Ridge Consolidated Pty Ltd v Mauger

APELLANT: Mr F C Corsaro SC Colin Biggers & Paisley, Solicitors (Mr E D Crennan) LEGAL REPRESENTATIVES: RESPONDENT: Mr P M Skinner of counsel Carroll & O'Dea, Solicitors (Mr G M Phillips)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J

RIDGE CONSOLIDATED PTY LIMITED v INSPECTOR GRAEME MAUGER Appeal against a decision of Justice Kavanagh given on 8 March 2001 in Matter No IRC 1311 of 1999

JUDGMENT OF THE COURT [2002] NSWIRComm 108

1 This matter concerns an appeal pursuant to s 196 of the Industrial Relations Act 1996 and s 5AA(1)(a) of the Criminal Appeal Act 1912 by Ridge Consolidated Pty Limited against the severity of the sentence imposed upon it by Kavanagh J in a judgment given on 8 March 2001 : see WorkCover Authority of NSW (Insp Mauger) v Ridge Consolidated Pty Ltd [2001] NSWIRComm 15. 2 The appellant had pleaded guilty to a charge brought by the respondent, Inspector Graeme Mauger of the Workcover Authority of New South Wales, as prosecutor, pursuant to s 16(1) of the Occupational Health and Safety Act 1983. 3 The prosecution arose out of fatal injuries suffered by Mr Pierto Panebianco, a subcontractor engaged by a company named SWR Constructors Pty Ltd (SWR), whilst performing work associated with the widening of the M4 Motorway near Church Street, Parramatta on 24 March 1997. 4 The roadworks were being performed behind large concrete barriers. However, there were a number of gaps in the barrier to permit access to the site for trucks carrying materials. The deceased had been instructed on the day of the accident to perform some concrete patching work near one of the gaps in the concrete barrier, to the northern kerb of the existing eastern carriageway, adjacent to the site. 5 At approximately 10.50am the deceased was struck and killed by a motor vehicle which veered across two lanes of traffic and through the gap in the barrier adjacent to where he was working. The vehicle was being driven by a person under the influence of alcohol. He was subsequently charged and convicted of the offence of "Dangerous driving occasioning death" pursuant to s 52A of the Crimes Act 1900. 6 The charge brought against the appellant under s 16(1) of the Occupational Health and Safety Act was: The Defendant being an employer, on 24 March, 1997 at the site of the construction of additional carriageway lanes to the M4 Motorway, at a place about 700 metres west of Church Street, Parramatta DID FAIL to ensure that persons not in its employment and in particular Pietro Panebianco, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to section 16(1) of the Occupational Health and Safety Act, 1983.

The particulars of the charge were: 1. The Defendant failed to instruct Mr Panebianco that he was not to work near to or in the vicinity of gaps in the concrete protection barrier.

The Defendant failed to prevent persons and, in particular, Mr Panebianco from working within three (3) metres of traffic travelling at speeds up to and in excess of 60 kph without providing a physical protection barrier.

The Defendant failed to supervise persons and, in particular, Mr Panebianco so as to ensure that no person did not carry out work near to or in the vicinity of the gaps or entry points in the concrete protection barrier.

The Defendant failed to ensure SWR provided concrete protection barriers to isolate the area where the work was to be carried out prior to the work commencing.

The Defendant failed to relocate work so that persons and, in particular, Mr Panebianco were not working in the proximity of the known gaps or entry points to the concrete protection barrier.

The Defendant failed to implement a system whereby as work progressed towards one of the known gaps or entry points in the concrete protection barrier, that gap or entry point was relocated away from construction work that was being undertaking and in so failing to prevent persons from working in areas where there was a risk to health and safety.

The Defendant failed to request the erection by SWR of suitable protection barriers inside the construction site so as to protect workers from being struck by motor vehicles entering work areas through one of the gaps or entry points.

The Defendant failed to ensure that all persons and, in particular, Mr Panebianco had undertaken the site induction process prior to commencing work.

