WorkCover Authority of New South Wales (Inspector Belley) v Akerman-Apache

CATCHWORDS: Occupational health and safety - pleas of guilty - co-defendant resides in United States of America - general principles - foreseeability - objective seriousness of the offence - principle of parity relevantly considered - general and specific deterrence - no prior convictions - financial considerations of defendant company - subjective features taken into consideration - penalties imposed - orders as to conviction, penalty, moiety and costs.

Courts Legislation Amendment Act 2006 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Procedure Act 1986 Evidence Act 1995 Fines Act 1996 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Lowe v R (1984) 154 CLR 606 McMartin v Newcastle Wallsend Coal Company and ors (2005) NSWIRComm 31 CASES CITED: Markarian v The Queen [2005] HCA 25: 18 May 2005 Postiglione v R (1997) 189 CLR 295 R v Gallagher (1991) 23 NSWLR 220 R v Thompson; R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247

PROSECUTION: Mr R Reitano of counsel SOLICITORS: Criminal Law Practice Legal Group LEGAL REPRESENTATIVES: DEFENDANTS: Mr H Dixon SC SOLICITORS: Holding Redlich

CORAM: Staunton J DATE: 24/11/2006

Matter No IRC 5607 of 2005 WorkCover Authority of New South Wales (Inspector Belley) v Akerman-Apache (Joint Venture) Pty Limited Prosecution pursuant to s 10(2) of the Occupational Health and Safety Act 2000

Matter No IRC 5605 of 2005 WorkCover Authority of New South Wales (Inspector Belley) v Jonathan Dwyer Herbert Prosecution pursuant to s 26(1) and s 10(2) of the Occupational Health and Safety Act 2000

Matter No IRC 5608 of 2005 WorkCover Authority of New South Wales (Inspector Belley) v John Lindsay Walker Prosecution pursuant to s 26(1) and s 10(2) of the Occupational Health and Safety Act 2000

1 The respective defendants have each entered a plea of guilty to an offence arising under the Occupational Health and Safety Act 2000 (the Act). 2 In relation to the corporate defendant (Akerman-Apache), the offence arises pursuant to s 10(2) of the Act. In relation to the personal defendants, the offence arises pursuant to s 10(2) of the Act and, as directors of the corporate defendant, by virtue of s 26(1) of the Act. 3 With the exception of those particulars going to the role of the personal defendants as directors of the corporate defendant, the offence with respect to each of the defendants is in identical terms. That is, that each of the defendants was a person who had control of plant which was: (a) not plant used only by employees of the defendant; and (b) not plant used in premises occupied as a private dwelling; and (c) plant which was controlled in the course of a trade, business or other undertaking (whether for profit or not) of the defendant; and

(d) plant provided for the use of persons at work; and on 3 November 2003 at Otford Road, Otford, New South Wales failed to ensure that the plant as aforesaid described, was safe and without risks to health when properly used contrary to Section 10(2) of the Occupational Health and Safety Act 2000. The particulars of the charge are that each of the defendants respectively: (a) Failed to ensure use of a towing vehicle for towing a mud plant (mud mixer) that was safe and without risks to health and safety, when it permitted a dual axle Tiri Kemtron trailer registered in the United States of America, Oklahoma registration no.747-5EL, Vin no 5CNPF222PYC000097 (trailer) weighing 9561.82 kg to be towed without a safe braking system. (b) Failed to ensure that Ross Boyer did not use a 20.8 tonne International Water Tanker model SF2670, registration number QFQ107, (truck) without a safe braking capability. (c) As a result of the defendant's failures Ross Boyer was placed at risk of injury. 4 It should be noted at this point that there is a further co-defendant relevant to these proceedings, namely Mr Steven Carl Akerman. Mr Akerman is the defendant in Matter No IRC 5606 of 2005 - WorkCover Authority of New South Wales (Inspector Belley) v Steven Carl Akerman. Mr Akerman was also, at the relevant time, along with Mr Herbert and Mr Walker, a director of the corporate defendant. He is a resident of the United States of America. Despite being served, he has never entered an appearance in his proceedings and I have dealt with his matter on an ex parte basis. Those proceedings are the subject of a separate judgment but, in a number of respects, it should be read in conjunction with this judgment, particularly on the principle of parity having regard to the respective culpability of the personal defendants. 5 In relation to the three defendants in these proceedings, the prosecutor has tendered an agreed statement of facts relevantly in the following terms: [1] The first defendant is a company. Its registered office is situated at suite 45, 47 Neridah Street, Chatswood, in the State of New South Wales. [2] At all relevant times Jonathan Dwyer Herbert (second defendant), John Lindsay Walker (third defendant) and Steve Carl Akerman were directors of Akerman-Apache (Joint Venture) Pty Ltd (first defendant). [3] On or about 31 July 2003 the first defendant entered into an Instrument of Agreement for Subcontract (contract) with Priority Sewerage Program Alliance Team (PSPAT) (ABN: 54867537089). PSPAT is an alliance of Sydney Water Corporation, MWH Australia Pty Limited, United KG Pty Limited, John Holland Pty Limited and Manidis Roberts Consultants Pty Ltd. PSPAT was formed for the purpose of building a sewerage scheme for Coalcliff, Stanwell Park, Stanwell Tops and Otford (sewerage project). [4] At the time of entering into the contract on or about 31 July 2003, the first defendant was described in the contract as Akerman Apache Alliance (ACN 105 825 821). On or about 18 August 2003 the name of the first defendant was changed to Akerman Apache (Joint Venture) Pty Ltd. The ACN remained as 105 825 821. [5] At all material times the trade, business or other undertaking of the first defendant was the provision of directional drilling services and civil construction services for the sewerage project. [6] The first defendant was to provide horizontal directional drilling expertise in the installation of pipelines in the Otford and Stanwell Tops region for the contract price of $449,378.00. The work for the first defendant in the sewerage project required the stripping and stockpiling of top soil, excavation, installation of pipes, backfilling, restoration, installation and maintenance of erosion and sedimentation controls, investigation, and the installation of gravity mains by horizontal directional drilling and open cut trenching methods. [7] The main project base was located at 124 Otford Road, Helensburgh (project base). [8] The following personnel, all of whom were employed by Akerman Construction Inc. and who were American residents, performed work under the contract: Ross Boyer (Boyer) a 24 year old as a driver/labourer; Chuck Nelson (Nelson); Mark Akerman; Mat Akerman; and Jerry Burch (Burch) as site foreman, for the duration of the sewerage project. [9] At all relevant times Direct Skills, a labour hire company, provided the first defendant with the services of Paul Jasper as a driver/labourer and James Haigh (Haigh) as a labourer/driver. They worked at the sewerage project. [10] Steve Akerman, president of the Akerman Construction Inc., was nominated as the project manager for the sewerage project and was responsible for contract control, project management, safety community consultation and liaison quality for the length of the sewerage project.

