WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass and Joinery Pty Limited

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v The Queen [2005] HCA 25: 18 May 2005 Morrison v Powercoal Pty Limited [2003] 130 IR 364 R v Gallagher (1991) 23 NSWLR 220 CASES CITED: R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover v Denson (2007) NSWIRComm 69 WorkCover Authority of New South Wales (Inspector Dubois) v Australand Holdings Limited (2007) NSWIRComm 156 WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass & Joinery Pty Limited [2008] NSWIRComm 153 WorkCover Authority of New South Wales (Inspector Woodington) v Skyrise Installations Pty Limited and Domenico Hans Christian Vullo (2006) NSWIRComm 316

PROSECUTION: Mr J Agius SC and Mr P Skinner of counsel SOLICITORS: WorkCover Authority of NSW Legal Group

DEFENDANT - AUSTRALAND HOLDINGS LIMITED: LEGAL REPRESENTATIVES: Mr H Dixon SC and Mr A Gotting of counsel SOLICITORS: Minter Ellison

DEFENDANT - SASSALL GLASS & JOINERY PTY LTD: Mr G Hatcher SC and Mr R Moore of counsel SOLICITORS: Maguire & McInerney

Matter No IRC 1174 of 2005 WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited

Prosecution arising pursuant to s 8(2) of the Occupational Health and Safety Act 2000

Matter No IRC 1175 of 2005 WorkCover Authority of New South Wales (Inspector Woodington) v Sassall Glass and Joinery Pty Limited

Prosecution arising under s 8(2) of the Occupational Health and Safety Act 2000

JUDGMENT AS TO PENALTY [ 2008] NSWIRComm 223 1 In an earlier judgment handed down on 26 August last, I determined the offence charged with respect to both defendants pursuant to s 8(2) of the Occupational Health and Safety Act 2000 (the Act) had been proved: See WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass & Joinery Pty Limited [2008] NSWIRComm 153. 2 This judgment is concerned with penalty. Costs have already been agreed between the prosecutor and both of the defendants. I propose to make an order to reflect that agreement. 3 The factual background and considerations relevant to my liability determination is set out in full in that judgment referred to above. I do not propose to repeat it except as required. 4 The offence found proved with respect to the respective defendants was as follows: Australand

That it did fail, contrary to s 8(2) of the Act, to ensure that persons other than its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work in that William Hill, being a person who was at its place of work and employed by Skyrise Installations Pty Ltd [did] engage in the installation of curtain wall panels in [the following] circumstances which exposed him to a risk to his health or safety by reason of the weight of the panels being installed relative to the capacity of the lifting equipment being used and by reason of an inadequate system of fall protection: (1) The Defendant was at all material times the head contractor for the building project. (2) Sassall … was the Defendant's principal subcontractor for the manufacture and installation of the curtain wall panels. (3) Skyrise Installations Pty Ltd ("Skyrise") was Sassall's subcontractor for the installation part of that subcontract. (4) The Defendant failed to ensure that Sassall provided or maintained a safe system of work for installing the curtain walls panels ("the panels") in that Sassall failed to ensure that the weight of the panels was properly and accurately identified and communicated to Skyrise. (5) The Defendant failed to ensure that Skyrise provided or maintained a safe system of work in that Skyrise failed to ensure that the weight of the panels did not exceed the Working Load Limit (WLL) of the crane which was lifting the panels. (6) ... (7) ... (8) The Defendant failed to ensure that any proper risk assessment or control measures were undertaken either by its own employees or by the employees of Sassall or Skyrise to eliminate or minimize the risk of an accident occurring as a result of the crane lifting panels in excess of its WLL. (9) ... (10) The Defendant failed to ensure that Sassall or Skyrise provided or maintained a safe system of work for working at heights in that Sassall or Skyrise failed to ensure that William Hill was using appropriate fall protection equipment (such as a retractable lanyard) when the safety fence was open or when he was moving the crane close to the edge of the building. (11) The Defendant failed to ensure that William Hill was adequately supervised either by its own employees or Skyrise or Sassall in relation to having appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights or using appropriate fall protection equipment when the safety fence was open or when he was moving the crane close to the edge of the building. 5 In relation to the particulars not established, they were found by me to be particulars that the prosecution could not rely upon because of the technical pleading of duplicity. Sassall That it did fail, contrary to s 8(2) of the Act, to ensure that persons other than its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work in that William Hill, being a person who was at its place of work and employed by Skyrise Installations Pty Ltd [did] engage in the installation of curtain wall panels in [the following] circumstances which exposed him to a risk to his health or safety by reason of the weight of the panels being installed relative to the capacity of the lifting equipment being used and by reason of an inadequate system of fall protection:

(1) Australand … was at all material times the head contractor for the building project. (2) The Defendant was the principal subcontractor for the manufacture and installation of the curtain wall panels. (3) Skyrise … was Sassall's subcontractor for the installation part of that subcontract. (4) The Defendant failed to provide or maintain a safe system of work for installing the curtain walls panels ("the panels") in that it failed to ensure that the weight of the panels it supplied to Skyrise was properly and accurately identified and was communicated to Skyrise. (5) The Defendant failed to ensure that the employees of Skyrise were properly supervised by its own employees with a view to ensuring that the weight of the panels did not exceed the Working Load Limit (WLL) of the crane which was lifting the panels. (6) Defendant failed to ensure that any proper risk assessment or control measures were undertaken either by its own employees or by the employees of Skyrise or Australand to eliminate or minimize the risk of an accident occurring as a result of the crane lifting panels in excess of its WLL. (7) The Defendant failed to ensure that Skyrise provided or maintained a safe system of work for working at heights in that Skyrise or Australand failed to ensure that William Hill, an employee of Skyrise, had appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights or failed to ensure that he was using appropriate fall protection equipment when the safety fence was open or when he was moving the crane close to the edge of the building. (8) ... 6 For the same reasons in relation to particulars 6, 7 and 9 with respect to Australand, particular 8 was dismissed for duplicity in the pleadings. 7 Counsel for the prosecution confirmed that the defendant Australand had one prior conviction. The factual circumstances giving rise to that offence occurred at a time later than the offence currently before me and has already been dealt with. See my judgment in WorkCover Authority of New South Wales (Inspector Dubois) v Australand Holdings Limited (2007) NSWIRComm 156 handed down on 5 July 2007.

8 In accordance with the principles of the Full Bench judgment in WorkCover v Denson (2007) NSWIRComm 69 the maximum penalty for the offence now before me with respect to Australand is $550,000 notwithstanding that this will be recorded as a second conviction. That is not disputed by the prosecution. 9 With respect to Sassall, counsel for the prosecution confirmed it has no prior convictions before this Court. The maximum penalty is accordingly $550,000. 10 In accordance with the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 a Victim's Impact Statement of behalf of Mr Hill was received by the Court without objection. Further, at the request of Mr Hill and in accordance with s 30A of that Act, Mr Hill's sister, Ms Beverley Hill, read that Victim's Impact Statement to the Court. I will further refer to it in due course in this judgment. 11 On behalf of the respective defendants, the following material was received without objection: (i) Australand: An affidavit with annexures of Mr Michael Newsom sworn 6 November 2008. Mr Newsom is currently employed by Australand as General Counsel, having held that position since August 2000. He was appointed some twelve months ago as Head of Corporate Risk Management for the defendant.

(ii) Sassall: An affidavit with annexures of Mr John Sassall sworn 7 November 2008. Mr Sassall deposed that he is one of the directors of the defendant, the other director being his brother, Mr Keith Sassall.

It is relevant to note that in Mr Sassall's affidavit, he confirmed the defendant is no longer trading. He relevantly stated as follows: [34] On 29 February, 2008, Sassall sold its fabrication and contracting business. [35] The Company is no longer an employer in New South Wales or anywhere in Australia. 12 Neither Mr Newsom nor Mr Sassall were required for cross examination. General principles on sentencing

13 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. 14 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.' 15 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 where the Court said: In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence' ... 16 Further, as was said in Morrison v Powercoal Pty Limited [2003] 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: ... 17 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) 99 IR 29 at [81]. 18 On the issue of foreseeability, the Full Bench in Capral stated at [82]: 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.

