WorkCover Authority of New South Wales (Inspector Dubois) v Australand Holdings Limited

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 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 Markarian v The Queen [2005] HCA 25: 18 May 2005 CASES CITED: Postiglione v R (1997) 189 CLR 295 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover Authority of NSW (Inspector Dubois) v James Nicholas Denson, JB Metal Roofing Pty Ltd and Garry James Denson [2007] NSWIRComm 119

PROSECUTION: Mr P Skinner of counsel SOLICITORS: Criminal Law Practice Legal Group LEGAL REPRESENTATIVES: DEFENDANT: Mr H Dixon SC SOLICITORS: Minter Ellison

Matter No IRC 5294 of 2005 WorkCover Authority of New South Wales (Inspector Dubois) v Australand Holdings Limited Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

1 The defendant in this matter, Australand Holdings Limited (Australand), has pleaded guilty to an offence arising under the Occupational Health and Safety Act 2000. 2 The offence to which the defendant has pleaded guilty has it's genesis in a contract the defendant entered into with Garry Denson Metal Roofing Pty Limited (GDMR) and JB Metal Roofing Pty Limited (JBMR) to undertake metal roofing and wall cladding work on numerous warehouses under construction at a site located at Eastern Creek. 3 The contract with GDMR and JBMR required Mr Garry Denson, a director of GDMR, to oversee the metal roofing work utilising employees of JBMR. Mr James Denson is the sole director of JBMR.

4 One of JBMR's employees was Mr Joel Exner. On 15 October 2003, Mr Exner was working on the roof of a warehouse located on the construction site known as Costas. Mr Exner lost his balance and fell 11.25 metres through the safety mesh installed on the roof frame. Mr Exner subsequently died as a result of his injuries.

5 As a consequence of the incident involving Mr Exner, the defendant was charged with an offence arising under s 8(2) of the Occupational Health and Safety Act 2000. 6 In relation to that offence, it is said that Australand: FAILED to ensure that persons not in its employment, and in particular, Joel Exner, Christopher Carter, Matthew Martin, Andrew Jones and Adam Fejgl, were not exposed to risks to their health and safety arising from the conduct of its undertaking while at its place of work contrary to section 8(2) of the Act. 7 The particulars of the charge are: [1] At all material times the defendant was an employer. [2] At all material times the defendant contracted JB Metal Roofing Pty Ltd and Garry Denson Metal Roofing Pty Ltd to perform metal roofing and wall cladding work on a warehouse building known as 'Costas' at the site. [3] At all material times Garry Denson Metal Roofing Pty Ltd contracted with Andrew Jones to perform roofing work at the site. [4] At all material times JB Metal Roofing Pty Ltd directed its employees, Joel Exner, Christopher Carter, Matthew Martin and Adam Fejgl to perform roofing work at the site. [5] The defendant failed to ensure that a safe system of work was adopted with respect to the installation of metal roofing at the site in that: (i) the defendant failed to ensure that the safety mesh installed on the roof of the Costas building was adequately secured; (ii) the defendant failed to ensure that the safety mesh on the roof of the Costas building was adequately overlapped. 8 The prosecution has tendered an agreed statement of facts in the following terms: [1] At all material times Australand Holdings Limited (ACN 008 443 696), (the defendant), was a company duly incorporated in New South Wales with its registered office situated at Level 3, 1C Homebush Bay Drive, Rhodes, New South Wales. [2] At all material times, the defendant was an employer. [3] At all material times the defendant was undertaking the construction of a warehouse building known as 'Costas' at EC1 Business Park, Wallgrove Road, Eastern Creek, New South Wales (site). [4] On 1 August 2003 the defendant entered into a contract with Garry Denson Metal Roofing Pty Ltd (GDMR) and JB Metal Roofing Pty Ltd (JBMR) to perform metal deck roofing and wall cladding work on the Costas building at the site. [5] At all material times James Denson was the sole director of JBMR and Garry Denson was a director of GDMR. [6] On 1 March 2004 a liquidator was appointed to GDMR. [7] At all material times Garry Denson acted as a general supervisor for the metal roofing work performed by employees of JBMR on the Costas building. James Denson did not supervise the workers at the site. [8] At all material times the metal roofing work at the site was performed by the following persons: (a) Joel Exner, 16 years of age, employed by JBMR as a roof labourer; (b) Andrew Jones, 28 years of age, a subcontractor to GDMR; (c) Adam Fejgl, 27 years of age, employed by JBMR as a roof labourer; (d) Matthew Martin, 24 years of age, employed by JBMR as a labourer; and (e) Christopher Carter, 26 years of age, employed by JBMR as a labourer, (workers). [9] At all material times the defendant employed, amongst others, the following persons to perform work at the site: (a) Robert Whittaker, 40 years of age, employed as a site foreman; (b) Ben Ireland, 35 years of age, employed as a safety coordinator. Safety mesh [10] Prior to laying of the metal roofing sheets and insulation, safety mesh was installed on the roof of the Costas building. [11] The safety mesh is intended to provide fall protection to workers on the roof and to support insulation that is laid on the mesh. [12] The mesh was two millimetres thick, 50 metres in length and 1800 millimetres in width. The mesh consisted of rectangular sections which were 150 millimetres by 300 millimetres in dimension. At each end of the safety mesh roll there were 13 longitudinal wire ties of approximately 250mm in length. [13] Each roll of the safety mesh contained a sheet of instructions in relation to the methods of installation. The instructions generally accord with the Australian/New Zealand Standard AS/NZS 4389:1996 for safety mesh (Australian Standard). The safety mesh instructions were simple to follow. [14] The Code of Practice, Safe Work on Roofs - Part 1 Commercial and Industrial Buildings ("Code") and the Australian Standard provide that the recommended methods of fixing the mesh to metal purlins on a roof is to pass the wire tie at the end of each longitudinal wire through a hole drilled in the top of the purlin and to tie it off with at least four full turns around the wire. The Australian Standard also provides that the longitudinal wires of the safety mesh may be passed once completely around the metal purlin, the tail of each wire being twisted four times around the main portion of the same wire. [15] If it is necessary to join two rolls of safety mesh at the end of a 50 metre run, the Code and the Australian Standard also provide for the method of fixing longitudinal end joins. [16] The Australian Standard and the Code also provide that the safety mesh must be side lapped with the adjacent roll of safety mesh. The Australian Standard and the Code vary in their requirements for side lapping. [17] The Australian Standard provides that the runs of mesh shall be side lapped by 150mm (one mesh spacing), and if the purlin spacing exceeds 1.7 metres, intermediate fixing between runs of mesh shall be provided. [18] In contrast, the Code provides in clause 3.2 that the runs of mesh should be side lapped by at least 150mm and if the spacing between the purlins exceeds 1.5 metres the runs of mesh should be side lapped by at least 300mm with intermediate fixing of 2 millimetre staples. Intermediate stapling of the mesh should be carried out from underneath the mesh. [19] Prior to work commencing, an initial job safety analysis for the work was created by Garry Denson and reviewed by Mr Ireland. Mr Ireland required amendments to the job safety analysis and provided GDMR with sample documentation to make the necessary amendments. The sample documentation referred to the activity of installing safety mesh and the hazards involved with the activity including the mesh not being appropriately fastened to the purlins, the mesh not being appropriately lapped or joined and the footwear of workers being inappropriate for roof work. [20] Garry Denson subsequently amended the job safety analysis and in relation to the installation of safety mesh the hazards identified included the mesh not being appropriately fastened and the possibility that persons might fall through the roof. The action required to eliminate this risk was for workers to wear a safety harness when installing the mesh. The job safety analysis contained no instructions in relation to the method for installing the safety mesh. [21] GDMR understood that if they did not amend and improve the job safety analysis, the defendant would not permit GDMR to commence work on the site. [22] The defendant brought the Australian Standard and the Code to the attention of GDMR in a site memorandum dated 13 August 2003 from Mr Ireland and Nick Dona, Site Foreman, to Garry Denson.

