James Manassa v WorkCover Authority

APPELLANT Mr S Coleman of counsel Solicitor: Mr P Saab Macquarie Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr B Docking of counsel Solicitor: Mr A O'Dea Carroll & O'Dea

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

FULL BENCH CORAM: Wright J, President Boland J Haylen J

22 October 2003 Matter No. IRC 1863 of 2003 JAMES ANTHONY MANASSA V WORKCOVER AUTHORITY OF NEW SOUTH WALES Application by James Anthony Manassa for leave to appeal and appeal against a decision of the Chief Industrial Magistrate given on 6.3.2002 in Matter Nos. CIM 202202224/00/2 & 20202267/00/2 JUDGMENT OF THE COURT [2003] NSWIRComm 348

1 This is an application by James Anthony Manassa for leave to appeal and if leave be granted, appeal against two decisions of Chief Industrial Magistrate Miller ("the CIM"). The first of those decisions was given on 3 September 2001 and the second on 6 March 2003. The background facts giving rise to those two decisions are set out below.

2 On 3 September 2001, the appellant, Mr Manassa, was found guilty of breaches of s 31N(d) and s 50 of the Occupational Health and Safety Act 1983 in ex parte proceedings. The Statement of Facts before the Local Court stated that the appellant was the managing director of Dyna Demolition and Excavation Pty Ltd ("Dyna") and that an Inspector of the WorkCover Authority had issued a notice under s 31KA of the Act seeking information to assist in the investigation of an accident which occurred at a site occupied by Dyna on 31 May 1999 and Mr Manassa had failed to comply with the notice by providing documents and other material within a period of 14 days.

3 The second matter was a prosecution pursuant to s 15(1) and s 50(1) of the Act. It was alleged in the Statement of Facts that Dyna was contracted by Mirvac Constructions Pty Ltd to demolish and remove all materials from building 29 at Lady Davidson Hospital located at 434 Bobbin Head Road, Turramurra. At the time Dyna employed a general labourer Ahmet Hussain and a labourer Omar Hussain. On 31 May 1999, both labourers attended the hospital site having been employed the previous day to work there by Dyna's project manager, a Mr Zafiris. The 31st of May 1999 was Mr Ahmet Hussain's first day as an employee of Dyna. The two labourers had been instructed by Mr Zafiris to attend the site and await the arrival of the excavator and then to clean up the rubbish from inside the building.

4 Mr Ahmet Hussain had a poor command of English with his first language being Arabic. It was alleged both employees were instructed by Mr Manassa to attend the roof of the building at the site to remove the roof sheeting and then to remove the timber purlins from the roof of the building. Access was gained to the roof by the use of a ladder owned by Dyna which was brought to the site by the two labourers in the truck owned by Dyna. The ladder provided by Dyna for use in access and egress to and from the roof of the building was unsafe in that the stile of the ladder was broken and could not be used as the foot of the ladder and therefore the ladder was placed upside down against the building. Between the timber purlins and the roof of the building was acoustic ceiling lining material which was non-trafficable and would not carry the weight of a person. While Mr Ahmet Hussain was using a pinch bar to remove the roof purlins the roofing material on which he was standing gave way causing him to fall through the ceiling to the concrete floor below, a distance of approximately 4.9 metres.

5 It was alleged Dyna carried out no risk assessment of the task for removal of the roof sheeting and timber purlins for the roof of the building and Mr Ahmet Hussain had been provided with no training prior to attending for work on 31 May 1999 and had prior work experience only as a general labourer and process worker. He had no previous experience working in the demolition industry. Dyna provided no supervision on the site on the day of the accident and Mr Manassa was responsible for supervising the site on 31 May 1999 but had left the site, as the excavator had not yet arrived. No safety induction had been provided to Ahmet Hussain and no safety order at the site had been carried out by anyone on behalf of Dyna. Neither labourer had been supplied with any training in regard to working at heights and Dyna had provided no protection at the site. Whilst there were two safety harnesses in the truck used by Dyna at the site, neither labourer was wearing a safety harness while on the roof of the building. Mr Ahmet Hussain was treated at the scene of the accident and transported by ambulance to Westmead Hospital where he was diagnosed as suffering multiple injuries including a fractured right humerus, right wrist, sacrum, pelvis and right hip.

