respect of the proposed work and took no steps to reinforce the roof of the freezer room. He also conceded that he placed no restrictions on the number of workers or the amount of weight to be placed on the roof while the work was ongoing, and, that neither he nor any other worker on site including Mr Pickard held any trade qualifications or trade associated qualifications. 25 The prosecutor urged the Court to accept that the work being undertaken came within the definition of "demolition" contained in the 2001 Regulation. If the definition were to be accepted then it followed that the type of work being undertaken was readily identifiable as dangerous and required specialised knowledge, skills, work methods and safety precautions as reflected in those regulations. 26 Part 8.6, clause 246 headed "Demolition Work - Particular Provisions" in the 2001 Regulation defines demolition work as:

...construction work involving the demolition of a building but does not include construction work involving the removal of power or telecommunications poles.

For present purposes the definition is not particularly illuminating, however clause 247 of the 2001 Regulations requires that an employer must ensure that demolition work is carried out in accordance with AS2601-1991. The Standard contains a definition of "demolition" in the following terms:

...the complete or partial dismantling of a building or structure by pre-planned and controlled methods or procedures. 27 Certainly that definition fits the activity being performed by the second defendant and Mr Pickard although without the added aspect of pre-planning and controlled methods or procedures. In my view the subject activity being performed fell squarely within the Standard and therefore within the 2001 Regulation. This in turn required the planning and implementation of an entire regime for the carrying out of the work so that any risks to the safety of the workers was minimised. Both the Standard and the Regulations shed light on what measures and procedures should have been implemented by the defendants and the obvious importance of ensuring safety in the context of what is widely regarded as a dangerous occupation. Clause 1.7 of the Standard headed "Planning and Execution" for example requires that before the commencement of any stripping and demolition work an initial investigation must be undertaken of the structure and the site. In relation to the site for example preparation of a work plan is required. This work plan under the Standard must include comprehensive and detailed information in relation to a number of matters including a description of the proposed method of demolition, the type of equipment to be used, and, a written statement by a "competent person" that the proposals contained in the work plan comply with the safety requirements. "Competent person" is defined in the Standard as, "a person suitably qualified, adequately trained and appropriately experienced for the particular class or kind of work specified". The Standard also requires that at all times demolition work shall be directly supervised by a competent person (clause 2.1.1). 28 These detailed and comprehensive requirements underscore the importance and necessity of ensuring the safety of workers in the context of performing work in an inherently dangerous industry. The requirements stand in stark contrast to the total absence of preparations and safeguards of any kind evident in the defendants' approach to the task of stripping and dismantling the factory roof on the day of the offence. 29 The failure of the first defendant to identify the subject activity as outside its area of expertise and its failure to have in place any meaningful systems of work created an obvious risk to safety. These factors all lead to the conclusion that the offences are serious. The effect on the risk to safety where there exists a lack of expertise and experience in relation to the performance of a particular work related activity was recently the subject of comment by Staff J in Inspector Frank Glass v BT Engineering Pty Ltd as Trustee of the Bruce Family Trust [2004] NSWIRComm 245 where at [33], [34] his Honour said:

Employers have an absolute duty to ensure that employees are not exposed to risks to their health or safety arising from the conduct of their business. The risk to health, safety and welfare of employees will inevitably be heightened where employers require employees to carry out work for which they have not been employed or trained and where the employer has not undertaken any assessment of the risk. Caution should be exercised by employers moving outside their normal area of work. Ignorance in such circumstances cannot lessen the culpability.

There is a strong case for general deterrence in my view because it is difficult to imagine exposing employees to a greater risk than to require them to do tasks that they are not qualified or engaged to perform. Such behaviour by an employer is deserving of censure. The obligation imposed upon employers by the OH&S Act must be clearly understood.

30 Another aspect which renders the offences serious in my view is that the risk to safety was foreseeable. The prosecutor during oral submissions characterised the relevant risk as one arising from working at a height of two metres or more, and, where the work being performed placed considerable weight over an extended period on the roof of the freezer room. I would add to these matters the fact that the work was being performed by persons wholly inexperienced in demolition work and where this type of work required specialised knowledge, skills and work methods in order to be performed safely as reflected in the Standard and in Part 8.6 of the 2001 Regulations. 31 It was observed by the Full Bench in Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at [81 - 82] that foreseeability is relevant to the assessment of the seriousness of an offence and the existence of a foreseeable risk to safety will necessarily result in an offence being more serious in nature. General and specific deterrence

