Page v Walco Hoist Rentals Pty Ltd

Industrial Relations Commission (NSW)|1994-05-20|Before: Wright J, Fisher CJ, Peterson JJ, Cullen JJ

Industrial Relations Commission of New South Wales in Court Session

CITATION : Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 PROSECUTION WorkCover Authority of New South Wales (Inspectaor Victor Page) PARTIES : DEFENDANTS Walco Hoist Rentals Pty Limited Eric Clive Barber FILE NUMBER: IRC 1922 - 1931 of 1998 CORAM: Wright J President CATCHWORDS : Occupational health and safety - Prosecutions under s 15(1) s 16(1) and s 50(1) of the OH&S Act - Pleas of guilty - Fatal accident in the construction industry - Circumstances of alleged breach of safety - Sentencing in OH&S prosecutions - Principles applicable to sentencing under the OH&S Act - Gravity of offence - Approach to be adopted in relation to a plea of guilty - Related proceedings against manager of company pursuant to s 50 OH&S Act - Approach to be adopted where breach of safety and consequent accident involves multiplicity of employers or contractors on building site - Extraordinary circumstances of defendants - Significance of such circumstances - Significance of prosecution's failure to proceed against other employers or contractors - Dismissal of certain proceedings pursuant to s 556A, Crimes Act 1900 - Means of defendants - Consideration of individual circumstances of defendants - Defendants convicted - Fines imposed. Crimes Act 1900 s 439 s 556A LEGISLATION CITED : Fines Act 1996 s 6 Occupational Health & Safety Act 1983 s 15(1) s 16(1) s 50(1) Alcatel Australia Limited v WorkCover Authority of New South Wales (1996) 70 IR 90 Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Cranssen v The King (1936) 55 CLR 509 Department of Mineral Resources of NSW v AM Hoipo & Sons Pty Ltd [2000] NSWIRComm 16 Dowling v Overtop Pty Limited (1998) 86 IR 319 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Haynes v James Glass and Aluminium Pty Limited (unreported, Fisher CJ, CT91/772-775, 20 May 1994) House v The King (1936) 55 CLR 499 Independent Cargo & Wool Services Pty Ltd v Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, CT92/1041, 10 March 1994) Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992) Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312 Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286 R v Allpass (1993) 72 A Crim R 561 CASES CITED : R v Dodd (1991) 57 A Crim R 349 R v Gordon (1994) 71 A Crim R 459 R v Hartikainen (unreported, Court of Criminal Appeal, 8 June 1993) R v Huang (1995) 78 A Crim R 111 R v Olbrich (1999) 73 ALJR 1550 R v Radich [1954] NZLR 86 at 87 R v Rahme (1989) 43 A Crim R 81 R v Rushby [1977] 1 NSWLR 594 R v Sgroi (1989) 40 A Crim R 197 R v Slattery (1996) 90 A Crim R 519 R v Winchester (1992) 58 A Crim R 345 Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Hannah) v Albury City Council (1999) 90 IR 397 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, IRC98/1104 and 1106, 4 February 2000) WorkCover Authority of New South Wales v Overtop Pty Ltd (1998) 86 IR 319 WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 HEARING DATES: 09/13/1999; 10/18/1999 DATE OF JUDGMENT: 04/04/2000

PROSECUTOR Mr M P Cahill of Counsel WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANTS Mr A A Henskens of Counsel Colin Biggers & Paisley, Solicitors

JUDGMENT:

47 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR VICTOR PAGE) v WALCO HOIST RENTALS PTY LIMITED Prosecutions under s 15(1) and s 49(4) of the Occupational Health and Safety Act 1983.

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR VICTOR PAGE) v WALCO HOIST RENTALS PTY LIMITED Prosecution under s 16(1) and s 49(4) of the Occupational Health and Safety Act 1983

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR PAGE) v ERIC CLIVE BARBER Prosecutions under s 50(1) and s 49(4) of the Occupational Health and Safety Act 1983

1 These proceedings involve prosecutions instituted by Inspector Victor Page, an inspector of the WorkCover Authority of New South Wales, against Walco Hoist Rentals Pty Limited and Eric Clive Barber. Mr Page (the prosecutor) is an inspector of the WorkCover Authority of New South Wales, and is authorised by s 48 of the Occupational Health and Safety Act 1983 (the Act) to institute the proceedings. Mr Barber, the defendant in matters numbered IRC98/1927 to IRC98/1931 was the general manager of Walco Hoist Rental Pty Limited, the defendant in matters numbered IRC98/1922 to IRC98/1926. I shall refer to that company and Mr Barber as respectively the first and second defendants. The first defendant is a company incorporated in New South Wales with its registered office in Cronulla. 2 These prosecutions were the subject of a reference to the Full Bench of certain questions of law for determination pursuant to s 196 of the Industrial Relations Act 1996 and s 5AE of the Criminal Appeal Act 1912. The relevant questions arose during these proceedings and related to the fact that these proceedings were taken after the two year limitation period specified in s 49(1) of the Act, but were taken in reliance upon the extended limitation period in s 49(4) on the basis that there had been a coronial inquest into a death related to the charges the subject of the proceedings. 3 The Full Bench of the Court delivered judgment as to the questions of law referred on 18 March 1999. The Court's judgment is reported as Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286. The present summonses were remitted to me to be dealt with in the light of the answers of the Full Bench to the questions referred. 4 Upon the remitter of the matters, there were a number of further directions hearings at which the defendants foreshadowed a further issue of law at least in relation to the second defendant. Subsequently, the defendant advised that it was not intending to press that additional issue. Finally, the matter came before the Court for further directions when counsel for the defendants advised the Court that his clients would be entering a plea of guilty. Thereupon directions were made to require the parties to prepare their cases in a timely way for the hearing of the plea which it was clear would involve complex proceedings. Regrettably, largely because of illness affecting both of the defendants, it was not possible for the directions to be fully complied with. Further, in the light of matters raised during the hearing of the plea, leave was given to both parties to file additional submissions and, in the case of the defendants, additional evidence. 5 The prosecutions allege various breaches of s 15(1), s 16(1) and s 50(1) of the Act. Those provisions are respectively in the following terms: 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 the employer's employees. 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 50. Offences by corporations (1) Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that: (a) (Repealed) (b) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 6 The offences are alleged to have been committed by the defendants on 6 February 1996 at a construction site on the corner of Ocean Parade and Bayview Avenue, The Entrance, on the Central Coast of the State where the first defendant was contracted by a property developer and principal building contractor named RGM Building Services Pty Limited (RGM), which was constructing an eight storey building at the site. The first defendant was contracted to that company to supply, and undertake rigging works for, a Walco model M1000 materials hoist at the site. 7 On the day in question, Mr Graham Dorrington suffered fatal injuries when a piece of steel tube he was using as a lever on the hoist at the site, struck him in the head and neck region and he fell two metres striking his head on the concrete ground. The deceased was admitted to Gosford Hospital but died at 9:30pm the same day, the accident which caused his death having occurred at 11:30am that day. He had been working for the first defendant as a truck driver for the six months leading up to the accident and had driven a truck owned by the first defendant from Sydney to the construction site, to deliver part of the hoist for hire by RGM. At the time of the accident and the alleged breach, the first defendant employed Mr Dorrington, who was 20 years of age, as a truck driver; Mr David Wallis, 22 years of age as a rigger; and Mr Douglas Barr, 26 years of age as a mechanical fitter. 8 The prosecutor was represented at the hearing by Mr M P Cahill of Counsel. The defendant was represented by Mr A A Henskens of Counsel. As had been earlier foreshadowed, the defendants entered pleas of guilty at the hearing in respect of the charges against them. That is, the first defendant entered a plea in relation to four charges under s 15(1) of the Act and one charge under s 16(1) of the Act; the second defendant entered a plea of guilty in respect of five charges under s 50(1) of the Act. It is to be observed that in the light of the terms of the last mentioned provision the charges against the second defendant depend upon the contravention by the first defendant of a provision of the Act and the fact that the second defendant was a person concerned in the management of the first defendant.