6 It was alleged that Mr Manassa, being a director of Dyna Demolition and Excavation Pty Ltd, on 31 May 1999 was deemed to have contravened s 15(1) of the Occupational Health and Safety Act pursuant to s 50(1) of the same Act in that Dyna being an employer at the site failed to ensure the health, safety and welfare at work of all its employees and in particular Ahmet Hussain. The Particulars of the breach were as follows: (i) It failed to provide means by fencing, scaffolding or other means of full protection for security for safety of any persons working at a place, namely the roof of building 29 being demolished at the said site ("the site") from which a person would be liable to fall a distance of more than 1.8 metres; (ii) It failed to provide a system of work that was safe and without risk to health in the process of demolition work in that employees were present on the roof of the building at the site removing timber without any full protection and without safe means of removal; (iii) It failed to provide such information, instruction, training and supervision as was necessary to ensure the health and safety at work of Dyna's employees in that Mr Ahmet Hussain was carrying out work on the roof at the site without wearing a safety harness; (iv) It failed to provide means of access to or egress from the place of work under its control, being the roof of the building at the site, that was safe and without risk to health and that the ladder provided by Dyna to its employees for such access and egress was broken. It was alleged that Mr Manassa was deemed to have contravened s 15(1) of the Act pursuant to the provisions of s 50(1) of the Act.

7 On 3 September 2001 when the matter was listed before the CIM a solicitor appeared for Mr Manassa but sought an adjournment. He informed the CIM that Mr Manassa was currently in custody and attempts had been made to contact other members of his family in relation to these matters but those contacts had been unsuccessful. Mr Manassa's solicitors had been unable to speak to him in relation to the matters and so an adjournment of three to four weeks was requested in order to obtain instructions. It was accepted that the matter had previously been adjourned for similar reasons but it was inappropriate in the circumstances that the matter proceed ex parte. The solicitor was unable to assist further because he had only just received a telephone call whilst in the precincts of the court requesting him to appear and ask for the adjournment.

8 The CIM noted that this was the eleventh time that the matter had been before the court and that it had been in the court's list for a period of almost 12 months. At a mention in July 2001 the prosecution notified Mr Manassa's solicitors that the defendant was then in custody and that there were procedures in existence to bring persons in custody before the courts: in those circumstances the CIM was not prepared to grant a further adjournment and leave was granted for the solicitor to withdraw.

9 After hearing the evidence tendered on behalf of the prosecutor the CIM found each offence proved and immediately imposed a penalty. The CIM noted that there was nothing put to the court by the defendant in relation to the matter and commented that falls from construction sites had been all too frequent in recent times. In this case there was a 4.9 metre fall to the concrete floor below and the person was seriously injured. The defendant was a director and was actively engaged in work on the site and had played an active role in the unsafe practices. Safety was non-existent at the site and in particular there was considerable lack of training in a hazardous industry. Although there were two harnesses provided there was no training or instruction regarding their use. In relation to the s 31N(d) offence, a fine of $5,500 was imposed. In relation to the s 50 offence, the CIM stated that it was a very serious matter and that there was nothing in mitigation other than no prior convictions. He took into account the conviction in the s 31N(d) matter and fined Mr Manassa the sum of $37,500 with $300 professional costs in both matters. Appeal against CIM's decision of 3 September 2001

10 Mr Manassa duly filed an application seeking leave to appeal and to appeal in this Court his convictions under s 50(1) and s 31N. The appeal was against both conviction and severity. In summary, the grounds of appeal were that the appellant was denied the opportunity to present his case; the refusal to grant an adjournment was wrong and not in the interests of justice; it was wrong to proceed ex parte and to record a conviction in all the circumstances; and, the penalty was too severe.

11 On the application for leave to appeal, there was affidavit evidence from the prosecutor indicating the numerous occasions that the summons in each matter had been unable to be served and the further numerous occasions on which the matter was adjourned in the Local Court. Contact had been made with Mr Manassa's mother and the prosecutor was aware of Mr Manassa being in custody. Mr Manassa's solicitors had been made aware of arrangements that could be made for the attendance of Mr Manassa at the Local Court even though he was in custody. Affidavit evidence from the solicitor then acting for Mr Manassa indicated inability to contact Mr Manassa while he was in jail stating that it took some time to find in which prison Mr Manassa was being held and there were occasions when he was informed that Mr Manassa was not at that prison when in fact he was. He was not able to speak to Mr Manassa and obtain instructions until October 2001 after the CIM had dealt with the matter ex parte. On that occasion he received instructions to pursue the application for leave to appeal. Mr Manassa's solicitor stated that he had kept in contact with the prosecutor's solicitor, had informed her of the difficulties being experienced, the fact that Mr Manassa's mother was overseas and not contactable and his inability to find Mr Manassa in the jail system. He indicated that he could no longer act in those circumstances until he was able to find Mr Manassa in October 2001. An appeal, however, against the findings of the CIM had been filed in late September 2001.

