Inspector William Keenan v Kyogle Council [2002] NSWIRComm 137 | Case summary

1 This matter concerns a prosecution brought by Inspector William Keenan of the WorkCover Authority of New South Wales (the prosecutor) of Kyogle Council (the defendant/Council) pursuant to s 15(1) of the Occupational Health and Safety Act 1983. The transitional provisions of the Occupational Health and Safety Act 2000 apply to these proceedings. 2 The prosecutor, on whose behalf Mr M P Cahill of counsel appeared, alleged that the defendant, Kyogle Council, between 16 August 1999 and 24 August 1999, at the Sandy Creek Bridge located on the Urbenville Road, approximately five kilometres from Bonalbo, in the State of New South Wales, being an employer, failed to ensure the health, safety and welfare at work of all its employees, and in particular Barry McPaul, Anthony Olive and Patrick Shea, contrary to s 15(1) of the Occupational Health and Safety Act 1983. 3 The particulars of the charge are: (a) At all material times the defendant was engaged in bridge maintenance and repair works upon the Sandy Creek Bridge located on the Urbenville Road, five kilometres from Bonalbo, in the State of New South Wales. (b) At all material times the defendant employed Barry McPaul, Anthony Olive and Patrick Shea who, in exercise of their duties, were engaged in the said bridge maintenance and repair works upon the Sandy Creek Bridge. (c) At all material times a temporary working platform and supporting hung scaffold was erected and suspended beneath the Sandy Creek Bridge. (d) At all material times there was a risk to the health, safety and welfare of the employees when gaining access to, egress from and performing work from the working platform suspended beneath the said Sandy Creek Bridge as a result of the failures particularised in paragraphs (f) through to (j). (e) Between 10.00 am and 11.00 am on 24 August 1999 Barry McPaul sustained fatal injuries when he fell approximately 6.18 metres from the said working platform suspended beneath the said Sandy Creek Bridge. (f) At all material times the defendant failed to provide a place of work, to wit, a working platform from which work could be performed beneath the said Sandy Creek Bridge, that was safe and without risks to health. In that, the defendant failed to ensure the said working platform was: (i) completely and closely decked or planked; (ii) adequately fixed to its supporting structure to prevent displacement; (iii) provided with edge protection in the form of guardrails or alternate means. (g) At all material times the defendant failed to provide or maintain a means of access to and egress from a place of work under its control, to wit, a working platform suspended beneath the said Sandy Creek Bridge, that was safe and without risks to health. (h) At all material times the defendant failed to provide or maintain a system of work for the conduct of bridge maintenance and repair works upon the said Sandy Creek Bridge that was safe and without risks to health. In that, the defendant failed to ensure: (i) an adequate means of fall protection or fall arrest was utilised by employees engaged in work performed from a working platform suspended beneath the said Sandy Creek Bridge; (ii) an adequate means of fall protection or fall arrest was utilised by employees when gaining access to and egress from a working platform suspended beneath the said Sandy Creek Bridge; (iii) risks involved in the conduct of bridge maintenance and repair works upon the Sandy Creek Bridge were adequately assessed and measures to control such risks implemented prior to the performance of the said maintenance and repair works. (i) At all material times the defendant failed to provide such information, instruction and training as may be necessary to ensure the health and safety at work of its employees engaged in bridge maintenance and repair works upon the said Sandy Creek Bridge. In that, the defendant failed to provide adequate information, instruction and training to ensure: (i) the erection and use of a temporary work platform from which work was to be performed beneath the said Sandy Creek Bridge that was safe and without risks to health; (ii) an adequate means of fall protection or fall arrest was utilised by employees engaged in bridge maintenance and repair works upon the said Sandy Creek Bridge. (j) At all material times the defendant failed to provide such supervision as may be necessary to ensure the health and safety at work of its employees engaged in bridge maintenance and repair works upon the said Sandy Creek Bridge. In that, the defendant failed to provide adequate supervision to ensure: (i) the erection and use of a temporary work platform from which work was to be performed beneath the said Sandy Creek Bridge that was safe and without risks to health; (ii) an adequate means of fall protection or fall arrest was utilised by employees engaged in bridge maintenance and repair works upon the said Sandy Creek Bridge. 4 Mr J N Gallagher of Senior Counsel with Ms J L Gallagher of counsel, appeared on behalf of the defendant. Mr Gallagher confirmed the plea of guilty that had been entered at an early stage. Submissions - Prosecutor 5 There was no dispute on the part of the prosecution that the defendant entered the plea at an early stage and having confirmed that plea is entitled to the full benefit of it. 6 Mr Cahill tendered, without objection, the agreed statement of facts as filed on behalf of the prosecutor on 28 March 2002 together with annexures that comprise: (1) the factual inspections performed by the inspector, Mr Keenan who is also the prosecutor for this matter, dated 24 February 2000 together with further annexures that consist of a further factual inspection report dated 13 March 2000, a series of sketch documents that show the nature of the scaffold that forms part of the subject matter of the prosecution together with a series of 97 colour photographs of the site and various other matters. (2) an engineering report prepared by Mr Chris Turner, Senior Engineer, Construction Team, WorkCover Authority, dated 20 July 2000 together with its annexures that include the two relevant Australian standards. (3) two safety circulars, the first of which is entitled Kyogle Shire Council Circular No S/003 Safety from Falling/Bridge Sites. That appears under the hand of R L Smythe and a second circular entitled Kyogle Shire Council, circular S/004 Scaffolding - Bridge Sites. (4) Extracts from the defendant's safety manual, developed for the defendant by an OH&S Consultant: (a) Safework procedure, No 3, Bridge Gangs (Review date 1/4/99); and (b) Safework procedure, No 38, Working at Heights (Review date 1/4/99). (5) a document entitled Suspendek which is a brochure that relates to a timber bridge maintenance system under the name of Suspendek. 7 The modus operandi involving the use of the hung scaffold involved not one simple deficiency but an array of deficiencies which are outlined in detail in the statement of facts and it is significant that the list of deficiencies extends at least to the following significant matters each of which carries with it a risk of the very type which ultimately resulted in Mr McPaul's death: (1) the bridge crew was required to obtain access to the work platform that hung beneath the bridge on the hangers from the bridge deck. To get that access, there were no fixed ladders supplied of any kind in the sense referred to in the Construction Safety Regulations , 1950 (the Regulations ) or indeed in the relevant standards. Rather what was provided was a series of rungs that were welded across at right angles to the hangers so that one got a series of rungs, in a sense almost like a monkey ladder without edges, but bare metal rungs that ran down the side of the hanger from the bridge deck to the work platform below. That was the system of access and it was the only system of access that was available. That system was specifically contrary to the provisions of the relevant Regulations and Standards. Not only was it contrary to Regulations , it was also contrary to the specific provisions of the Kyogle Shire Council's own safety standard S/004, which appeared to have been promulgated