DELIBERATION
30In response to questions from the Court, counsel accepted that numerous findings of fact made by Backman J in the Goldsprings matter were not called into question by the Agreed Statement of Facts in the present matters with the only issue being whether the Court, as presently constituted, would form a different view to her Honour concerning the greater culpability of the John Holland defendants.
31In addressing the objective seriousness of the offence, her Honour at [23] concluded that the offences were serious and identified the following factors as underscoring that conclusion:
the risks of mobile plant colliding with ground workers on construction sites, particularly reversing vehicles and more so mobile plant with restricted visibility in the direction of travel while reversing were obvious and were well-known in the industry prior to the incident;
the corporate defendants were aware of the need to ensure that the excavator was fitted with safety equipment, including an operable rotating beacon, an operable reversing or motion alarm, UHF radio communication equipment, and reversing mirrors that provided an adequate view to the rear of the machine;
engineering controls, such as truck stops or barriers were also well-known in the industry prior to the incident;
administrative controls, such as the use of spotters and minimum safe working distances were also well-known in the industry before the incident;
in the event of a collision with a ground worker, the prospect of serious injuries, including a risk of a fatality, was not unlikely.
32There was no submission in the present proceedings that the circumtances involving these two defendants should lead to a different conclusion. In the written submissions for the defendant it was accepted that an offence under s 8 of the Act was a serious offence "both by reason of the expression of legislative intent and objectively." It is assumed that the same submission, in these circumtances, would be made in relation to the s 10 offence: indeed, it was accepted that each offence was "objectively serious." Counsel for the prosecutor pointed out that, pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, in assessing the objective seriousness of the offence the Court should have regard to the serious injury caused by the identified failure. While the injuries actually received by Mr Stalder were serious, it was submitted that the risk of a fatality in the case of a collision between the excavator and the ground worker "was obvious". The Court accepts that submission.
33In the course of submissions for the defendants, senior counsel's attention was drawn to [51] of the written outline for the prosecutor dealing with the issue of objective seriousness. It appears that these matters were not contested by the defendants . The Courts accepts that summary as established on the evidence. Those matters were:
the risk of serious injury and/or a fatality associated with the collision between mobile plant and pedestrians/ground workers was obvious;
while Mr Stadler did not sustain fatal injury, it was common ground that Mr Stadler sustained grave personal injury resulting in the irreparable damage to his arm. The avoidance of fatality on this occasion was a matter good luck and not good safety management;
the risk of mobile plant colliding with pedestrians/ground workers particularly reversing mobile plant, were obvious and was specifically known to the corporate defendants well prior to the subject accident;
it was commond ground that the corporate defendants were aware of the need to ensure that the excavator was fitted with safety equipment, including an operable beacon, operable audible reversing or motion alarm and communications equipment to enable communications to be maintained between the machine operator and ground controllers and/or ground workers required to work in proximity to the machine;
it was apparent that the corporate defendants were well aware of the need to ensure that the engineering controls such as barriers and administrative controls such as the use of spotters and minimum safe working distances were required to be put in place and maintained for the purpose of obviating or reducing the subject risk.
Having regard to all of the above matters the Court is satisfied that these are serious breaches of the Act and that employees, including Mr Stalder, were at risk of sustaining very serious or fatal injuries.
34The next important consideration is the maximum penalty available in each of the matters. JHR has no prior convictions and therefore is liable to a maximum penalty of $550,000. JH has eight prior convictions occurring between 1988 and 1989 and therefore faces a maxium penalty of $825,000.
35The elements of general and specific deterrence then need to be considered. In the present matter, senior counsel for the defendant submitted that, in light of the extensive safety measures already taken by the defendants and the amendments to that system to address this specific risk taken since the accident, together with the defendants' good industrial records, meant that there was "no need" for general or specific deterrence to be a significant factor in assessing penalty. It was submitted that, in realtion to both general and specific deterrence, each defendnat had a "credit worthy record" over a considerable timeframe and continued to have an extensive engagement in heavy and major construction projects, inferentially without coming into frequent breach of safety legislation. That factor was said to be applicable to both forms of deterrence. In other words, long term endeavours to ensure a safe system should be given recognition for that factor and that itself will act as a general deterrent in the wider industrial community.