Factual Background 9 An agreed Statement of Facts relevantly in the following terms was tendered by counsel for the informant. Although certain of the matters in it have already been referred to, it is necessary to set out the substantial part of this statement because of the complicated factual circumstances, depending as they do upon the role not only of each of the defendants but of two other corporations and a number of other individuals: 2. At all material times the first defendant, WALCO HOIST RENTALS PTY LIMITED [ACN: 071 748 966] was a company duly incorporated with a registered office at 62 Croydon Street, Cronulla, in the State of New South Wales. 3. At all material times, R.G.M. BUILDING SERVICES PTY LIMITED [ACN: 003 496 106] was a company duly incorporated with a registered office at C/- Robert A Carollo & Co., suite 3/95 Belmont Road, Mosman, in the State of New South Wales. 4. At all material times, ABBATROY PTY LTD [ACN: 070 147 563] was a company duly incorporated with a registered office at 20 Reeves Street, Narara, in the State of New South Wales. 5. At all material times the second defendant, ERIC CLIVE BARBER, of Rydal Road, Wallerawang in the State of New South Wales, was the general manager of the first defendant and was a person who was concerned in the management of the first defendant, Walco Hoist Rentals Pty Limited. 6. At all material times the first defendant, WALCO HOIST RENTALS PTY LIMITED [ACN: 071 748 966] (hereafter referred to as "Walco"): a. Carried on the business of hoist hire. b. Was contracted by R.G.M. Building Services Pty Limited to supply and undertake rigging works for a Walco model M1000 material hoist ("hoist") at a construction site on the corner of Ocean Parade and Bayview Avenue, The Entrance, in the State of New South Wales. c. Employed Graham Dorrington, 20 years of age as a truck driver; David Wallis, 22 years of age as rigger; and Douglas Barr, 26 years of age as a mechanical fitter. 7. At all material times, R.G.M. BUILDING SERVICES PTY LIMITED [ACN: 003 496 106] (hereafter referred to as "R.G.M."): a. Carried on the business of property developers and was the principal building contractor employed to construct an eight storey building on the corner of Ocean Parade and Bayview Avenue, The Entrance ("the site"). b. Contracted the first defendant, Walco, to hire, undertake rigging works and erect the hoist at the site. c. Contacted Febpac Pty Ltd trading as Central Coast Cranes, who in turn sub-contracted Abbatroy Pty Ltd to supply and operate a crane and dogging crew at the site. 8. At all material times, ABBATROY PTY LTD [ACN: 070 147 563] (hereafter referred to as "Abbatroy"): a. Was a company whose principal activity was trustee for a discretionary trust. b. Was contracted by Febpac Pty Ltd trading as Central Coast Cranes to supply a crane, crane operator and dogging crew at the site. c. Retained the services of a sub-contracted crane crew, consisting of a crane driver and dogman, being John Budden and James Jurd respectively. 9. About 11.30am on 6 February 1996, Graham Dorrington suffered fatal injures when a piece of steel tube he was using as a lever on the hoist at the site, struck him in the head and neck region and he fell two metres striking his head on the concrete ground. Dorrington was admitted to Gosford Hospital but died at 9.30pm on that day. He had been working for Walco as a truck driver for six months leading up to the accident. 10. On the day of the accident, Dorrington had driven a truck (owned by Walco) from Sydney to the construction site, to deliver part of the hoist for hire by R.G.M. Components of the hoist were unloaded by a crane owned and operated by Abbatroy. The crane was hired by R.G.M. John Budden was operating the crane. 10a. Joe Panzarino, a director of R.G.M., told the men unloading the crane to set it up in the position described in paragraph 11. 11. About 11.15am the base of the hoist was lifted from the back of the truck and placed in position on the southern side of the site where a gap had been left in the face perimeter scaffold, specifically for the placement of the hoist. The crane then slewed back to the truck and the hoist platform, which weighed approximately 1.25 tonnes, was attached to the crane. With James Jurd acting as dogman for the crane driver, the hoist platform was positioned over the top of the base section ready for attachment. The hoist platform section requires brackets and rollers (as indicated in Photo 6) together with the rack and pinion (see Photo 7) to be lined up over vertical rails and the platform may then be lowered into the base structure in its working position. 12. Whilst the platform was still suspended by the crane over the base section, James Jurd climbed up onto the tower base section of the hoist, which was approximately 2 metres above the concrete ground (see Photo 3) to manoeuvring the platform onto the base. A short time later, Dorrington climbed up onto the tower base with Jurd to assist in the manoeuvring. Two other employees of Walco, David Wallis and Douglas Barr remained on the concrete ground and assisted in lining up the lower platform section. During this procedure, James Jurd was continuing to act as the dogman giving directions to the crane driver, John Budden, whose vision of the area where the hoist was being set up was partly obscured from his position in the crane operator's seat. 13. The platform was lowered onto the rails of the base but jammed after having been lowered between 1 to 3 feet. James Jurd used a 2.1 metre piece of steel pipe (which was a left over section of scaffolding) to lever the platform in position and after some shaking, the platform lowered a further short distance before it became jammed a second time. According to witness statements, the crane had the weight of the platform during this operation. Graham Dorrington then used the 2.1 metre length of steel pipe to lever the platform between the base of the hoist. Whilst Dorrington was using the lever, the platform dropped (with witnesses evidence ranging) from two inches to approximately 2 feet further into the base structure and the steel pipe that Dorrington was using, flung back in his direction striking him on the chin and neck region. Dorrington fell two metres to the ground head first, without attempting to break his fall. 14. The platform was able to drop down the distance that it did because there was insufficient tension on the crane's line. It was the dogman's Mr Jurd's responsibility to maintain tension of the crane line. 15. The Construction Safety Act, 1912 ("the Act") requires that a person who is directly responsible for setting up a hoist is to be the holder of a certificate of competency as a "rigger". A rigger is defined in Section 17A(6) of the Act as: "a person directly responsible for the placing in position of the members of a building or structure, other than scaffolding, in the course of erection and for the manner of ensuring the stability of those members, for dismantling or demolishing buildings or structures, other than scaffolding, or for setting up or dismantling cranes or hoists." 16. At the time of the accident: a. Graham Dorrington (employee of Walco) was not the holder of a certificate of competency as a rigger, he had only been employed as a truck driver. b. Both David Wallis and Douglas Barr (employees of Walco) held learner's permits as riggers. Walco had employed Wallis for approximately 12 months, and Barr for 18 months. 17. Section 17A(5B) of the Act states, inter alia, that the WorkCover Authority may issue a learner's permit authorising a person to act, in accordance with any conditions endorsed on the permit or prescribed in relation thereto, as a rigger ... 18. Clause 159E of the Construction Safety Regulations, 1950 state the following in respect of holders of learner's permits: "Supervision of permit holder For the purposes of section 17(10) and 17A (5B) of the Act, it is a prescribed condition of a learner's permit issued under either of those subsections that the holder of the permit shall not carry out any work pursuant to the permit except under the supervision of a person who is, in the opinion of the Chief Inspector, a competent person or a person who is the holder of an appropriate certificate being, in relation to a learner's permit authorising a person to act...as a rigger - a certificate of competency as a rigger." 19. There was no person who was a "competent person" or a person who held a certificate of competency as a rigger to supervise Wallis and Barr whilst they were carrying out the rigging operation at the time of the accident. Eric Barber, the General Manager of Walco, held a certificate of competency as a rigger, but he was not on site on the day prior to or at the time of the incident. In an interview with the Prosecutor, Barber stated that his employees were instructed to unload the truck with the supplied crane and dogman and that he was on his way to the site to supervise the rigging operation when the accident happened. 20. The Act also requires that a person who was in the position of James Jurd, directing the movement of the crane, be the holder of a certificate of competency as a "dogman". A dogman is defined in Section 17A (6) of the Act as: "a person slinging and directing the movement of loads handled by a crane where such loads are usually not in full view of the crane driver." 21. At the time of the accident, James Jurd was not the holder of a certificate of competency as a dogman. Jurd was the holder of a certificate of competency as a power crane driver, which had been issued to him in March, 1975 (Certificate No. A84383). 22. Joe Panzarino, a director of R.G.M. and the person who was in charge of the construction project at the site, gave the instruction to set up the hoist. R.G.M. did not request a work method statement from Walco for the setting up of the hoist, nor did it confirm with the employees of Walco or Abbatroy whether they held the appropriate certificates of competency as a rigger or dogman respectively. No request was made by R.G.M. for the production of the appropriate certificates. No supervision was being provided by R.G.M. during the setting up of the hoist at the time of the accident. 23. During an interview with the Prosecutor, Trevor John Troy, a director of Abbatroy who was also involved in the management and site inspections on behalf of the company, indicated he was not aware that James Jurd did not have a certificate of competency as a dogman. Troy indicated that Jurd had carried out dogman duties on prior occasions on the company's behalf and he assumed that Jurd's certificate as a power crane driver covered dogman duties as well. 24. It is alleged that the first defendant, WALCO HOIST RENTALS PTY LIMITED [ACN: 071 748 966], has breached Section 15(1) of the Occupational Health and Safety Act, 1983, on 6 February, 1996 at a construction site situated on the corner of Ocean Parade and Bayview Avenue, The Entrance, in the State of New South Wales, in that being an employer, it failed to ensure the health, safety and welfare, at work, of all its employees, in particular, Graham Dorrington, David Wallis and Douglas Barr, in that it failed to provide such supervision as may be necessary to ensure the health and safety at work of its employees, in that: a. the defendant was at all material times an employer b. the defendant failed to provide such supervision of the said employees in relation to the setting up of a Walco M1000 model material hoist, as may be necessary to ensure the health and safety at work of its employees. c. as a result of the said failure, Graham Dorrington suffered fatal injuries, and David Wallis and Douglas Barr were placed at risk of injury. 25. It is alleged that the first defendant, WALCO HOIST RENTALS PTY LIMITED [ACN: 071 748 966], has breached Section 15(1) of the Occupational Health and Safety Act, 1983, on 6 February, 1996 at a construction site situated on the corner of Ocean Parade and Bayview Avenue, The Entrance, in the State of New South Wales, in that being an employer, it failed to ensure the health, safety and welfare, at work, of all its employees, in particular, Graham Dorrington, David Wallis and Douglas Barr, in that if failed to provide or maintain systems of work that were safe and without risks to health, in that: a. the defendant was at all material times an employer. b. the defendant failed to provide or maintain systems of work for the setting up of a Walco M1000 model material hoist at the said construction site, that were safe and without risks to health. c. as a result of the defendant's failure, Graham Dorrington suffered fatal injuries, and David Wallis and Douglas Barr were placed at risk of injury. 26. It is alleged that the first defendant, WALCO HOIST RENTALS PTY LIMITED [ACN: 071 748 966], has breached Section 15(1) of the Occupational Health and Safety Act, 1983, on 6 February, 1996 at a construction site situated on the corner of Ocean Parade and Bayview Avenue, The Entrance, in the State of New South Wales, in that being an employer, it failed to ensure the health, safety and welfare, at work, of all its employees, in particular, Graham Dorrington, David Wallis and Douglas Barr, in that if failed to provide such instruction as may be necessary to ensure the health and safety at work of its employees, in that: a. the defendant was at all material times an employer b. the defendant failed to provide instruction, to wit, instruction to its employees regarding the setting up of a Walco M1000 model material hoist at the said construction site, as may be necessary to ensure the health and safety at work of its employees. c. as a result of the said failure, Graham Dorrington suffered fatal injuries, and David Wallis and Douglas Barr were placed at risk of injury. 27. It is alleged that the first defendant, WALCO HOIST RENTALS PTY LIMITED [ACN: 071 748 966], has breached Section 15(1) of the Occupational Health and Safety Act, 1983, on 6 February, 1996 at a construction site situated on the corner of Ocean Parade and Bayview Avenue, The Entrance, in the State of New South Wales, in that being an employer, it failed to ensure the health, safety and welfare, at work, of all its employees, in particular, Graham Dorrington, David Wallis and Douglas Barr, in that if failed to make arrangements for ensuring safety and absence of risks to health in connection with the handling and transport of plant, in that a. the defendant was at all material times an employer b. the defendant failed to make arrangements for ensuring safety and absence of risks to health in connection with the handling and transport of plant, to wit, the handling and transport of a Walco M1000 model material hoist. c. as a result of the said failure, Graham Dorrington suffered fatal injuries, and David Wallis and Douglas Barr were placed at risk of injury. 28. It is alleged that the first defendant, WALCO HOIST RENTALS PTY LIMITED [ACN: 071 748 966], has breached Section 16(1) of the Occupational Health and Safety Act, 1983, on 6 February, 1996 at a construction site situated on the corner of Ocean Parade and Bayview Avenue, The Entrance, in the State of New South Wales, in that being an employer, it failed to ensure that persons not in its employment, and in particular, James Jurd, was not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work, in that: a. the defendant was at all material times an employer b. the defendant failed to provide such supervision in relation to the setting up of a Walco M1000 model material hoist as may be necessary to ensure the health and safety of persons not in its employment. c. the defendant failed to provide systems of work for the setting up of a Walco M1000 model material hoist at the said construction site, that was safe and without risks to health. d. the defendant failed to provide such instruction in relation to the setting up of a Walco M1000 model material hoist at the said construction site, as may be necessary to ensure the health and safety at work of others not in its employment. e. the defendant failed to make arrangements for ensuring safety and absence of risks to health in connection with the handling and transport of plant, to wit, the handling and transport of a Walco M1000 model material hoist. f. as a result of the said failures, James Jurd was placed at risk of injury. 29. It is alleged that the second defendant, ERIC CLIVE BARBER, being a person concerned in the management of WALCO HOIST RENTALS PTY LIMITED [ACN: 071 748 966], a corporation which contravened Section 15(1) of the Occupational Health and Safety Act, 1983, on 6 February, 1996 at a construction site situated on the corner of Ocean Parade and Bayview Avenue, The Entrance, in the State of New South Wales, in that being an employer, it failed to ensure the health, safety and welfare at work of all its employees, in particular, Graham Dorrington, David Wallis and Douglas Barr, in that it failed to provide such supervision as may be necessary to ensure the health and safety at work of its employees, is deemed to have contravened the same section, pursuant to Section 50(1) of the Occupational Health and Safety Act, 1983. 30. It is alleged that the second defendant, ERIC CLIVE BARBER, being a person concerned in the management of WALCO HOIST RENTALS PTY LIMITED [ACN: 071 748 966], a corporation which contravened Section 15(1) of the Occupational Health and Safety Act, 1983, on 6 February, 1996 at a construction site situated on the corner of Ocean Parade and Bayview Avenue, The Entrance, in the State of New South Wales, in that being an employer, it failed to ensure the health, safety and welfare at work of all its employees, in particular, Graham Dorrington, David Wallis and Douglas Barr, in that it failed to provide or maintain systems of work that were safe and without risks to health, is deemed to have contravened the same section, pursuant to Section 50(1) of the Occupational Health and Safety Act, 1983. 31. It is alleged that the second defendant, ERIC CLIVE BARBER, being a person concerned in the management of WALCO HOIST RENTALS PTY LIMITED [ACN: 071 748 966], a corporation which contravened Section 15(1) of the Occupational Health and Safety Act, 1983, on 6 February, 1996 at a construction site situated on the corner of Ocean Parade and Bayview Avenue, The Entrance, in the State of New South Wales, in that being an employer, it failed to ensure the health, safety and welfare at work of all its employees, in particular, Graham Dorrington, David Wallis and Douglas Barr, in that it failed to provide such instruction as may be necessary to ensure the health and safety at work of its employees, is deemed to have contravened the same section, pursuant to Section 50(1) of the Occupational Health and Safety Act, 1983. 32. It is alleged that the second defendant, ERIC CLIVE BARBER, being a person concerned in the management of WALCO HOIST RENTALS PTY LIMITED [ACN: 071 748 966], a corporation which contravened Section 15(1) of the Occupational Health and Safety Act, 1983, on 6 February, 1996 at a construction site situated on the corner of Ocean Parade and Bayview Avenue, The Entrance, in the State of New South Wales, in that being an employer, it failed to ensure the health, safety and welfare at work of all its employees, in particular, Graham Dorrington, David Wallis and Douglas Barr, in that it failed to make arrangements for ensuring safety and absence of risks to health in connection with the handling and transport of plant, is deemed to have contravened the same section, pursuant to Section 50(1) of the Occupational Health and Safety Act, 1983. 33. It is alleged that the second defendant, ERIC CLIVE BARBER, being a person concerned in the management of WALCO HOIST RENTALS PTY LIMITED [ACN: 071 748 966], a corporation which contravened Section 16(1) of the Occupational Health and Safety Act, 1983, on 6 February, 1996 at a construction site situated on the corner of Ocean Parade and Bayview Avenue, The Entrance, in the State of New South Wales, in that being an employer, it failed to ensure that persons not in its employment, and in particular, James Jurd, was not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work, is deemed to have contravened the same section, pursuant to Section 50(1) of the Occupational Health and Safety Act, 1983. 34. The first defendant, WALCO HOIST RENTALS PTY LIMITED [ACN: 071 748 966] has had no prior convictions. 35. The second defendant, ERIC CLIVE BARBER has had no prior convictions. 10 The charges against the first defendant in Matters Nos. IRC98/1922 to IRC98/1926 are set out respectively in paragraphs 24 to 28 of the agreed facts. Those against the second defendant in Matters Nos. IRC98/1927 to IRC98/1931 are set out in that order in paragraphs 29 to 33. There was also tendered various records of interview, the transcript and finding of the Coroner. The defendants provided medical evidence concerning the second defendant and the owner of the first defendant and a set of impressive personal testimonials for both persons.