in about 1990, but was not effectively circulated to any of the members of this particular project crew nor indeed were they trained in it. What is required by the Regulations is the provision of access ladders slotted at the right angle, fixed at the top and the bottom so as to provide for the safety of the workers. (2) The second deficiency was that access from the ladder to the work platform itself on this job was provided by way of walking across a narrow beam from the base of the rung ladder to the work platform. How the workers obtained access to the platform was in effect by doing a balancing act with the worker making his way across the deck with his hands above his head to hold on to the bridge deck above whilst balancing his feet on the narrow deck. It was a balancing act without harnesses or safety net and was inherently dangerous bearing with it a significant risk of falling and as a consequence a significant risk of injury. (3) The work platform itself consisted of a series of metal planks. The significance of that fact is that the metal planks were as stated in the statement of facts, to be of varying lengths. They were not closely decked. They were not folded together so as to provide a single work platform and indeed, as a consequence of the varying lengths of the planks themselves, there arose a risk in the circumstances here of cantilevering because the planks did not reach right across the last beam. Where a plank did not make its way across so that it was not properly secured, there was a risk that if the worker stepped on it, the rest of plank would rise and the worker would slide or fall off, because of the cantilevering effect on the beam. The planks were left unsecured and that is what gave rise to that risk. (4) There were no handrails or any form of edge protection provided. (5) The matter is in a sense aggravated because, having not provided a safe work platform with any rails or edge protection in circumstances where the planks were capable of cantilevering, where the deck was not closely planked and there was not a safe work area for the workers to work, none of the workers were actually obliged, or indeed even properly trained, apart from the rigger, in the use of harnesses and there was only one harness provided on the site. There was no provision put in place before the work commenced for acquiring harnesses, assuming that the workers took it upon themselves to use them. 8 All those matters are matters which involve basic breaches of simple straight forward occupational health and safety principles that in the circumstances of this case involve significant risk of injury. 9 Without more that would constitute a most serious breach of the relevant principles set out in the Act but the matter is further complicated by the fact that in addition to those physical difficulties the work crew in the circumstances of this particular case was left without any effective supervision. There was no project supervisor trained relevantly in the work or in the necessary occupational health and safety principles who supervised the work. No one in the crew was given that responsibility specifically nor indeed were they given any training should that responsibility be given to them. What resulted was that the members of the crew were left to their own devices to carry out the work unsupervised without adequate training following the work system that was by its very nature inherently dangerous. 10 That is not a case which involved the workers departing from what might be described otherwise as a safe system of work but the going off on a frolic of their own or something of that nature. This was the workers following the work system that had been in place for a number of years. Nonetheless it is said that the Council had, during the period that it appears the system to have been in use from 1986 onwards, taken steps at various stages which were not ideal to addressing the risk. 11 The first one was the issuing of two circulars, reviewed in April 1999, but the difficulty is that the evidence establishes that those circulars were never effectively directed. The second step which the council took was that it purchased the Suspendek System in 1995. The Suspendek System had edge protection and hand railings and provided a closer work surface that was designed to run right underneath the bridge. 12 The hanging platform had only a small number of planks which the employees moved as they moved across under the bridge, which carried the risk in moving them as well as the risk involved with cantilevering. In essence the idea of Suspendek System is the same, except that it provides a completely, for want of a better term, enclosed or fenced work platform on which to work with continuous work surface that runs across the width of the bridge. It can then be left on the rails that attach to the side of the bridge up and down the bridge to provide access over a large area. It is actually suspended by means of a chain from a pulley. That is attached to a runner that hangs on the rail attached to the side of the bridge. 13 Whilst the Council took the step of buying that system again, at the time that this particular incident occurred, that system was idle, lying in the Council depot unused. 14 The effect of that is that the Council was fully cognizant of the risks that were involved in using the hung scaffold from at least 1990 and that in terms of the period of the charge between 16 August and 24 August 1999 the Council was involved in a significant breach of the principles in circumstances where it knew all the risks. That must move the case along the continuum from the least serious for most serious offence and it is the category of most serious offence, in the sense that it highlights not only breach of basic principles but breach of basic principles in circumstances where the Council was fully aware. This is not a case in which there has been some unforeseen breach or some lack of knowledge on the part of the Council to recognise the risk. The circumstances were the Council was fully aware of it and the Council in effect allowed it to continue. 15 The significance of those matters in the sense goes back to the question again of the distinction between a departure from an otherwise safe system of work or an unrecognised risk. That is not one of these cases. This is a case where there are clear breaches of the Act which were well known to the defendant prior to the incident and which the defendant failed to take adequate steps to protect the worker, the deceased and the other members of the crew during that period of days whilst the work was being performed. 16 Undoubtedly, the defendant can only be sentenced for the offence of which it has been convicted and aggravating factors that fall outside the scope of the subject offence are not to be taken into account in determining the appropriate penalty [see R v De Simoni (1981) 147 CLR 383]. Nonetheless, the offence must be considered in context and it is common ground between the parties that bridge crews working for the defendant had been utilising the work system that resulted in the death of Mr McPaul since at least 1986 or 1987. 17 The next issue which is significant and which the court should take into account in making an assessment of the objective seriousness of the offence is the issue of specific and general deterrence. 18 As to the matters of general deterrence the imposition of a significant penalty is called for in the circumstances of the case to fulfil the functions of general deterrence (see Capral Aluminium v Workcover Authority of New South Wales (2000) 49 NSWLR 610). 19 As to specific deterrence, it was significant that Mr Davies makes reference in his affidavit to the status of the Council as an employer. Mr Davies says that the council is an employer of 105 employees. This is a case where the Council has ongoing responsibilities as an employer in respect of a substantial work force and the requirement for specific deterrence attaches to that fact. The Council is continuing as a substantial employer and continuing to work in work of this kind and will continue to do so in the future. The matter calls for an element of specific deterrence as well as matters obtaining to general deterrence. 