Installation of safety mesh at the site [23] Approximately 4 to 5 weeks prior to the incident at the site on 15 October 2003, the safety mesh was installed on the roof of the Costas building by Andrew Jones and other employees of JBMR including Ben Parker, Matthew Martin, Guy Strachan and Dale Strachan. The roof was approximately 30,000 square metres in size. [24] The mesh was laid over the metal roof purlins in an east/west configuration. The safety mesh was fixed at the gutter edge of the roof and one length of 50 metres was laid and fixed to a metal purlin. The next 50 metres of roll of mesh crossed the centre ridge line of the roof and a further roll of mesh was required to reach the other gutter edge of the roof. [25] The spacing between the metal purlins on the Costas building were measured by Senior Constable Agius following the incident on 15 October 2003 to be 1.63 metres. [26] The safety mesh was installed in accordance with the methods usually used by GDMR and JBMR as follows: (a) There was no side lapping on the Costas building between the adjacent rolls of safety mesh for the 300mm prescribed by the Code. The required side lapping would use 7.25 square metres of mesh per roll of safety mesh; and (b) At the end of each 50 metre roll of safety mesh on the Costas building, only five of the thirteen longitudinal wire ends were tied off through a hole drilled in the metal purlin . The next roll of safety mesh was then pulled over the top of the metal purlin and the ends were twisted around the 5 secured wires of the first roll of mesh. These ends were not tied off through the holes in the purlin. The method of end joining was not in accordance with the Code or the Standard. [27] There were no inspections carried out by any persons on behalf of the defendant to ensure the safety mesh was installed correctly prior to work on the roof commencing. The defendant relied on GDMR and JBMR, as specialist roofing contractors, to ensure that the safety mesh was correctly installed. [28] After the safety mesh had been installed, packs of metal roof sheeting were placed on top of the purlins by a mobile crane so that the roofing workers could lay the metal roofing. The packs contained 6 to 7 metal roofing sheets that were approximately 30 metres in length. The packs were wrapped in plastic and secured by a number of straps. The packs were positioned on the roof at intervals of approximately 5 metres. [29] The manufacturer of the mesh installed on the Costas building had previously arranged testing of the safety mesh. The testing was performed by Technisearch Limited in 1988 using a sand bag weighing 169.5kg dropped onto the mesh. The mesh withheld the weight of the sand bag in circumstances where the mesh was secured to purlins or joined together with longitudinal wire ends in accordance with the Code and Standard. Mr Exner [30] Mr Exner commenced working on the site on 13 October 2003. Mr Exner had previously worked for a roof tiler on residential housing. [31] Mr Ireland inducted Mr Exner to the site on 13 October 2003 for a period of approximately one hour and fifteen minutes. Mr Ireland ensured that Mr Exner read the Site Safety Plan and the job safety analysis prepared by GDMR. Mr Ireland also noted on the skills/competency assessment register that Mr Exner had 2 months' experience and held a 'Green Card'. Mr Ireland asked Mr Jones, the supervisor of the workers, to ensure that Mr Exner had all the necessary safety equipment and did not perform any dangerous work. [32] Mr Jones, Mr Martin and Mr Fejgl instructed Mr Exner not to do any work he did not feel comfortable doing and not to work near the edge of the roof. [33] Mr Ireland inducted the employees of JBMR to the site and took them through the job safety analysis issued by Garry Denson for the metal roofing work. [34] The employees of JBMR that were installing the mesh were not trained or instructed to install the mesh in accordance with the requirements of the Code. [35] A safety audit of the site was carried out once a month by the defendant's National Safety Manager, Rick Harper. The audit involved randomly selecting a sub contractor for review of their paperwork and activities on the site. Neither GDMR nor JBMR were audited as part of this process. [36] Mr Ireland carried out a daily safety inspection on the site and issued memorandums and safety improvement notifications to contractors who were not complying with the defendant's safety requirements. Mr Ireland issued three notices to GDMR prior to the incident on 15 October 2003. The notices related to workers not undergoing the site induction and failing to wear safety harnesses when working within 2 metres of the edge. [37] Garry Denson would attend the site once or twice a week to check on the workers and the progress of the work. The incident [38] On 15 October 2003 Mr Exner was working on the north-eastern section of the roof of the Costas building with Christopher Carter, Matthew Martin and Adam Fejgl under the supervision of Andrew Jones. The workers were laying metal sheets of roofing to be secured to the metal roof purlins to form part of the roof structure. In order to obtain further sheets of metal roofing, Mr Exner, Mr Carter, Mr Martin and Mr Fejgl walked along a metal roof purlin to access the closest pack of metal roof sheeting. The metal roof purlins were approximately 80mm wide. [39] Mr Fejgl and Mr Carter were cutting the straps around the pack of roof sheets and Mr Exner was on a metal purlin attempting to retrieve the plastic wrapping from the pack of roof sheets. Mr Exner was crouching down to grab the plastic wrapping and was attempting to turn around when he overbalanced and fell through the safety mesh. Mr Exner fell approximately 11.25 metres landing on the compacted earth floor.