[11] The contract between PSPAT and the first defendant required the first defendant to provide all plant and equipment to perform the works under the Contract. Plant and equipment used included: s One transportable mud plant #1 - MC 350 GPM (i.e. 350 gallons per minute) (also referred to as a trailer); s One water truck [12] On or about 3 September 2003, the Department of Transportation and Regional Services, granted approval for a vehicle import for a Kemptron fluid and mud recycling plant, which is a transportable mud plant, to be brought into Australia. The mud plant was to be used for work at the sewerage project . [13] The mud plant was located at the project base. The mud plant was used to clean sludge and mud produced by drilling. It was never intended that the mud plant be moved from the project base. [14] The mud plant was transported to and deposited at the project base on a low loader. [15] At no stage did the defendants or PSPAT require the mud plant to be moved. [16] Sometime in October 2003 Carey Contracting Services Pty Ltd, supplied an International 3 axle water tanker (the truck) bearing Victorian registration plates QFQ107 for use by the first defendant. [17] The truck was acquired to be used and was used to pump mud sludge out of the drilling hole and transport it to the project base. The sludge would be unloaded from the truck and loaded into the mud plant, which would then separate and clean the mud and water. [18] In or about late October 2003 Nelson, Mark Akerman and Boyer decided to tow the mud plant from the project base to where the drilling was taking place. This occurred without the knowledge of the second and third defendants. [19] The truck was not equipped with a rear-towing hitch. Nelson, Mark Akerman and Boyer built a towing hitch on the back of the truck. [20] The back of the truck was cut away and plates were welded onto the back of the truck to create the hitch. This occurred without the knowledge of the second and third defendants. [21] Nelson asked Jasper to tow the mud plant. Jasper refused as an engineer had not certified the modification to the truck and he was not licensed to pull the mud plant. He told Nelson that he was not going to drive the truck, as it was not road worthy to pull the mud plant. [22] On 3 November 2003 at about 7:30 am Burch, Boyer and Haigh came to the Helensburgh site to collect the equipment and tow the mud plant down to the drilling site. [23] Haigh was aware that there were no brake connections between the mud plant and the truck. Burch asked him to drive the truck and he refused to do so as he did not hold the relevant license.

[24] At about 1:30 pm Mr Boyer took it upon himself to drive the truck out of the Helensburgh depot towing the mud plant. Mr Boyer was not licensed to drive the truck towing the mud plant. After travelling about 1 km from the depot the truck began moving down an incline on Otford Road. [25] As the truck travelled down Otford Road the mud plant detached from the truck and tumbled down the causeway hitting the embankment. The truck continued towards the embankment before crashing into a ditch. [26] Haigh was following the truck as it travelled down Otford Road. He noticed that as the truck was driving down the incline the mud plant was pushing the truck and picking up speed. He was of the opinion that Mr Boyer was braking as hard as he could as there was a bit of smoke and the truck appeared to be out of control. [27] After the accident, Mr Boyer was found in mud sludge under the rear of the truck. He was dead. [28] On 6 May 2005 a record of interview was obtained from Mr White, a Vehicle Regulations Inspector Level C employed by the Roads and Traffic Authority. Mr White stated that on 3 November 2003 he attended the scene of the accident. He stated that the mud plant had electrically controlled brakes that were not connected to the truck, as the connections were not compatible. He saw that the mud plant had a connection for an American designed plug and the truck had an Australian designed plug. The cable on the mud plant was tied around the draw bar of the mud plant and was not connected in any way to the system on the truck. A copy of the said record of interview is annexure 'A". [29] On 8 September 2005 at approximately 3.15pm Inspector Belley visited the project base and the site of the accident on Otford Road, Otford and observed the following : (a) Enclosure fenced off with cyclone mesh at the top of Otford Road near Werrong Road, Helensburgh. The gates were locked and she observed 6 shipping containers and a Mercedes truck inside the fenced area. (b) Driving east down Otford Road toward Otford she observed a sign stating "Steep Descent". (c) A little further on this same road another sign depicting steep incline of 15%. (d) Down the bottom of the road before the weir crossing the Hacking River was a long sweeping left hand curve and a right hand curve. On the left of the curve there was a metal barricade with direction arrows. This was approximately 2 km from the depot site. [30] Whilst at the accident site Inspector Belley took seven photographs of the scene .The seven photographs Inspector Belley took are annexure "B". [31] On 5 July 2004 Constable Gordon Wreford of the Engineering Investigation Section of the NSW Police provided a report. A copy of that report is annexure "C". Constable Wreford provided an additional report on 26 October 2006. A copy of that report is annexure "D". In his report's Constable Wreford stated: (a) There were substantial air leaks on both axels at the park / emergency brake tee-valves [of the truck]. (b) The rear drive axle park/emergency brake chamber [of the truck] was un-operational. (c) As the tare weight of the mud plant was less than the tare weight of the truck, the truck was capable of towing the mud plant so long as the trailer had adequate size brakes. (d) When the truck and mud plant left the compound the lack of air pressure would have caused the park/emergency brakes on the front drive axle to start applying, this would cause the brakes to overheat and create a burning smell, blue smoke and make the brakes on that axle less efficient. (e) As the truck started its descent the lack of air pressure would have severely reduced the braking pressure the driver could apply via the foot brake. (f) He was unable to determine that the mud plant brakes were operational via the truck. (g) The mud plant brakes were inadequate in size for the weight of the mud plant. (h) Due to the already overheated front drive axle brakes, low air pressure and inadequate or non-operational mud plant brakes I am of the opinion that the braking system may have been a contributing factor [to the accident].