20 It is not known whether Mr McPaul fell whilst he was moving the plank or whether the plank cantilevered or whether he slipped. What is known is that the provision of hand rails, continuous decking, edge protection would have obviated the need for Mr McPaul to be carrying out the tasks that he was performing in the circumstances which gave rise to a risk of him falling off the edge of the work platform. 21 It does not matter that the court cannot specify with exactitude the circumstances in which Mr McPaul fell. The risk was there, the circumstances being as they were, at the very least the risk of Mr McPaul falling to his death could have been avoided or indeed eliminated had he been provided with and required to use a harness for which a proper attachment from the bridge was put in place. Just the use of a simple well recognised industrial practice of using a harness would have eliminated effectively the risk which ultimately resulted in Mr McPaul's death so it is not even that the prosecutor is submitting to the court that it was essential for the Council to use the Suspendek System though best practice and the availability of that system would have dictated the use of that system. 22 As to the subjective factors it is conceded that the defendant entered a plea at an early stage and that the defendant is entitled to the full benefits as in Thompson and Houlton [2000] NSWCCA 309. 23 In addition it is conceded that the defendant at all times co operated fully with the Workcover Authority. Indeed on Mr Cahill's instructions the defendant made available its employees to be interviewed and liaise with the inspector and in those circumstances is entitled to the full benefits of its assistance or co operation with the authorities. 24 Nonetheless the authorities do stipulate that one has to take into account in making an assessment of the value of an early plea and the value of co operation the circumstances in which those matters are entered or arise. In the circumstances of this case the defendant faces an overwhelming Crown case and in those circumstances the plea and the assistance should be assessed with that background in mind. 25 Insofar as the steps that have been taken since, Mr Cahill was instructed that the prosecution concedes that the defendant has taken real steps to improve its occupation of safety standards since the incident. There is no dispute about that at all and that indeed is a significant matter which the Court should take into account in dealing with the subjective factors relating to this particular defendant. Again it is a matter which, as with the plea of guilty, if the Court was satisfied can be taken as real, is evidence of recognition by the defendant of its guilt and of remorse in the circumstances of the case. 26 Mr Davies, the General Manager, makes reference to the financial circumstances of the Council leading up to the occurrence of the event. In essence, those matters are irrelevant. That is, the financial circumstances in which the Council found itself, the difficulty it had with the general manager in terms of business management, do not bear directly on the occurrence of the accident in this case nor bear at all on the issue of the Court's assessment of what should be an appropriate penalty in this case. They are separate issues. They are not directly relevant to the breaches of the Occupational Health and Safety Act or indeed the assessment of penalty. However, the financial circumstances may be relevant if the Council wishes to obtain the benefit of the financial circumstances which are outlined very briefly in paragraph 8 of his affidavit. 27 What is outlined in paragraph 8 by Mr Davies is in effect a brief outline of the overall receipts of the Council as against its overall expenditure. What the Court is not told is what is the nature of the discretionary funds contained within the $1.4 million already allotted to the Council. The Court does not know what is done with that money nor the extent to which the Council has available to it funds which are committed to other projects which could be made available to meet the fines. 28 Even if the Court is satisfied that the Council's financial circumstances are relevant as outlined in paragraph 8 and that the Court feels obliged to take that into account in making an assessment must start from the position that the primary issue to start from is the gravity of the offences. That in the circumstances of this case the offence is most grave and calls for the imposition of a substantial monetary fine on any view. Having reached that conclusion, the fact that the imposition of a substantial monetary imposition may cause some hardship is not of itself a reason that justifies a reduction in the penalty to be imposed. Something more than that is required and the Court does not have sufficient evidence on that issue to enable it to reach a conclusion that such a reduction should be allowed in the circumstances of this case. Submissions - Defendant 29 Mr Gallagher tendered six sworn statements which go to matters of mitigation. 30 The statements were sworn by Mr Ken Davies, General Manager of the Council, Mr Eldon Wright, an occupational health and safety consultant with the Council, Mr Neil Graham the Manager of Human Resources for the Council and Mr Anthony Synnott, the workplace health, safety and training officer for the Council, who commenced employment, on the recommendations of Mr Davies, on 16 October of the year 2000, largely as a result of activities undertaken by the Council arising from this unfortunate event. The statements of Mr Michael Wilder, the project work supervisor for the Council employed on 28 February 2000 also as a result of Council's reaction to the accident and of Mr Kim Moore, the Council maintenance supervisor east of the range were also tendered. 31 Mr Gallagher advised that the deponents were not required for cross examination but the persons concerned, particularly from the Council, Mr Ken Davies, the General Manager of the Council, Mr Neil Graham the Manager Human Resources Services for Council, Mr Tony Synnott and Mr Michael Wilder, the project works supervisor for the Council were present in court in case the Court wished to have them formally sworn and to answer any questions that the Court might wish to put to them about matters contained in their evidence. He said that there was the significant presence in Court from the Kyogle Council both in the sense of sworn statements and in the sense of the people present to assist the Court. 32 Mr Gallagher stated that the defendant readily acknowledged every paragraph of the agreed statement of facts. He wished, however, to draw the Court's attention to what was said in some of those paragraphs. 33 Mr Gallagher noted that the relevant scaffold and working platform has been utilised since 1986 or 1987. That is a period at the time of this unfortunate occurrence of some 13, 14 years. He submitted that obviously the system would had been used for that period of time had been used in a way which did not produce any problems, at least so far as the Council is aware. 34 With reference to the particular circulars described in the Agreed Statement they were circulars laid down in writing by the Council. The Court could relevantly accept, certainly having regard to the submissions of both the prosecutor and the defendant, that proper policies and procedures were obviously in place. The difficulty was that those policies and procedures were not properly enforced. That is acknowledged by Council to be so. But it is a relevant factor that proper policies and procedures were in place. It is also a relevant factor obviously as to whether or not they were properly supervised and enforced and here there is no doubt that the Council has fallen down in that regard. 35 There had been training given to Mr Olive who was one of the persons working on the bridge at the relevant time and the Court could relevantly accept that there was training provided to Mr Olive in relation to modular scaffolding. The defendant could not say that the training would be seen as being appropriate and adequate because the scaffolding that was being used was a hung scaffolding. It was not a modular scaffolding. Nevertheless there was training in relation to the issue of scaffolding provided to Mr Olive in 1992, that being by way of that 4 to 5 day course. 