[40] Mr Exner fell on the safety mesh at a point where two rolls had been joined and also at the side of the roll of safety mesh which had not been overlapped with the adjacent roll of mesh. The end of the roll of safety mesh had been joined by passing 5 of the 13 end wires over the metal purlin and twisting them around the ends of the other roll of safety mesh, which had been secured through holes drilled in the metal purlin. The mesh that Mr Exner fell through had not been secured through the holes drilled in the purlin and had not been secured in accordance with the Code of Practice or the Australian Standard. [41] Following the incident, Senior Constable Agius examined the three end wires which had pulled away from the other roll of safety mesh. Two of the wire ties were bent at approximately 90 degrees and the other wire tie was bent slightly and appeared to have been twisted. [42] At the time of the incident Mr Exner was not required to, and was not, wearing a safety harness as he was working where mesh had been installed and was not working close to the edge of the roof. The safety mesh was the fall protection available to him. [43] Mr Exner received extensive internal and head injuries as a result of the fall and was transported to Nepean Hospital. Mr Exner died as a result of the injuries sustained at approximately 12.10pm on 15 October 2003. [44] On 15 October 2003 Inspector DuBois attended the site and observed the following: (a) A factory warehouse steel column (approximately 10 metres apart) and steel beams (at spacings of 1.7 metres) type building under construction. The building area covered 13,206sqm. (b) The roof above a dirt floor was approximately 12 metres high. (c) Red and white plastic taping around an area approximately 15m x 5m in the north-western corner of the building. (d) Approximately one third of the roof sheeting had been installed. (e) Eight bundles of roof sheeting positioned on the roof at intervals of approximately 5 metre spacings. (f) Plastic wrapping scattered over the roof area. (g) Wire meshing covering the steel purlins on the roof. (h) Silver coloured insulation under the roof sheeting, 3 bundles of insulation in pink coloured plastic bags positioned in various areas on the roof. (i) A red and white coloured elevated work platform with Australian Skyreach painted on the telescopic boom, Snorkelift painted on the body of the machine. (j) An area of safety mesh (approximately 1.5m x 1m) approximately 3m from the completed roof sheeting, the wire area appears torn apart and hanging down towards the ground. (k) The safety mesh was positioned parallel with the other safety mesh. In some areas the meshing was approximately 150mm apart.