19 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 [73]-[77]. 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 [74] 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. 20 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). 21 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. 22 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) endorsed the instinctive synthesis approach to sentencing and generally disavowed the sequential or two tiered approach. 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) Considerations

23 There is a preliminary issue to note. In addition to the defendants currently before me, there are two further co-defendants whose involvement in the factual matrix of the accident involving Mr Hill becomes relevant for the purposes of assessing the relative culpability of all defendants. Those other co-defendants are Skyrise Installations Pty Limited and Mr Domenico Vullo. 24 As reference to paras [2] to [8] of my liability judgment make clear, Australand was the head contractor overseeing a building project at Homebush Bay in Rhodes, New South Wales. Sassall was a principal contractor on that project for the manufacture and installation of curtain wall panels. Sassall, in turn, sub-contracted the installation of curtain wall panels to Skyrise. Mr Domenico Vullo, a director of Skyrise, was actively involved in overseeing the installation of the panels. 25 On 29 March 2003, while involved in the process of installing the curtain wall panels, and in circumstances essentially not disputed, an employee of Skyrise, Mr Robert Hill, fell some fifteen metres off the edge of one of the buildings under development and was severely injured. 26 In addition to the defendants now before me, both Skyrise and Mr Vullo were charged with an offence under s 8(1) of the Occupational Health and Safety Act 2000. As a director of Skyrise, Mr Vullo's offence under s 8(1) relied on the deeming provisions of s 26(1) of the 2000 Act. 27 Both Skyrise and Mr Vullo entered pleas of guilty to the offences charged and have already been dealt with by me. See my judgment in Matter No IRC 1173 of 2005: WorkCover Authority of New South Wales (Inspector Woodington) v Skyrise Installations Pty Limited and Matter No IRC 1204 of 2005: WorkCover Authority of New South Wales (Inspector Woodington) v Domenico Hans Christian Vullo (2006) NSWIRComm 316 delivered on 4 October 2006. That judgment is, in part, relevant in determining the issue of parity as between the defendants now before me and that of Skyrise and Mr Vullo in relation to the factual circumstances giving rise to the offences concerning all four defendants. 28 In considering the objective seriousness of the offence of the respective defendants, it is instructive to consider the task being undertaken by Mr Hill at the time of his accident. That task, as is abundantly clear, involved working from a significant height with a crane on its wheels under a heavy load. On any consideration where safety is paramount, that work, in the circumstances in which it was being undertaken, constituted a number of risks to safety - not just for Mr Hill but for all of the employees of Skyrise involved in that process. 29 A detailed description of the process being undertaken by Skyrise employees and particularly Mr Hill, in the task of installing the curtain wall panels, is set out in para [53] of my liability judgment. 30 By reference to para [53] and following, as well reference to annexure A in the liability judgment, the way in which the work was being undertaken required very careful considerations as to safety in installing the panels, both generally and in particular. In particular, a system of work was required to ensure that employees did not fall from the edge of the building while undertaking the work described. Further, when lifting the panels, that the crane was able to do so safely and was not placed in a situation that it could become unstable and, amongst other considerations, topple off the edge of the building. Both of those possibilities were identified in the Safe Work Method Statement prepared by Skyrise in relation to the Crane Set Up and Use for Panel Installation. That assessment, while identifying the risk of a worker falling off the edge of the building, was inadequate, in that it only assessed that risk when the worker was standing outside the safety fence line of the building. Having regard to the nature of the work being performed by Mr Hill at the time of his fall, it was imperative that he be attached to the static safety line at all times during the process of drawing back the crane in question. As the evidence disclosed, Mr Hill was permitted to unclip his lanyard from the static safety line once he was inside the open safety fence line notwithstanding he was pulling the crane backwards under a heavy load. At that time, the crane was mobile and inherently unstable. 31 Step 6 of the Safe Work Method Statement referred to above identified, in moving the crane into position, there was a risk of the crane rolling off the building. This Safe Work Method Statement, while referring to the risk of the crane rolling off the building, does so only in the limited circumstances identified in that Safe Work Method Statement. It does emphasise, however, by way of a control measure, to prevent the possible risk of the crane rolling off the building, that 'the crane is to be lowered onto the slab so that it has all four legs firmly on the slab floor'. As the factual circumstances involving Mr Hill's accident make clear, that was simply not the case. When the crane rolled off the building taking him with it, unattached as he was to the static safety line, the crane was not on its legs 'firmly on the slab floor' - it was on its wheels. 32 In my view, given the circumstances under which Mr Hill was operating when he was pulling back the crane under the load of the panel, there was clear and foreseeable risk to safety. That was that when the crane was on its wheels it was inherently unstable. It was foreseeable that, under load, the crane could, by simple momentum, roll forward and off the edge of the building, which is exactly what it did do. Given that possibility, it was essential that every practicable step be taken to ensure Mr Hill's safety. Ensuring his lanyard was attached to the static safety line at all times was an obvious and available step in that safe work system. 