36 He drew attention to what is said in paragraph 18 that the bridge crew made collective decisions in regard to the use of the scaffolding system. It would seem that those collective decisions had worked in such a way previously that there had been no problem. That is a reference obviously to the adequacy of the supervision. That has to be seen in the context of the way in which these collective decisions had been made for many years without any apparent difficulty. 37 In the context of the adequacy of supervision provided, Mr Robert Graham who was employed as an overseer, but not specifically assigned a supervisory role, attended the Sandy Creek Bridge approximately four times a week during which the maintenance and repair work was being carried out. The defendant acknowledged that the relevant "supervision" as provided by Mr Graham, was not acceptable. However, at least "advice" was given to Mr McPaul by Mr Graham that a safety harness should be worn. Now it did not appear obviously that Mr Graham had the authority to direct Mr McPaul to wear that safety harness. Nevertheless, a question appears to have been raised by him directed to Mr McPaul in relation to it. 38 Mr Cahill very properly had referred to the fact that there were no enforcement of the wearing of safety harness. He had referred to the fact that the wearing of safety harness might well have produced an entirely different result than had unfortunately occurred here. Mr Graham, though not in direct control, as was acknowledged of Mr McPaul or the bridge crew, at least provided advice. 39 With reference the Suspendek System in the period immediately and following the occurrence of this matter, training was undertaken in relation to the Suspendek System. However, Mr Wilder's evidence indicates that even the Suspendek System is not as safe as it should be. It is to the Council's credit that a full valuation of the Suspendek System has been undertaken and that a safer and more efficient system is now in place, that being a modular form of scaffolding as distinct from the hung system that was used and from the Suspendek System. 40 Mr Gallagher acknowledged that, although work proposed to be carried out at the Sandy Creek Bridge had been the subject of inspections and discussions, those discussions had not dealt with the scaffolding aspects of the work nor had there been any risk assessments of it undertaken. He submitted that the procedures undertaken should be viewed in the context there are some 350 bridges within the Shire also of timber construction and it should be inferred that work had obviously been carried out on those bridges over a period of many years and again without any mishap. 41 The evidence of Mr Davies, the General Manager of the Council includes the fact that it was part of his duty to represent the Council in relation to the matters arising out of the death of Mr McPaul. Mr Davies gave some background to the problems within the Council in the preceding period. One of the unusual factors in this case is that the Council was in substantial political and administrative turmoil for a number of years just prior to the occurrence of this event. 42 On the 14 April 1997 the Council received a letter from the Department of Local Government relating to the Kyogle Council investigation which was to be undertaken. The report of that investigation was presented on the 8 September 1997 and identified a number of contraventions of the Act and administration and certain recommendations were made. The Council at that time was in a most serious financial position indeed. It was part of the administrative, political and financial turmoil in which it found itself at that period. That is not the case now. There has been a turn around of that. 43 The Council's risk manager safety officer was retired on medical grounds in September 1997 and not replaced, having regard to funding considerations at that time. 44 Support for occupational health and safety matters certainly now and going back for some considerable period comes right from Mr Davies at the top of the organisation and that is an important symbolic factor. Mr Davies has assumed a more interventionist role in occupational health and safety matters including relevant directions to subordinate officers. He recommended on 19 June 2000 that a Occupational Health Safety and Training Officer be appointed. It is unusual for an organisation of just over 100 employees to have a full-time dedicated occupational health and safety training officer. That reflects in a positive way on Council. Mr Davies' summing-up in paragraph 10 says that there has been a completely changed approach to occupational health and safety within the Council. 45 The Council is in a modest position in a financial sense. It has a rate base of approximately $3 million a year, plus revenue of $1.2 million a year from water, sewerage and waste charges, that is a revenue of $4.2 million dollars a year. The money is collected in order to be properly managed to provide relevant services set down in the Local Government Act to the residents concerned. The amounts not specifically allocated in 2000 and 2001 are budgeted to cover unexpected contingencies, emergency work on roads and bridges. The situation is that even the moneys referred to are being relevantly spent to a certain extent on matters relating to safety, albeit safety to the persons using the bridges in the Kyogle Shire area. 46 In the context of the authorities, the defendant is not pleading impecuniosity. It simply wished to place the relatively modest financial position of the Council before the Court as something that might in general be taken into account but in terms of the authorities, the Council is not in a position to and does not plead any impecuniosity. 47 Mr Graham the Manager, Human Resource Services with the Council commenced in January 1996 and he was the responsible officer delegated by Mr Davies to deal with the difficult issues arising because of the occurrence of this unfortunate matter. Mr Graham refers to the unsettled nature of things and stated that the four directors of Technical Services, Planning Services, Environmental Services and Corporate Services all ceased employment in various circumstances during the period May 1998. So they had a situation wherein at that particular period there was more or less a complete turn-over of the senior managerial personnel with all the instability that obviously brings. 48 Actions taken by Mr Graham which have a particular resonance in terms of the compassion and caring shown by this Council arising from the event which occurred to Mr McPaul, included the facts that on 25 August 1999 arrangements were made for counselling to occur on that day of the employees concerned who were also working on this Bridge with Mr McPaul. On 26 August 1999, the day after Council had been advised that Mr McPaul had passed away, contact was made with Mrs Eileen McPaul, the wife of Mr McPaul, and also Mr McPaul's son, Mark. 49 On 28 August 1999 Mr Graham attended Mr McPaul's funeral along with the Mayor, councillors, General Manager, Senior Manager and some staff. On 30 August there was further counselling provided to employees. On 31 August there was a further attendance by Mr Graham and Ms Sue Parle on Mrs McPaul and their family to convey Council's sympathy and to present a floral arrangement on behalf of Council to the family. Mrs McPaul was provided with information then about Mr McPaul's entitlements and was advised Council would provide assistance to her if required. 50 On 1 September 1999 there was a further visit to Mrs McPaul and on 20 September Council resolved to rename the Kyogle Botanical Gardens, to the Barry McPaul Memorial Gardens. That is a matter significantly symbolic of the compassion shown by the Council. 