There is no evidence that any of the workers were working in close proximity to these areas. [45] Inspector DuBois then inspected the roof area where the mesh had failed and broken away from the steel purlin and observed the following: (a) The safety mesh lengths positioned parallel approximately 30mm apart. (b) The end wiring of the safety mesh where it joined together with the end of the previous length of wiring, one end was passed through a hole drilled through the purlin, the other end of the adjoining length was positioned over the purlin and wrapped around the wires. The wiring was wrapped around twice at the end of the meshing that was opened up. (c) Pieces of plastic sheeting. (d) Nail bags and extension leads approximately 4m from the safety mesh opening. (e) Bundles of insulation positioned in various areas on the completed roof sheeting. (f) Lengths of roof sheeting 300mm away from the opening in the safety mesh. Events following the incident

[46] The defendant terminated the contract with GDMR and JBMR and arranged for Axis Constructions Pty Ltd to rectify the roofing which had already been laid at the site and to complete the roofing at the site. [47] David Nicholson, a supervisor employed by Axis Construction Pty Ltd, attended the site approximately 2 weeks after the incident and found that the roof of the Costas building was approximately 40% complete. Mr Nicholson found that the safety mesh laid on the roof was unsatisfactory as the mesh had not been fixed properly to the purlins and there were sections where the mesh was not sidelapped the 300 millimetres required by the Code. Axis Construction Pty Ltd installed a new layer of safety mesh over the existing layer in accordance with the Australian Standard and the Code.

[48] A report was prepared by Anthony Martin, the Manager of the Physical Testing Branch of TestSafe Australia on 6 October 2005. Mr Martin had undertaken testing of the safety mesh and found that the test weight broke the mesh connections when there were five wire connections of the mesh at a metal purlin and no side lapping of the mesh. The tests were repeated when the mesh was installed in accordance with the Code and the Standard and the mesh held the test weight. [49] After the incident, WorkCover conducted many inspections of building sites around New South Wales. WorkCover found that the deficiencies in the laying of the safety mesh at the site were indicative of the deficiencies in the laying of the safety mesh at the other sites. WorkCover published a safety alert about the installation of safety mesh on its website to direct attention to the problem of incorrectly installed safety mesh. [50] At the coronial inquest of this matter, Inspector DuBois made a number of recommendations to the Coroner. The recommendations were accepted by the Coroner to the following effect: '1. I recommend that the roofing industry comply as a minimal standard to the requirements of the Safe Work on Roofs Part One, Commercial and Industrial Building Code of Practice and the Australian/NZS 4389 1996 Safety Mesh. Where any discrepancy exists between the New South Wales Code of Practice and the Australian Standard, it should be clearly stated that the New South Wales Code of Practice is to prevail in New South Wales.

2. I recommend that consideration be given to introducing a system of inspection and certification in regard to completed safety mesh installation prior to further work being permitted above the safety mesh.' [51] Following the incident, prior to the Coroner's recommendations, the defendant upgraded the work methods for installation of the mesh on the site, and at all building sites it operated, to include a system of inspection and sign off on the installation of the mesh. Other matters [52] The defendant has no prior convictions for a breach of the Occupational Health and Safety Act 2000 (NSW). [53] The defendant has fully co-operated with WorkCover in the investigation into the incident. 9 In addition to the agreed statement of facts, the prosecution tendered a bundle of documents including: (1) An incident report compiled by Inspector Dubois, dated 17 October 2003; (2) A copy of an Aus Mesh 300 Instruction Sheet. The Instruction Sheet was included in the packaging of the safety mesh installed by GDMR and JDMR; (3) A Testsafe Report prepared for WorkCover, dated 6 October 2005; (4) A copy of a letter from Vladimir Rhouliadeff & Associates addressed to Mr Greg Donaghey, dated 9 January 2004; (5) Copies of JSAs compiled by Mr Garry Denson, dated 24 July 2003 and 8 August 2003 as well as a fax from Mr Ben Ireland to Garry Denson Metal Roofing, dated 28 July 2003; (6) A copy of WorkCover Code of Practice: Safe work on roofs - Part 1 Commercial and industrial buildings; (7) A copy of Australian/New Zealand Standard AS/NZS 4389:1996: Safety Mesh; (8) Copy of Australian Safety and Compensation Council Statistical Report Notified Fatalities July 2005 to June 2006; (9) Copy of Australian Safety and Compensation Council Statistical Report Notified Fatalities July 2006 to December 2006.