Submissions of the prosecution 11 Counsel for each party provided detailed submissions as to the relevant principles and analysed the factual matters requiring consideration in the proceedings. The prosecutor's submissions included: In the present case there are a number of objective features which call for the imposition a substantial monetary penalty: (i) The maximum penalty prescribed by Parliament for the subject contraventions of section 15(1) and section 16(1) of the Act by the Defendant corporation is 5,000 penalty units. Pursuant to sections 55 and 56 of the Interpretation Act 1997 (as amended), at the time of the subject incident the value of each penalty unit was set at $100 and as consequence, the maximum penalty applicable to the offences committed by the Defendant corporation is $500,000. (ii) The maximum penalty prescribed by Parliament for the a contravention of section 15(1) and/or section 16(1) of the Act by a natural person is 500 penalty units. Pursuant to sections 55 and 56 of the Interpretation Act 1997 (as amended), at the time of the subject offence the value of each penalty unit was set at $ 100 and as a consequence, the maximum. penalty applicable to a breach of either section 15(1) or section 16(1) of the Act by a natural person is $50,000. (iii) The Defendant corporation was carrying on activities at the subject building site which involved the pre-assembly and erection of a materials hoist. In the absence an exemption issued by the WorkCover Authority of New South Wales, the assembly and erection of a materials hoist must be undertaken by a "ticketed" rigger. The deceased was a truck driver/labourer who had not received any relevant training from the Defendant corporation. The Defendants knew or should have known that the deceased did not hold a certificate of competency as a rigger. James Jurd was the dogman assigned to assist in the operation of the crane and held neither a certificate of competency as a dogman or a certificate of competency as a rigger. The other employees of the Defendant corporation on site at the time of the subject accident, namely David Wallis and Douglas Barr, held learner's permits as riggers, which entitled them to work on the erection of the subject hoist but, only in company with the holder of a certificate of competency as a rigger.

Whilst both Wallis and Barr were present at the site to work on the erection of the subject the hoist, neither was in the possession of a "Job Statement" relevant to the task at hand. (iv) Further, it is submitted that the use of a lever, by both the deceased and by James Jurd, in the manner described was inherently dangerous and a bad work practice. (v) Finally, the Defendant, Barber, who was the assigned site supervisor and the only holder of a certificate of competency as a rigger assigned to the subject site, was still in transit at the time of the subject incident. 3 The Defendant Corporation knew, or should have known, that the erection of a materials hoist is a potentially dangerous undertaking and the Defendant should have had in place a system which ensured that: (i) work did not commence until such time as an appropriately qualified supervisor was present at the site; (ii) workers did not undertake tasks for which they had not been trained and/or tasks which required certificates of competency issued pursuant to the Act; It is also submitted that the use of the lever, both by the deceased and by Jurd, in the manner described involved obvious and grave risks of injury, such that a properly trained and certified worker would have recognised the risks and directed that an alternative method of unjamming the equipment be adopted. 4 The provision of the maximum penalty of $500,000 for a contravention by a body corporate of section 15(1) and section 16(1) of the Occupational Health & Safety Act 1983 (as amended) and a maximum penalty of $50,000 for a contravention by a natural person of section 15(1) and section 16(1) of the Occupational Health & Safety Act 1983 (as amended) sets the upper limit against which an appropriate fine is to be determined: (i) The maximum penalty available for an offence reflects the "public expression" by Parliament of the seriousness of the offence: R v H (1983) 3 A Crim R 53 at 65 ; (ii) A large penalty indicates "the gravity of the offence..."; (iii) The maximum penalty is provided in relation to a worst case and "[It is the task of the Court] to assess the relative seriousness of the offender's particular offence in relation to a worst case…"; and (iv) "... The penalty to be imposed is that which approximately correlates upon the scale of penalties set by the legislature from zero to the maximum ..." [See Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698.] 5 General deterrence is also to be given significant weight in determining the appropriate penalty to be applied. In this regard, a small nominal fine will not satisfy the element of general deterrence, let alone the requirement for punishment. The imposition of a small or nominal fine in respect of a serious breach of the Occupational Health & Safety Act 1983 has little or no effect as a deterrent to other possible offenders. [See: EPA v Capdate Pty Limited & Phillips (1992) 78 LGERA 349 at 353.] 6 Further, as a matter of public policy, management has a positive obligation to inform itself of proper and safe working methods and a positive obligation to ensure that proper and safe working methods are adopted within workplaces under their control. [See: WorkCover Authority of New South Wales (Inspector Gregory Dawson) v Waugh & Thora Sawmilling Pty Limited (1995) 59 IR 89 at 95 - 96]. A failure to inform itself of proper and safe working methods and/or a failure to ensure that proper and safe working methods are adopted are aggravating factors which are to be taken into account in assessing the appropriate penalty. 7 It is significant to note that whilst both Wallis and Barr knew that a certificate of competency was required before a worker could assist in the erection of a hoist and both knew that the deceased was a truck driver/labourer, neither Wallis nor Barr felt any compulsion to intervene prior to the incident in which the deceased was killed. In the circumstances, it is open to the Court to conclude that commencing work in the absence of a qualified supervisor and without appropriate qualifications was "work as usual". 8 Whilst the fact that a fatality occurred does not define the nature and quality of a breach of either section 15(1) or section 16(1) of the Act: "[The occurrence of death or serious injury manifested the degree of seriousness of the relevant detriment to safety..." See: Tyler v Sydney Electricity ((1993) 47 IR 1 at 5 per Hill J. Cited with approval in Independent Cargo and Wool Services Pty Limited v Inspector Paul Mingare (Industrial Court of New South Wales, unreported 10 March 1994 at page 4).]