51 On 21 September further assistance was provided to Mrs McPaul. The Court sees importantly a letter from Eileen McPaul to Mr Davies expressing her appreciation for what Council had done. In a number of judgments of the Court there is reference to contrition being appropriately expressed through earlier pleas of guilty. The Court does not often see the kind of compassion and contrition and symbolic attention given as has been given here. 52 Mr Wilder is the Bridge Work Supervisor. He assessed the Suspendek System. Although it would have been satisfactory in so far as the Prosecution is concerned to have continued with the Suspendek System, Council, through the appointment of relevantly qualified officer taking a very pro-active approach indeed, it is found that the Suspendek System, is not as safe as Council would like it to be and so a more safe system and a more efficient system is now utilised. 53 Mr Gallagher went to some other decisions where there have been fatalities to indicate the kind of sentences which have been imposed and which the Court might see fit to take into account in its consideration, accepting that the factual matrix in each case that comes before the Court is different. The cases advanced by Mr Gallagher were Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) [2001] NSWIRComm 267 [(2001) 110 IR 57], WorkCover Authority of New South Wales (Inspector Tyler) v Grocon Constructions Pty Ltd [2001] NSWIRComm 150 [(2001) 108 IR 403] and WorkCover Authority of New South Wales (Inspector Farrel) v MIM Transport Pty Limited [2002] NSWIRComm 58. 54 The subjective factors which the Court might take into account here are firstly, the plea of guilty; secondly, full co-operation with Workcover; thirdly, employment of a fully qualified bridge supervisor; fourthly, employment of a full-time occupational health safety and training officer in the context of a relatively small work force; fifthly, full backing from the General Manager of the Council; sixthly, a complete and comprehensive overhaul of all the matters concerned with occupational health and safety; seventhly, political and administrative turmoil and financial turmoil as well of a most unusual kind in the period relatively shortly before the unfortunate accident here; eighthly, the relatively modest financial resources of the council, that issue not put any higher than that; ninethly, the compassion and concern and caring shown for Mr McPaul's family by the Council; tenthly the symbolic and caring concern shown by the Council in the renaming of the Fawcett Creek Bridge and the Botanical Gardens as the Barry McPaul Bridge and the Barry McPaul Memorial Gardens respectively, a lasting tribute, and eleventhly, the recognition by the McPaul family of the compassion and caring shown by the Council and as referred to in those documents. Evidence in Mitigation - Defendant 55 The Council's current financial position was described by Mr Davies: Council has approximately 10,000 residents, 4689 rateable properties, and a rate base of approximately $3 million, plus revenue of approximately $1.2 million from water, sewerage and waste charges. In the 2000/2001 financial year the amount of funds which were not specifically allocated to specific needs was $187,898. A similar figure is budgeted for the 2001/2002 financial year to cover unexpected contingencies such as emergency works on roads and bridges (of which there are around 400) which may become closed or restricted for a variety of reasons (e.g. slips, washed away, or unforeseen work is required). For example, currently a bridge at Pioneer Park Old Bonalbo requires around $250,000 - $400,000 to restore it to normal operating traffic. That expenditure was not planned at the start of the current financial year, but has become urgent during the year to make the failed truss bridge at Pioneer Park Old Bonalbo safe to traffic as a result of the structural supports being found to be severely weakened. Currently, the bridge is in a 'holding position' being supported by special equipment hired from the RTA (Roads and Traffic Authority). 56 Actions taken by the defendant since the accident in relation to OH&S include the appointment in October 2000 of Mr Anthony Synnott as Council's full-time OH&S Training Officer. Since his appointment he has been engaged in the constant monitoring of OH&S matters and necessary training. 57 Mr Wright is the principal of a consultancy known as Non-Risk Australia. He provides advice and training in relation to Occupational Health & Safety and risk management issues and requirements. In his affidavit he described the steps taken by Council to improve the Council's OH&S standards after the accident to Mr McPaul: (1) The creation of an Action Plan for the steps needed to be taken to improve Council's OH&S standards. All matters in that Action Plan have now been completed. (2) He was involved in assessing and reviewing the OH&S Committee of Council. He found that the Committee members only met infrequently, had little training or experience in OH&S matters, had little knowledge of their proper role and had little guidance or direction. Subsequently, a new Committee was elected made up of staff and management representatives, a Councillor and Mr Wright. The new Committee members all undertook a four day training course. The new committee meets regularly every month. (3) A policy statement was prepared and adopted by Council in June 2000. (4) A development of Safe Work Procedures was undertaken by Mr Wright in consultation with the OH&S Committee at all levels of management and staff as appropriate. Those circulars are collectively called the Safety Manual. Those Safe Work Procedures are regularly reviewed in response to matters such as accidents, near-misses, hazard reports, matters dealt with by the OH&S Committee etc. The dates on those Safe Work Procedures indicate the date for the next review, not the date they were originally created. (5) All existing employees, as at September 1999, were made aware of the Safety Manual and the general and specific Safe Work Procedures relevant to them at a series of OH&S inductions in and about September 1999. (6) All new employees are made aware of the Safety Manual at the induction of new employees. New employees are also provided with a copy of the Council's Safety Code & Induction Card which refers to the Safety Manual. At the induction of new employees, they are also provided with a copy of the Safety Handbook. (7) The entire Safety Manual is available to all staff via Council's internal intranet. (8) There are also hard copies of Site or Job Specific Manuals available to the relevant staff at Council's Chambers and the various depots. Those Specific Manuals are at times pre-prepared for frequently undertaken jobs and at other times they are prepared for specific jobs. (9) The Site of Job Specific Manuals contain: The relevant Safe Work Procedures Materials Safety Data Sheet/s (if relevant) RTA Traffic Control Plans (if relevant) Any specific instructions from Engineering Completed Risk Assessment forms A hazard, near-miss, first aid, injury & disease report form. (10) He was involved in the initial training and information sessions to existing and new staff and volunteers until Council employed a full-time safety officer in October 2000. (11) He provided training courses for all supervisors within Council. The Council included anyone who had any person reporting to them as a supervisor. Approximately 50 persons have completed the one day course. 58 Mr Wright could say that there has been a fundamental change in attitude to OH&S matters since a new General Manager was appointed in May 1998 and particularly after the deficiencies were identified as a result of the WorkCover enquiry following Mr McPaul's accident on 24 August 1999. After the accident the General Manager authorized Mr Wright to do whatever was necessary to get Council's OH&S standards and procedures up to a proper level. All his suggestions and recommendations to-date have been implemented with the full co-operation of the Council, the General Manager and senior management. Over the last 2 years he has observed a dramatic change in culture of staff in relation to safety issues. 