WorkCover Authority of New South Wales (Inspector Wilkie) v B & E Renovations Pty Limited

WorkCover Authority of New South Wales (Inspector Wilkie) v B & E Renovations Pty Limited - [2006] NSWIRComm 394 - NSWIRComm 2001 case summary — Zoe

[30]

5 In addition to the statement of facts, the prosecutor also tendered without objection the following: (1) A factual report compiled by Inspector Wilkie, dated 10 May 2005; (2) A statement of Dr David Kardachi, dated 17 March 2005 accompanied by a certificate as to his expertise pursuant to s 177 of the Evidence Act 1995. Dr Kardachi was the Medical Officer in the Emergency Department of the Bowral and District Hospital who examined and initiated the emergency medical care given to Mr Marshall following his admission on 17 February 2004; (3) A post-mortem report of Forensic Pathologist Dr Bogdan Hulewicz, dated 20 April 2004. Dr Hulewicz was employed in the Department of Forensic Medicine located at Westmead Hospital. He conducted the post mortem on Mr Marshall on 27 February 2004; (4) A letter from Westmead Coroner's Court, dated 30 January 2006 confirming the findings of the Coronial Inquest into Mr Marshall's death; (5) A NSW Police witness statement of Richard John Cluff, dated 17 February 2004. Mr Cluff was the other employee with Mr Marshall at the time of his accident on 17 February 2004; (6) A statement of Richard John Cluff, taken by Nicole Speakman, dated 17 February 2004. Ms Speakman is the daughter of Ms Elayne Skipworth, the sole director and shareholder of the defendant. Ms Speakman attended the defendant's workplace following Mr Marshall's accident and, at the suggestion of a WorkCover officer, took the initial statements from Mr Cluff and Ms Skipworth on 17 February 2004; (7) A WorkCover statement of Richard John Cluff, dated 21 June 2004; (8) An affidavit of Richard John Cluff, sworn 27 July 2006; (9) A NSW Police witness statement of Drew Darling, dated 20 February 2004; (10) A NSW Police witness statement of John Ludvic Spulis, dated 20 April 2004; (11) A NSW Police witness statement of Jennifer Gaye Hayes dated 2 March 2004; (12) A NSW Police witness statement of Noeleen Janette Parsons dated 18 February 2004; (13) A statement of Elayne Skipworth, taken by Nicole Speakman, dated 17 February 2004. Ms Skipworth is the sole director and shareholder of the defendant. She was present at the defendant's premises at the time of Mr Marshall's accident. (14) A NSW Police witness statement of Elayne Skipworth, dated 18 February 2004; (15) A WorkCover statement of Elayne Skipworth, dated 11 November 2004. 6 Also tendered by the prosecution were a collection of photographs taken by Inspector Wilkie. The photographs have assisted me in understanding the layout of the site where the accident took place, particularly the manner in which the MDF sheets were vertically stacked before the accident. 7 On behalf of the B & E Renovations, the following material was tendered: (1) Two affidavits of Elayne Skipworth, sworn on 26 and 27 July 2006 respectively; (2) An expert report of Professor John M Hilton, dated 21 July 2006. For the purposes of his report and the advice given, Professor Hilton had been provided, inter alia, with the statements identical to the ones enumerated above in the prosecutor's tender bundle, as well as the following: (a) A NSW Police statement of Sergeant Patrick O'Meara, dated 10 March 2004; (b) A NSW Police witness statement of Casey Marshall, dated 18 February 2004; (c) A NSW Police witness statement of Vickie Egan, dated 17 February 2004; 8 Additional documentary material tendered on behalf of the defendant was: (a) A report from Dr Constantine Mouroukas, dated 20 July 2006 relating to Ms Skipworth; (b) A copy of an OHS manual prepared for the defendant by ISR Services Pty Ltd after the accident in February 2004; (c) A copy of a fax dated 27 July 2006 from Davis, Mair and Co Pty Limited, chartered accountants, relevant to the financial circumstances of the defendant. 9 Professor Hilton and Mr Cluff were required for cross-examination.

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10 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 11 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.' 12 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 13 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646. 14 On the issue of foreseeability, the Full Bench in Capral stated at 646: 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.