36It has long been accepted that general deterrence aims to discourage other potential offenders from committing an offence while personal or specific deterrence is aimed at discouraging the particular offender from committing the offence again. In R v Paull (1990) 20 NSWLR 247 at 234, Hunt J, in making observations about provisions in Commonwealth legislation, spoke generally of deterrence and spoke of general deterrence as being accepted as the main purpose of punishment and that the usual subjective considerations were necessarily subsidiary consierations. In R v Harrison (1997) 93A Crim R 314 at 320, Hunt CJ at CL said at 320:
Except in well defined circumtances such as youth or the mental incapacity of the offender ... public deterrence are generally regarded as the main purpose of punishment, and the subjective considerations relating to the partiuclar prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed.
These statements may be read in the context of the approach adopted by Street CJ in R v Rusby [1977] 1 NSWLR 594 at 597 where, following a discussion as to the main purposes of punishment and the importance of deterrence, his Honour continued:
On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment.
37Having regard to the above authorities, both general and specific deterrence will play a role in the setting of an appropriate penalty in both these matters although, in relation to specific deterrence, it is appropriate for that aspect to play a lesser role. In dealing with the issue of general deterrence in the Goldsprings matters, Backman J at [24] stated:
General deterrence is an important factor to be taken into account. It has sought to be emphasised many times in this jurisdiction that construction sites are notorious for both the seriousness and frequency of injuries which occur as a direct result of hazards present at a particular site or because of the absence of safe work practices or as a result of unsafe work practices which are left unaddressed. The potential dangers posed by large and heavy machinery, such as the excavator, operated at construction sites, should not be overlooked. This is particularly important in circumstances where a common feature of any construction site is the presence of a large and disparate workforce consisting of workers new to, and unfamiliar with, the site. It is the responsibility of all employers at such sites to protect workers from hazards present at the site and to address any unsafe work practices which have the obvious potential to expose the workers to the risk of serious injuries.
In the present matters, the Court would adopt that statement: despite well developed and comprehensive safety systems, those systems failed and/or were not applied by supervising level employees in relation to whom the defendants have spent considerable time and resourves in training. These cases present a stark warning to those in general industry and the construction industry in particular. As employers they are not able to rest on their laurels where they have develped comprehensive safety systems and they must always be alert to ensure that those systems are adhered to and enforced.
38It is appropraite to next consider the issue of the relative culpability of these defendants in the context of the nature of the breaches committed by the Goldspring's defendants. The issues that influenced Backman J to conclude that the overall conduct of the Goldspring's defendants, while undoutbedly serious, was less culpable than the conduct of JH, appear to stem from an assessment of the role of JH as the controller of the site. Her Honour noted that the JH defendant's role on the site showed its overall control in matters of safety and it was noted that both Mr Stalder and Mr Todd Faux were employed by JHR. JH had developed a worksite protection plan that was used in conjunction with the site safety system and included safety controls, including detailed job safety analaysis regarding track laying and track work, detailed SWMS and daily pre-work rail breifing.
39The Agreed Statement of Facts before her Honour showed that the Holland defendants adopted a safe working system and a methodology that recognised the need for all mobile plant, including excavators, to be fitted with rotating beacons, motion alarms and radio communication equipment. The Holland's system recognised the need for communication to be maintained between mobile plant operators and ground workers and recognised the need to undergo pre-start checks for faults and to ensure that all such plant was fitted with rotating beacons and motion alarms. Further, that system identified the need to maintain a safe working distance of not less than five metres from track machines such as the excavator. All these safety controls were to be the subject of a daily pre-work briefing. On the facts before her Honour she concluded that none of the precautions set out in the JH system were enforced at the site on the day of the offence.