[32] The first defendant was aware that the mud plant did not have brakes that could be connected to the truck. [33] Steven Barker (Barker), Projects Manager employed by Sydney Water and PSPAT, was responsible for the overall project. In an interview with WorkCover following the accident he said that he observed that there were very few problems with the first defendant's safety performance. Its quality systems were working and it worked very well within the environmental management plan.

[34] It was Barker's responsibility to ensure the plant that sub-contractors used on the project was safe to use up to and on 3 November 2003. [35] Barker and Steve Akerman agreed that the directional drilling equipment should not be driven on the road but rather transported by low loader and this was included in safe work method statements. Barker and Steve Akerman also drew up an environmental management plan that was prepared for the project site which showed that the mud plant would be set up on site. [36] Barker and Steve Akerman agreed that the mud plant would remain at the Helensburgh Depot because of the danger of floods. [37] The second defendant and the third defendant had prior to the accident attended the project base and looked at horizontal drilling equipment but did not inspect the truck and/or mud plant. [38] The second and third defendants were non-executive directors of the first defendant. [39] The defendants co-operated with the Workcover Authority in its investigations into the matter. [40] The first, second and third defendants have no prior convictions. 6 In addition to the agreed facts the prosecution have tendered without objection the following: (i) a witness statement together with photographs of Inspector Ian White dated 6 May 2005. Inspector White is a Vehicle Regulations Inspector Level C with the Roads and Traffic Authority of New South Wales (RTA). In that capacity, Inspector White attended the scene of the accident on 3 November 2003 and inspected the truck and the trailer. He also took a number of photographs and subsequently prepared a report. His opinion as to the cause of the accident on that day will be referred to later in this judgment. (ii) A number of photographs taken by Inspector Belley on 31 August 2005 depicting relevant aspects of the road and adjacent surroundings Mr Boyer was travelling on with the truck and trailer at the time of the accident. (iii) Two statements of Constable Gordon Wreford from the Engineering Investigation Section of the New South Wales Police dated 5 July 2004 and 26 October 2006 respectively. Both are accompanied by a certificate of expert evidence pursuant to s 177 of the Evidence Act 1995. On 7 January 2004, Constable Wreford examined the truck and the trailer with particular reference to their respective braking systems. His opinion as to those aspects relative to the use by the defendant of the truck and trailer at the time of the accident will be referred to in due course in this judgment. 7 On behalf of the defendants, the following affidavit material was tendered without objection: (i) Affidavit of John Lindsay Walker sworn 8 November 2006 together with annexures. (ii) Affidavit of Jonathan Dwyer Herbert sworn 8 November 2006 together with annexures. (iii) Affidavit of Edward Angyalosy sworn 9 November 2006 together with annexures. Mr Angyalosy is a director and partner of John Havas & Associates Pty Limited - an auditing and accounting firm. Mr Angyalosy's affidavit and annexures outline the corporate defendant's current financial and tax status. 8 On behalf of Mr Walker, two testimonials attesting as to Mr Walker's overall good character were tendered without objection. 9 Both personal defendants together with Mr Angyalosy were required for cross examination. Relevant principles

10 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 11 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.'

12 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 13 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646.

14 On the issue of foreseeability, the Full Bench in Capral also stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which 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 remedy.

15 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

16 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 17 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 18 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added) 19 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...

20 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to.