The judgment of Kavanagh J 7 Kavanagh J, having set out the charge, the particulars and the statement of agreed facts, described the charge in this way: [5] The particulars pleaded against the defendant fall into three specific areas in relation to the breach, namely, the defendant failed to ensure there were in place suitable physical barriers to protect the workers on its site; it failed to supervise workers at its site to ensure they did not carry out work near gaps or entry points in the concrete protection barriers that were provided and it failed to ensure workers on the site had undertaken a site safety induction programme. 8 Her Honour's reasoning commenced by considering the "gravity, that is the objective seriousness of the offence". Her Honour referred to Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474, and Haynes v James Glass and Aluminium Pty Ltd (unreported, Fisher CJ, 20 May 1994), and observed that "the gravity of this offence must be considered in the context of the task at hand and the absolute obligation placed on the defendant under the Act". 9 Her Honour then discussed the "complex set of agreements" by which the work on the Motorway was to be performed. Reference was made to the tender from the State Government for the construction work on the Motorway being won by SWR and that SWR, as the main contractor, had subcontracted some of the concreting labour to the appellant. The appellant then itself subcontracted out the concreting work to a company called Hitex to provide day labourers. Both the main contractor and the appellant had supervisors on site on a daily basis. 10 Her Honour referred to the following arrangements on the site as to safety: [12] SWR had a Site Safety Plan which was adopted and then adapted by each company. The various particular responsibilities for site safety however were disbursed by agreements between the parties. However, they cannot dispense with their absolute obligation as employers on the site under the Act. SWR provided the safety barriers but the concrete company, Hitex, had to induct and train the workers in site safety. Ridge Consolidated assumed responsibility for checking that workers who came on site were trained. The evidence revealed Hitex used mainly day labourers and so the training was not always adhered to. 11 Having made this observation and noted that the deceased had been performing work on site by an arrangement between the appellant and Hitex, her Honour said: [14] Modern industrial trends are such that what has been revealed in this complex arrangement of sub-contracts is a complete avoidance of responsibility for site safety notwithstanding the absolute obligation that the Act places on each of these employers. Ridge Consolidated to their credit, come before the court to face their responsibilities and obligations for the lack of industrial safety on this site. But an examination of the contractual arrangements reveals SWR had a Site Safety Plan which it handed down to the various sub-contractors. SWR viewed itself responsible for the placing of the safety barriers. As each sub-contract was entered into, some of the responsibilities for the site safety were passed down the line.

[15] On the day of the accident, Hitex was responsible for training the day labourer and did not. Ridge Consolidated, who had to check Mr Panebianco was inducted into site safety, did not.

[16] Mr Panebianco was not trained. The defendant company did not check on the day whether he was or was not trained as he entered the site. Ridge Consolidated also did not question the placement of the concrete barriers which provided no protection to the site where it required Mr Panebianco to work. It failed to ensure Mr Panebianco did not work within an area without risk to his safety.

[17] The absolute obligation under s16(1) of the Act is to ensure any worker on a site within the defendant's control is provided with safe working and is not exposed to any risk to health and safety. The labyrinth of sub-contracts and the passing over of various responsibilities for site safety, while adopting documentation in support of safe working, in reality ensured no contractor felt the full burden of the absolute obligation imposed on them by the legislature as employers on the site. This was a related State Government contract. It must view this aberration with some concern. 12 Reference was then made to the judgment of the Full Bench of this Court in Swift Placements Pty Limited v WorkCover Authority of New South Wales (Inspector May) (2000) 96 IR 69 at 89. Her Honour's reasons continued: [19] The characterisation of the obligation on this defendant was to ensure a workplace site was devoid of any risk to the safety of this employee. This obligation under the Act was not met.

[20] The most serious of consequences of sub-contracting out work and using day labour placements have been revealed through this prosecution. The obligation on employers under the Act is absolute. It must be ensured that corporate responsibility for site safety is not so dispersed through sub-contracts as to deflect employers from their awareness and obligations to protect workers at their worksite from a risk to their health or safety.