12 The application for leave to appeal and to appeal came before the Full Court on 30 July 2002. During the course of detailed argument counsel for each party contended that s 100D of the Justices Act 1902 applied to the case and that instead of filing the appeal under s 197 of the Industrial Relations Act, the appellant could have made an application under s 100D for an annulment of the convictions. After discussion the Full Court concluded that the matters were ones where the provisions of s 100D were appropriate and thus warranted the granting of leave. The Court, pursuant to the provisions of s 197(4) of the Industrial Relations Act, referred the matters back to the Local Court to deal with in the manner of an application for annulment of conviction or order pursuant to s 100D of the Justices Act 1902 (see James Anthony Manassa v WorkCover Authority of New South Wales [2002] NSWIRComm 219).

Decision of 6 March 2003 13 The matter returned to the CIM who, on 6 March 2003, refused the application to annul the court's convictions and orders against Mr Manassa. The CIM noted that the reason stated in the Application was that the applicant "was in custody at the time of hearing". The CIM firstly referred to the fact that the difficulty in serving the original Informations was that Mr Manassa had given the investigating Inspector a North Parramatta address and it was some considerable time before he could be personally served at Winston Hills. The CIM then set out at some length the various adjournments and applications made in the matter and the difficulties of solicitors acting for Mr Manassa which had been taken into account over a lengthy period of time. It was clear from this material that the prosecutor was aware that Mr Manassa was in jail and that Mr Manassa's mother had been served with documents dealing with arranging appearances in court. The matter was in fact listed on two or three occasions for ex parte hearing before the CIM finally denied the September 2001 adjournment application and dealt with the matter ex parte as indicated above. The CIM did notice that in August 2001, Mr Manassa had been transferred from one prison to another and that in September 2001, Mr Manassa had made an application to the Department of Corrective Services to visit his daughter in hospital. Corrective Services' records showed that Mr Manassa received regular telephone calls and that his wife, mother and brother were very supportive.

14 In dealing with the requirements of s 100K for the granting of an application of annulment the CIM again returned to the question of Mr Manassa's residence. Although living with his wife at Winston Hills and having previously lived at North Parramatta, Mr Manassa's mother and brother and his brother's friend were in fact in residence at the North Parramatta address. Mr Manassa's mother was overseas during the period 1 August 2001 to 12 October 2001 and his brother appeared to have left the North Parramatta address at some time unknown during this period although his brother's friend stayed in residence. It was sometime before 2 April 2001 that Mr Manassa moved to Winston Hills with his wife, but at all material times he had given the North Parramatta address to various authorities and his solicitors as his residential address.

15 The CIM was satisfied that, throughout his period in custody, the applicant was in regular contact with his family by telephone and there was no reason why he was unable to contact his solicitor concerning these prosecutions or to raise members of his family if he needed to contact his solicitor. There appeared to be little effort made by Mr Manassa's solicitor to contact his client within the correctional system and "surprisingly" none or inadequate diary notes were made by the applicant's solicitor in regard to his attempt to contact the applicant. At the same time the CIM stated that Mr Manassa had no difficulty in contacting his solicitor in relation to other criminal matters or of appearing in the Local Court in relation to his criminal charges. The CIM formed the view that having been served with the summonses relating to the WorkCover prosecutions, the applicant "hoped the matters would simply disappear" like certain traffic matters which had been dealt with ex parte in December 1998. Although he was in custody there was no valid reason why Mr Manassa was unable to contact either his family, his solicitor or indeed WorkCover in relation to the prosecutions: he simply took no interest in the progress of these matters, but at the same time he misled the authorities and his solicitor as to his correct residential address. In those circumstances the statutory grounds had not been made out and the CIM refused the application for annulment.

