Conclusions
20 Counsel were not able to refer me to any decided authority, and I have been able to find none, concerning the way in which the question of assessment of penalty ought be approached by the court, where there are, as here, two defendants, related companies, in relation to the one source of risk to which two persons were exposed in the circumstances of the work on 13 June 2000. Were ACR Maintenance not required by Boral, for whatever reason, to be created as the contracting party, the contract work may have been undertaken by Australian Crusher Repairs directly. In those circumstances, it would seem that the occurrence of the relevant circumstances giving rise to any offence would attract a penalty of a maximum of $550,000. The segregation of the contracting arm into ACR Maintenance, for the purpose of this contract alone, has the theoretical effect that the two companies are exposed to the maximum penalties of $550,000 in each case. There does not seem to be any justice in assessing penalty in each case independently of the other with the inherent dangers that would involve of assessing penalty at too high a level. Were the work done through one corporation, the totality principle would deal with two prosecutions under ss15 and 16. I do not see any substance in the view of the prosecutor that the "disintegration" of the corporate structure is a matter of concern. There is no suggestion on the evidence that the corporate structure was devised to defeat or avoid OHS obligations. Indeed, these prosecutions deny any such effect. Given the common elements of the offences and the corporate structure, I intend to assess penalty in accordance with the principle of totality, thereby giving the two ACR corporations as much credit in that respect as may be, in my view, legitimately granted.