33 Further, quite apart from the relative instability of the crane at the time of Mr Hill's accident, there is the vexed question of the weight being lifted by the crane at the time of the accident relative to the certified weight lifting limit (WLL) of the crane. That information was essential in ensuring a safe system of work in the overall operation of installing the curtain wall panels. It was a factor known to both defendants before me. Prior to undertaking work on site, Mr Vullo, on behalf of Skyrise, was required to produce, quite properly so, certification as to the WLL of the crane. He was required to produce that certification both for Sassall and Australand. That fact simply affirms, in my view, the importance both defendants placed on the need to ensure, in undertaking the task at hand, Mr Vullo and the employees of Skyrise were utilising a crane that was properly certified to safely carry the weight of the panel required having regard to the way the in which the work was being performed. 34 The respective defendants, given their roles as head contractor and primary sub-contractor for the task at hand, had an absolute obligation pursuant to the Act, to ensure that the risks to safety the particular task at hand represented to the employees of Skyrise, were scrupulously considered and followed through with proper safe work methods. As the facts have highlighted, this was clearly not the case. In the first instance, there was an error on the part of employees of Sassall in conveying to Mr Vullo of Skyrise, the correct weight of the panel being lifted at the time of Mr Hill's accident. As the evidence confirmed, the incorrect information conveyed resulted in the crane lifting approximately 100kg in excess of its certified WLL. 35 The issue of the capacity of the crane was a matter of some considerable evidentiary moment before me. As the evidence disclosed, calculations based, in part, on photographs of the damaged crane undertaken post the accident by relevant experts concluded that the load bearing capacity of the crane being used by Mr Hill on the day of his accident was greater than the WLL as certified. Exactly what it was was not possible to definitively determine on the material before me. Notwithstanding that, this was a matter that the defendants made much of. It was, as I determined, ultimately irrelevant in my liability considerations. That is, at the time of the accident, both Australand and Sassall had been advised by the certification produced by Mr Vullo on behalf of Skyrise, that the certified WLL of the crane being used to lift the panels on site in the way that it was, was 400kg. Any weight lifted by the crane beyond that weight clearly represented a real risk to safety. As I said in my judgment on liability at [164]: At the time the work was being performed, any weight lifted by the crane that went beyond 400kg created a potential risk to safety because it was requiring the crane to lift a capacity for which it was not rated and its actual capacity was not known in any accurate sense. In my view, it follows that once the crane lifted a weight beyond its rated WLL of 400kg, the operator was entering unchartered and potentially unsafe territory. Given the circumstances in which the work was being performed by Mr Hill and the importance of knowing the weight of the panel to be lifted relative to the WLL of the crane because of the danger of instability in the crane, a potential risk to safety arose. Once the crane lifted beyond its certified WLL of 400kg and, given the nature and circumstances of the work being performed, that potential risk to safety, in my view, included the crane becoming unstable and, under its overall weight load and under momentum, toppling over and off the edge of the building. It was not, in my view, a speculative or remote risk. It was a real and potential risk to safety. 36 It is hard to imagine that a crane in the circumstances in which it was being utilised, situated on the fourth floor of a building under construction with simply a wooden chock to prevent the crane, under momentum, toppling over the side of the building, does not represent a real risk to safety. In my view, it most certainly did. That it did is evidenced again by the fact that following Mr Hill's accident, the method of installing the panels being undertaken by Skyrise was changed and the panel installation was then undertaken by a Crawler Crane acknowledging that a potential hazard was overload structure capacity. 37 Both defendants and their respective employees on site were well aware of the need to ensure that the weight of the panel was clearly and accurately conveyed to Skyrise. Further, that it was imperative that the work method being adopted by Skyrise utilising the crane in the manner in which it was, was safe and adequate to lift the load required. It was also self evident, in my view, that if those two criteria were not absolutely established, a real risk to safety arose. As well, it was foreseeable, in my view, that that risk to safety involved the real risk of the crane becoming unstable and toppling off the building. Given Mr Hill was not attached to the static line at the time that occurred, it was entirely foreseeable, considering his action of pulling back on the crane. he was also at risk of falling with the crane. 38 I accept ultimately, the responsibility for ensuring the correct weight of the panel to be lifted having regard to the WLL of the crane rested with Mr Vullo on behalf of Skyrise. Nevertheless, that does not excuse the respective defendants before me. In my view, the way in which Sassall went about identifying the weight of the panels being lifted at the time of the accident was relatively ad hoc. 39 Mr Vullo gave evidence that in prior projects where Skyrise had been involved in installing curtain wall panels, each of the panels had their weight identified individually in them. This was not the case in relation to the circumstances prevailing on this project. In short, Mr Vullo had to make independent enquiries of the weight of the various panels that the crane was lifting on the project. 