16 In April 2003, Mr Manassa applied for leave to appeal and appeal under s 197 of the Industrial Relations Act against the refusal of the CIM to annul his convictions under s 100D of the Justices Act. The documents filed focused on errors of the CIM in exercising the powers under s 100D of the Justices Act. In August 2003, an amended application for leave to appeal and appeal was filed pursuant to s 197 of the Industrial Relations Act against the decisions of the CIM made on 3 September 2001 and 6 March 2003. The matters appealed against were identified as the whole of the decision of the CIM made on 6 March 2003 and the whole of the decision and the severity of the sentence of the CIM given on 3 September 2001. Again, a significant focus remained on the manner in which the CIM dealt with the application under s 100D of the Justices Act and the grounds of appeal intermingled the s 100D application, evidence of an available defence under s 53 of the Occupational Health and Safety Act and failure on the part of the CIM to consider the application of s 6 of the Fines Act 1996 and to deal with other objective considerations within the knowledge of the prosecution before deciding the matter on 3 September 2001.

17 A ground of appeal dealt with severity and claimed that the sentence was at the upper end of the range for a corporation when there was an arguable defence, objective and subjective factors which should have been considered in arriving at a sentence and the failure of the CIM to consider the means of the appellant before imposing a fine. While the appeal was taken against the whole of the decision and the severity of the decision made in September 2001, (an indication that the fine in relation to both the s 30N and s 50 breaches were the subject of appeal), the grounds did not distinguish between the two fines imposed by the CIM and on one view addressed only the $37,500 fine imposed in relation to the breach of s 50 of the Occupational Health and Safety Act. Indeed, the written submissions filed in support of the application for leave to appeal and appeal mentioned both convictions but in dealing with severity dealt with matters that were relevant only to the s 50 offence.

18 When the latest application for leave to appeal and appeal was listed before this Full Court it was contended by the respondent, and it seems, accepted by the applicant that Mr Manassa could not appeal under s 197 of the Industrial Relations Act against a refusal of the CIM to grant an annulment under s 100D of the Justices Act. Counsel for the applicant then sought to proceed by way of application for leave to appeal and appeal against the 3 September 2001 orders of the CIM. Having regard to the earlier application for leave to appeal and appeal against the same orders which were remitted to be dealt with under s 100D of the Justices Act a further application was made, to the extent necessary, to extend time in order to allow the challenge to the CIM's orders under the Occupational Health and Safety Act to be pursued on appeal. The prosecutor did not oppose this course and in the unusual circumstances of this case the Court granted the application for extension of time.

19 During the course of exploring a number of issues with counsel for the applicant during his address, the case took another unexpected turn. Counsel for the applicant announced, in effect, that the appeal against conviction would not be pursued and the matter would proceed as an appeal against severity only. It seemed to be the applicant's approach that if the appeals against conviction were upheld, a plea of guilty would be entered in each case and he would then be able to be heard on the question of mitigating circumstances in the setting of an appropriate penalty. The matter thereafter proceeded as an appeal against severity with, as a matter of expedience, the applicant being permitted to give evidence in relation to penalty and mitigating circumstances with such evidence to be available to the Court in the event that leave to appeal against severity was granted.

20 It is appropriate to immediately consider the applicant's challenge based on the severity of the penalty. Bearing in mind the ex parte nature of the hearing, the reasons of the CIM were, understandably, shortly stated. As already recorded those reasons concentrated upon the s 50 offence. In relation to the s 31N(d) offence, the CIM noted that the maximum penalty was $11,000, and finding the offence proven he recorded a conviction and fined the defendant $5,500 with court costs of $56.

21 In relation to the s 50 matter the CIM stated that falls at construction sites had been too frequent in recent times and the fall here involved a distance of 4.9 metres to a concrete floor below with the employee being seriously injured. It was further noted that the defendant was a director of the company and was actively engaged in the work on the site and played an active part in the unsafe practices: indeed, safety was "non existent on the site". There was a considerable lack of training in a hazardous industry and although there were two harnesses provided there was no training or instruction regarding their use. This was a very serious matter and there was nothing in mitigation other than there being no prior convictions. The CIM then took into account the offence in the s 31N(d) matter and fined the appellant $37,500 and $56 court costs. It was common ground on the appeal that the maximum fine available in relation to the s 50 matter was $55,000.

22 The Full Court in Inspector Buggy v Weathertex Pty Ltd [2003] NSWIRComm 273 recently considered the meaning of the term "manifest inadequacy of sentence", drawing attention to the discussion in the joint judgment of Gleeson CJ, and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321 at 325, as follows: Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion.