The penalties to be imposed should reflect the serious nature and quality of the offences and the serious consequences which flowed from them. 9 Finally, individual deterrence is a factor which must be taken into account in determining the appropriate penalty to be imposed in each case.

Subjective features 1 In determining the appropriate penalty to be applied, the Defendants are entitled to have taken into account subjective features which mitigate the objective seriousness of their respective offences. In the present case, the following subjective factors are relevant: (i) The Defendants' pleas of guilty; (ii) The Defendants' co-operation with the WorkCover Authority in its investigation of the subject incident; and (iii) Any measures implemented by the Defendants since the subject incident. 2 By virtue of section 439 of the Crimes Act 1900 the Court is specifically required to take the Defendants' pleas of guilty into account in favour of each of the Defendants in assessing the appropriate penalties to be applied. Where appropriate, pleas of guilty should attract a discount, for utilitarian considerations sufficient to encourage defendants to enter pleas of guilty in appropriate cases. 3 Further, a plea of guilty should attract a greater degree of leniency where it also reflects contrition on the part of the defendant. [See: R v Winchester (1992) 58 A Crim R 345 at 350 per Hunt CJ at CL.] 4 Nonetheless, in determining the degree of discount which should apply as a consequence of a plea of guilty in a particular case, care must be taken to ensure that an appropriate balance is reflected in the outcome. The balance requires that the Court have regard to both the savings to the State of Court time (including the savings of the costs of a trial) and the defendant's contrition (if any) but, regard must also be paid to: (i) the strength of the Crown Case; and (ii) the time at which the subject plea was entered. 5 The Defendants' records are also to be taken into account in assessing the penalty to be applied. In this regard it is noted that both of the Defendants are not previously recorded. 6 But, whilst "previous good industrial citizenship" and "the absence of prior convictions" are factors to be taken into account in favour of both Defendants in the present case, these considerations must be placed in context: "While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards in the protection of the workforce." [See: WorkCover Authority of New South Wales v Waugh & Anor, referring to the decision in Haynes v James Glass & Aluminium Pty Limited (unreported) per Fisher CJ, 20 May 1994 at p6.] 7 The Defendant is also entitled to have its capacity to pay taken into account in determining the appropriate monetary penalty to be imposed. It is submitted that the Court should first determine the penalty to be imposed by reference to the gravity of the offence, together with the subjective factors referred to above which the Court finds relevant and then, having determined the appropriate penalty, the Court has a discretion to reduce that penalty if it is satisfied, on the evidence, that the Defendants' financial circumstances warrant such a reduction. 8 It is incumbent upon the Court to ensure that the ultimate result finds an appropriate balance between the objective seriousness of the subject offences and the Defendants' subjective features. In so doing, it is essential that: "[The] Court ... not reduce a sentence so that [the] sentence becomes unreasonably disproportionate to the nature and the circumstances of the offence[s]." R v Huang (1995) 78 A Crim R 111. 9 It being the clear intention of Parliament that significant penalties be imposed where safety standards established by the Occupational Health & Safety Act 1983 (as amended) have been breached to the potential detriment and detriment of workers, it is submitted that this honourable Court should impose a significant monetary penalty upon each of the Defendants. [See: Haynes v James Glass & Aluminium Pty Limited (unreported, 20 May 1994 per Fisher CJ) and Viesis v Thiess Contractors Pty Limited (unreported, Full Court of the Industrial Court, 19 April 1996 at pp35 - 36).] (limited typographical corrections have been made.)

Submissions for the defendants 12 Because of their relative comprehensiveness and the recitation of the approach submitted as to the relevant factual matters, it is appropriate to note the terms of the written submissions provided on behalf of the defendants:

The Company contracted by written agreement dated 2 February 1996 with RGM Building Services Pty Limited ("RGM") to hire and erect a materials hoist for use at a work site at the Entrance on the corner of Ocean Parade and Bayview Avenue (the "Site") commencing on 5 February 1996.
The relevant crane to be used to unload and erect the hoist was hired by RGM. The crane was supplied and operated by Abbatroy P/L ("Abbatroy") under a contract with RGM.
On 5 February 1996 Mr Barber, the general manager of Walco Hoist Rentals P/L (the "Company") had been working on a job on the north coast of NSW.
On 5 February 1996 Mr Dorrington took a first load of the hoist to the Site and unloaded it.
Mr Barber flew into Sydney late that evening and had arranged to meet his workers (Messrs Barr, Wallis and Dorrington) late in the morning on 6 February 1996 at the Site. Mr Barber's instruction was for the men to convey the hoist (which would take a number of truck loads and hence journeys to and from Sydney) to the Site, unload the hoist and to wait until Mr Barber arrived on site before commencing erection of the hoist.
Messrs Barr and Wallis were experienced construction workers. Mr Barr told WorkCover that he had erected the relevant type of hoist on 30 occasions and Mr Wallis had done so on 15 to 20 occasions.
Early in the morning of 6 February 1996 Messrs Barr, Wallis and Dorrington attended at the Sydney premises of the Company and loaded part of 'a hoist' on a truck. The part of the hoist in the second load included the base of the hoist and the frame. Other parts which were not conveyed to the Site within the load included the frame upon which the hoist would be conveyed above ground.
The three above named employees of the Company conveyed part of the hoist to the Site. When the men arrived at the Site there was inadequate room to leave the platform and base of the lift before returning to collect the remainder of the hoist from Sydney.
Under instructions from the site foremen employed by RGM, Mr Joe Panzarino there was a direction to place the platform of the hoist onto the base using a crane operated by Abbatroy.
No telephone call was made by either the employees of the Company or by an officer of either RGM or Abbatroy to Mr Barber to ask him if this was appropriate. At the time of the foreman's direction Mr Barber was on transit to the Site and could have been contacted on his mobile phone.
Using the crane, the employees of each of the Company, RGM and Abbatroy commenced to place the platform of the hoist onto the base using the crane. The platform became wedged. Mr Jurd first attempted to use a bar to wedge the jammed platform into place on the base. Mr Dorrington then attempted to do the same.
As Mr Dorrington attempted to move the wedged platform, the bar came free striking him in the neck and/ or chin and he fell to the ground. He was given CPR at the Site and taken to a hospital.
Mr Barber arrived on Site shortly after the accident.
Later that evening Mr Dorrington was pronounced dead.
Mr Page, the relevant WorkCover inspector and informant in these proceedings, gave evidence at the coronial inquest into the death of Mr Dorrington, as follows in answer to questions from the coroner (T 4-5):- "Q. Have you had any prior difficulties with these companies?

Q. And as far as you're aware have they complied with the recommendation that you've made here or suggested here?

A. Yes, I issued improvement notices to them on the day included in my report.

Q. One of the difficulties with any construction site is that quite apart from whether anybody is negligent or otherwise, 1 mean, they are a dangerous area aren't they?

Q. And this is a six storey building, it's a fair size building?

Q. And other requirements have been obviously met with on the day?

Q. People were wearing appropriate headwear 1 assume and that kind of -

A. Yes, yes..." 16. Mr Page also gave evidence at the inquest that the use of levers in the circumstances of a jammed platform, was a typical method of addressing the problem (T5). He identified that the failure by the Company, RGM and Abbatroy was by not using levers per se but by failing to address the hazards associated with levering and thinking about the safe way in which the problem could be addressed by the use of levers. 17. The Coroner found (T6) that: "Obviously Mr Page from WorkCover, gave evidence along the lines that the appropriate people did not hold the appropriate permit or certificate of competency and it is a great pity that those people did not hold a certificate on that day. Though of course the job had to be done, as Mr Page said and indeed levers are a common method of achieving that end. It is of course quite possible that the same result could have unfortunately occurred even with the best of intentions on the day." 18. Both the Company and Mr Barber have no prior convictions for breaches of the Occupational Health and Safety Act. 19. In summary the accident was caused by: a) The failure of the Company to ascertain if sufficient space was on Site for the men to wait until Mr Barber attended the Site; b) The failure of the Company to ensure that its workers did not commence erection of the hoist prior to the appropriate supervisor, Mr Barber, arriving on Site. c) The failure of RGM to have sufficient space on Site to allow the truck to be unloaded before erection of the hoist began; d) The RGM foreman countermanding the order of Mr Barber to unload and wait for his attendance on Site before erecting the hoist; e) The failure of RGM and the Company having sufficient systems in place to ensure that the RGM foreman did not make the direction to commence assembly of the hoist before Mr Barber arrived on Site;

f) The failure of Abbatroy to supply a dogma with sufficient qualifications; g) The, failure of the dogma supplied by Abbatroy to ensure sufficient tension was on the crane's line when an attempt was made to lever the wedged hoist.