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15 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 16 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 17 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure:

[37]

22 B & E Renovations was involved in the business of manufacturing kitchen fittings such as cabinets. The bulk of the kitchen components constructed at the defendant's premises utilised materials such as laminated medium density fibreboard (MDF). That material was supplied in sheets, each measuring 1200mm x 2400mm x 16mm and weighing approximately 29.4kgs each. They were stored on site at the defendant's premises. 23 At the time of the accident involving Mr Marshall there were no shelving facilities for MDF boards at the workplace. As a consequence, the boards were stored by stacking each board vertically against each other and leaning them against a wall. 24 In order to access boards in the middle of the stack, the employees devised a system whereby one of the men would stand at the side of the stacked boards and flip through the boards. The other employee would stand at the end of the stack of boards and would use his hands and body weight to support the boards that were 'flip passed' on by the employee standing at the side. 25 As I understand the system used, as long as the board was not tipped too far past the direct vertical, the bulk of the weight of the board would be taken by the lower edge of the board resting on the ground. Past a certain point, the weight of the boards would be transferred in part to the employee supporting them at the end of the stack. 26 Once the appropriate MDF board had been retrieved from the stack, the employee supporting the boards would push them back into position, leaning the remaining boards back against the wall. 27 It is apparent, in my view, that the system of work utilised to select a sheet of MDF board from the vertical stack was rudimentary at best. This was particularly so where the employees chose to extract a sheet from within the vertical stack rather than the first available - which was the case on 17 February 2004. Given the way in which it was done, such a decision necessitated the gradual transfer of considerable weight to the employee designated to support the 'flip passed' boards. As para [22] above attests, individually, the full sized boards weighed approximately 30kgs each. Taken together, the six or seven boards of MDF Mr Marshall was supporting at the time of his accident translated into a combined weight of considerable force when they fell in the manner they did. 28 When questioned by counsel for the prosecutor how the risk of the MDF boards falling forward was intended to be controlled, Mr Cluff answered: As they get heavier … you have to counteract the weight and … try and brace yourself more …the heavier it gets you have to push back. The heavier they get you would hold one sheet at an angle like that, after they come over you would have to straighten them all because they get too heavy. 29 Given that description, which I accept, it is not difficult to visualise circumstances where the likelihood of the combined weight of a number of MDF boards reaches a point and an angle where they cannot be safely supported by the employee charged with that task. In such circumstances, the risk to safety is clearly foreseeable. 30 As was stated in Capral at [82], the existence of a reasonably foreseeable risk to safety '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). 31 Further, as stated by the Full Bench in Capral at [94] 'a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences'. 32 On this issue, counsel for the prosecutor contended that the failures of the defendant as particularised, particularly by reference to the system of supporting the MDF boards in the way Mr Marshall was doing, carried with it a foreseeable risk of serious injury or death. Further, it was submitted, there was a causal connection between Mr Marshall's fatal head injuries and the defendant's unsafe system of work as particularised. 33 I have no difficulty in concluding that the system of work in place in relation to the manner in which the MDF sheets were vertically stacked and manually handled and supported in the way they were at the time of the accident, given the height and cumulative weight of the sheets, created a foreseeable risk to safety that encompassed the prospect of serious consequences for the employee concerned. I am, however, unable to be satisfied beyond reasonable doubt, on the evidence before me, that such serious consequences would, without more, cause fatal head injuries. There are a number of reasons for coming to that view, not least of all reference to Mr Marshall's activities a few days prior to his accident at work as well as the evidence of Professor Hilton. 34 On Saturday, 14 February 2004, some three days before his workplace accident and subsequent death, Mr Marshall was involved in a physical altercation with his daughter's partner. In that encounter, he was punched in and around the face and head on a number of occasions. According to the eye witness account of Mr Drew Darling, Mr Marshall was not knocked out but sustained 'a cut to the bridge of his nose that bled and he had some blood to one side of his head'. In her statement to the Police, Ms Vicki Egan recounted that on Sunday, 15 February 2004, when Mr Marshall visited her, he told her, inter alia, about the circumstances of the fight as follows: It happened all so quick. I don't know who threw the first punch. One minute I was standing and then I was on the ground. I hit the side of my head. 35 Notwithstanding the above, subsequent reports of Mr Marshall's behaviour and actions following that incident do not suggest he