21 None of the defendants have any prior convictions. Accordingly, with respect to Akerman-Apache, the maximum penalty I am able to impose is $550,000. With respect to the personal defendants, the maximum penalty is $55,000. 22 Some background as to the genesis of the corporate defendant is necessary at this point. Evidence as to that is contained in the affidavits of the two personal defendants in these proceedings in their capacity as directors of Akerman-Apache. For the reasons already explained, there is no evidence from Mr Akerman, a co-defendant who, as the third director of Akerman-Apache, is being dealt with in separate proceedings on an ex parte basis in relation to his offence. 23 The background leading to the incorporation of Akerman-Apache is contained in the affidavits of Mr Walker and Mr Herbert and is in essentially similar terms. It was not disputed by the prosecution. 24 The two personal defendants in these proceedings are directors of Apache Earthworks Pty Limited (Apache). That company was set up in 2002 as a construction and cable laying company that sub-contracts to major head contractors. In early 2003, Apache was engaged as a sub-contractor for John Holland Pty Limited to undertake trenching, shaft sinking, pipe laying and construction work on a project in Melbourne. While overseeing that project, Mr Herbert was approached in relation to what ultimately became the corporate defendant in these proceedings. As he described: [7] Sometime in early 2003, and most likely in or about April or May 2003, I was called to a meeting at the offices of the John Holland Group in Melbourne. Peter Kessler (Kessler), General Manager of John Holland Tunnelling and Underground Mining, Chris Moore (Moore) and Evan Stantanpolous, all employees of the John Holland Group, were present at this meeting. Steve Akerman (Akerman) was also present at this meeting, who was introduced to me as a contractor based in the United States of America (USA), specialising in horizontal directional drilling (HDD), and president of Akerman Construction, Inc. (Akerman Construction). [8] I recall the effect of what Kessler said to me at the meeting as follows: (a) Akerman is interested in tendering for a project with Sydney Water in Wollongong to do HDD. (b) John Holland is part of the alliance known as the Priority Sewerage Program Alliance (PSPAT) which has been engaged by Sydney Water to undertake the project so we can't be involved with Akerman. (c) We really want Akerman's expertise in HDD for the project. (d) An Australian entity is needed to tender for the contract and as such, Akerman needs an Australian company to partner him; and (e) We will support Akerman through out the project. [9] Following this, Kessler said to me words to the following effect: Would you do it? Would you partner Steve? [10] There was no discussion about what was meant by "partnering" with Akerman or how it would operate in practice. [11] I then said to Akerman in words to the following effect: I only have general construction experience in trenching and surface work and I don't have any experience in drilling, particularly horizontal drilling, and I cannot do a thing because I do not know anything about it. Plus, the Melbourne Project is so high risk in terms of safety that I can't afford to spend time away from it. [12] Akerman said words to the effect of: I will handle the first pilot project, will fund it and do everything. You won't have to worry about it. In time I will teach you the business. If I don't make any money and the pilot project doesn't go well, I won't commit to working in Australia though. We may not work well together either. We need to test the water on these things and see how these things go. I'm also tendering for other jobs, so whether I commit to working with you guys in Australia also depends on how these other tenders go. 25 Subsequent discussions between Mr Walker and Mr Herbert as directors of Apache resulted in a decision to enter into the proposed joint venture with Mr Akerman and Akerman Construction Inc. As Mr Herbert further elaborated, he: ... thought it may be a good opportunity for Apache in the long-term, particularly if this pilot project was successful and Akerman wished to continue in Australia, and it would in any event provide me with an opportunity to gain some experience and expertise in HDD. In addition, notwithstanding my commitment to the Melbourne Project, it was feasible given the fact that Akerman would provide the required finance, skills, expertise, supervisory role, equipment, resources etc. for this pilot project. 26 Mr Herbert asserted that in his discussions with Mr Kessler, it was his understanding, if the joint venture proposal went ahead in relation to the PSPAT project, he would have no direct involvement in it as he would be tied up in the Melbourne project as sub-contractor for John Holland. That project, as he stated, was 'so high risk in terms of safety that I can't afford to spend time away from it'. 27 Notwithstanding Mr Herbert's concern for safety on the Melbourne project, he acknowledged in cross examination that he made no inquiries as to safety standards in relation to the proposed joint venture project. I will return to that issue later in this judgment. 28 As a result of the above, the joint venture company Akerman-Apache (Joint Venture) Pty Limited was incorporated on or about 7 August 2003. Mr Steve Akerman was to be an executive director and Mr Herbert and Mr Walker were non-executive directors of the company. According to Mr Herbert: At this time, it was my understanding and intention that Lindsay and I would be non-executive directors of Akerman-Apache and would play no role in respect of the project for which Akerman was tendering. This was because Akerman was responsible for financing the project and supplying all the equipment, knowledge and labour for undertaking the works. It was also because the company was not intending to be involved in any other project at the same time. 29 Notwithstanding Mr Herbert's view that he 'would play no role' in relation to the joint venture project, he was involved in a number of respects. He assisted Mr Akerman to locate and secure the truck that was being used at the time of the accident on 3 November 2003. That truck was obtained from Mr John Carey of Carey Contracting Services Pty Limited. According to Mr Herbert, having arranged the introduction, he had no further involvement in the supply of the truck. 30 The next issue in which Mr Herbert assisted the joint venture was in relation to local labour hire. According to Mr Herbert, he requested a representative of the labour hire company Direct Skills Pty Limited to assist Mr Akerman with local drivers authorised to drive trucks in Australia as the United States employees with Mr Akerman were not authorised to do so. Again, having done that, Mr Herbert says he had no further involvement in the provision of labour for the joint venture project. 31 According to Mr Herbert, he visited the worksite on two occasions for a very limited time only. By his account, apart from a cursory view of the project site and the mud plant, Mr Herbert took no active participation or great interest in the project. 32 On one of his two visits to the project worksite, Mr Herbert viewed the mud plant. As he stated: [57] On one of my 2 visits, Akerman showed to me the mud plant. At the time it was located in Sydney Water's yard, which was fenced around with environmental fencing. This is a plastic woven cloth that is dug into the ground and supported by metal stakes. It is a semi permanent fence and would not be taken down and put back up. It confirmed to me that the mud plant was not a moveable piece of equipment.. At this time Akerman said words to the following effect: "The mud plant has to be located in this position for the duration of the project". [58] At no time was I informed by Akerman or anyone else, or was I aware, of any intention to move the mud plant at all. I was also not informed about, aware of, or shown on any of my visits to the site any alterations to the truck to allow it to tow the mud plant. 33 Like Mr Herbert, Mr Walker's involvement in the joint venture was peripheral as far as work on the PSPAT project was concerned. Mr Walker was involved in assisting Mr Akerman with matters such as the initial incorporation of the joint venture company, opening the company bank accounts as well as overseeing the payment of expenses on behalf of the company. On Mr Akerman's behalf but, as I understand it, following the incorporation of the joint venture, Mr Walker signed the sub-contract with PSPAT. Exactly when this happened is not clear. As Mr Walker stated: [25] The formal sub-contract with PSPAT is dated 31 July 2003. However, at a later date (which I now no longer recall) Akerman rang me from the USA and said to me words to the effect: I have to sign the acceptance of the sub-contract and Sydney Water have asked if you'll sign it on my behalf because neither of us want to wait until I am back in Australia before it gets signed. It's important to me that this is done as quickly as possible, because the completion date for the contract is tight as they have recorded the start date back on 31 July 2003. [26] I agreed to do this and I travelled to Sydney Water's offices at Helensburgh and signed the contract on Akerman's behalf as "per L Walker". 