40 Following the accident involving Mr Hill, the Safe Work Method Statement, revised by Skyrise and insisted upon by Australand, was that each of the panels were to be marked with their weights by Sassall and cross referenced with crane load bearing charts and that the panel weights were to be marked on the panels prior to delivery to the site. The party that was in a position to do that latter task was Sassall who was responsible for the manufacture of the panels and their ultimate delivery on site. 41 Mr McGregor, the Occupational Health and Safety Co-ordinator for Australand on the site, indicated that whilst that step was implemented post the accident, there was still the possibility that the wrong weight could be placed on the panel and that could cause the same problems that had emerged in relation to the accident currently before me. I cannot totally dismiss that possibility but it was a step that was certainly designed to ensure that every practicable step was taken to convey to Skyrise the correct individual weight of each panel. 42 Having regard to the facts and circumstances as I have identified them, I assess each offence with respect to the two defendants before me as being above the mid range and towards the upper end of the scale of objective seriousness. I will assess penalty on that basis. 43 I turn now to consider the respective culpability of the defendants currently before me relative to that of Skyrise and Mr Vullo. On the evidence before me and having regard to the facts and circumstances I have considered, it is my view that the culpability of Australand and Sassall is less than the culpability of Skyrise and Mr Vullo. Mr Vullo and Skyrise were ultimately responsible for ensuring that their employees, and in this instance notably Mr Hill, were not exposed to risks to safety in the inherently dangerous task he was undertaking on the fourth floor of the building under construction. That does not excuse the defendants before me but I accept that the respective responsibilities of Australand and Sassall were one step removed from the ultimate responsibility that Mr Vullo had on behalf of Skyrise. That is, regardless of any other considerations, he took proactive steps to ensure the weight of each panel and that he properly considered the WLL of the crane relative to the individual weight of each panel before commencing the lifting process. 44 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. In relation to the defendants before me, considerations of general and specific deterrence are relevant to Australand. In relation to Sassall, general deterrence is also a relevant consideration. Because Sassall is no longer trading and the business has been sold, there is, it seems to me, no weight to be attached to applying specific deterrence as a consideration in relation to Sassall. 45 In relation to Australand, the defendant continues to operate in an industry that represents real and ever present risk to the safety of workers and this is particularly so in relation to fall safety considerations. 46 In relation to Australand, there is the issue of the earlier conviction that has been dealt with by me and mentioned in para [7] in this judgment. That is, the offence concerning the defendant Australand in relation to a workplace accident that occurred on 15 October 2003. That accident, which resulted in the death of Mr Joel Exner, was dealt with by me in July 2007. It was an offence that occurred after the offence which I am currently considering with respect to Australand. Counsel for the prosecution has contended that that conviction is a factor that should be taken into account in assessing Australand's overall character as a corporate citizen and, as I understand it, be a factor relevant to specific deterrence considerations. 47 I accept that there is some weight in the submission made by counsel for the prosecution on that point. In short, there are some similarities in Australand's failures having regard to Mr Exner's death and that of Mr Hill's injury. That is, both of them involved a fall by the respective employee from considerable heights. In relation to the offence involving Mr Exner, there was, as I determined in relation to Australand: [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. 48 In the offence before me, there is also, I believe, evidence of a failure on the part of Australand to follow through adequately in ensuring a system of work for the task at hand that was absent risk to safety was not only in place but rigorously adhered to. In that regard, it was imperative that the safe system of work encompassed the need to ensure that every possible step was taken to accurately identify the weight of each panel and to ensure that the crane being utilised to lift the panel was, in all the circumstances prevailing, lifting a load within its certified WLL. As well, Mr Hill should have been attached to the static safety line at all times throughout the lifting procedure once the safety fence was open. That was clearly not the case. 49 In all the circumstances, I am of the view that specific deterrence is clearly a relevant consideration with respect to Australand. In doing so and having regard to the facts and circumstances of the offence before me as well as the one involving Mr Exner, there is some evidence of an overall failure by Australand to ensure a comprehensive and adequate follow through of what is, on any view, a comprehensive commitment to workplace health and safety. In coming to that conclusion, I accept that Australand has acted swiftly and comprehensively to address the issues that were exposed following Mr Hill's accident and has undertaken considerable steps since that time to ensure an ongoing commitment to high standards of occupational health and safety. As Mr Newsom deposed in his affidavit, not disputed:

(a) in accordance with an Improvement Notice issued to it by WorkCover, Skyrise reviewed, prepared, and submitted to Australand revised SWMS/JSAs for the works they were performing on the Rhodes Site. Exhibited to this Affidavit and marked 'E16' are copies of these SWMS/JSAs. WorkCover did not issue an Improvement Notice to Australand in respect of the Incident;

(b) employees of Skyrise were required by Australand to attend (and did attend) ' tool box talks ' in which the contents of these revised SWMS/JSAs were explained to them by their supervisor. Exhibited to this affidavit and marked 'E17' are copies of these documents;

(c) one of the revised work methods adopted in respect of the installation of curtain wall panels on Building B at the Rhodes Site was that all panels were to be marked with their weight by Sassall prior to delivery on site;

(d) employees of Skyrise were required to wear 5 metre retractable lanyards (as opposed to 2 metre fixed lanyards) when the safety fence was open;

(e) Australand oversaw the development of an alternative method for installing the curtain wall panels on Building B of the Rhodes Site by using a Crawler Crane instead of the static floor crane used prior to and at the time of the Incident. The Crawler Crane was a small mobile crane with a maximum lifting capacity of around 2.5 tonnes (which is much higher than the static floor crane). I understand that a licensed crane driver sat in the Crawler Crane which pulled the panels into the building. The Crawler Crane also had a longer boom length (which could be extended up to about 8 metres) than the static floor crane. Exhibited to this Affidavit and marked 'E18' are copies of: (i) correspondence dated 9 April 2003 from John Murphy of Sassall to Mr McGregor regarding, among other things, the specifications for the Crawler Crane; (ii) facsimile dated 10 April 2003 from Mr Murphy to Mr McGregor regarding an assessment report for the Crawler Crane; and (iii) facsimile dated 10 April 2003 from Michael Yiend of Australand to Mr Murphy regarding engineering approval for use of the Crawler Crane.