40Her Honour then referred to contractual arrangements concerning the Holland defendants on site and their obligation to develop and enforce both a project management plan and a site specific management plan and their obligation to ensure compliance by sub-contractors with the safety project management plan and site specific plan. That included ensuring that any sub-contractor had in operation and was compliant with the SWMS that satisfied the requirements of the Occupational Health and Safety Act and its regulations . There were also contractual obligations in relation to conducting daily pre-work safety briefings for all employees and sub-contractors on site. JH was to discuss with all employees and sub-contractors site specific hazards and safety work methods associated with the work scheduled during the day and inform all employees and sub-contractors of preventive measures and procedures to be adopted to control or eliminate those hazards. Her Honour found in relation to those matters (and it was agreed) that none of those steps were taken by the JH defendants to ensure safety and compliance with regard to the work being undertaken at the site by the Goldspring's defendants. It was agreed that those steps were not adequately taken in respect of the operation of the excavator. It was also agreed that, Mr Faux, the supervisor appointed by JH to oversee the work performed by Mr Marshall, was aware that Mr Marshall had not attended the site office on the morning of the incident in order to sign on and was also aware that Mr Marshall had not attended the pre-work briefing held prior to the commencement of the work on the day of the incident.
41Her Honour continued, observing that the evidence indicated that the J H defendants controlled the site and had attendant responsibilities for the safety of employees and sub-contractors on the site as well as the operations of those sub-contractors. The JH defendants employed Mr Stalder and by reason of their responsibility for the site, it could be said they could have had a more direct role in the supervision of all the workers at the site. Her Honour also concluded that one of the Goldspring's' defendant had a more limited role in the circumstances of the offences than in the other, noting that the culpability of one defendant was confined to the defects in the excavator. The other Goldsprings defendant pleaded guilty to charges concerning the defective excavator and permitting it to be operated on the site in its defective state. In addition, there was a failure to ensure various administrative controls were implemented at the site, including ensuring a safety inspection of the excavator was performed, a failure to ensure that the excavator was operated safely on the site, a failure to ensure that a spotter or safety observer was assigned to observe the movements of the excavator and the ground workers and a failure to ensure that Mr Marshall was provided with a safety briefing before operating the excavator.
42Senior counsel for the present defendants submitted that the Court was now better informed, primarily because of the evidence of Mr Sharpin, as to the circumstances of the JH defendants. That evidence, however, did not call into question any of the matters relied upon by Backman J in assessing the relative culpability of the Goldsprings and JH defendants. Indeed, during the course of the hearing it was accepted that substantially the facts were the same in these proceedings as the facts agreed before Backman J. It is to be noted that her Honour accepted Mr Goldsprings' explanation that when G oldspring's and their operators attended JH sites they were generally supervised and directed by JH personnel on a day-to-day basis even though they remained employees of the Goldsprings companies who had ultimate control over those employees. It was an agreed fact that one of the Goldsprings companies 'relied entirely' upon JH for the provision of relevant safety controls, SWMS and the provision of supervision.
43Senior Counsel for the present defendants pointed to the fact that, in the Goldsprings matters and on the facts agreed in the present matters, it was clear that the Goldsprings corporate defendants and the operator, Mr Marshall, were aware of the defects in the excavator the Goldsprings defendants supplied the defective excavator to perform work on the day and Mr Marshall continued to operate that plant knowing of the defects and without taking any measures to overcome the risks of continued operation of the defective excavator.
44Counsel for the prosecutor drew attention to the following matters:
the duties imposed on the defendants before the Court and the duties imposed on the Goldsprings defendants were co-extensive, non-delegable duties, namely, a duty to ensure, guarantee or secure safety. In those circumstances it was to be noted the broad contractual powers held by JH in relation to safety on the site and the obligations placed on the "principal contractor" appointed pursuant to cl 213 of the Regulations;
the site was directly under the control of JH and JHR with JHR providing direct supervision via Mr Faux under the occupational health and safety umbrella of JH's occupational health and safety plan;
the duty imposed on one of the Goldspring's defendants was narrower in scope and related to ensuring that the plant supplied was safe and without risk when properly used.
Having regard to those matters the prosecutor supported her Honour's finding that the JH defendants bore a greater responsibility than the Goldsprings defendants in relation to this accident.