[21] The defendant company, Ridge Consolidated had an $8 million contract but had on site only two workers and only one of which was on the site on a permanent basis. The permanent worker on the site of the defendant company was a site supervisor, Mr Garrick Maybury. The deceased, while directed by the defendant company, was employed by Hitex. A check was sometimes performed by Mr Maybury to ensure Hitex workers had been inducted into the accepted Site Safety Plan. However, it is agreed that the deceased, Mr Panebianco had not been inducted into the site safety procedures by Hitex and Mr Maybury had not checked on that day to ensure that Mr Panebianco had been trained.

[22] An examination of the relevant Site Safety Plan revealed it provided the workers with first-aid information; site layout and traffic control plans; the workings of a safety co-ordination committee; risk management procedures such as reporting hazards; procedures for reporting of accident injury incidents; the prohibition on trucks and alcohol and environmental responsibilities. Each worker who had undergone such site safety induction was required by Hitex to sign an agreement acknowledging they had been made aware of the requirements of the traffic control plan and that they agreed to abide by safety and environmental plans and instructions. Relevantly, in Ridge Consolidated's Occupational Health and Safety Plan it was specified: All personnel to wear appropriate safety clothing and work behind the installed concrete barriers.

However, Mr Panebianco was not trained in the Plan.

[23] Mr Panebianco was performing concrete patching work beside one of the known gaps in the concrete barrier fence when Mr Stephen Lawrence Wells, drugged and under the influence of alcohol, drove his car right across two lanes of the road and through the gap in the concrete barrier, striking Mr Panebianco while he was working. He suffered fatal injuries. Mr Panebianco was not properly supervised given he was working near the gap. He was not satisfactorily protected. He was not inducted into any safety procedures. He was not properly trained. He was exposed to serious risk of injury by this employer at its place of work.

[24] I find this a serious offence. 13 The subjective features of the particular defendant were then dealt with as to mitigation of penalty. Her Honour took into account the assistance provided by the appellant to the respondent, the nature and size of the company, its financial status, the contrition it expressed and the fact that there was in place a site safety plan. Her Honour noted, however, as to the last of the safety aspects, that many of its responsibilities were dispersed amongst various subcontractors. Her Honour rejected the appellant's contention that some allowance should be made in the sentence imposed for the lack of predictability of erratic driving. Her Honour held, in reliance on the judgment in State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 at [29]: [I]t is the responsibility of an employer to ensure workers on its work site are not exposed to any risk to their safety. An employer has an obligation to ensure that it protects workers from even such erratic behaviour.

Her Honour then said: [31] Counsel for the defendant submits that because Ridge Consolidated is the only company that can meet its obligations under the Act from the several companies represented at the worksite, the court should not allow this company to carry the full burden of this accident. That is not a persuasive argument before the court. The court must look at the objective seriousness of the offence, that is, the gravity of the offence, by this defendant in the context of the absolute obligation of the defendant to provide a safe work site with no risk to health or safety and only then assess the mitigation as to penalty that the subjective elements of the offence attract. 14 Her Honour went on to consider the plea of guilt and the effect of the plea on the determination of sentence. Her Honour referred to the guideline judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383 observing that "the judgment calls for a discount range in consideration of the utilitarian value of a plea of guilty". Having set out the reasoning of Spigelman CJ at paragraphs [153] - [155] of that judgment and aspects of the published guideline, her Honour held: [35] I find there should be some consideration as to the utilitarian value of the plea entered. The history of the litigation of this prosecution should be recorded. The summons was filed on 6 May 1999. As to the validity of the summons the court heard a Notice of Motion brought by the defendant that the summons be dismissed as it was not issued in accordance with the provisions of the Act. The court determined to hear the Notice of Motion as an interlocutory matter. Argument was heard and a Judgment of this court of 23 February 2000 was published. It was appealed to the Full Bench. The Full Bench upheld generally the Appeal as to jurisdiction giving validity to the form of the summons issued under the Act. The appeal was Dismissed with Reasons on 18 August 2000. The plea of guilty was not entered until after the Appeal judgment and the matter came on for hearing on 6 December 2000. However, notification was given to the court by the defendant at a mention on 18 October 2000 that a plea would be entered when the matter was listed for hearing on 6 December 2000.