System in Place and now in Place 20. At the time of the accident the relevant system was: a) A direction that employees do not conduct rigging work including the erection of a hoist without a qualified supervisor in attendance; b) The provision of a certified rigger at times when hoist erection was to take place. 21. The system now in place is that the Company does not allow employees on site who are not a certified rigger. Indeed, the Company's only employs site workers who are certified riggers. This means that truck drivers are also certified riggers.

Subjective Circumstances of the Company 22. The Company is owned by Mr Stephen Booth and his parents but the Company and the Booth family business is under the actual control of Mr Stephen Booth. 23. Mr Booth's family acquired the Company in 1995. 24. Prior to 1995 the Mr Booth worked for a construction company which was founded by his father in 1949. That business has been hiring machinery for about 18 years. 25. The day to day operational management of the subject Company has been conducted by Mr Barber since 1988. The Company in 1996 and today is a small family concern. 26. Mr Booth is a man of 48 years of age. He is married with three children. Mr Booth still financially supports one of those children (aged 16 years) and his wife. His other two children are in their early twenties. 27. Mr Booth commenced working in the construction industry at the age of 18 years. He commenced working as a labourer and now enjoys a management position within the family business. 28. The family business in addition to the hire of equipment is involved in the particularly high risk area of excavating underneath structures and propping them with the supporting structures by way of the use of jacks. Because of this high risk work, the Booth's are very conscious of safe work practises and training. 29. For Mr Booth and the family business to have had no convictions after 30 years in the construction industry is a matter of note. In fact, the Booth family business has had no convictions since it began in 1949. As Attested by Mr Milan, the family business has enjoyed an excellent record in relation to the safety of their employees for in excess of the 25 years that he has dealt with them. 30. The references on behalf of Mr Booth display the reason for his and his companies' previous exemplary record. He and his family have a genuine concern for the safety of their employees. 31. Mr Booth has been genuinely effected by the death of Mr Dorrington. He is genuinely sorry and regrets the consequences of the offence. His remorse was reflected by the discussions with his friends of the tragedy and his regret at the time of the accident. Mr Booth and his wife visited the family of Mr Dorrington within a week of the death of their son to give their condolences in person. 32. As a means of assisting the Dorrington family with their grief and anger, Mr Booth and Mr Barber demonstrated to Mr Dorrington and his two surviving sons how the hoist machine operates and how the accident occurred. This all occurred two years prior to the commencement of these prosecutions and was undoubtedly genuine in its sincerity. 33. The Company co-operated fully with the WorkCover investigation. 34. Mr Booth is dying from cancer. The cancer was diagnosed after the date of the laying of the prosecution. From a subjective point of view in recent times Mr Booth has suffered the psychological burden of the death of Mr Dorrington for which he accepts responsibility as well as cancer, this prosecution and the physical burden of chemotherapy. These proceedings have been hanging over the head of the Company for some time which is a punishment in itself. 35. Mr Booth's cancer makes him particularly empathetic with the effect that this matter has had on Mr Dorrington's family. 36. The medical prognosis of Mr Booth makes it unlikely that the Company will continue to operate by the Booth family in the near future. Further, the penalty against the Company is effectively not going to lie against Mr Booth per se but against his heirs. 37. The Court is asked to read carefully the references tendered on behalf of the Company and Mr Booth, which, it is submitted, are of a very high quality.

Subjective Circumstances of Mr Barber 38. Mr Barber is a man of 53 years of age. He is married and supports his wife and two daughters. 39. Mr Barber is not a director of the Company nor does he have any financial interest in the Company. He is an employee of the Company and is a man of typical means. He was under no bonus or other entitlements such to entice him to take undue risks in the operation of the Company. His only assets are a family home (which he purchased for $132,000 and is mortgaged in the sum of $120,000) and a motor vehicle. 40. Mr Barber co-operated fully with the WorkCover investigation. 41. Mr Barber is toward the end of his working life. 42. His relevant medical history includes a heart bypass operation in 1990 with a black out and hospitalisation last week. He is unlikely to have a significant working future to finance a significant pecuniary penalty. 43. Mr Barber has worked in the construction industry since the age of 17 years. He has been in management since 1975. 44. Like Mr Booth, Mr Barber gave his personal condolences to the family of Mr Dorrington at the time of his death. Mr Barber's closeness to Mr Dorrington in the small work team environment has heightened his distress and remorse at his death. 45. This matter has been hanging over the head of Mr Barber for some time which is a punishment in itself. 46. This is Mr Barber's first offence after 36 years in the construction industry. 47. The Court is asked to read the references tendered on behalf of Mr Barber which, it is submitted, are of a very high quality.

Principles Relevant to Mitigation of Penalty 48. It is submitted that the defendants are entitled to the full benefit of the plea of guilt and their co-operation in the WorkCover investigation in mitigation of their penalty: Section 439 Crimes Act 1900. 49. Further it is submitted that although there are a number of summonses against both defendants the summonses really arise out of the one factual circumstance, namely, placing persons at risk by a failure to have a proper system in place to prevent the workers of the Company and others from commencing to erect the hoist against an instruction from the appropriate manager to wait until his arrival on Site. 50. Mr Barber's offences arise out of him being deemed to be guilty of the Company's offence. 51. Therefore it is submitted that the Company should be sentenced as if found guilty of one offence and Mr Barber should be sentenced as if found guilty of one offence: R v. Melville (1956) 73 WN NSW 579; AG v. Tichy (1982) 30 SASR 84 at 93.4. 52. It is submitted that in imposing a penalty, the Court should have regard to the burden of a penalty to the defendants in a particular case. For example, a $50,000 penalty against BHP probably has the same financial impact as a $500 fine against a family company. 53. The Court has a broad discretion in relation to penalty to do what allows justice in all of the circumstances of the case. 54. It is appropriate to take into account the size of the Company in determining the relevant penalty: Haynes v. CI & D Manufacturing Pty Limited (No 2) (1995) 60 IR 455.

Factors Relevant to Penalty of the Company 55. The following matters are relevant to the culpability of the Company in this case: a) The Company did not instruct the men to commence erection of the hoist without the appropriately licensed person, Mr Barber, being present. Indeed the Company's instruction was to the contrary. b) If the Company's system had been properly implemented appropriate supervision by Mr Barber would have been in place at the time of the accident. c) The method of levers which was used to relieve the jammed platform was an accepted method. The employees of the Company were not per se conducting a manifestly flawed and dangerous method. d) The Company was otherwise in compliance with relevant safely standards such as work attire, helmets and the like. e) Relevant instructions at the time of the offence and control of the site were by the site foreman of RGM. f) The principle cause of the accident is conceded by WorkCover in the Agreed Facts (paragraph 14) to have been the failure of the unticketed dogma supplied by Abbatroy to ensure that sufficient tension remained on the crane to prevent the violent movement which occurred. 56. This is the Company's first offence. 57. From the point of view of retribution and deterrence to the Company, the circumstances of illness to the controller of the Company, makes it unlikely that there will be an ongoing need to deter those controlling the Company into the future. 58. From a subjective impact point of view, the Booth family has other factors which will make the penalty a particular burden to the Company and the Booth family. 59. The Court can be satisfied by reason of the good character, excellent references and the future circumstances likely to effect the controllers of the Company that it will be unlikely to commit another offence in the future under its current management.

Factors Relevant to Penalty of Mr Barber 60. Mr Barber had to work closely with the deceased. The events leading to the commission of the offence have been very distressing to Mr Barber. He has the highest praise for the qualities of initiative and enthusiasm which Mr Dorrington exhibited. Mr Barber has displayed significant contrition as a consequence of the offence. 61. Because this is a deemed offence, the circumstances mitigating the Company's culpability above are also relevant to the imposition of a penalty against Mr Barber. 62. Mr Barber is not the senior executive of a multinational or listed construction company but a manager in a family company who is of limited means. 63. Mr Barber was not on Site at the time of the accident. He made a direction which was not followed. 64. Mr Barber's own personal circumstances, while not as dire as Mr Booth's, are not good. Retirement is a very real likelihood in the near future for Mr Booth. He is a person of average means and is likely to be living on a pension in the near future. These are matters relevant to the impact of a penalty on him. 65. By reason of Mr Barber's exemplary record for a significant number of years and excellent references, the Court can be confident that Mr Barber is unlikely to commit a further offence in the future. (Limited typographical corrections have been made.)