23 In Weathertex, the Full Court, after citing the above passage from Dinsdale continued: [52] It is apparent from their Honours' discussion that there is a distinction between specified material error in the sentencing judges' approach or reasoning (House v The King errors) and error on the face of the judgment demonstrated by the sentencing judges' conclusion, such as a manifestly inadequate or excessive sentence. [53] The identification of either type of error is sufficient to enable intervention by an appellate court. The appellate court is not required, in our view, to find an additional element of novelty, as suggested by Hungerford and Peterson JJ in Mayo-Ramsay v Allan Taylor (WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allan Taylor & Co Ltd (1999) 92 IR 329). Clearly, however, an appellate court in a Crown Appeal has an obligation to act with caution or restraint, given the principle of double jeopardy and the court's overriding discretion not to intervene: …

24 In this case in relation to the s 31N(d) offence, the fine imposed represented 50 per cent of the maximum penalty available. The CIM gave no indication of the significance of the documents sought and expressed no view as to the relative seriousness of the offence. It is unknown to what extent consideration was given to the fact that this was the defendant's first offence. In the circumstances the penalty appears to be manifestly excessive and leave to appeal should be granted in relation to this charge and the appeal against severity upheld. In relation to the s 50 matter, the defendant was fined $37,500 where the maximum penalty is $55,000, representing approximately 68 per cent of the maximum penalty available: indeed, counsel for the prosecutor accepted that it was difficult to recall a case in the Court where a 70 per cent fine had been imposed for a single offence. The CIM referred to the lack of a previous record and regarded the offence as being serious but made no reference to the fact that the defendant operated in the demolition industry and thereby appeared to have given no consideration to the significance of the defendant having operated in a heavy industry prone to workplace accidents. Given that the CIM found that the offence was serious, nevertheless to impose a penalty in the top third of the range available in the circumstances of a first offender resulted in this penalty being too severe. The penalty being manifestly excessive it is appropriate to grant leave to appeal in relation to this sentence, and to uphold the appeal against severity. In both matters the fines imposed by the CIM are quashed.

25 In light of the somewhat tortured history of this matter, the Court announced that if the appeals against severity were successful then the Court would, itself, proceed to deal with the appropriate penalty rather than again remitting the matter to the Local Court which would involve both additional delay and further costs. 26 In relation to the issue of penalty on each charge, Mr Manassa gave evidence by way of affidavit and oral evidence and was cross-examined by counsel for the prosecutor. Mr Manassa stated that at all relevant times he was the managing director of Dyna and was generally responsible for the running of the company which involved, amongst other things, communicating with the site foremen including Mr Zafaris and attending sites to ascertain the progress of jobs and dealing with the plant and the work on site. Dyna held an unrestricted demolition licence. The job at Lady Davidson Hospital undertaken by Dyna was the subject of a work method statement provided by Mirvac Constructions. It was Mr Manassa's belief that the method statement was followed in relation to that site. The method statement required fencing off the area, capping off services, removal of asbestos, stripping the roof, wearing harnesses attached to the highest point of the roof and using a 30 tonne excavator for the demolition work. There were a number of other rules including a requirement that all personnel were to be issued with helmets, vests and other protective equipment. All work was to be carried out to Occupational Health and Safety Act regulations.

27 Mr Manassa said that generally he provided relevant induction or Mr Zafiris would ensure the workers on site had knowledge and training for the tasks they were to perform. When workers were required for particular tasks, Mr Zafiris would find appropriately trained and experienced workers and inform them of the task they were to perform. The workers were provided with appropriate safety gear including harnesses and ropes where a roof was to be demolished. Mr Manassa was a qualified supervisor for the company nominated to WorkCover in relation to demolition work and he held a TAFE certificate in demolition.

28 Mr Manassa attended the Turramurra site on the morning of 31 May 1999 where an excavator had been arranged to complete the demolition of the last building. Mr Zafiris had organised workers to "wet down" the site and to clean up the road to allow the excavator access to the building. He had been told by Mr Zafiris that Ahmet Hussain had been employed on a casual basis as a general labourer for shovel and pick type work and for cleaning the site on the date of the accident. Mr Zafiris acting as site foreman usually employed a labourer on a trial basis. Mr Zafiris had the authority of the company to hire and fire and he was not required to consult with Mr Manassa or other directors to do so. He had been employed for his ability as an experienced person and had, in 1998, obtained an occupational health and safety qualification.