34 All three directors of the joint venture were signatories to the bank account opened and operated on behalf of the joint venture. 35 With the exception of the labour hire workers from Direct Skills, Mr Jasper and Mr Haigh, the other workers on site were American residents employed by Akerman Construction Inc. 36 According to both Mr Herbert and Mr Walker, they understood Mr Steve Akerman was generally on site managing the project on a day to day basis. While the impression certainly is to that effect, it is clear there were occasions when Mr Akerman was not there. At the time of the accident involving Mr Boyer, Mr Akerman was in the United States with Mr Burch acting as site foreman. 37 Both Mr Herbert and Mr Walker were at pains to emphasise their roles as non-executive directors of the corporate defendant and that they played very much an arms length role in the day to day operations of the corporate defendant in the PSPAT project. It is clear they were content to leave all operational matters, including safety, to Mr Akerman. In part, this would appear to be because of discussions between Mr Herbert and Mr Kessler of John Holland Pty Limited in or about April 2003 when Mr Kessler first raised the possibility of Apache Earthworks and Akerman Constructions Inc coming together in a joint venture for the PSPAT project. As one of the corporate team of companies involved in the overall PSPAT sewerage project in the Illawarra, John Holland Pty Limited seemingly had an interest in bringing the two companies together. 38 According to Mr Herbert, in encouraging Apache Earthworks to join with Mr Akerman's company in the joint venture, Mr Kessler stated that John Holland would have an engineer embedded in the overall project operations that would be able to assist Mr Akerman, as the project manager for the corporate defendant, with advice and guidance on operational matters, including safety. As Mr Herbert deposed: [36] For the period from when the works commenced to the date of the accident, I had dealings with Kessler and Moore, from time to time. When speaking with them they informed me that they were really happy with Akerman. In addition, I received general information that Akerman was doing well in Sydney as far as the general conditions of the contract were concerned. I received this information from Moore and Kessler after they spoke to David Grist, the engineer employed by John Holland on the site. David Grist was employed and placed in the position of HDD engineer for the PSPAT. He was specifically placed there by John Holland to assist Akerman on this project. 39 No issue was taken with Mr Herbert's evidence as to the above matters. 40 Like Mr Herbert, if anything, even more so in operational terms, Mr Walker took no interest in workplace issues involving the project, including safety. On that issue, personally, he said, he did nothing. He did visit the project worksite once, as he deposed: [39] I recall in late September or possibly early October, 2003 when I had driven Akerman to a site where the drilling rig was operating, I stopped to look at the drilling operation, as I was interested in how it worked. I recall Akerman or one of his men (I cannot now recall) saying to me words to the following effect: "Lindsay. Don't get any closer there. You have not been inducted onto the site and you don't have a helmet, or other safety gear. I'm sorry, but that is as close as you go". 41 According to Mr Walker, he took comfort in John Holland's involvement in the project as being indicative of ensuring safe workplace standards would be observed. 42 Both men, in somewhat different terms and for somewhat different reasons, acknowledged they took no active involvement in ensuring workplace safety in the work being undertaken by the corporate defendant. It would be fair to say, between them, they relied on a combination of assurances from John Holland, Mr Akerman's role as project manager and the belief that the corporate defendant would not be awarded the project without meeting it's obligations in relation to workplace safety contained within the provisions of the sub-contract. 43 Those explanations only go so far. As directors of the corporate defendant, Mr Herbert and Mr Walker took upon themselves the non-delegable responsibility that the Act requires. It is no answer to such an obligation to simply point, for whatever reason, to an arms length director's role. I believe, in many respects, Mr Herbert and Mr Walker have acknowledged that by the entry of their respective pleas of guilty. 44 Further, I do not believe that their actions in distancing themselves from the corporate defendant's operations and attendant safety obligations was indicative of a careless disregard for workplace safety. It was primarily, I believe, more in the nature of a serious misjudgement on their part as to the legal obligations that arise for directors of a company where workplace safety is a paramount consideration. 45 On the part of the corporate defendant, I accept that there is no evidence it operated with an overall cavalier approach to workplace safety. The comments of Mr Barker, the Project Manager for the PSPAT project, in para [33] of the agreed facts attest to that. 46 As the agreed facts identify, the business of the corporate defendant in the PSPAT project was the provision of directional drilling and civil construction services. 47 As is evident, two items of plant became essential to enable the contracted services to be provided. That is, a transportable mud plant and a water truck. The transportability of the mud plant was achieved by it being permanently secured onto the trailer such that the trailer with the mud plant essentially became an integrated item of plant and equipment. Together, the trailer with the mud plant weighed 9561.82kgs. For the purposes of these proceedings, reference to the mud plant embraces the trailer and vice versa. 48 Viewed objectively, I accept that it was not readily foreseeable that the truck would be adapted and used in the manner it was and then tow the trailer in the manner and circumstances in which it did. Indeed, by themselves, the truck and the trailer would appear to have been two items of plant that were inherently safe if properly used. However, as the agreed facts detail, when coupled together in the way they were and in the manner and circumstances in which they were being utilized on 3 November 2003, the combined plant and equipment was rendered inherently unsafe and a clear and foreseeable risk to safety. The circumstances leading to the death of Mr Boyer was, on any view, clear evidence of that. 49 There seems little doubt, on the evidence before me, that it was never contemplated the mud plant be moved from it's initial location at the project base. What facts and circumstances led to the decision to move it and to do so in the way that was done is not known. As the agreed facts disclose: [35] Barker and Steve Akerman agreed that the directional drilling equipment should not be driven on the road but rather transported by low loader and this was included in safe work method statements. Barker and Steve Akerman also drew up an environmental management plan that was prepared for the project site which showed that the mud plant would be set up on site. 50 For the workmen to do as they did on 3 November clearly flies in the face of the above agreement and safe work method statements. If anything, it highlights a serious failure in the system of work in place in that a fundamental issue going to safe work methods was able to be effectively ignored. 51 Reference to the agreed facts, in particular paras [18] to [27] inclusive, detail only too vividly the steps taken by the workmen identified to do as they did. That is, hitch the mud plant weighing 9561.82kg to the truck in an improvised fashion, fail to establish any brake connections between the truck and the trailer and then proceed to have the truck tow the mud plant down a relatively steep incline on a public road. As Inspector White responded when asked: Q47: In your opinion was it dangerous for the truck to be pulling the trailer without brakes down Otford Road? A47: Other than travelling at a snails pace it would have been dangerous to tow the trailer on any road without any brakes on the trailer. 52 Senior Constable Wreford ultimately expressed his opinion on the unsafe braking system in operation at the time of the accident as follows: [5] I would like to expand on information provided ... In my (earlier) statement I said "However, due to the tare weight of the trailer being less than the tare weight of the truck, the truck is capable to tow the trailer without brakes." This should read, "However, due to the tare weight of the trailer being less than the tare weight of the truck, the truck is capable of towing the trailer, so long as the trailer has adequate size brakes". [6] ... In my (earlier) statement I said, "Due to the amount of damage to the truck and trailer wiring I was unable to determine if the trailer brakes were operational via the truck and in my opinion the trailer brakes were inadequate in size for the weight of the trailer". The trailer brakes were an electrical type with emergency override operating drum brake on all axles. Electric trailer brakes operate as follows. The towing vehicle is fitted with a signalling device to activate the brakes on the trailer via electrical wiring. This device is usually in the cabin of the truck or plumbed in the brake pressure system. I was unable to find any device or additional wiring to activate the trailer brakes from the truck. The emergency override is a separate battery fitted to the trailer to activate the trailer brakes if the trailer becomes separated from the hauling unit. The brakes on the trailer were of a drum and shoe type fitted to all wheels. I observed the size of the brake drums and shoes to be quite small for the weight of the trailer 9561.82 kilograms gross vehicle mass (GVM). I compared the size of the brake drums and shoes to that of a small truck with a gross vehicle mass of 3000 kilograms. These brakes, in my opinion, are far too undersize for the trailer and would put extra pressure on the hauling units (the truck) braking system. 