45The prosecutor also pointed out that these considerations arose not in the application of the principle of parity which did not apply: in the present matters as the defendants were not charged with the same offence. The principle of parity in sentencing applied in relation to a class of offenders across the range of a single offence and recognised the need for consistency in sentencing offenders charged with that same offence. It was accepted, however, that consistency in sentencing required consideration to be given to these issues even though the defendants were charged with different offences but importantly, have been charged in relation to the same workplace accident. Having considered the submissions, the Court is satisfied that on a proper assessment of the roles and obligations of these defendants, it may properly be concluded that the JH defendants bear a greater culpability than the Goldsprings defendants. That conclusion, however, is not to be taken to suggest that the JH defendants are significantly more culpable but rests on an assessment of the particular circumstances identified by Backman J and supported by the evidence in these proceedings.
46In relation to each defendant there are a number of subjective factors to take into account with many having equal application to them both. The prosecutor accepted that, in each case, there was an early plea of guilty even though these proceedings concerned a 2006 accident in relation to which proceedings were commenced in the Court in 2008. Both counsel assured the Court that these matters became the subject of closer consideration following the High Court's decision in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) ; [2010] HCA 1; (2010) 239 CLR 531 and after waiting for clarification from the superior courts, the prosecutor ultimately proceeded on a significantly Amended Application for Order that substantially reduced the counts. When this occurred each defendant entered pleas of guilty. Similar circumstances were accepted by her Honour, Backman J, in relation to the Goldsprings defendants and her Honour concluded that a 25 per cent discount for an early plea was warranted in relation to the those corporate defendants. In view of the assurances of counsel for both parties as to the substantially Amended Application for Order, the Court is satisfied that these were early pleas in each case and that each defendant should receive a 25 per cent discount in penalty.
47JHR is a first offender and entitled to the leniency that is attendant upon such status. That defendant has a significant workforce and has been involved in many large projects for over 23 years. Having regard to the nature of the construction work in which it is involved and the large number of employees it engages, it is to be regarded as having a good safety record. JH has been in operation for over 60 years and is a significantly larger employer than JHR. It also has been involved in numerous very large and prestigious projects over a long period of time. Although there are eight matters recorded against JH, they appear to relate substantially to incidents that arose in 1988 and 1989 and it has not come to adverse attention in the past 20 years. In all the circumstances that record speaks well of the defendant's attention to safety and also may be regarded as a good safety record. Importantly, both defendants co-operated with the WorkCover investigation and following the accident, both took steps to amend their safety procedures. It is clear from the evidence of Mr Sharpin that the Holland Group has taken responsibility for this accident, has accepted that the systems were defective on the day of the accident and have taken considerable steps to care for Mr Stalder since this horrific accident. Those actions and the evidence Mr Sharpin permit the Court to conclude that the defendants have shown contrition and remorse and that will be taken into account in mitigation of the penalty. The evidence also demonstrates the defendants to be good corporate citizens, engaged with the communities with which they work and supporting a variety of worthwhile and charitable causes. These matters will all be taken into account in fixing the ultimate penalty.
48The only significant difference between the two defendants, therefore, is the fact that JHR has no prior convictions and JH has a prior record already detailed. Because of a lack of records, the Court was unable to be informed of the nature of the earlier offences committed by JH but they were all dealt with by the Chief Industrial Magistrate and incurred low level penalties. There is, therefore, no evidence before the Court that the accident involving Mr Stalder and the risk to other employees was a repetition of conduct that might suggest that JH has continued to flout its obligations in relation to safety and is thus deserving of a much higher level of penalty. The question then arises as to how JH is to be penalised considering its different record in this sole aspect. While JH is open to a maximum penalty of $825,000, that factor alone will not necessarily lead to a significantly higher penalty being imposed upon it than imposed on JHR. John Holland Pty Ltd is a substantially larger company than JHR and has been involved in this dangerous industry of construction for just over 60 years compared with the 23 years of operation for JHR. The penalty imposed upon JH in those circumstances is not one that should reflect a mere arithmetic approach but requires a proper consideration of the appropriate penalty having regard to all the surrounding circumstances. That consideration satisfies the Court that JH in its particular role should be subjected to a higher penalty but it is appropriate that penalty reflect but a modest increase on that applicable to JHR.