29 Mr Manassa had attended the site on the day of the accident but as there was no machinery or employees present, he left the site to obtain something to eat and to "get some hardware". While absent from the site he received a telephone call from Mr Zafiris informing him that Ahmet Hussain had fallen through the roof at the site. Mr Manassa enquired of Mr Hussain's condition and was told he had a broken arm. He instructed Mr Zafiris not to move him and to call an ambulance and in the meantime to make him as comfortable as possible.

30 Mr Manassa understood that the only work to be done on the day of the accident was the use of the excavator to demolish the building. He had given no instruction to Mr Zafiris to either send workers onto the roof or to use the broken ladder. It was his evidence that the company, Dyna, did not have broken ladders and the company's practice was to repair or replace faulty equipment. He said the ladder, which was broken, and which was on site should not have been brought to the site and in any event, should not have been required. It was not contemplated by Mr Manassa that any employee would go on to the roof that day. The ladder was therefore not provided to access the roof that day. 31 While he was not in a position to inspect the company's equipment that day - that was not his task - he had employed experienced personnel on the site to assess the suitability of equipment to be used. He stated that there was no instruction issued to obtain the roofing purlins and that they would have been brought down by the excavator. The employees should not have been on the roof that day and they had been instructed to wait for the excavator to arrive. He understood that instructions had been given that morning or the evening before that the labourers would generally clean up the road and hose down the site to prevent dust and the excavator was to take down the building. There was no requirement to provide instructions as to the removal of roof purlins as this was to be done in the general demolition by the excavator. Mr Manassa did not know why Ahmet Hussain was on the roof. Prior to this day there had been a system of roof protection used in the earlier part of the job and appropriate harnesses were available but at this particular time, neither of the labourers should have been on the roof.

32 Mr Manassa stated that at this and other sites he would inspect the work and the machinery to be used and if he saw anything out of the ordinary to do with safety issues, he would immediately seek out the foreman and have the matter rectified. Mostly, he relied upon his site supervisor and in particular Mr Zafiris, who, because of his training was aware of occupational health and safety obligations. In view of having an experienced person such as Mr Zafiris on site and with his own visits he thought that a reasonable system to manage safety risks was in operation.

33 In August 1999, he had been requested by Inspector Howard to provide the following information in writing: (a) the name of the company accountant; (b) the ACN number of Dyna; (c) a copy of the demolition certificate; (d) a copy of the Occupational Health and Safety policy; (e) a copy the diary entry for the day of the accident; (f) the work method statement, daily work log sheets for the week beginning 24 May 1999 (the supervisor's log sheet), wage records for Ahmet Hussain and vehicle allocation running sheets for the company truck. Mr Manassa undertook to provide these documents within a day or two and on 27 August 1999 he received a notice requiring the documents within 14 days. He stated that he was unable to provide the documents because many of them could not be located. He made attempts to find them but was unable to do so.

34 In his oral evidence, Mr Manassa said that his current occupation was a foreman in demolishing and excavating, that his weekly income was $600 net per week and his income was split with his wife receiving $400 net per week. His home was worth about $450,000 but it was subject to a mortgage of between $270,000 and $280,000 and there was a caveat for the remaining value of the house which was connected to his bail for other proceedings. He was paying $1850 per month in mortgage repayments and was paying off a vehicle at $450 per month. He had two children aged 8 and 9 and a third child on the way. He paid school fees of a few thousand dollars per year. The amount of $7,000 that had been paid into Court had been borrowed from his mother and his brother.

35 Mr Manassa confirmed that he had no prior convictions nor had Dyna any record of convictions. The company had been operating for about 8 years before the accident, although Mr Manassa had of spent eight to ten years in the industry. He had been involved with his father in the demolition industry and he had worked in that industry with his father from when he left school, a period between 15 and 18 years.

36 There were two directors, himself and his brother. His brother had not been charged in relation to these matters. The business had been a family business and when his father died the business was operated by his mother, brother and himself. When the business was operating it had a very high turnover, up to $20m in its best year. The labour force fluctuated from a minimum of 5 full time and part time employees up to 35 or 40. The company had been involved in a number of major works without any major industrial accidents. The Chief Inspector of WorkCover had personally congratulated him in relation to his demolition of the building. The unrestricted demolition licence had been cancelled and he was currently working on a restricted licence. The loss of the licence occurred about the same time as the accident. The company had started to go backwards after his father died and eventually the business failed in 1999.