53 Given all of the above, the risk to safety that arose when Mr Boyer drove the truck towing the mud plant down the steep incline of Otford Road without a proper braking system was self evident and the prospect of serious consequences foreseeable. 54 The Full Bench in Capral said at 650 that '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'. In isolation, the potential for 'serious consequences' is not conclusive of the nature and quality of the offence, but it is clear that such a factor may be considered when assessing the ultimate culpability of a defendant. 55 Further, as was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. ( Lawrenson Diecasting at 476). 56 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. 57 As earlier stated, there is no evidence to support or explain why it was necessary to move the mud plant at all. However, if it was an imperative to move the mud plant down Otford Road, there is little doubt, if proper consideration of the braking issues relative to the weight of the truck and the trailer had been properly considered, as they should have been, and the methodology incorporated in the safe work method statements referred to in para [35] of the agreed facts observed, the events leading to the death of Mr Boyer would simply not have transpired. 58 In all the circumstances, I consider the offence a serious one and I will approach the determination of penalty on that basis. 59 In determining penalty in relation to each of the defendants as co-offenders, the principle of parity is relevant. The principle demands consistency in sentencing outcomes as between co-offenders determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability: see Lowe v R (1984) 154 CLR 606 and Postiglione v R (1997) 189 CLR 295. However, 'if there are relevant differences, due allowance should be made for them': Postiglione v R at 301. 60 It is necessary at this point to consider parity in relation to the relative culpability as between the two personal defendants and as between the two personal defendants and Mr Akerman. 61 It is apparent Mr Herbert and Mr Walker, as non-executive directors of the corporate defendant, took something of a back seat role in the day to day operations of the work being performed by the company under the PSPAT contract. Accepting the evidence of Mr Herbert and Mr Walker on this point, Mr Steve Akerman was the driving force and project manager responsible for getting the work done safely, on budget and on time. He was a visible and hands on presence at the workplace notwithstanding he was not there when the accident with the truck and the mud plant occurred. Whether Mr Akerman would have sanctioned what was done and the manner in which it was done is simply not known. The evidence that there is suggests that Mr Akerman was very aware of workplace safety and, as a general assessment, ensured the observance of safe workplace standards in the work being undertaken. 62 On this point, the view of Mr Barker, project manager for the PSPAT project as referred to in the agreed facts, warrants repeating as follows: [33] Steven Barker (Barker), Projects Manager employed by Sydney Water and PSPAT, was responsible for the overall project. In an interview with WorkCover following the accident he said that he observed that there were very few problems with the first defendant's safety performance. Its quality systems were working and it worked very well within the environmental management plan. [34] It was Barker's responsibility to ensure the plant that sub-contractors used on the project was safe to use up to and on 3 November 2003. [35] Barker and Steve Akerman agreed that the directional drilling equipment should not be driven on the road but rather transported by low loader and this was included in safe work method statements. Barker and Steve Akerman also drew up an environmental management plan that was prepared for the project site which showed that the mud plant would be set up on site. [36] Barker and Steve Akerman agreed that the mud plant would remain at the Helensburgh Depot because of the danger of floods. 63 I accept that, relative to Mr Akerman, the culpability of Mr Walker and Mr Herbert is less. They were obviously content to allow Mr Akerman to do all the running on the project, acknowledging that the quid pro quo for them was, as directors of Apache Earthworks, they stood to gain if the joint venture project, under Mr Akerman's direction, was a success. Having said that, Mr Herbert and Mr Walker cannot avoid their responsibilities and ultimate culpability, which their plea of guilty acknowledges, simply because of their more arms length role vis-a-vis Mr Akerman. 64 I discern no distinction in the relative culpability as between Mr Herbert and Mr Walker. 65 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 66 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 67 I consider general deterrence to be relevant to all three defendants. Specific deterrence brings with it somewhat different considerations. The joint venture company is no longer operating. According to both Mr Walker and Mr Herbert, Mr Akerman advised, in or about mid 2005, that he no longer wished to operate in Australia. The fact that Mr Akerman has made no appearance in his own proceedings and is currently residing in America would support that assertion. Counsel for the prosecutor contended that specific deterrence was a relevant consideration in relation to the corporate defendant in that, while currently dormant, it was still registered and could commence to operate again in the construction industry. 68 I accept I cannot be confident the corporate defendant will never operate again but I consider, in all the circumstances, it is most unlikely. In my view, specific deterrence is of minimal weight in my considerations in relation to Akerman Apache. 69 The situation in relation to Mr Herbert and Mr Walker is somewhat different. Both remain as directors of Apache Earthworks and Apache Assets Pty Limited (Apache Assets). Both companies, as became apparent in the course of these proceedings, continue to be engaged in diverse projects in the construction industry - an industry that is replete with risks to safety. Admittedly, those companies are not a defendant in these proceedings. Nevertheless, both Mr Walker and Mr Herbert in particular continue to have a hands on role in the business activities of their companies in construction industry projects. By all accounts, Apache Earthworks in particular has a sound and proactive approach to workplace safety largely through the observance of safe workplace standards overseen by Mr Herbert who remains actively involved in the projects undertaken by Apache. I consider specific deterrence to be a relevant factor in relation to Mr Walker and Mr Herbert tempered by the above considerations. 70 As well, I have noted the steps taken by Mr Herbert immediately following the accident involving Mr Boyer to put processes in place designed to ensure the corporate defendant addressed the safety concerns that the accident on 3 November 2003 highlighted. As he deposed: [71] When I returned to Sydney after the funeral, I gathered all the safety documents which had been stored in the back of the container at the site. These documents included the following: (a) Attached and marked with the letters JDH1 are copies of job safety analysis sheets which were completed by Akerman and his men prior to the incident; and (b) Attached and marked JDH2 are copies of equipment check lists. These were completed by Paul Jasper and Boyer. [72] Following my return to Sydney I implemented the following: (a) In or around December 2003, I arranged for new hazard risk assessment forms to be completed. These had already been submitted by Akerman but Sydney Water wanted them to be reviewed and changed. I do not have copies of the hazard risk assessments because they were provided to Sydney Water. (b) In or around late November I hired an engineer to assist me in implementing and redesigning the safety system. Attached and marked with the letters JDH3 are copies of the original Safety Management Plan, together with the revised plan. 71 It was contended that the corporate defendant's asset base and ongoing financial viability is nominal and demonstrates an incapacity to pay any significant penalty. On that issue, s 6 of the Fines Act 1996 provides as follows: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and