10 Also tendered by the prosecution were a number of photographs which have assisted me in understanding the nature and layout of the premises where the accident occurred and how the safety mesh was installed.

11 On behalf of Australand, an affidavit of Mr John Thomas was tendered without objection. Mr Thomas has been employed by Australand since 2003 and is currently the company's Chief Operating Officer. In that position, Mr Thomas is responsible for Australand's property development operations throughout Australia, including dealing with matters related to Australand's occupational health and safety policies and procedures. In his affidavit, Mr Thomas described Australand's corporate history, the site at which the accident took place as well as the company's occupational health and safety system at the time of the accident. Mr Thomas also attested to on-going safety developments and actions taken by Australand following the accident. 12 Numerous exhibit note folders containing various occupational health and safety policies and work manuals, annexed to Mr Thomas' affidavit, were also tendered without objection.

13 Mr Thomas was required for cross examination. Other defendants 14 There were other personal and corporate defendants charged with offences arising out of this incident, specifically, JB Metal Roofing Pty Limited (JBMR), James Denson, Garry Denson Metal Roofing Pty Limited (GDMR) and Garry Denson At the time all defendants came before the Court in the first instance, GDMR was in liquidation and there was no appearance entered by the liquidator on it's behalf. Subsequent correspondence received from the liquidator dated 7 August 2006 advised the Court he would not be contesting the matter on behalf of GDMR. At that time, a plea of not guilty was formally entered in relation to the company. 15 On 15 June 2007, counsel for the prosecutor sought leave to withdraw proceedings with respect to GDMR. Leave was granted and, accordingly, the summons in Matter No IRC 5297 of 2005 with respect to GBMR was formally withdrawn. 16 Each of the remaining three defendants mentioned above pleaded guilty to an offence under the Act and have already been dealt with: See my decision in WorkCover Authority of NSW (Inspector Dubois) v James Nicholas Denson, JB Metal Roofing Pty Ltd and Garry James Denson [2007] NSWIRComm 119 given on 24 May last.

17 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. 18 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.' 19 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. 20 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. 21 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. 22 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. 23 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). 24 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. 25 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) 26 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... 27 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.

28 Australand has no prior convictions. As such, the maximum penalty that may be imposed is $550,000.

29 As the primary contractor, the defendant had overall control of the construction of the warehouses and how the work was to be conducted on site. It's responsibilities were two-fold. Firstly, it had a responsibility to ensure that a safe system of work was in place for any work carried out on site, and secondly, that those safe systems of work were observed. 30 The work being undertaken by employees of JBMR under the direction of Garry Denson for GDMR involved working from a considerable height laying the sheets of metal roofing. As is well known in the building and construction industry, working from heights poses real and foreseeable risks to safety that must be addressed to ensure such work can be undertaken safely. In laying the metal roofing sheets, it was imperative that before that process could be safely undertaken, safety mesh had to be properly installed and secured to the roof frames. Unless that was done, a real and foreseeable risk to safety existed for any worker undertaking the job of metal roofing.

31 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). 32 In the present matter, Australand's culpability stems from it's failure to ensure that the risks to safety identified in the Job Safety Analysis (JSA) in relation to the installation of the safety mesh prepared by Garry Denson for GDMR and ultimately approved by Australand, were addressed in a safe and acceptable manner. 33 Prior to a subcontractor commencing on the Eastern Creek site, the defendant's general practice was to require the subcontractor to complete a Sub-contractor Safety Pack. That Pack included a Safe Work Method Statement (SWMS) and a Job Safety Analysis (JSA) relevant to the work to be undertaken. The JSA was to specify how the work was to be done and the measures taken to eliminate the hazards associated with the work to be undertaken. 34 The Sub-contractor Safety Pack, including the completed JSA and SWMS, was then reviewed and approved by Australand's Site Safety Coordinator for the Eastern Creek site, Mr Ben Ireland. 35 The JSA initially provided to Australand by Mr Garry Denson for GDMR was inadequate in a number of respects, particularly the actions to be taken to address the identified risk of falling when working from a height, including the need to ensure that the safety mesh was appropriately fastened, side lapped and joined. 36 As part of his job to review and approve the JSA, Mr Ireland insisted the JSA submitted by Mr Denson be amended to address the attendant risks associated with installing safety mesh. The potential hazards that needed to be managed were identified by Mr Ireland as: · Mesh not appropriately fastened to purlins · Mesh not appropriately lapped and/or joined. · Sub-standard-mesh - not approved to AS1639 37 The JSA was subsequently amended by Mr Denson to reflect the changes requested by Mr Ireland. Tragically, the hazards identified by Mr Ireland as requiring inclusion in the JSA dealing with the installation of safety mesh were subsequently shown to be the cause of the accident resulting in Mr Exner's death. That is, the safety mesh was not appropriately fastened to the purlins or properly side lapped. 38 Prior to the date of Mr Exner's fall, JBMR's employees were observed on more than one occasion to be working in a manner contrary to the JSA. On behalf of Australand, Mr Ireland had issued three site safety improvement notices to Garry Denson for GDMR relating to observed breaches of workplace safety. As an example, in a memorandum dated 13 August 2003 from Mr Ireland to Mr Denson, it was noted: On the daily safety inspection today, your employees were found installing safety mesh without wearing safety harnesses or lanyards (one worker standing on top of the purlins rolling out the wire and tying it off). This practice is not only unacceptable to Australand's site safety rules, it also contravenes: · OHS Regulations (2001) · OHS Act (2000) · Code of Practice - Safe Work on Roofs (Commercial & Industrial Buildings) · Australian Standards AS 2550.10