32 The principle of general deterrence is clearly applicable to the circumstances of these matters. It is of obvious importance that where an employer undertakes work outside its areas of experience that external advice may first need to be obtained so that the appropriate safety methods and procedures are in place to protect the workers from risks to their safety. This is especially so when the work to be undertaken involves working in a notoriously dangerous occupation such as demolition work. 33 In relation to specific deterrence the prosecutor submitted its significance is reduced in circumstances where the evidence indicates that the defendants have no prior convictions and Mr Pickard's accident and resulting death has had a major impact on the second defendant. I agree but nevertheless propose to include in the ultimate penalty a small component for specific deterrence. In so doing I bear in mind the comments of the Full Bench in Capral Aluminium at [77]:

In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The Court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, CCA, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, CCA, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Consequences of the breach

34 Mr Pickard following his fall from the roof died on 19 August 2002 as a result of an intra-cranial infection consequent upon complications that occurred as a result of head injuries sustained in the fall. The prosecutor has made no submissions concerning the nexus if any between the risk to safety and the actual injuries sustained in terms of whether the injuries were a manifestation of that risk and therefore indicative of the degree of seriousness of the relevant risk to safety: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17]. 35 The proper approach for assessing the gravity of an offence is to focus on what could have happened and not on what did happen. In the circumstances which have been described in some detail in these sentencing remarks the conclusion is available that the risk to safety which arose as a result of the defendants' failures as particularised could have resulted in serious injuries to those working on the roof of the freezer room. I do not understand the defendants' legal representative Mr Dooley to have been contending otherwise in his oral submissions made during the proceedings. Respective culpabilities

36 In relation to the respective culpabilities of each defendant the prosecutor submitted that the second defendant was in control of the first defendant and may be accurately characterised as its alter ego. The second defendant was also responsible for the devising and implementing of the work methods and necessary supervision. These submissions find support in the evidence, and I agree with the prosecutor that the respective culpabilities of each defendant are the same. The second defendant was also on the evidence the sole director of the first defendant. The assessment of the respective culpabilities of a corporate defendant and a director of the defendant or person concerned in management was considered by the President, Wright J in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited and Another (No 2) (2000) 99 IR 163 at [38]:

Having reached those conclusions in relation to the culpability of the first defendant it is necessary to consider that of the second defendant. The construction and implications of s 50 are relevantly these. First, the level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s 50(1) cannot be greater than that of the corporation who has been convicted or otherwise assumed to be guilty for the purposes of the operation of the section. However, most pertinently for the present proceedings, it must be recognised that the culpability of the personal or individual defendant may be less than that of the corporate defendant. It is not, in my view, a question of considering their relative contribution but assuming that the purpose of the provision is to make an individual who is responsible to an extent for the management of the corporation similarly responsible and culpable for the acts or omissions of the corporation. Although the relevant consideration is not whether, or to what extent, there is a level of contribution as between the corporate and individual defendants for the particular breach of safety which arose under the Act, it is nevertheless necessary when dealing with the precise gravity of the offence committed, or deemed to have been committed by the personal defendant, to accept the possibility or, in many cases where the individual is not simply the alter ego of the corporation, the likelihood that the level of gravity of the offence attributable to the personal defendant may be less than that which has been found to have been committed by the corporate defendant - that is, in these proceedings the first defendant.

37 I have also taken into account on sentence the fact that neither defendant has prior convictions. This entitles them to leniency normally extended to an offender who is otherwise not adversely recorded. Early pleas of guilty 38 Both defendants indicated that they would enter pleas of guilty to the applications for order at an early stage. They are therefore entitled to a discount of their sentences in accordance with the principle outlined in R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104. 39 I consider that in the circumstances here an appropriate discount for the utilitarian values of the pleas is 25 percent. Contrition and remorse

40 The defendants are also entitled to a measure of leniency by virtue of their expressions of contrition and remorse. As addressed earlier in these remarks the second defendant was a close friend of Mr Pickard and his death affected him deeply. Although these sentiments of themselves do not warrant the extension of leniency on the grounds of contrition and remorse, certainly the entering of pleas of guilty at an early stage is a reflection of contrition which attracts leniency: Winchester (1992) 50 A Crim R 345 at 350. Cooperation

41 The defendants are also entitled to some discount with respect to their cooperation with the WorkCover Authority during the investigation into the collapse of the freezer room roof and Mr Pickard's fall. The first defendant made its employees and officers available to be interviewed by WorkCover and, according to the prosecutor in written submissions, otherwise cooperated in the investigation. Industrial record