59 Mr Graham's affidavit contained an extremely detailed chronology from 24 August 1999 of OH&S developments within the Council, including assessment of the Suspendek Scaffold system, consultations and interviews with Inspector Keenan, risk assessments of bridge jobs being undertaken, attendance at a wide range of training and seminars by employees, training conducted by Mr Wright for Council's engineering representatives and concluding: August 11 2000 - Occupational Health & safety Meeting held, including attendance by General Manager, Directors, Supervisors, Eldon Wright and OH&S Committee. Draft OH&S program action plan communicated to all in attendance. August 26 2000 - Public ceremonies held for the re-naming of the "Barry McPaul Bridge" and the "Barry McPaul Memorial Gardens". Attached are newspaper articles relating to the ceremony and a [sic] letters from members of the McPaul family. September 2000 - Interviews conducted for Occupational Health Safety & Training Officer conducted. October 16 2000 - Occupational Health Safety & Training Officer commenced employment with Council. 60 Apart from assessing and reviewing OH&S procedures and training, Mr Synnott said that: As part of my duties I regularly visit work sites, depots, Council offices and other premises to assess the standard of OH&S standards actually being implemented by staff. My visits are usually on a random basis and without forewarning to any person. During the course of these inspections I have noticed a continuous improvement as result of raised awareness from training afforded to those in a supervisory role, who in turn have passed these skills to others, working around them. I observed proper procedures being implemented in relation to risk assessments and the taking of appropriate steps to eliminate or reduce potential dangers. I have noticed that questions are now being asked that show an awareness of and understanding of OH&S issues and responsibilities. Knowledgeable OH&S questions are being asked by most employees, where there was silence witnessed throughout my first visits. This increased interest is evidence of the cultural transformation taking place within Kyogle Council. 61 Mr Moore, who is the Council's maintenance supervisor (East of the Range), has been employed by Council since 1995 and has been maintenance supervisor since 1997. Part of his duties includes overseeing proper performance of work duties including compliance with OH&S standards and requirements. He stated that over the last 2.5 years there had been a dramatic improvement in Council's OH&S standards. He detailed the improvements: (a) Staff induction and information sessions in about September 1999 … (b) All supervisors had to undertake a one day OH&S training course. (c) Improved signage at depots and offices relating to the need for risk assessments and the Work Cover Notices setting out the OH&S obligations. (d) On almost every work place I visit, I am aware that risk assessments have been carried out and that steps have been taken to minimize or eliminate identified risks. Usually, all employees on a particular site are involved in the risk assessment process. (e) Safety inspections are carried out daily on all plant and equipment prior to use. (f) Site inductions are carried out daily before work commences and before any visitor enters the site. (g) The risk assessment [sic] of a previous day at a site are reviewed before re-commencement of works on a new day. (h) Most potential hazards and near-misses are reported. (i) All contractors must satisfy Council's own OH&S standards. (j) All qualifications and certificates are checked before an employee embarks on a job. (k) There are regular visits and inspections by Council's safety officer, Mr T Synott. Most of those visits are without warning. (l) I have responded to enquiries by the OH&S Committee of Council. Legislation 62 The charge is brought under s 15(1) of the Act: Part 3 General provisions relating to health, safety and welfare at work Division 1 General duties 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all his employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if he fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of his employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for his employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. (4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section. Application of s 51A of the OH&S Act 1983 63 It was submitted by the prosecutor that, at the material time, the maximum penalty applicable to a corporation for a first offence was $550,000.00. The maximum penalty applicable to a corporation for a second, or subsequent, offence against the Act was $825,000.00 The defendant has a prior conviction for an offence against the Act. As a consequence, the maximum penalty applicable to the subject offence is $825,000.00. 64 The details of that prior conviction, as taken from the WorkCover Authority of New South Wales Prior Convictions Database, are as follows: Date: 13/09/91 Act: OH&S s 15(1) Court: Kyogle Penalty: 500 Court File No: 91/493 65 Neither the prosecutor nor the defendant had been able to obtain further details from their records, WorkCover having tried to do so for 12 months. They did agree that the matter was before the Local Court at Kyogle. 66 Although Mr Cahill said he was not in a position to tell the Court in detail what the factual circumstances of it were, he said it should be seen in the context of a conviction imposed before the Local Court against a statutory maximum applicable at the time which he believed was $10,000. 67 That conviction took on some importance in the submissions. The prosecutor had submitted that because a prior conviction existed, the maximum penalty available to be imposed was, because of the operation of s 51A of the OH&S act 1983, the sum of $825,000. 68 The defendant took issue with the prosecutor's submissions as to the maximum fine applicable. Mr Gallagher relied upon a recent decision of Schmidt J in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service [2002] NSWIRComm 44 to submit that the Court can put aside Exhibit 2 (Statement of Prior Convictions) as being a factor which launches the defendant from $500,000 maximum to a higher figure. He relied, in particular, on par 20 of that judgment which states: Section 51A(1) provides for an 'additional penalty', when the Court convicts a person where 'the person has previously been convicted of an offence under this Act'. Section 51A(2) has the effect of including such additional penalty in the maximum penalty provided by s47, for the offence in question. It follows that s51A(1) arises for consideration at the point when the Court is sentencing a defendant for an offence which has been made out. It is concerned with the maximum penalty which may be imposed for such an offence. The section only applies to cases where it is the Court which convicts a person of an offence. No provision is made for the imposition of such a higher maximum penalty in cases where it is a Magistrate who convicts a person of an offence under the Act. 69 If the defendant's construction of s 51A and its understanding of Schmidt J's judgment be erroneous then nevertheless it submitted that, having regard to the circumstances of this case, the earlier cases referred to by way of guidance as to penalties would still provide appropriate guidance for the Court. The Court could also take into account that it seems that there was a very low penalty imposed some 11 years ago in the Kyogle Local Court. 