39 Having ensured that Garry Denson had amended the JSA in order to address the risks associated with installing the safety mesh, I accept the defendant could not have readily foreseen the mesh would be installed in the unsafe manner it was. That is, with only five out of the thirteen longitudinal wire ends being tied off to the metal purlins and no side lapping. Not only was it contrary to the JSA but it was also contrary to the recommended system as set out in the WorkCover Code of Practice that provides for the following steps to be observed in the installation of safety mesh: (e) Side laps The runs of mesh should be side lapped by at least 150 mm (one opening width). If the purlin spacing exceeds 1.5 metres, the runs of mesh should be side lapped by at least 300 mm of intermediate fixing with 2 mm staples. (f) End joins If it is necessary to make longitudinal joins, the knot and tie should be the full length or the tail wire, which should be 300 mm in length. The first tail wire should be tied at least three times around the knot. The other tail wire is placed under the longitudinal wire and tied around the transverse wire... Any variation to the recommended method of tying should be avoided. 40 However, despite insisting on the relevant amendments to the JSA prior to Mr Exner's fall, Australand did not check to ensure the safety mesh had, as a matter of fact, been installed correctly. In that respect, the defendant relied on the expertise of Mr Garry Denson on behalf of GDMR to do that task. Nevertheless, the essence of Australand's failure is encapsulated by Mr Thomas in para [87] of his affidavit as follows: Australand acknowledges that despite all the systems it had in place at the time of the Incident, none of the Austaland persons on the Costas Site who had responsibility for the project, or for safety or for coordinating safety, carried out an inspection of the safety mesh to verify that it had been properly installed or caused that to occur. 41 On behalf of the defendant, Mr Ireland had the power and authority to suspend GDMR and JBMR employees from the worksite if he believed they were not observing the required safety standards on the job. Mr Thomas confirmed as much in his evidence as follows:

Q. What powers did site safety coordinators have, such as Mr Ireland, in 2003 in relation to enforcing safety standards on subcontractors? Could they throw them off the site if they did not think they were up to the standard? Could they personally throw them off the site? A. They were responsible for identifying hazards, reporting them, identifying them to management. If they were of a concern, then I would say he would have advised either the construction manager, and if he felt strongly he was not getting action in removing he would advise the national occupational safety manager and management would take action to make sure that happened, so the answer is yes. 42 I accept, on the evidence before me, Mr Ireland performed his job as Site Safety Coordinator for the defendant thoroughly and conscientiously. I would characterise his failure to actually check the safety mesh was properly installed as an oversight in what was an otherwise robust workplace safety system at the defendant's worksite.

43 Prior to Mr Exner's accident, site inspections were carried out regularly on site not only by Mr Ireland but also by the site foreman. The defendant also had in place monthly safety audits that were carried out by the National OHS manager which, as deposed to by Mr Thomas, involved: (a) reviewing the Australand Subcontractor Safety Pack Checklists for a site; (b) reviewing a random selection of JSAs to ensure that they complied with OHS legislation; (c) observing the performance of work by a random selection of subcontractors to ensure that they were performing work in compliance with their JSA. 44 Additionally, Australand had in place measures to ensure sub-contractor's workers met the stipulated requirements to undertake work on site, such as ensuring the workers had a Green Card (general construction industry training), that they had been taken through a site specific induction and a JSA induction. In order to confirm that the subcontractor had trained it's workers in the JSA, Australand required evidence that the worker had signed off on the JSA, which signified that the worker had been taken through the JSA and understood it. Alternatively, evidence had to be shown that the subcontractor's workers had attended a toolbox talk where the contents of the JSA had been explained by either the subcontractor's foreman or supervisor. 45 Again, prior to Mr Exner's accident, the defendant had satisfied itself that these measures had been taken with all of the staff of JBMR, including Mr Exner, by reference to the following items: · The GDMR Personnel Register, which recorded that all GDMR workers had a Green Card; · A copy of a facsimile sent to Australand from the Comet Training Trust stating that Mr Exner had attended a Green Card training course; · Mr Ireland had conducted a site specific induction for an hour and 15 minutes on 13 October 2007, which Mr Exner had attended; · A copy of the JSA toolbox talk induction register, which recorded that Mr Exner had been inducted into the revised GDMR JSA. 46 Mr Ireland, noting Mr Exner's age and relative inexperience on a construction site, had also requested that Mr Jones, a metal roofing subcontractor with GDMR working with the JBMR employees, ensure Mr Exner did not undertake any dangerous work. 47 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. 48 Following the accident, Australand terminated its contract with GDMR and JBMR. Alternative arrangements were made for another roofing company, Axis Construction Pty Ltd (Axis), to rectify the roofing work previously done by GDMR and JBMR employees. Axis installed new safety mesh in accordance with mesh installation instructions and the roofing code of practice. Australand also engaged consulting engineers to inspect the safety mesh on site.