42 Mr Dooley urged the court in oral submissions to accept a submission that the first defendant had a good industrial record. The Court was informed that the first defendant had been operating as a business in excess of 20 years without coming to the adverse attention of the authorities other than in relation to the present offence. Mr Dooley also submitted that in relation to the company's usual undertaking (which is poultry processing) safety systems and procedures were devised and utilised. This submission I find has some support in the evidence which tended to suggest that adequate safety systems and procedures were in place in relation to the poultry processing undertaking. The activity in which the defendants and their employees were engaged at the time of Mr Pickard's fall occasioned by the collapse of the freezer room roof can be described as a "one off" activity for which no such safety systems, as discussed, were devised. 43 Mr Dooley also submitted that since the incident the second defendant has undergone a course in occupational health and safety risk management for supervisors and managers and that the defendants continue to develop and improve safety measures in relation to their core business as poultry processors. 44 On the basis of the evidence and submissions I take into account in the defendants' favour what I consider to be a good industrial record overall of the first defendant and the first and second defendants' ongoing commitment to occupational health and safety matters in the business. Capacity to pay a fine

45 The evidence in the form of financial records tendered by the defendants in the proceedings disclosed an increase in turnover but also significant outgoings in the years ending 2002 to 2004. The profit, taking these factors into account is according to Mr Dooley "about 10 percent or a little greater than that". Mr Cahill, in relation to this particular issue directed the Court's attention to the increase in profits of the first defendant in the years 2002 until 2004. This reflected the fact that although the first defendant was a modest business it was not in financial difficulties. The second defendant according to Mr Dooley earns an income of about $57,000 per annum after expenses. Mr Cahill directed attention to records which disclosed the second defendant had personal assets, was in receipt of a substantial income and had a significant interest in the retained profit of the corporate defendant as well as in its assets. Mr Cahill however did concede that the first defendant was a moderately sized family business. 46 Taking all these matters into account it would appear that the defendants both have the capacity to pay a fine. I also take into account the relevant principles set out in Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 where the Full Bench said at 467:

Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76).

However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209-210, Wright J, President observed:

"... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ...

When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence..." Penalty

47 In determining penalty against both defendants I have taken into account the objective seriousness of the offences, the personal factors described above and the absence of prior convictions. All of these factors have been considered by reference to s 21A of the Crimes (Sentencing Procedure) Act 1999. I have also taken into account the respective culpabilities of both defendants as well as their respective capacities to pay a fine. 48 Finally, I am mindful of the need in determining the appropriate relationship of the penalties to the objective facts to pay due regard to the principle of proportionality. In Markarian v The Queen (2005) 79 ALJR 1048 McHugh J (at 1064) commented on the importance of the principle in the sentencing process in the following terms:

The principle of proportionality is one of the fundamental principles of sentencing law. ... The principle ... requires the judge to make a judgment concerning the relationship of the penalty to the facts. This is a value judgment, based on experience and instinct, derived after taking into account all the facts and circumstances of the case.

A little later in the judgment (at 1067) his Honour said:

Finally, in Veen [No 2] (1988) 164 CLR 465 as I have indicated, this Court affirmed that the ultimate control on the judicial sentencing discretion is the requirement that the sentence be proportionate to the gravity of the offence committed. In pursuit of other sentencing purposes, a judge may not impose a sentence that is greater than is warranted by the objective circumstances of the crime. Both proportionality and consistency commonly operate as final checks on a sentence proposed by a judge. They guard against hidden errors in the process, the kind later identified on appeal as manifest excess or leniency in accordance with the principles in House v The King (1936) 55 CLR 499. Orders 49 In Matter No IRC 4029 of 2004 I make the following Orders:

1. The defendant Supreme Poultry & Chickens Pty Ltd is convicted of the offence.

2. The defendant Supreme Poultry & Chickens Pty Ltd is fined $110,000 with a moiety to the prosecutor.

3. The defendant Supreme Poultry & Chickens Pty Ltd is to pay the costs of the prosecutor as agreed in the sum of $6,750. 50 In Matter No IRC 4030 of 2004 I make the following Orders:

1. The defendant Peter Charles Attard is convicted of the offence.

2. The defendant Peter Charles Attard is fined $11,000 with a moiety to the prosecutor.

3. The defendant Peter Charles Attard is to pay the costs of the prosecutor as agreed in the sum of $6,750.

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