Further submissions 13 As noted earlier, leave was given to the parties to file further submissions and also, as to the defendants, further evidence in relation to the question raised by considerations of the means of the defendants. The prosecution's submissions indicated that the parties invited the Court, by agreement, to adopt the approach outlined in the Court's judgment in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 as to the question of totality at page 211. It was also indicated that the parties agreed that, as to the first defendant, the Court should treat the events charged in Matter No. IRC98/1923 as the principal offence. As to the second defendant a similar submission was made in relation to treating the offence charged in Matter No. IRC98/1928 as the principal offence. 14 As to the question of the means of the defendants, the prosecution acknowledged that it was "common ground between the parties that the defendants were entitled to have their 'capacity to pay' taken into account in determining the appropriate monetary penalty to be imposed". However, whilst the prosecution did not dispute Mr Booth's diagnosis or prognosis, it submitted that there was no evidence to support the defendant's assertions that the company was unlikely to continue trading as a consequence of his ill health or that any penalty would lie against Mr Booth's heirs, rather than against the defendant corporation or its assets. Rather, it was submitted that the evidence shows that Mr Booth is not merely a sole trader who has elected to incorporate. The defendant corporation has at least four workers in the field apart from Mr Booth and in any event the issue is not the size of the corporation but its capacity to pay. 15 In determining the fine to be imposed, whether upon a body corporate or a defendant in person, it was submitted that the Court is called upon to exercise its discretion in accordance with normal sentencing principles (relying upon R v Sgroi (1989) 40 A Crim R 197 at 201). The Court in sentencing has an obligation to determine a level of monetary penalty which adequately reflects the objective seriousness of the subject defence, including both the need for public and individual deterrence. It was submitted further, relying upon the judgment of Finlay J in R v Rahme (1989) 43 A Crim R 81 at 86 - 87 that the correct procedure was to determine the extent of the fine by reference to the gravity of the offence for which it is imposed and then to have regard to the defendant's financial circumstances and, having regard to those circumstances, the Court, in the exercise of its discretion, may reduce the fine to be imposed. It was also submitted that although the defendant's capacity to pay is relevant, relying upon the judgment in the Court of Criminal Appeal in R v Huang (1995) 78 A Crim R 111, the sentence to be imposed should not be reduced so that it become unreasonably disproportionate to the nature and circumstance of the offence merely because of the defendant's impecuniosity. 16 As to the defendants' submissions that the fact that Abbatroy Pty Limited was the subject of a prosecution, which, although commenced, was subsequently withdrawn, was to be taken into account in determining the fine to be imposed on the defendants in this matter and the reliance upon the judgment of the Full Bench in Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312 at 322, the circumstances in Nesmat Pty Limited were clearly distinguishable from the present case. For example, the primary cause of the risk and detriment to safety in Nesmat Pty Limited was attributable to a party against whom a prosecution was never launched such that in those proceedings the Full Bench concluded that the defendant was entitled to be aggrieved because it had relevantly relied upon information and directions supplied to it by another party and without explanation that other party was not prosecuted. By contrast in the present case, the defendant corporation failed to take basic steps, such as the provision of simple written safe work method statements to its employees; its staff were permitted to commence work in the absence of adequate supervision; and the deceased suffered his fatal injuries as a consequence of performing tasks which he was not trained or authorised to perform. Although there was no doubt that the dogman, Mr Jurd, played a central role in the incident which led to the unfortunate fatal accident, the failure of the defendant corporation to fulfill its obligations under the Act was at least equally significant and played a central role in the occurrence of the relevant accident. 17 Further, in the present proceedings, the Court has been informed that the prosecution against Abbatroy Pty Limited was discontinued because the prosecution formed a view that the evidence available to it may not support a prima facie case and was unlikely to result in a conviction. This arose from a variety of circumstances including the fact that the dogman and the crane driver initially indicated they were employed by Abbatroy but subsequently provided supplementary statements together with supporting documentation indicating they were sub-contractors. Mr Troy, a director of Abbatroy, initially informed the inspector that the company employed both the dogman and the crane driver but in subsequent submissions to the authority on behalf of Abbatroy, admissions made by the company's principal regarding the employment status of these persons were placed in issue and documents indicating they were sub-contractors were provided. There was no evidence to support an allegation that Abbatroy had any other employees on its books at the time of the subject accident. 18 In those circumstances, the prosecution was not satisfied it could sustain, beyond reasonable doubt, the allegation that Abbatroy was an employer within the meaning of the Act as of the date of the subject offence. Therefore, to continue with the prosecution of that company may well have constituted an abuse of process. The prosecution submitted that if it had maintained the prosecution against Abbatroy and lost, the defendants in the present proceedings would have no basis for any sense of justifiable grievance merely because Abbatroy had not been the subject of a successful prosecution. Accordingly, the fact that Abbatroy has satisfied the prosecution that the prosecution was unlikely to succeed against it would not entitle the present defendants to a discount of any sentence or fine which is otherwise commensurate with the level of the culpability. Further submissions of the defendant 19 The defendant's final submissions deal with the issue of "capacity to pay" in a manner earlier referred to. As to parity it submitted that the prosecutor's submissions on parity misconceive the basis for the sense of injustice in this case. Paragraph 14 of the agreed facts show, it is submitted, that the principal (not sole) culpability for the death of Mr Dorrington lay at the feet of Mr Jurd who came onto the site at the instigation, not of the defendants, but of Abbatroy. A prosecution has not been continued against Abbatroy nor commenced (now more than two years after the inquest) against Mr Jurd or the company or person who employed him. There is no evidence to suggest that either defendant ordered the employees to work without supervision. Records of interview with Mr Barber representing the company were taken but Mr Barber said that no instruction was given that Mr Dorrington do anything other than drive and unload the truck. The agreed fact in paragraph 10(a) is that an employee of RGM gave the direction to put the hoist on its base.

20 The defendants submitted that, in these circumstances, the failure to prosecute the most culpable parties is relevant to mitigate against the penalty imposed on the defendants in this case. In this regard reliance was placed on the judgment of the Full Bench in Nesmat Pty Limited in a passage emphasised in a part of that judgment subsequently set out and that, in all the circumstances, the facts of this case fall squarely within the Nesmat "principle" relied on. Principles applicable to sentencing under the OH&S Act 21 The principles applicable to sentencing for offences under the Occupational Health and Safety Act have been developed by this Court and its predecessors in relation to proceedings concerning offences under both sections 15 and 16 of the Act, perhaps more particularly in proceedings under the former section. However, I do not consider that the principles vary significantly as between offences under either of those sections or under s 50 of the Act. 22 The primary factor to be considered in determining the appropriate sentence is the objective seriousness of the offence charged. This has been expressed in various ways. For example, by observing that "the true measure of penalty lies in the nature and quality of the offence": Independent Cargo & Wool Services Pty Ltd v Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, CT92/1041, 10 March 1994) at 4; Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992) at 9; WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 96 citing Haynes v James Glass and Aluminium Pty Limited (unreported, Fisher CJ, CT91/772 - 775, 20 May 1994); Inspector Hannah v Albury City Council (1999) 90 IR 397 at 409 - 411; Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 208; and Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474 - 475. The proper approach involves initially considering the gravity of the offence viewed objectively with the Court ensuring that the allowance for subjective factors does not produce a sentence which fails to take account of the objective gravity of the offence: R v Dodd (1991) 57 A Crim R 349 at 354; R v Gordon (1994) 71 A Crim R 459 at 468; R v Allpass (1993) 72 A Crim R 561 at 563; Lawrenson Diecasting Pty Limited at 476. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Inspector Hannah v Wonar Pty Limited at 9; Watson v Southern Asphalters Pty Limited (1996) 83 IR 446 at 456; Wong v Melinda Group Pty Limited (1998) 82 IR 118 at 131; Albury City Council at 408 - 409; Lawrenson Diecasting Pty Limited at 476; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, Walton J, Voce-President, IRC98/1104 and 1106, 4 February 2000) at 90 - 91. 23 The proper consideration of subjective matters such as "previous good industrial citizenship and the absence of prior convictions", rank in importance well behind "the two primary aspects of the matter namely the nature and quality of the offence and the clear policy of the Act in relation of the establishment of safe standards and the protection of the workforce": Waugh at 96 - 97; Albury City Council at 408 - 409; Lawrenson Diecasting Pty Limited at 474 - 475; Dowling v Overtop Pty Limited (1998) 86 IR 319 at 333. The maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence; a large penalty indicates the gravity of the offence as perceived by the community. The task of the Court is thus to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the penalty scale of penalty set by the legislature from zero to the maximum: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 at 321; and Albury City Council at 407 - 408. Although some cases have referred to the consideration that a penalty should not be "oppressively high", such dicta should not be considered as qualifying the approach to balancing subjective and objective factors expressed in Waugh: see Albury City Council at 411; Lawrenson Diecasting Pty Limited at 474 - 475; Dowling v Overtop Pty Limited at 333; Ferguson v Nelmac Pty Limited at 208 - 209; Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 78 - 79. 24 In having regard to the maximum penalty for the offence in accordance with the approach in, for example, Camilleri's Stock Feeds Pty Limited, it is to be observed that the maximum penalty in this matter is $500,000 for the proceedings under s 15 and s 16, and $50,000 for the proceedings under s 50, having been increased significantly to those levels a short time before the incident. The approach to be adopted in relation to the circumstance of significant increase in the maximum sentence is well settled. It must be taken as reflecting community standards in relation to the seriousness of the offence and that courts are required to give effect to the obvious intention of parliament that the existing sentencing patterns are "to move in a sharply upward manner": R v Slattery (1996) 90 A Crim R 519 at 524, citing R v Hartikainen (unreported, Court of Criminal Appeal, 8 June 1993) at 2; Albury City Council at 411 and Ferguson v Nelmac Pty Limited at 209. 25 The approach that this Court should take in relation to the consideration that a defendant has pleaded guilty is also now well settled. It was discussed in some detail in Lawrenson Diecasting Pty Limited at 472 - 474. The principles there stated were adopted and applied in terms by another Full Bench of this Court in Fletcher Construction Australia Limited at 80 - 81. I apply the principles as set out in those judgments. It is sufficient to summarise those in brief form, although I will act on the principles as stated in the more complete form as stated in the Full Bench judgments referred to. The principles involved the consideration that it is appropriate in many cases to afford a degree of leniency in recognition of a plea of guilty by the defendant. That is also required by the terms of s 439(1) of the Crimes Act which is in the following terms: 439. (1) In passing sentence for an offence on a person who pleaded guilty to the offence, a Court must take into account: (a) the fact that the person pleaded guilty; and (b) when the person pleaded guilty or indicated an intention to plead guilty. and may accordingly reduce the sentence that it would otherwise have passed. 26 There are important policy considerations, both of principle and for reasons of pragmatism which have led to this situation. In Alcatel Australia Limited v WorkCover Authority of New South Wales (1996) 70 IR 90 at 106 - 107 and Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 339 - 340, it was observed by Full Benches that the policy reasons for the encouragement of early pleas of guilty and the giving of assistance to the WorkCover Authority in its investigation of suspected breaches are particularly important in a legislative scheme exemplified by the Occupational Health and Safety Act. Another important consideration was, however, emphasised in both Lawrenson Diecasting Pty Limited and Fletcher Construction Australia Limited at 474 and 81 respectively. Because of its importance in the present proceedings, it is appropriate to repeat that passage in this judgment: As recognised in Alcatel , the extent of the reduction or "discount" in penalty which will be afforded in consideration of subjective features of a case will depend on the nature of the subjective factors and the circumstances of the case. For example, the decision of the Court of Criminal Appeal in Winchester (1992) 58 A Crim R 345 at 350 properly indicates that the degree of leniency to be afforded based upon an early plea of guilty will depend upon the whether or not the plea of guilty resulted from a recognition of the inevitable. It is also appropriate to consider the nature of any assistance provided by the defendant to the investigation of the offence.