70 Mr Cahill disagreed with the submission by Mr Gallagher that the decision of Schmidt J gives rise to a principle that s 51A does not apply in this Court where there was a previous conviction before the Magistrate. The construction being contended for before her Honour by both the prosecutor, then represented by Mr Cahill, and by counsel for the defendant in that matter was that the Court had before it factual circumstances where there were offences in 1997 and 1998 and a conviction in respect of the 1998 offence in 1999 and hearing in respect of the 1997 offence in 2000. In those circumstances it was said by both parties that the Court in considering the applicability of s 51A(1) should ignore the conviction in 1999 because it related to an offence after the date of the matter that was then before the Court. Schmidt J concluded if there is a conviction that is in place at the time that the sentencing court comes to consider the matter before it that is all that is required for the gate on s 51A to be opened. At paragraph 20 what Schmidt J was addressing was the inability of a Magistrate faced with circumstances of an earlier conviction to impose a higher penalty. There is no provision in the Act for an increase in the penalty to be imposed by a Magistrate by virtue of earlier convictions. The maximum penalty before a Magistrate is the penalty set out in s 47 of the Act and that penalty alone. The Magistrate does not have a higher penalty regime to take into account. Only the Court has that. 71 Mr Cahill submitted all that is required for S 51A to operate is that a person has been previously convicted of an offence under the Occupational Health and Safety Act 1983 and nothing more. It was that construction of the section which Mr Cahill urged the Court to adopt. 72 In my view, it is clear, upon examination of s 51A(1) that that section arises for consideration when it is the Court which is sentencing a defendant who has been previously convicted, whether or not that previous conviction has been by the Court or a Magistrate. The importance for the Court is the fact of the previous conviction, not the tribunal which entered that conviction. 73 I find that the maximum penalty applicable in this case is $825,000. Consideration 74 The principles proper to be applied in the Court's consideration of penalty in this matter were set out in the prosecutor's written submission. All those principles have been taken into account, but, in particular the following: (1) Principal and particular purposes of the Occupational Health & Safety Act 1983 are: (a) The protection of workers from breaches of safety, health and welfare; and (b) To compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. [See: WorkCover Authority of NSW v Air Express International (Australia) Pty Ltd (1996) 83 IR 64; Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388; and Alcatel Australia Ltd v WorkCover Authority of NSW (1996) 70 IR 99 at 106. See also WorkCover Authority of NSW (Inspector Petar Ankucic) v McDonald's Australia Ltd & Anor [2000] NSWIRComm 277 at 47] (2) The maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence. The maximum penalty is available to be utilized in a "worst case scenario". However, that does not mean that the maximum is only applicable in circumstances where the Court can not envisage a worse case or that some lesser penalty is apposite because the sentencing court can envisage a more heinous factural scenario. (3) The primary factor to be considered in determining the sentence to be imposed is " … the objective seriousness of the offence charge" [ WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Ltd NSWIRComm 39 at p 31 per Wright and the case cited therein.] (4) The existence of a reasonably foreseeable risk to safety is a significant aggravating factor to be taken into account in assessing of the gravity of an offence. [See: Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) Kembla Coal and Coke Pty Ltd IRC 142 of 1998 Unreported per Walton J [VP] @ 37-38] (5) The gravity of the risk to safety is relevant as a measure of the seriousness of an offence [See: Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 476] (6) Neglect of simple well known precautions to deal with an evident and grave risk of injury, of which the defendant was fully cognisant, take a matter towards the "worst case" category on the continuum between zero and the maximum. [See: Inspector Roy Thomas Millgan v Roads and Traffic Authority Ind. Ct of NSW Unreported 29 August 1996 per Fisher CJ. (7) The objective seriousness of the offence, without more, calls for the imposition of "a very substantial penalty … to vindicate the social and industrial policies of the [1983] Act and its regime of penalties". [per Fisher CJ Inspector Graeme Mauger for the WorkCover Authority of New South Wales v P Ward Civil Engineering Pty Ltd (ACN 001 069 254) CT 1212 of 1994 21 December 1995 per Fisher CJ @ p 10. 75 The circumstances of the accident and the risks to safety involved in the work being carried out have been set out earlier in this decision in the charge with its attendant particulars, (which were largely repeated, with more detail, in the Agreed Statement of Facts), and in the prosecutor's submissions. The death of Mr McPaul was stark evidence of the existence of those risks. I repeat only to a limited extent what was said in the Agreed Statement: 7 On 24 August 1999 the bridge crew was in the process of removing and replacing sections of longitudinal timber that constituted the bridge deck. Whitney, Olive and Shea were working above the bridge deck and McPaul was working beneath the bridge deck upon a working platform supported by a hung scaffold and suspended beneath the bridge deck. Whitney performed traffic control duties whilst Olive used an oxy-acetylene cutting torch to cut bolts fixing the longitudinal timber and Shea removed those timbers. It was envisaged by the members of the bridge crew that, once removed, the sections of longitudinal timber would be replaced. This was to be achieved by Olive securely fixing replacement timbers to the bridge by tightening bolts as McPaul held the nuts in place with a spanner * whilst standing upon the working platform suspended beneath the bridge deck. In readiness, McPaul was standing on a section of aluminium planks and engaged in the process of moving adjacent aluminium planks from beneath the northern end of the bridge, where work had earlier been carried out, toward the southern end of the bridge, where the fixing of replacement timbers to the bridge was to occur. At some point during the process McPaul fell approximately 6.18 metres to the creek bed below sustaining the stated fatal injuries. (* I note the spanner was held over his head with one hand, while he held on to the bridge with the other.] 8 Between 16 August 1999 and 24 August 1999 Olive, Shea and McPaul had periodically worked from the working platform supported by the hung scaffold suspended beneath the Sandy Creek Bridge. On those occasions Olive, Shea and McPaul had not worn safety harnesses and there was no other means in place to prevent or arrest their falling from a height of between approximately 2 and 6 metres. … 14 It was the practice of bridge crew members, including McPaul, to access to the working platform by descending one of those steel angle hangers of the hung scaffold to which rungs had been welded and walk along a 95 millimetre wide bearer, whilst holding onto the overhead bridge structure, until reaching the aluminium scaffold planks. In the course of gaining access to the working platform a safety harness was not worn. At any one time between 1 and 3 members of the bridge crew carried out work from the working platform suspended beneath the Sandy Creek Bridge. Members of the bridge crew were not required by the defendant, and failed to wear, safety harnesses. Between 16 and 24 August 1999 a single harness was located in the work truck at the Sandy Creek Bridge. Members of the bridge crew had not previously received instruction or training in regard to procedures for the safe use of safety harnesses or system of rescue in the event a member fell whilst wearing a harness. 76 Mr Turner's engineering report discussed in detail the deficiencies of the hung scaffold being used vis a vis the Occupational Health and Safety Act and Regulations. In doing so, he also noted where the Regulations were required to comply with the relevant part(s) of Australian Standard AS/NZ S 1576.1:1995 relating to scaffolding (also set out). He stated that the scaffold did not comply with Part 1 of that Standard and thus also failed to comply with the Regulations. 77 One of those many deficiencies was strikingly demonstrated by the fact that the employees, in order to access the platform, after descending one of the non-conforming steel angle hangers, had to walk along a 95 millimetre wide bearer (my emphasis) while holding onto the overhead bridge structure. Clause 2 of the Standard requires an access platform of not less that 450 mm wide (again my emphasis). Another deficiency was a damaged rung on the vertical access hanger/ladder shown in the prosecutor's photographs. 