49 As well, immediately after the accident, Australand arranged for a review of safety mesh installation at all of its sites. Any safety mesh identified as deficient was rectified in accordance with the Roofing Code of Practice. 50 As an additional safety measure, Australand now requires the most senior construction manager on site, in conjunction with the roofing sub-contractor's foreman or supervisor to inspect the safety mesh on sites where it is required to be installed. Australand personnel are now trained in the installation of safety mesh and are able to certify that the mesh is installed as required under the Roofing Code. They must sign off that the mesh is certified before any roofing work is undertaken. 51 Australand has also reviewed it's overall occupational health and safety policy system, which is now called 'Zero Tolerance'. The system includes a policy on the appointment and monitoring of contractors that requires the occupational health and safety management system and record of a potential contractor be formally reviewed as part of the criteria for awarding construction contracts. The standard subcontractor contract has also been revised to reflect the changes in Australand's new Zero Tolerance safety programme.

52 A policy dealing with young people and apprentices on site was enacted following the accident. The policy requires that supervisors of young persons and apprentices adequately supervise those employees and ensure they are properly trained in safe work practices.

53 Australand has required all staff to participate in further training for the Zero Tolerance program. Commendably, Mr Thomas stated that "over 95% of Australand staff have completed Zero Tolerance training since the Incident". Additionally, extra training for managing occupational health and safety on construction sites, safe work method statements and job safety analyses, incident investigation, and skills specific training such as working at heights has been offered to employees following the accident.

54 The defendant also amended it's compliance programme by creating an independent Occupational Health and Safety Compliance Unit which reports to the General Manager of Risk Management and Compliance. The Occupational Health and Safety Compliance Unit has revised audit checklists for site audits and increased reviews for high risk activities such as roofing. The company has also increased the number of occupational health and safety personnel it engages. 55 The steps taken by the defendant to review all aspects of it's occupational health and safety system and upgrade many of it's workplace safety practices following Mr Exner's death is commendable. In many respects, they were steps able to be implemented prior to Mr Exner's fatal fall. As is so often the case, Mr Exner's death highlights the critical importance of workplace safety and the need for employers to be constantly vigilant in ensuring safety standards are consistently reviewed and enforced. 56 In all the circumstances I assess the offence to be objectively serious and I propose to consider penalty on that basis. 57 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. 58 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.

59 The risk to safety of workers working at heights is an on-going and obvious reality faced by the construction industry. Additionally, as para [49] of the agreed facts discloses, further investigations conducted by WorkCover into other building sites across the state revealed the widespread problem of deficient installation of safety mesh on building sites. On any view, general deterrence is a relevant consideration. 60 Specific deterrence is also relevant. However, in light of the extensive safety system Australand had in place prior to the accident and the comprehensive steps undertaken to prevent such an incident occurring in the future, the weight given to specific deterrence shall be tempered accordingly. 61 As a co-defendant in the offences arising out of the incident, 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. 62 Counsel for the defendant submitted that Australand's culpability was significantly less than the other co-defendants already dealt with by the Court: that is, Mr Garry Denson, Mr James Denson and JBMR. In support of that submission, counsel pointed to the primary responsibility and hands-on role of Mr Garry Denson on behalf of GDMR to properly install the safety mesh and, in doing so, to ensure the mesh was correctly installed as identified in the JSA. As well, counsel highlighted the fact that Australand had identified inadequacies in the initial JSA submitted by GDMR and had provided Mr Denson with documents identifying the changes to be made to the JSA in order to better identify the hazards to be managed. Further, that the co-defendants had pleaded guilty to other failures in addition to the failure to provide a safe system of work in relation to installing the safety mesh signified, he submitted, a greater overall culpability in their offence compared with the defendant's system of work failure. 63 Counsel for the prosecutor declined to make any direct submissions on whether Australand's culpability was greater or lesser than the other co-defendants, preferring to leave that for the Court to determine. He did, however, state that the failures of the co-defendants, to which they pleaded guilty, were greater in number than the defendant's in that, in addition to the failure to provide a safe system of work, they had also acknowledged a failure to provide adequate training and supervision and to ensure employees wore appropriate footwear for the task of metal roofing. Those multiple roofing failures, it was said, should be weighed against the fact that, as the head contractor, Australand had complete control of the site. 64 The defendant's failure was a serious one. It was, however, a failure grounded, as I have already said, on an error of judgment. That error of judgment was based on the belief, not entirely unreasonable, that having drawn Mr Garry Denson's attention to the need to amend the JSA to reflect the safety measures to be adopted when installing the safety mesh, they would be implemented. As the subsequent events tragically demonstrated, that belief was misplaced.