sustained any significant after effects as a result of the punches to his face and head except what could be described as general soreness and grazes on his face. 36 Mr Marshall did not go to work on Monday, 16 February 2004. It would seem he took the day off in order to assist his daughter with a number of matters. He did attend the defendant's workplace later in the day and spoke with Mr Richard Cluff, a fellow employee. According to Mr Cluff: Paul walked up to me outside the factory and started telling me about what had happened on Saturday night. I saw that Paul had grazes to the left hand side of his face near his left eye and down onto his left cheek. The grazes stretched down the left hand side of his face and nose. 37 Apart from the obvious evidence that something had happened to cause the grazes on Mr Marshall's face, Mr Cluff did not perceive that Mr Marshall was suffering anything more than relatively minor injuries to his face as a result of the assault incident some two days prior. 38 When Mr Marshall turned up for work on Tuesday, 17 February 2004 there is no evidence to suggest he was suffering any ongoing and/or underlying effects arising from the assault he had sustained on Saturday, 14 February 2004. 39 The recounting of the above incident became relevant in these proceedings because of the circumstances surrounding Mr Marshall's workplace accident involving the fatal head injuries he sustained. That is, as earlier stated, the prosecution contended there was a causal connection between Mr Marshall's fatal head injuries and the defendant's unsafe system of work as particularised. 40 In objecting to that proposition, counsel for the defendant acknowledged there was a foreseeable risk of injury in terms of the activity being undertaken by Mr Marshall at the time of the accident. Further, he conceded it was foreseeable there was a risk of serious injury. However, on that point, counsel submitted, the likelihood of serious injury arising given the circumstances of the activity being undertaken was 'relatively slight'. 41 In support of the above submissions, the defendant relied on the evidence of Professor John Hilton. He was put forward by the defendant as an expert witness and no issue was taken to that by the prosecution. Professor Hilton is a consultant in Forensic Medicine including acting in that capacity for Central Sydney Area Health Service. 42 In order to prepare his report, Professor Hilton was provided with a significant amount of documentary material including police and witness statements, medical and post mortem reports as well as Mr Marshall's medical records from Liverpool Hospital. 43 In his report, Professor Hilton expressed, inter alia, the following opinions: [1] It is reasonably clear from the various descriptions that during the course of the events of 14 February 2004 Mr Marshall may have gone to ground backwards. According to the statement of Egan, Mr Marshall told her he struck the side of his head on the ground. There is ample physical evidence of him having sustained some apparently minor left-sided facial injuries at about that time. The mechanism by which those injuries were sustained would appear to be associated with punches received during the course of a fracas on the evening of 14 February 2004. By all accounts there is no evidence of Mr Marshall having shown any loss or impairment of consciousness at or subsequent to these events. However this does not preclude him having sustained some injury to the contents of his head (brain, meninges etc) which, after a period of latency caused him some problems whilst at work on Tuesday 17 February 2004. [2] It is clear that head injury sustained at work caused Mr Marshall's death. This was sustained when he fell backwards and the back of his head impacted on the concrete floor of the workshop. The distance of travel of his head was from about his own height and the force causing this impaction was that of gravity. A number of sheets of MDF were on top of his legs, perhaps extending up to his lower abdomen. It would appear that a substantial proportion of the weight of the MDF sheets was initially taken by the lower edge resting on the ground. However once they started to fall the dynamics of the situation would progressively change and their terminal position was that in part they were being supported by some portions of Mr Marshall's lower body but not enough to sufficiently impair his breathing or circulation. Thus the final resting position of the MDF sheets vis a vis Mr Marshall's body would not be likely to impair his breathing. [3] I have examined a parcel of sheets of MDF, each sheet measuring 1.2 x 2.4 metres x 16mm thickness. As its name implies, the substance of which the sheets are formed is fairly dense. It has smooth surfaces. I experimented by balancing one sheet on its edge, then slowly moving backwards, so that the sheet tilted towards me whist I supported it with my hands, spread beyond the width of my shoulders and slightly higher than my head. The force exerted by the sheet on my hands increased progressively as I moved backwards and as the centre of gravity of the sheet moved upwards and towards me. This single sheet was easily controlled without much strength required to support it. The effort which would have been required to sustain 5-8 sheets would have been proportionally greater. ... In summary, it is not possible for me to exclude the existence of some previous intra cranial pathology existing, and perhaps contributing, to Mr Marshall's work associated misadventure. This may be clarified by a review of the x-rays and scans and a more detailed report from the Neurosurgeons. However, there is no doubt that the immediate precipitating cause of Mr Marshall's death