27 As to the financial position of the defendants, it is to be accepted in terms of general sentencing policy that the means of a defendant are relevant. This consideration may, in appropriate cases, involve a careful examination of the means of the defendant, and consideration of the means of the defendant in fixing the amount of any penalty or fine: see for example Ferguson v Nelmac Pty Limited (at 206 - 207, 209); R v Rushby [1977] 1 NSWLR 594 at 598; WorkCover Authority of New South Wales v Overtop Pty Ltd (1998) 86 IR 319 at 335. This is, in any event, required by s 6 of the Fines Act 1996 as it was by the predecessor provision in the now repealed s 440AB of the Crimes Act 1900. It is to be observed, however, that a consideration of the means of the defendant with the conclusion that a heavy fine may be a burden on the defendant and its financial resources does not necessarily preclude the imposition of a heavy penalty: Ferguson v Nelmac Pty Limited at 209; Department of Mineral Resources of NSW v AM Hoipo & Sons Pty Ltd [2000] NSWIRComm 16 at 51. See also R v Rahme at 86 - 87 and R v Sgroi at 201. Consideration 28 There are five significant matters which require consideration and determination for the purpose of deciding the appropriate penalty for these offences for each of the defendants. The first matter is the significance for the assessment of penalty to be imposed on the defendants, of the fact that prosecutions against Abbatroy Pty Limited or Mr Jurd did not proceed or were not commenced. The second issue is the degree of culpability for the breaches of occupational health and safety that can properly be attributed to the acts or omissions of the first defendant. It is necessary to deal with this issue in order to decide the gravity of the offences to which it has pleaded guilty.

29 The third issue is linked with the second. It involves an assessment of the degree of culpability that can be attributed to the second or individual defendant, Mr Barber, arising out of relevant acts or omissions both on his own part and on the part of the company, at least to the extent to which the company's acts or omissions can be properly attributed to him. I consider that, notwithstanding the deeming nature of s 50(1) of the Act in relation to a person such as the second defendant, it does not follow from the fact that an individual is, in circumstances such as those here present, deemed to be guilty of the offences resulting from the guilt of the corporate defendant, that his degree of culpability is to be assessed necessarily at the same level as the culpability of the corporation.

30 The fourth and fifth issues are also related. They involve determination of relevant factual questions, or questions of fact and degree, relating to the subjective circumstances of the respective defendants and how conclusions in that regard should be factored into the final assessment of the relevant penalty or penalties.

31 In dealing with the first of these questions, I do not consider that the fact that the prosecution did not proceed against Abbatroy Pty Limited or Mr Jurd is of great relevance to these proceedings. The prosecution has submitted that on the basis of a bona fide understanding that Abbatroy Pty Limited was not in any relevant sense an employer at pertinent times, it did not consider it was in a position to proceed with the prosecution. This is not therefore a circumstance of the kind comparable to those which were considered relevant by the Full Bench in the Nesmat Pty Limited at 322. In any event, as I understand the decision of the Full Bench in Nesmat Pty Limited it was not held that the failure to prosecute a defendant which was otherwise appropriate to be prosecuted was a matter which, of itself, would mitigate the penalty. Rather, what the Full Bench decided was that in a situation where there had been a failure, in assessing a defendant's relative culpability, to consider the inter-related culpability of another party which had not been prosecuted, and that failure resulted in an inappropriate penalty being imposed, that situation itself engendered an appropriately based sense of grievance which was in turn emphasised by the failure to prosecute the other potential defendant.

32 That this is the correct approach to that judgment is clear when reference is made to the passage relied upon by the defence in the context in which it appears. The relevant part of the judgment is at 322 - 323 and emphasis had been supplied to the passage relied on by the defentants: It is neither possible nor appropriate to quantify each of these mitigating factors [taken into account by the sentencing judge] and so determine the extent to which each is reflected in the penalty fixed. But the authorities make clear that there is a general principle that a plea of guilty, particularly at an early stage, will always result in "a substantial reduction" in the sentence imposed.

However, in our opinion, there are other very relevant factors which were not adverted to by his Honour when determining the penalty, or if adverted to, were rejected by him as not being relevant and/or mitigating ones. These include:

The primary cause of the risk and the detriment to safety was that the substation was not de-energised by the appropriate authority/ies at the time it was decommissioned or, at any time, prior to the letting of the contract to the appellant. The risk and detriment to safety was compounded by the further failure of Public Works, which was advised as early as 12 November 1993 that the substation was live, to specify in the contract that the job included the removal of equipment in the live electrical substation.

On appeal, we were advised that the prosecution which had been commenced against a member of the staff of Public Works had been withdrawn, and that Public Works was never prosecuted in relation to the tragic accident despite what was, on the evidence, the instrumental part played by it. The absence of prosecution of other parties, on whom the appellant had reasonably relied, underlines the cogency of argument presented on appeal that the sentence gave rise to a justifiable sense of injustice.

The appellant and in particular Mr Farrugia were misled. They were induced to believe the substation was not live and were lulled into a false sense of security by the failure of Public Works to specify and warn, orally and/or in writing in the tender/contract documentation, that the substation was live. The foregoing failures were further compounded by Public Works then actually advising and authorising Mr Farrugia to break into the substation in order to gain access. That authorisation was given in a situation where Public Works as far as the appellant was advised had sole occupation and control of the site and well knew the sub-station was live.

The evidence showed that the appellant through Mr Farrugia and other senior personnel was conscious of the need for, and had adopted generally, comprehensive practices and procedures designed to ensure safety in the workplace; and

The evidence further showed that the appellant's default did not arise out of a deficient system of work or utilisation of an unsafe piece of equipment over a period of time. The circumstances which gave rise to the offence were of a "one-off" character and do not reflect any previous or ongoing approach to safety matters by the appellant.

We are of the opinion that it is proper to take into account the aforesaid factors, which we consider as relevant and mitigating ones; they bear critically on the nature and quality of the offence and the degree of culpability of the appellant. Having regard to all of the relevant circumstances and considerations we consider that a penalty of $30,000 is a just and adequate one.

We allow the appeal, set aside the penalty of $80,000 and impose in lieu a penalty of $30,000. We award costs of the appeal to the appellant to be agreed by the parties or assessed.

33 The Court was there reflecting upon a number of considerations, both objective and subjective (but particularly the former), which it concluded had not been taken into account sufficiently at first instance. Particularly relevant was the role of the other potential defendant which had not been charged and its role, both independently and contributory, in the events which had led to the defendant's conviction. Such matters, as is clear from the second last paragraph cited, were crucial to an assessment of the culpability of the defendant. The reference to the "justifiable sense of grievance" is also relevant to the application to the appeal principles which were applicable at the time of that appeal (for example, House v The King (1936) 55 CLR 499 and Cranssen v The King (1936) 55 CLR 509) which are different to those now applicable under s 196 of the Industrial Relations Act 1996 and, for example, Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 75. This analysis is consistent with the approach of Walton J, Vice-President, in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, IRC98/1104 and 1106, 4 February 2000) at 104 - 107.

34 The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them.

35 Turning to the second issue, the failure here is essentially a failure to provide a system of work with appropriate instruction and supervision, including the provision of appropriate supervision in a situation where supervision was not only required but also required to be of a particular kind; for example, by a person relevantly qualified with a rigger's certificate. And this occurred in circumstances where there was also an assumption made, or failure properly to ensure, that employees of other contractors on site were relevantly qualified in circumstances where there was no relevantly qualified person from the first defendant on site. It is of course relevant to factor into the consideration of the relevant gravity of seriousness of the matter the fact that what happened in this case was contrary to express instructions of the first defendant given through the second defendant but also to acknowledge that what those matters do not take into account is the practical exigencies on a crowded construction site in circumstances where a piece of equipment was being delivered and where the installation and operation of that piece of equipment required a number of different employers, contractors or employees to work together in circumstances where it could reasonably be expected that a degree of pressure or expectation would be placed on the employees of the first defendant to be involved in the operation of assembling the hoist notwithstanding that the relevantly qualified supervisor may not be on site.

36 Subject to that consideration, the analysis to this point is consistent with that of the defendants. See in particular paragraphs 19 (particularly sub-paragraphs (a) and (b)), 20 and 21 of their submissions. It also brings into account the significance of the other factors referred to in the defendants' submissions such as those in paragraphs 19(c) to (g) and the concessions made by the prosecutor, and the way in which those circumstances have both an independent and overlapping effect in relation to questions of culpability. The significance of the failures are also to be seen in the perspective of the steps that have been taken since the accident which are referred to in paragraphs 20 and 21. For example, the system now in place is that the company does not allow employees on site who are not certified riggers. This has been achieved by a number of steps including the company employing on site only workers who are certified riggers. This new policy extends to truck drivers who transport equipment to and from sites.