[36] In all of the circumstances, the court allows a discount for the utilitarian value of the plea entered after appeal and I allow a 10% discount on penalty.

[37] In consideration of the subjective elements of this offence, I take into account the reputation of the company as a good corporate citizen and the expressed contrition of Mr Backhouse on behalf of the company who acknowledged the gravity of the offence both in the plea of guilty and personally. The further refinement of safety procedures made by the company under the guidance of the WorkCover Authority is noted. A document reflecting the WorkCover assistance has been placed before the court entitled "Ridge Consolidated Safety Handbook" which, while a general handbook, is supported on various sites, by further documentation directed to site specific safety procedures. Accordingly, I allow a further discount to reflect the other subjective features related to the breach placed before the court.

[38] I find the defendant guilty. I fine the defendant in the sum of $110,000 with a moiety to the WorkCover Authority. The defendant shall pay the prosecutor's costs as agreed or assessed. Appellant's submissions 15 The appeal falls to be determined under the Criminal Appeal Act 1912, more particularly s 5AA thereof, in its terms following the amendment to that section by the Courts Legislation (Amendment) Act 2000. The appeal then falls to be determined as an appeal stricto sensu : Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280. 16 The appellant concedes that a fine should be imposed, but contends the penalty of $110,000 was excessive and is suggestive of her Honour not having paid adequate regard to what was submitted to be the relatively low degree of culpability attributable to the appellant for the accident. In particular, the appellant contended the features which ought have resulted in a lower penalty were: 1. The appellant had no prior convictions under the Act. 2. The appellant "fully and frankly" conceded it was at fault. 3. The tragic consequences of the appellant's breach could not be reasonably expected in the circumstances. It would be inappropriate to consider the death of Mr Panebianco as an aggravating feature of the offence or that it was causally connected to the risk the subject of the charge: Thorneloe v Filipowski (2001) 52 NSWLR 60. 4. The appellant had undertaken corrective action to prevent similar occurrences in the future. 5. The appellant company was a small family company. The Court should have been cognisant that any penalty imposed, particularly when considering specific deterrence, would be borne by persons who had no participation in the offence. 17 The appellant contended, in reliance upon Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312, that her Honour failed to pay adequate regard to the fact that the appellant was not the only person or company to have contributed to the relevant risk and that her Honour therefore erred in the severity of the sentence imposed. 18 The appellant further contended that her Honour erred in applying the guideline judgment of R v Thomson and Houlton in the light of what was said by the High Court in Wong v The Queen (2001) 76 ALJR 79 . Alternatively, if the principles in R v Thomson and Houlton be considered applicable, it was submitted that reducing the quantum of "discount" for the defendant's plea of guilty on the basis that it had taken issue with the validity of the summons prior to entering a plea was in error. Once the issue as to the validity of the summons was determined the appellant entered its guilty plea at the earliest available opportunity. Her Honour reduced the degree of discount based upon what was perceived to be a reduction in the utilitarian considerations associated with a plea of guilty. In doing so, her Honour failed to recognise that the plea of guilty was relevant to a broader range of subjective considerations than merely the utilitarian considerations associated with the avoidance of a more lengthy trial. Respondent's submissions 19 Mr P M Skinner of counsel, who appeared on behalf of the respondent, accepted that the appeal was an appeal in the strict sense and the appellant's submissions as to the principles applicable to the determination of penalty were correct. The respondent contended, however, that the appellant has failed to pay regard to a fundamental aspect of her Honour's reasoning. That is, the appellant did not recognise the fundamental manner in which her Honour considered the contractual obligations of the parties to what she described as "a labyrinth of sub-contracts" which had the effect of "passing over of various responsibilities for site safety" so that "no contractor felt the full burden of the absolute obligation imposed on them by the legislature as employers on the site". 20 It was contended that the appellant was in error in arguing that the extremely erratic nature of the driver at the time of the accident should have resulted in the offence being considered less serious. The work site was located on an extremely busy motorway which carried thousands of vehicles each day. It was the antecedent failures of the appellant which gave rise to the risk of the deceased having been injured by a person driving in such an erratic manner: WorkCover Authority of New South Wales (Inspector Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 1) (2001) 103 IR 80 at [61]. 21 Counsel contended that her Honour characterised the appellant's failures in relation to matters of health and safety as having been "fundamental" in their nature and that as such was correct in determining that the offence was serious. The failures included failures in supervision, failures in the adoption of safe systems and failures to ensure that there were put in place adequate protective barriers. The respondent contended that the failures in supervision and control properly weighed heavily with Kavanagh J in the consideration of the nature and quality of the offence. 22 As to the appellant's contention in relation to the level of discount provided for the plea, the respondent submitted that her Honour's reasoning was entirely consistent with the judgment in R v Thomson and Houlton in concentrating on the utilitarian considerations associated with the plea of guilty. Her Honour did not err in not quantifying the discount for "contrition" or other aspects of the plea of guilty separately. Further, the respondent contended that, upon consideration of the appeal earlier taken as to the technical form of the summons (see Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156), it was not inappropriate for her Honour to have reduced the quantum of discount. 23 Mr Skinner also referred to difficulties as to the validity of guideline judgments following the decision of the High Court in Wong v The Queen , submitting that in these proceedings there was no relevant error in any event demonstrated in her Honour's approach. Consideration 24 There are two limbs to the appellant's attack on the severity and extent of the penalty imposed at first instance. The first is that the penalty is excessive having regard to the objective circumstances of the offence. The essential element or ingredient of that limb is that the driver of the vehicle involved in the accident was affected greatly by alcohol and drugs and, therefore, the occurrence of the incident was totally unpredictable and unpredicted. 25 That submission should not be accepted. It confuses the particular circumstances of an accident with those which gave rise to the breach of the Act. That the precise circumstances surrounding the accident from which the prosecution arose may be considered unforeseeable (although we do not concur with this characterisation in the circumstances of the present matter) may be, to a certain extent, irrelevant. 26 In rejecting the appellant's contention we would merely reiterate our approval of what was stated by the Full Court in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 (at 452 - 454): The concept of "reasonable foreseeability" is not, in our view, apt to be applied in relation to the duties owed under the OH&S Act. The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances: see Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 469. Under s15(1) the obligation of the employer is "to ensure" the health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provision, to those which are reasonably foreseeable. Whilst employers are not liable for risks to safety which are merely speculative or unduly remote (see Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50), the terms of s15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety. It is inappropriate to seek to substitute a different test for that specified in s15(1).