37 Mr Manassa had obtained a TAFE certificate in demolition which allowed him to obtain his demolition licence. At the Turramurra site, there were 29 buildings to be demolished with asbestos being removed first. Following that work, anything that could be salvaged was removed and the heavy machinery would come in and demolish the building. When the walls were down the labourers would remove the remaining rubbish including timbers from the bricks so that dumping costs could be kept down. That was the work of the labourers and that was why they were employed. This was the last building to be demolished on the site and there was nothing more to do other than demolish it. The harnesses in use were just about brand new and were used at this site while working on the roof performing salvage works. The labourers were to wear the harnesses when performing this work.

38 In relation to Inspector Howard's request to produce documents, Mr Manassa said he spoke to his mother who was in the office to try and organise the paper work but she found it difficult because the company was under administration and the administrator was basically running the office. A lot of the company's paperwork had been put into archives by the administrator and was no longer on site.

39 When he lost the unrestricted licence, Mr Manassa was only able to obtain a restricted licence, which was granted about a year ago. That meant that Mr Manassa could not perform demolition work, so he tried other businesses which did not work. Mr Manassa produced bank statements which showed relatively small amounts of money in his bank accounts.

40 In cross-examination, Mr Manassa said that he now worked as a foreman for the Mann Group which was owned by Mr Manassa and his cousin. That company also employed his wife and was involved in demolition and internal strip out work. The company had been operating for six to eight months. Under the restricted licence working for the Mann Group, Mr Manassa said he could not demolish buildings above 15 metres in height and could not use a mobile crane greater than 100 tonne nor use tower cranes or use explosives. The Mann Group had four employees which included himself, his cousin and his wife: otherwise sub-contractors were used. The Mann Group had a truck and a bobcat but they were leased. The company had no assets. Mr Manassa described the turnover of this company as being a few hundred thousand dollars. The Mann Group had a bank account with something in the order of $16,000 in it. The Mann Group had previously been called Metro Landfill and it was a company owned by Mr Manassa for three or four years but it did not trade. Metro Landfill then changed its name to the Mann Group.

41 Mr Manassa clarified that while Dyna had the unrestricted demolition certificate that licence was issued because of his own qualification. There may have been one other person from time to time employed by Dyna that had a demolition qualification but he was not sure. In relation to the day of the accident, Mr Manassa did not think that he had previously met Ahmet Hussain and he did not know if he had any previous experience in demolition or excavation work. In relation to the timber ladder on site, which was broken, he said Omar Hussain had told him that the ladder was the property of the maintenance shed that was being demolished at the hospital site. Mr Manassa denied that the ladder had been taken to the site in Dyna's truck that day. Other ladders had been used on this job and taken to the site but they were aluminium ladders. 42 Mr Manassa also confirmed that Dyna was eventually the subject to voluntary liquidation but at the end of that process there was no payout received either by himself or by his brother as the directors.

43 When the matter resumed before the Full Court, the parties co-operated in producing an Agreed Statement of Facts. The new Statement of Facts in relation to the s 50 charge was in material respects different from the Statement of Facts before the CIM. Significantly, the statement that Mr Manassa instructed both employees to attend the roof of the building and remove the roof sheeting was withdrawn and replaced by a statement that both employees attended the roof of the building and attempted to remove the timber purlins from the roof of the building. The statement that the ladder used to gain access to the roof was one owned by Dyna was withdrawn and replaced by a statement that it had been transported to the site by the labourers in a truck owned by the company. Mr Zafiris was also recorded as saying that he did not know why the labourers chose this broken ladder as he did not allow ladders like that to be on the site. He did however agree that the company owned the ladder although Mr Manassa said he had no knowledge of the timber ladder. Mr Zafiris said that if he knew the ladder was on site he would have sent it to the tip. The statement that Dyna had carried out no risk assessment of the task of removal of the roof sheeting and timber purlins from the roof was withdrawn as was the statement that Dyna provided no supervision on site on the day of the accident. It was agreed that after Mr Manassa left the site up until 20 minutes after the accident, Dyna provided no supervision at the site. The statement that no safety induction had been provided to Ahmet Hussain was replaced with a statement that no adequate safety induction had been provided to him. The statement before the CIM that no safety audit of the site had been carried out by anyone on behalf of Dyna was withdrawn. The statement that both labourers had not been provided with any training regarding working at heights was replaced with a statement that Mr Ahmet Hussain had not been provided with adequate training. The statement that Dyna provided no full protection at the site was withdrawn.