(b) such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. 72 Mr Angyalosy's affidavit with annexures outline the financial and tax position of the corporate defendant for the years ended 30 June 2004 and 2005 respectively. According to Mr Angyalosy, while registered, 'the company has been dormant since early 2005 other than small amounts of revenue and expenses incurred from past contracts'. 73 For the year ended 30 June 2004, the company recorded a net profit before tax of $294,932.85 whereas for the following tax year of 2005 it recorded a loss of $347,968.94 and in the tax year of 2006, the before tax profit recorded is $8795.13. As Mr Angyalosy stated: [7] From July 2004, Akerman-Apache started to incur significant losses. The reasons for the losses were in my opinion: the completion of a number of profitable contracts in the 2004 tax year; a number of unprofitable contracts in the 2005 tax year; the reduction in the sales turnover of the company in 2005 of 57.8%; and the nature of the industry the company is involved in where contracts tend not to be recurring and profits are based on successful tenders.

[9] As of June 2004, Akerman-Apache had property, plant and equipment totalling $62,265.09. On or about 4 April 2005, the property, plant and equipment were transferred to Apache Earthworks Pty Ltd in partial satisfaction of a debt.

[10] As at June 2005, there were receivables recorded of $94,154.96. These amounts were applied to the company's tax liability. 74 In giving his evidence, it became apparent there was a third company relevant to Mr Walker, Mr Herbert and Mr Akerman and their activities in the construction industry. That company is Akerman-Apache Assets Pty Limited, now known as Apache Assets Pty Limited, signifying that Mr Akerman is no longer involved. 75 As I understand it, Apache Assets was the company that owned substantial amounts of equipment such as directional drilling, trenching machines and the like. In the 2004 tax year, Akerman-Apache paid Apache Assets $485,899.04 in lease payments. In the 2005 tax year, that was reduced to $192,471.08 and in the figures prepared for the 2006 tax year, no lease payments are recorded. 76 The gross receipts for the company for the 2004, 2005 and 2006 tax years respectively are disclosed as follows: (i) 2004 year: $4,830,625.95 (ii) 2005 tax year: $2,039,384.84 (iii) 2006 year: $19,454.55 77 Overall, I am satisfied the current financial position of the corporate defendant is that of a company, as expressed by Mr Angyalosy, of now lying dormant. It's asset base and financial viability reflects that and is a factor relevant to my considerations on penalty. Ultimately, the approach I would adopt is as stated in WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 where the Full Bench cited, with approval, the decision of Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed: ... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence. 78 In the determination of penalty, the defendant is entitled to have taken into account the plea of guilty entered. In assessing the impact of the plea, the Court is guided by the decision of R v Thompson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. 79 There has been some erosion of the utilitarian value of the plea of guilty. It was not entered at the first available opportunity when the matters were first listed. Only some considerable time later, when the amended applications had been filed, was that done. I accept the amended application as now particularised resolved what would have been a major stumbling block to the defendants entering a guilty plea before then. As well, the pleas of guilty entered by all three defendants has seen a significant saving in court time and resources. In all the circumstances, I assess a discount on penalty in each defendant's favour of twenty per cent. 80 The prosecutor has acknowledged the defendants cooperated fully with the prosecuting authorities and I am satisfied they are truly contrite as to the circumstances of the accident resulting in Mr Boyer's death. I accept such factors warrant further consideration in the defendants' favour in my ultimate penalty determination. 81 The personal testimonials tendered on behalf of Mr Walker attest as to his overall good character and professional integrity. Neither are in issue and I accept the sentiments expressed unreservedly. Equally, no issue is taken as to Mr Herbert's personal and professional character. 82 Taking into account all the matters referred to, I determine penalty in these matters as follows: (i) In relation to Akerman-Apache, I impose a penalty of $105,000. (ii) In relation to Mr John Walker, I impose a penalty of $10,250. (iii) In relation to Mr Jonathan Herbert, I impose a penalty of $10,250. 83 On the question of costs 'in and by a conviction or order', I note that s 253 of the Criminal Procedure Act 1986 has now been repealed as of 13 July 2006. On the question of costs to be awarded to the prosecutor, s 257B of the Criminal Procedure Act inserted by s 3 of the Courts Legislation Amendment Act 2006 and operative from 13 July 2006 provides: 257B When costs may be awarded to prosecutor