Secondly, the arguments advanced on behalf of the appellant in this respect erroneously concentrate upon the foreseeability of the particular circumstances of the accident in question. The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.

This consideration is carefully explained in the decision of the Full Court of the then Industrial Court of NSW in Haynes . Commenting on the reasoning of the trial judge, their Honours said (at 156-157): The commencing point of her Honour's consideration of the evidence was the uncontroverted fact that the death of Mr Chen was caused by the front end loader hitting him as it came to a stop over the pit in which he was working removing the slurry. Her Honour then, correctly in our view, commented that "(t)he occurrence of the accident itself does not however establish the commission of the alleged offence": see Dawson (at 120-121) and McMartin v The Broken Hill Proprietary Company Ltd (unreported, Grove J, 5 February 1988, pp 7-8). But, her Honour then concluded, concerning the case against Manufacturing, that "(i)t needs to be established that some action taken by (Manufacturing), or the failure to take some action, was causally connected with the front end loader hitting Mr Chen. It seems to (her Honour) that to approach the question of the commission of the offence in any other way, would be to remove the requirement placed upon the Prosecution to establish, beyond reasonable doubt, that it was the Defendant which failed to 'ensure the health, safety and welfare at work' of Mr Chen and Mr Ding". The prosecution of Industries was considered by her Honour according to "(m)any of the comments … made in relation to the prosecution against Manufacturing"; again, a causal connection between some act or omission by Industries and the accident was found to be necessary. Her Honour focused attention on the accident itself, that is the front end loader hitting Mr Chen, as the relevant detriment to safety with which the respondent were charged. We think that approach emphasised too much the accident itself as the relevant detriment to safety of persons on the site. That overemphasis led to a misunderstanding by her Honour of the real facts disclosed by the circumstantial evidence and the proper inferences to be objective drawn therefrom. Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title, indicates, has the prime purpose "(t)o ensure the health, safety and welfare of persons at work" and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligation cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident.