44 This short survey of the differences between the Statement of Facts before the CIM and before the Full Court demonstrates that the Court is dealing with a significantly different case. In accepting that point, Mr Manassa's conduct of this part of the job, nevertheless, demonstrates a serious breach but not one of the same proportions and significance as put before the CIM. It is because of that finding that the matters cannot be regarded as insignificant or trivial or otherwise appropriate for the application of the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999.

45 Counsel for Mr Manassa, on a number of occasions, referred to the fact that the other company director was not charged as being a relevant factor in the present matter. There is no evidence before this Court as to the role of the other director which would enable an assessment to be made of the culpability of Mr Manassa having regard to the activities and omissions of others. The evidence did demonstrate that the company had a full excavation and demolition certificate because of the qualifications of Mr Manassa. He was the general manager of the company and he was the overall supervisor. In WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Ltd and anor (1999) 95 IR 383, the Court dealt with a similar submission and at 437, stated: Nor is it consistent with the principle of parity or the abovementioned decisions for the Court to embark upon an enquiry in sentencing proceedings which, in substance, would require the Court to make specific findings as to the culpability of such entities under s 17 and the "nature and quality" of any offence committed by them. Embarking upon an enquiry as to whether prosecutions should have been commenced or continued against various entities, or whether those prosecutions may have been successful, would involve the Court conducting a procedure which would be, as the prosecution submitted, tantamount to conducting a trial of the other entities. In any event, the Court, would, if it adopted the contentions of approach by the defendants, be required to make unqualified adverse findings concerning an entity which had no opportunity to answer the allegations made against it.

46 Similarly, in WorkCover Authority (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316, Hungerford J, at [46] stated: As to the contribution of other persons for what occurred, so much relied upon by Mr Phillips here to reduce the culpability of the present defendant, I have to say I think counsel overstated the position and in such a way as to invite error in the sentencing process. There can be no doubt, in my view, that in determining the culpability of the defendant the role played by other parties is necessary to be considered as part of a review of the total circumstances of the case. However, it cannot, I think be used to itself reduce the culpability of the defendant in any sharing or proportionate way of an overall penalty but only as a factor assisting in the determination of the real culpability of the defendant for the offence charged.

47 In the present case there is no evidence of the actions or omissions of the other director which could properly be taken into account in assessing the culpability of the appellant, Mr Manassa.

48 In this matter regard is to be had to both general and specific deterrence, especially in light of the evidence that Mr Manassa continues to operate in the demolition and excavation industry. Mr Manassa is entitled to consideration in light of the good industrial record demonstrated by the fact that after ten years in this hazardous industry, he had no prior convictions nor had come under adverse attention. Personal references were also tendered and he appears to have shown some care and contrition for the injured worker on the day of the accident. His personal financial affairs appear to have been subject to a degree of turmoil following the accident and the ultimate liquidation of the family company. The restricted operation in which Mr Manassa is now involved appears to be a shadow of the business conducted by Dyna, especially at its height. The financial records before the Court indicate that Mr Manassa is now a man of modest means and assets and with considerable financial obligations.

49 Having regard to these matters, a penalty of $2,000 should be imposed in relation to the s 31N(d) breach and a penalty of $18,000 should be imposed in relation to the s 50 breach. In each case, a consideration of the subjective features results in a reduction of 10 per cent being applied.

Orders 1. Leave to appeal in each case is granted, the appeal is upheld and the fines imposed in the Local Court are quashed.

In relation to the offence under s 31N(d) of the Occupational Health and Safety Act 1983 to which the appellant has pleaded guilty, a fine of $1,800 is imposed.

In relation to the offence under s 50 of the Occupational Health and Safety Act 1983 to which the appellant has pleaded guilty, a fine of $16,200 is imposed.

The respondent is to receive a moiety of each fine.

In relation to the combined total of the fines imposed in Orders 2 and 3 above, the appellant is to have credit for the sum of $7,000 held by the Registrar which is to be disbursed in accordance with these orders, so that half of that amount shall be paid to the respondent pursuant to Order 4.

The costs orders in the Local Court in the sum of $300 in each case with $56 court costs in each case are to stand.

In relation to the appeals, the appellant is to receive half his costs as agreed or assessed in accordance with the Rules of the Commission.

The Stay of the fines imposed by the CIM in relation to each charge is discharged. oo00oo

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