65 Overall, when comparing Australand's approach to safety with the other co-defendants, it is clear that Australand accepted it's occupational health and safety obligations seriously and had a comprehensive and structured approach to meet those obligations. The same could not be said of Mr Garry Denson, JBMR and Mr James Denson. Equally, the failure by the defendant to check the safety mesh once it was in place was a serious one which resulted in the loss of a young man's life. It was a straightforward measure that could have been done prior to any of JBMR's employees commencing work on the roof. 66 Having considered all the facts and circumstances surrounding the offence, I consider Australand's culpability to be marginally less than that of the co-defendants.

67 A Victim's Impact Statement prepared on behalf of Mr Exner's family by his mother, Mrs Susan Exner, is before me. I have received that statement in accordance with s 28(3) of the Crimes (Sentencing Procedure) Act 1999, which sets out: ...

(3) If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. 68 On this issue, I would reaffirm my comments made in WorkCover Authority of New South Wales (Inspector Dubois) v James Nicholas Denson, JB Metal Roofing Pty Limited and Garry James Denson [2007] NSWIRComm 119 where I said: [100] To a parent, the loss of a child is profound and ongoing. Upon the death of her son, Mrs Exner described experiencing feelings of shock and devastation, particularly when learning that the circumstances surrounding the tragic accident could have been avoided. I have noted the immense impact that her son's death has had on Mrs Exner's life. As she wrote: This has just turned my world upside down… Losing Joel has completely changed my whole life because my life is my boys… [101] As is evident from her statement, Mrs Exner feels the loss of Joel deeply and fears for the safety of her other two sons, Brendan and Ashley. 69 In the determination of penalty, the defendants are 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 Thomson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration, reinforced as they are by s 22 of the Crimes (Sentencing Procedure) Act 1999. 70 The defendant did not enter its plea of guilty at the earliest available opportunity. However, counsel for the prosecutor conceded that a discount was still available because of the utilitarian value in avoiding a lengthy trial due to the change of plea. I would agree.

71 There are additional subjective features relevant to the defendant which should also be taken into account as mitigating factors in my penalty determination. 72 As noted previously, Australand is not a previous offender. Mr Thomas also deposed that Australand, as a company operating in other States, did not have any prior convictions elsewhere else in Australia in relation to occupational health and safety offences. Given the nature of the industry in which Australand operates, fraught as it is with risks to safety, that is a commendable achievement. 73 Additionally, as detailed earlier, it is apparent, prior to the accident involving the defendant, the defendant was firmly committed to upholding it's occupational health and safety obligations. In May 2003, prior to the accident involving Mr Exner, Australand participated in a review by WorkCover of its occupational health and injury management systems. Following that review, WorkCover commended the defendant for it's occupational health and safety system as being "mature, robust, well implemented, continuous improvement culture evident". 74 As deposed to by Mr Thomas and not challenged, Australand has also received recognition for its commitment to workplace health and safety in other states across the country. Australand's residential division in Western Australia has been awarded a WorkSafe WA Platinum Award for recognition of it's outstanding occupational health and safety management system and WorkSafe Victoria considers Australand's residential construction sites in Vic to reflect best practice. 75 Australand has expressed contrition and remorse for the tragic accident involving Mr Exner. As Mr Thomas deposed: Australand deeply regrets that the Incident occurred and its consequences and believes that the actions it has taken and continues to take, through the constant review and implementation of its procedures, will ensure that a similar incident does not occur in the future.

I, and Australand, acknowledge that an accident like this has a severe, and ongoing impact on a family and regrets the impact it has had on the Exner family. 76 As well, when pressed on this issue in cross examination, Mr Thomas said: This has probably been the most difficult, tragic period in the history of the company... It is very difficult for me to express the legal level of contrition. What I can tell you of the heart and souls of the people of Australand that it is a matter that has deeply affected us.

77 The prosecutor acknowledged that Australand cooperated with WorkCover in it's investigation into the incident and that it had acted promptly to improve it's existing safety programmes. 78 Taking into account all the matters I have referred to, I determine penalty in this matter and make orders as follows: (i) The defendant is guilty of the offence charged.

(iii) I allocate a moiety to the prosecutor on the usual terms. (iv) I order the defendant to pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment.

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