(f) I understand that this use of the Crawler Crane is now the standard practice in New South Wales for installing curtain wall panels, and the practice that Australand requires its subcontractors to follow on its construction projects where curtain wall panels are installed; and

(g) arising from the introduction of this alternative method for installing curtain wall panels by only using a Crawler Crane, and insisting upon the use of 5 metre retractable lanyards by employees in the performance of these works: (i) reliance was (and is) no longer placed by Australand on the '2 metre rule' prescribed in the WorkCover Code of Practice for Safe Work of Roofs in respect of such works; and (ii) a modified static floor crane (such as the crane used in the Incident) was (and is) no longer used in the performance of such works on Australand construction projects. 50 I turn now to those subjective factors that both defendants are required to have taken into consideration in mitigation of penalty. There is no dispute on behalf of the prosecutor that both defendants have cooperated with respect to all investigations following the incident. With respect to Australand, it was submitted that it has a favourable safety record given the extensive nature of its operations as a large scale project developer for commercial and industrial sites and given the number of persons it engages at any one time in numerous projects across the country. I accept that, overall, given the corporate history of the defendant, that is a factor that does count in favour of the defendant notwithstanding my earlier comments in relation to the two convictions that will now stand against its corporate record. 51 On all the evidence before me, not disputed by counsel for the prosecution, Australand has assiduously attempted, in a comprehensive way, to put in place systems of work designed to ensure that it meets its obligations under the Act. That it has transgressed on two occasions to date is not a factor that should totally work against it as suggesting it is an employer that ignores its safety obligations. It is, in my view, an employer that acknowledges and recognises its safety obligations in a risk prone industry despite the failures surrounding the two offences to date. They are failures more attributable to individual errors of judgment rather than overall corporate indifference to health and safety at the workplace. 52 In relation to Sassall, I accept that as an employer with no prior convictions and as Mr John Sassall's affidavit confirmed, it is an employer that, until relatively recently, has operated for a considerable period of time in the industry in New South Wales, without any prior convictions. Further, again not disputed, it is an employer that has committed itself to ensuring that it meets its obligations under the Act in relation to health and safety and, to the extent that this transgression has occurred, I do not see it, again, as indicative of an overall approach on behalf of Sassall at the time of its operations, of a denial of its obligations under the Act. 53 Further, I do accept that there has been genuine remorse expressed over the incident by both defendants, particularly by Australand. In saying that, I in no way suggest that Sassall does not also express a similar view. Both defendants, particularly in the case of Australand, evidence an approach of good corporate citizenship both to the community and in relation to occupational health and safety. Every step has been taken by both defendants to provide Mr Hill with whatever assistance they have been able to provide. 54 I am satisfied that both Australand and Sassall are entitled to a proper discount in mitigation of the subjective factors to which I have referred. 55 As earlier indicated, a Victim's Impact Statement prepared by Mr Hill was read to the Court by his sister, Ms Beverley Hill. It is clear Mr Hill has suffered, and continues to suffer, grievously as a result of his extensive and severe injuries resulting from his fall. As he stated: Prior to the accident I would describe myself as an easygoing, patient and happy person. That I no longer am. I am at most times overcome by frustration, anger, fear and have very poor concentration and am all too easily distracted by any type of noise e.g. radio, TV, phone. I am overall less tolerant of people and everyday life.

I live in constant fear for my safety and that of my family's. I worry about having an accident and hurting myself again. I have a severe fear of heights and am nervous around elevators, windows, stairs, hills etc for fear of falling and going back to hospital.

I am constantly thinking I would be better off dead to escape from all the pain and worry. I have at times contemplated taking my own life. 56 Taking into account all the matters referred to, I assess penalty as follows:

(1) Matter No IRC 1174 of 2005: WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited : Prosecution arising under s 8(2) of the Occupational Health and Safety Act 2000: (i) The defendant is guilty of the offence charged. (ii) I impose a penalty of $175,000. (iii) I allocate a moiety to the prosecutor on the usual terms.

(2) Matter No IRC 1175 of 2005: WorkCover Authority of New South Wales (Inspector Woodington) v Sassall Glass and Joinery Pty Limited : Prosecution arising under s 8(2) of the Occupational Health and Safety Act 2000: (i) The defendant is guilty of the offence charged. (ii) I impose a penalty of $168,500. (iii) I allocate a moiety to the prosecutor on the usual terms.

(3) I order each defendant to pay the costs of the prosecutor as agreed between them.

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