78 As was noted by Mr Cahill: Part of the process was the need for Mr McPaul to reattach the planks on the hung scaffold, as he worked, because he needed to follow the progress of the people that were working above the deck. Because there was not continuous decking on the suspended hangars, what Mr McPaul had to do was bend down and pick up and move the planks as he worked. 79 It is somewhat ironic that it was the most experienced member of the bridge team, Mr McPaul, who fell to his death. Even the simple provision of a harness, training in its use and supervision to ensure it was used in appropriate circumstances would have reduced the risk, not only to Mr McPaul, but to each of the other two members of the team who could also be working, together or separately, on the hung scaffolding under the bridge during the period stated in the charge. One harness was indeed on site but without training and authoritative supervision, it may well have been kept in the depot, like the Suspendek, for all the use it was. 80 In relation to the place of deterrence in fixing the penalty to be imposed, it was said in Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) [(2000) 49 NSWLR 610 at [75] [76] [77] ], as part of a detailed consideration of that matter: 75 … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) SASR 417 at 422 … 76 On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offesnce … 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. … However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases 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. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely reactive: WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at [46]. 81 I do not regard the fact that the Council had been in a state of substantial political and administrative turmoil for a number of years just prior to the occurrence of this event as one of mitigation nor one which would militate against the factor of specific deterrence being given more weight. Council has the same responsibilities for its employees as does any other employer. Internal conflict is no excuse for not properly exercising those responsibilities, nor for having those responsibilities compromised. Even though the persons elected to Council change (and some involved in Council at the time of the accident to Mr McPaul are no longer on it), Council continues as an employer. There needs to be a salutary reminder to Council of its on going responsibilities in that respect. 82 Furthermore, as to specific deterrence, the Council continues to have responsibility for some 350 timber bridges. In relation to general deterrence, I am aware from my involvement with the local government industry over the last 27 years, that there are some 170 councils, and that many of those councils also have responsibility for the maintenance of timber bridges. 83 In my consideration of penalty, there is place for both general and specific deterrence to be taken into account. 84 In relation to mitigation, I accept that there has been a complete change in culture as to health and safety issues from the top management down. I do take into account the valiant efforts described by Mr Davies and other witnesses for Council to improve Council's response to occupational health and safety issues. Those efforts include the appointment, at no little expense to a relatively small Council, on 16 October 2000, of a full time dedicated Occupational Health, Safety and Training Officer. Having particular regard to those efforts, as well as to Council's assistance to Mr McPaul's family and the recognition of Mr McPaul in the memorials dedicated to him, I discount the penalty by a further ten per cent. 85 This matter was first mentioned before the Deputy Industrial Registrar on 16 August 2001 and was stood over until 27 September to await a decision as to whether coronial proceedings would take place. On 27 September the Deputy Industrial Registrar was advised by Mr Gow, appearing for the defendant that an inquest had been dispensed with and that "a plea of guilty will be entered to this charge" but that the final particulars still needed to be settled. On the next occasion, 25 October 2001, Mr Gow formally entered a plea of guilty and leave was given for the prosecution to amend the application for order one as to one particular. 86 It may be, as was submitted for the prosecutor, that the defendant recognized that it was faced with an overwhelming case against it, but, in my view, that early plea, when considered with the evidence in mitigation to the extent I have accepted it, and the proper concessions on behalf of the prosecutor, was more dictated by remorse and contrition than by any other factor. 87 In my consideration of penalty, I have had regard, as I must, to what was said by a Full Bench of this Commission (Wright J President, Walton J Vice-President and Hungerford J) in Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 at [37] ): 37 The appropriate use of guideline judgments has received some attention recently following the judgment of the High Court in Wong v The Queen and the subsequent judgment in Cameron v The Queen (2002) 76 ALJR 382. However, any uncertainty has been removed by the judgment of a five member Bench of the Court of Criminal Appeal in R v Sharma [2002] NSWCCA 142 which was determined after this matter was heard. In R v Sharma , Spigelman CJ, with whom Mason P, Barr, Bell and McClellan JJ agreed, considered that the construction of s 22 of the Crimes (Sentencing Procedure) Act 1999, having regard to its statutory and legislative history, including the Minister's second reading speech, resulted in the High Court's observations in Cameron v The Queen not being applicable in New South Wales; see also R v Cook [2002] NSWCCA 140. The Court also confirmed the continuing applicability of R v Thomson and Houlton . Whilst not having had the opportunity of submissions from the parties as to R v Sharma , we consider it appropriate to apply that judgment in these proceedings. We confirm the applicability and binding nature of the guideline judgment in R v Thomson and Houlton to sentencing proceedings for offences under the Occupational Health and Safety Act . 88 I find that the offence, in relation to which the defendant has entered a plea of guilty, is a serious one. 89 I formally state that I have taken the plea of guilty into account, together with the other subjective factors raised for the Court's consideration as well as the proper concessions made on behalf of the prosecutor. 90 I find the defendant entered its plea at the first reasonable opportunity and I take that plea into account in applying a discount of 25% for the utilitarian value of the plea of guilty (see R v Sharma [2002] NSWCCA 142). To the extent that I have accepted the matters raised in mitigation, I discount the penalty that would otherwise be imposed by a further 10%. 91 I did not find the decisions as to penalties imposed in other OH&S Act cases involving fatalities to be of assistance. Each case, as was acknowledged by Mr Gallagher, has to be considered in the context of its own factual matrix and of the application to each such matrix of the relevant principles. Order 92 The Court makes the following orders: 1. The defendant is found guilty of the offence charged and a conviction is entered accordingly. 2. The defendant is fined an amount of $159,500.00 with a moiety to the prosecutor. 93 The matter of costs was not raised. Should there be any disagreement that the usual course of costs following the event is appropriate to be adopted, that disagreement is to be raised within 21 days and the matter may be relisted for further short submissions. 94 The defendant did not plead impecuniosity, but drew attention to its financial circumstances. The possibility of phased payment of any penalty was not raised and I leave it to the parties to discuss such a course of action further if they so wish. **********************************

Inspector William Keenan v Kyogle Council

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Cases Cited (21)

Cited By (2)