37 Seen in that context, it is to be considered that there was a major and significant breach of safety and that the gravity of the offence was correspondingly significant. However, in coming to that conclusion it must be accepted that within the area in which the assessment of the gravity must occur appropriate allowance should be made for the fact of the role, and contribution to the gravity of the offence, of other companies, contractors, or employers on site. In making these observations I emphasise that I am not making any adverse finding against any of those employers or contractors. Rather, on the basis of the evidence which the parties have placed before the Court, essentially by consent, an assessment is being made of the involvement and thus the culpability of the present defendants having due regard to the material before the Court as to the other corporations and persons on site. I make no finding as to the role or culpability of those defendants. It is inappropriate to do so in circumstances where the other defendant has not been proceeded against because of the considerations earlier referred to, and where the remaining defendant is the subject of proceedings yet to be heard.

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

39 In assessing the culpability of the second defendant it is, in my view, important to place particular weight upon the role of the defendant in the management of the corporation and the nature of the gravity of the offence as identified in relation to the first defendant, and to make an assessment in that context of the situation of the second defendant. Any matters of doubt should, generally speaking, be resolved in favour of the defendant: R v Olbrich (1999) 73 ALJR 1550 at 24 - 28; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699. Although the second defendant was an important and crucial part of the management of the first defendant, nevertheless he was a manager in the context of a small company which was a family company which was itself managed and run by a highly experienced manager who had many years of experience in the industry, as did those members of the family who preceded him. He was not the alter ego of the company. It would be appropriate therefore to proceed on the basis that although the second defendant would have had a significant role in decision making as to employment and the like and otherwise in the running the first defendant, it could not be assumed that he could make all crucial decisions, or changes to practices, relating to a change in employment policy as to, for example, the qualifications that would necessarily be required of all employees. Therefore, it may be appropriately assumed, and thus found for the purpose of these proceedings, that the system now in place as exemplified by paragraph 21 of the defendants' submissions was not a matter within the authority of the second defendant. Accordingly, I consider that there is a significant qualitative difference between the culpability attaching to the first and second defendants, although I find that the gravity of all of the offences is serious. Subjective circumstances of the defendants 40 It is now necessary to deal with the subjective circumstances of each of the defendants. There has been placed before the Court a great deal of material relevant to these issues insofar as they concern each of them. These matters have been carefully, and in a balanced way, dealt with in the submissions of the defendants' counsel which have been set out earlier. In addition, as to the first defendant, there has been reliance upon material provided by consent being the 1996 accounts of that defendant and its associated family trust. Although I accept that such material is relevant on the question of the subjective circumstances and the means of the first defendant, I do not consider that a set of accounts dating back to 1996 is decisive as to such questions. However, as is made clear by s 6 of the Fines Act the Court is not only entitled, but required, to consider "such information regarding the means of the accused as is reasonably and practicably available to the court for consideration". However, I do not consider that I should give that material of that vintage a great deal of weight. Further, there is a contest between the parties as to the conclusions that should be drawn from that material and the other material relating to the particular and tragic circumstances of Mr Stephen Booth, the owner of the first defendant. My conclusions on that material is that the personal circumstances of Mr Booth involve a real possibility that the first defendant may not be operated by the Booth family in the future. I do not consider that it is open to me to find that the penalty against the company may effectively lie against his heirs rather than against the company itself. However, I do consider that the imposition of a significant fine could have a major impact upon the company and, in the light of the personal circumstances of Mr Booth, its viability.

41 As to the personal defendant, Mr Barber, I consider that, it can properly be concluded that he is a person of limited financial means and that any penalty, especially a significant one, will have a great impact on him. I also consider that his personal circumstances are such that there is a real likelihood that he may not continue working, or working in the building industry, for any significant time in the future.

42 The circumstance of this matter present a most difficult task for the Court in balancing all the relevant considerations. A most useful insight into the various relevant considerations however derives from a passage in the judgment of the New Zealand Court of Appeal in R v Radich [1954] NZLR 86 at 87 which was cited with the approval by the Court of Criminal Appeal (Street CJ, Lee and Slattery JJ) in R v Rushby [1977] 1 NSWLR 594 at 598, as follows: If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment. Those judgments have been referred to with approval in previous judgments of this Court. See, for example, WorkCover of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 335 and Ferguson v Nelmac Pty Limited at 209. 43 I approach the assessment of the appropriate penalty in these matters accordingly. In my view, the relevant principles lead immediately to a conclusion that although questions of general deterrence are pertinent here, considerations of individual deterrence should not be accorded great weight in the very particular circumstances of both defendants and those of Mr Booth. Similarly, in considering the material as to the previous character and conduct, and the probable future life and conduct of the defendants and of Mr Booth, it is appropriate to act on the basis that the relevant individuals are persons of the highest character, both in the industry and generally, with a long and positive record in the building industry which has endured for a long period of time without their coming under adverse notice of the relevant authorities. This is particularly significant in the industry in which they operate. Such matters are entitled to great weight and they are to be taken into account in favour of the corporate defendant to a similar extent. Similarly, there is evidence of contrition and remorse in great measure which has been confirmed in a most tangible sense by the steps taken in relation to the deceased's family. Co-operation has been provided by the defendants to WorkCover. I also accept as appropriate the concession by the prosecution that, once the limitation issue had been resolved by the Full Bench, and certain other appropriate steps were taken by the defendants and by those representing them, an early plea of guilty was entered. Although a finding of guilt would have been most likely, significant weight has to be given to the public interest considerations of the fact of the early plea.

44 Reference has been earlier made to the agreement between the parties that the principal offence in relation to the defendants are respectively those numbered IRC98/1923 and IRC98/1928. That is, the offences against the respective defendants which allege that that first defendant "failed to ensure the health, safety and welfare, at work, of all of its employees, in particular, Graham Dorrington, David Wallis and Douglas Barr, in that it failed to provide or maintain systems of work that were safe and without risks to health in that [inter alia] the defendant failed to provide or maintain systems of work for the setting up of a Walco M1000 model material hoist at the said construction site, that was safe and without risks to health [and] as a result of the defendant's failure Graham Dorrington suffered fatal injuries, and David Wallis and Douglas Barr were placed at risk of injury"; and whereby the second defendant "is deemed to have contravened" the same provision and committed the offence charged.

45 I consider that the agreement between the parties was one appropriate in the circumstances and reflects in an appropriate way the culpability of the respective defendants. It may be assumed that, but for the uncertainty generated by earlier decisions of this Court, and its predecessor, exemplified by the judgment in Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150, and given the ameliorative provisions of s 49A of the Act (which permits potentially multiple contraventions of s 15 arising out of the same factual circumstances to be charged as a single offence or as separate offences) it may have been open to the prosecution to proceed with only one charge against each defendant. This consideration coupled with the extraordinarily usual circumstances of this matter, particularly the circumstances personal to the defendants and to Mr Booth, the application of appropriate principles in that respect, and consideration of the means of the respective defendants have led the Court to take an unusual approach in these proceedings. This approach is taken only because it still permits a penalty to be imposed in these proceedings which does reflect the objective seriousness of the offences committed, including the serious nature of the offences evidenced by the tragic and unnecessary death of the deceased young man, Mr Dorrington, and the related risks to safety of other persons on the site, both employees and non-employees of the first defendant.

46 It is considered that this objective may be achieved, and reflect the range of other considerations adverted to by sentencing each defendant for the one offence acknowledged between the prosecution and the defendant as the principal offence for each of the defendants. The offence specified is an offence which reflects the seriousness of the breaches committed. In those circumstances, and having due regard to the subjective and other mitigating factors earlier adverted to, it is appropriate to deal with the other offences pursuant to the provisions of s 556A of the Crimes Act 1900. I consider that it is not only open to me but appropriate to proceed in that way in relation to the other eight offences having regard, to the extent relevant to each defendant, the character, antecedents, age, health of the defendant and also by virtue to the reference in that section to "or any other matter which the court thinks it proper to consider" including the penalty that will be imposed as to the nominated offence. In those circumstances, I consider that it is inexpedient in respect of those other matters to impose a penalty but rather the appropriate course is not proceed to a conviction and to dismiss the charge.

47 Accordingly, and having regard to the other considerations that have been referred to, I consider that the principal offence in relation to the first defendant should result in a conviction of the first defendant and the penalty that should be imposed is $55,000. In relation to the principal offence involving the second defendant I consider that he should be convicted of that offence and fined the sum of $3,500. Costs 48 The Court has been advised that the parties have agreed that each party should bear its own costs of the reference to the Full Bench. I consider that is an appropriate course and should be adopted. As to costs otherwise, the prosecutor seeks an order that the defendants should pay the costs of the prosecution, other than the costs of the reference to the Full Bench and the prosecution also seeks a moiety of any penalties imposed. I consider that a moiety of each of the penalties imposed should be granted. However, as to the costs order sought I doubt whether it is appropriate to make a general order that the defendants pay the prosecutor's costs, particularly because of the circumstances of the individual defendant, the relationship between the defendants, and the fact that the proceedings involving the second defendant would not have involved any significantly greater amount of the Court's time or of that of the prosecution in dealing with those matters particularly once he entered a plea of guilty. I therefore consider that the appropriate order for costs is that the first defendant pay the prosecutor's costs of the proceedings generally. Orders 49 I accordingly make the following orders:

As to Matter No. IRC98/1923

The first defendant is convicted.
The first defendant is fined the sum of $55,000, with a moiety to the prosecutor.

As to Matter No. IRC98/1928 3. The second defendant is convicted. 4. The second defendant is fined the sum of $3,500, with a moiety to the prosecutor.

As to Matters Nos. IRC98/1922, 1924, 1925 and 1926 5. The charges against the first defendant are proved but the Court, without proceeding to conviction, orders that the charges be dismissed.

As to Matters Nos. IRC98/1927, 1929, 1930 and 1931 6. The charges against the second defendant are proved but the Court, without proceeding to conviction, orders that the charges be dismissed.

As to Matters Nos. IRC98/1922 to 1931 (inclusive) 7. There be no order as to the costs of or in relation to the reference to the Full Bench of the Industrial Relations Commission in Court Session. 8. Except as to that reference, the first defendant shall pay the prosecutor's costs in a sum as agreed, or in default of agreement, as assessed.

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