A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G, if: (a) the court convicts the accused person of an offence, or (b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence. 84 Further, s 257G of the Criminal Procedure Act now provides: 257G Calculation of costs The professional or other costs payable by a prosecutor or accused person in accordance with an order directing that the amount of costs is to be determined under this section are to be determined: (a) by agreement between the prosecutor and accused person, or (b) if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004 (with or without modifications prescribed by the regulations). 85 However, the relevant Savings, transitional and other provisions applying to the above amendments provide: 49 Definition In this Part: amending Act means the Courts Legislation Amendment Act 2006. 50 Amendments

(1) An amendment made to this Act by the amending Act does not extend to proceedings instituted before the commencement of that amendment. (2) Such proceedings may be dealt with as if the amendment had not commenced. 86 Accordingly, the provisions of s 253 of the Criminal Appeal Act 1912 continue to apply to the orders I can make in these proceedings relevant to costs 'in and by a conviction or order': see my decision in McMartin v Newcastle Wallsend Coal Company and ors (2005) NSWIRComm 31 at [306] and [387]. 87 I make the following orders:

(1) Matter No IRC 5607 of 2005: WorkCover Authority of New South Wales (Inspector Belley) v Akerman-Apache (Joint Venture) Pty Limited: (i) The defendant is guilty of the offence charged. (ii) I impose a penalty in this matter of $105,000. (iii) I allocate a moiety to the prosecutor on the usual terms. (2) Matter No IRC 5605 of 2005: WorkCover Authority of New South Wales (Inspector Belley) v Jonathan Dwyer Herbert: (i) The defendant is guilty of the offence charged. (ii) I impose a penalty in this matter of $10,250. (iii) I allocate a moiety to the prosecutor on the usual terms. (3) Matter No IRC 5608 of 2005: WorkCover Authority of New South Wales (Inspector Belley) v John Lindsay Walker: (i) The defendant is guilty of the offence charged. (ii) I impose a penalty in this matter of $10,250. (iii) I allocate a moiety to the prosecutor on the usual terms. (4) Between them, the defendants are to pay the costs of the prosecutor as agreed. Failing agreement, costs may be assessed by the Registrar.

AMENDMENTS HISTORY: 28/11/2006 - Reference to provision previously provided was incorrect - Paragraph(s) 85 29/11/2006 - amended sentence - Paragraph(s) 85 29/11/2006 - para alignment - Paragraph(s) 85

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