We adopt that reasoning as a correct statement of law and principle in relation to s15 of the Act. 27 Further, we do not consider that her Honour should have treated as a mitigating factor that a "death" was unpredictable having regard to the risks to safety occasioned by the appellant because the risk of fatal injury was an obvious risk having regard to the work performed. 28 Further, we would reiterate what was observed by the Full Court of the former Industrial Court of New South Wales in Hannah v Wonar Pty Limited (unreported, Fisher CJ, Glynn and Cullen JJ, 30 June 1992) in which the Full Industrial Court stated (at 9) (and as approved in Lawrenson Diecasting at 476): The primary factor falling for consideration in relation to penalty, is the nature and circumstances of the offence . The result of the circumstances may be relevant in a very limited way, in the sense that it may illustrate the seriousness of the act or omission involved in the breach of statutory duty being assessed. Obviously a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences. (emphasis added) 29 As was emphasised recently by Hungerford J in WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [43], the penalty imposed must be determined by reference to the offence . 30 The offence particularised in the summons in substance charges the defendant with a failure to provide adequate supervision; a failure to provide adequate instruction to the deceased in circumstances where there was an inadequate physical barrier; a failure to provide an appropriate system to ensure that as work progressed the spaces in the physical barrier were moved to protect the ongoing work; and a failure to ensure an adequate physical protective barrier from adjacent traffic. 31 We consider, in the circumstances of these proceedings, that the failures particularised in the summons created a working environment in which there was every likelihood of serious consequences for both employees and persons not in the defendant's employ. This was, as her Honour found at first instance, a serious offence. 32 As has been frequently stated by this Court, the duty of employers under the Occupational Health and Safety Act is absolute. It is not confined to the taking of precautions only when there are "warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires a remedy": Ferguson v Nelmac Pty Limited (1999) 92 IR 188. 33 It is pertinent to have regard to a recent judgment of Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25. His Honour considered, at [56] - [61], some of the authorities which attempted to reinforce "in the strongest possible language" the duties cast by the Occupational Health and Safety Act on employers and those in self-employment in the context of a prosecution which arose from the death of a three year old child on a residential construction site on the North Coast. His Honour dealt with the matter in that way to "reiterate the extent of the duty cast by the Act upon employers and those who are self-employed to ensure that their undertaking does not create a risk". A submission had been made that the defendant in those proceedings should be afforded some leniency due to the fact that more than one person contributed to the relevant risk. His Honour held: [61] In the present circumstances, the defendant's submission is untenable. The duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject, of course, to a consideration of whether the risk emanated from the relevant 'undertaking' and 'place of work'. However, when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 (at 437) and WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 at [31]; Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 and Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99 . 34 The appellant contends that her Honour's assessment of penalty was too severe in the circumstances of these proceedings. We consider that no error has been demonstrated as to her Honour's assessment of the objective features of the offence which would enable or warrant intervention by the Court on appeal. As to the appellant's reliance on the Full Bench judgment in Nesmat Pty Limited v WorkCover Authority of New South Wales , we consider that submission involves a misunderstanding of what had been decided in that case: see WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 at 188 - 189 and WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 at 436 - 437. 35 The second limb of the appellant's case is that her Honour failed to give an adequate discount for the plea of guilty and had inappropriate regard to the course of events prior to the plea of guilty being entered. Her Honour, having set out the relevant parts of the guideline judgment in R v Thomson and Houlton addressed the factors which she identified as being relevant to the "discount" for the plea of guilty in these terms: [35] I find there should be some consideration as to the utilitarian value of the plea entered. The history of the litigation of this prosecution should be recorded. The summons was filed on 6 May 1999. As to the validity of the summons the court heard a Notice of Motion brought by the defendant that the summons be dismissed as it was not issued in accordance with the provisions of the Act. The court determined to hear the Notice of Motion as an interlocutory matter. Argument was heard and a Judgment of this court of 23 February 2000 was published. It was appealed to the Full Bench. The Full Bench upheld generally the Appeal as to jurisdiction giving validity to the form of the summons issued under the Act. The appeal was Dismissed with Reasons on 18 August 2000. The plea of guilty was not entered until after the Appeal judgment and the matter came on for hearing on 6 December 2000. However, notification was given to the court by the defendant at a mention on 18 October 2000 that a plea would be entered when the matter was listed for hearing on 6 December 2000.

[36] In all of the circumstances, the court allows a discount for the utilitarian value of the plea entered after appeal and I allow a 10% discount on penalty. 36 It appears her Honour gave a discount at the bottom end of the Thomson range because of delay occasioned by the defendants taking technical points which led, it was held, to a situation in substance where the plea of guilty could not be described as "an early plea". 37 The appropriate use of guideline judgments has received some attention recently following the judgment of the High Court in Wong v The Queen and the subsequent judgment in Cameron v The Queen (2002) 76 ALJR 382. However, any uncertainty has been removed by the judgment of a five member Bench of the Court of Criminal Appeal in R v Sharma [2002] NSWCCA 142 which was determined after this matter was heard. In R v Sharma , Spigelman CJ, with whom Mason P, Barr, Bell and McClellan JJ agreed, considered that the construction of s 22 of the Crimes (Sentencing Procedure) Act 1999, having regard to its statutory and legislative history, including the Minister's second reading speech, resulted in the High Court's observations in Cameron v The Queen not being applicable in New South Wales; see also R v Cook [2002] NSWCCA 140. The Court also confirmed the continuing applicability of R v Thomson and Houlton. Whilst not having had the opportunity of submissions from the parties as to R v Sharma, we consider it appropriate to apply that judgment in these proceedings . We confirm the applicability and binding nature of the guideline judgment in R v Thomson and Houlton to sentencing proceedings for offences under the Occupational Health and Safety Act . 38 As to the circumstances of the present proceedings, we consider that the plea was entered at the first reasonable opportunity. The plea was entered immediately following the crystallisation and resolution of the issues surrounding the Court's jurisdiction. In reaching the finding in this matter, it should not be assumed that there is a rule that technical points taken by defendants under the Act could not affect the consideration of a discount for a plea of guilty. It is possible to envisage circumstances where the raising or taking of technical points could properly be considered by a sentencing judge as being factors relevant to the assessment of whether a plea was early or not and in particular whether the plea was entered at the first reasonable opportunity. However, in the circumstances of this case we do not consider that would be the appropriate conclusion to reach. 39 We therefore consider that the appeal should be upheld as to this aspect of the appellant's case. We consider that the appropriate discount which should be granted is 25 per cent. However, in the light of our conclusion as to the first ground of attack, the judgment should not be otherwise disturbed and the penalty thus resulting is $91,500. 40 As to the question of costs, in the light of the way in which the appeal was argued and the extent of success in relation to it by each party, we consider that the appropriate order is that there be no order as to the costs of the appeal. 41 We therefore make the following orders: 1. The appeal is upheld to the extent set out in the reasons for judgment delivered in this matter. 2. The penalty imposed by Kavanagh J is set aside and in lieu thereof a penalty of $91,500 is imposed with a moiety thereof to be paid to the respondent. 3. There shall be no order as to the costs of the appeal. __________________

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