was the impaction of his head on the workshop floor, he having fallen backwards. The possibility of a pre-existing condition in Mr Marshall contributing to the events of 17 February 2004 cannot be excluded. I cannot say beyond reasonable doubt, that Mr Marshall's fall was the result of the MDF he was supporting, although that MDF may have contributed in some way to the outcome of the fall. It is possible that the injuries Mr Marshall sustained to his head on 14 February may have contributed to the incident of 17 February and its outcome. A further possibility is that Mr Marshall sustained some physiological event causing giddiness and/or faintness, moved backwards, overbalanced and fell. I cannot say beyond reasonable doubt that his partially supporting a number of sheets of MDF caused his fatal fall. 44 In cross examination, Professor Hilton reaffirmed that the way in which the sheets of MDF fell towards Mr Marshall as he was supporting them may have contributed in some way to the outcome, that being Mr Marshall's head injury. Additionally, as the above extract from his report reveals, he identifies two other alternative hypotheses that may have caused Mr Marshall to fall in the way he did and sustain the head injuries that resulted in his death. 45 One hypothesis was that Mr Marshall suffered a stand alone physiological event that caused him to suffer giddiness and/or faintness and he subsequently overbalanced and fell to the floor, hitting his head. 46 The second hypothesis Professor Hilton raised was that Mr Marshall was suffering some underlying residual after effects from the fight he had been in on 14 February 2004 and the knocks he sustained to his head. Subsequently, those residual after effects caused him to faint and/or pass out at the time he was supporting the MDF sheets. On that point, it must be noted, there was no direct evidence of any residual after effects following Mr Marshall's assault up to the time of his attendance at work on 17 February 2004. 47 It would be accurate, in my view, to summarise Professor Hilton's evidence in cross examination as being that the two alternative hypotheses raised by him as to a possible cause of Mr Marshall's fall were less likely than that contended for by the prosecution. That is, it was the cumulative weight of the MDF sheets, together with the manner in which they were being supported by Mr Marshall, that caused him to fall backwards and, in doing so, the back of his head impacted with the floor, resulting in his subsequent death. 48 In support of their submission on this point, the prosecution relied on the evidence of Mr Richard Cluff. Mr Cluff was a fellow employee and was working with Mr Marshall at the time of his accident. Not surprisingly, his evidence as to what he observed was important. 49 Mr Cluff provided four statements in relation to his recollection of events on 17 February 2004. Two were given on 17 February 2004, one on 21 June 2004 and a further sworn statement on 27 July this year. Given the number of statements, it is not surprising that some inconsistencies have crept in. 50 At the outset, on 17 February 2004, Mr Cluff perceived no physical problems with Mr Marshall doing as proposed. That is, supporting the MDF sheets as he (Mr Cluff) flipped them towards him. In supporting the MDF sheets flipped over by Mr Cluff, there came a point at about sheet six or seven when things started to go wrong. Mr Cluff observed the sheets being supported by Mr Marshall began to fall outwards. As he explained on 17 February 2004 in his statement to the Police: [19] I pulled another sheet forward onto the pile that Paul was holding. Each time I pulled a sheet I asked Paul if he was all right and he told he was. It would have been about six sheets maybe seven sheets that Paul was holding when I was sliding the off cut out of the pile. Paul was going to push the sheets back once I got the off cut from the pile. Virtually as I slid the off cut out, the sheets that were being held by Paul began to fall towards the front. I saw it out of the corner of my eye. [20] By the time I turned around and faced Paul, the sheets were on about a sixty-degree angle falling towards Paul. I didn't really think much at this time only that Paul had to get out of the way. I think I screamed out, "Leave it". Paul wasn't getting out of the way as they were falling. Once the sheets were falling, Paul must have taken about two steps backwards and the sheets were coming down with him. It appeared that Paul couldn't get out of the way in time. It appeared to me that the sheets were pushing him down to the ground. As the sheets got to his chest, that is when Paul went backwards onto the ground. It like they pushed him backwards. 51 In his affidavit of July this year, Mr Cluff elaborated somewhat on the above as follows: [11] I recollect that when the 6 to 8 sheets of MDF began to fall towards Mr Marshall, he attempted to stop them falling. I remember observing for a split second or so Mr Marshall straining in an attempt to take the weight of the collapsing sheets but without success. [12] I recollect saying to Mr Marshall "leave it" as he was attempting to stop the sheets from falling. [13] Mr Marshall then took 2 steps backwards in what appeared to me to be an attempt to get out of the way of the falling sheets. The speed at which the sheets fell however meant that he was unable to do so. 52 What is consistent in the above two statements as well as his statement to WorkCover in June 2004 is that Mr Marshall seemingly attempted to get out of the way by taking a couple of steps backwards. Admittedly, that observation is contained within one inconsistency where Mr Cluff stated on 17 February 2004 that "... the sheets were on a sixty degree angle falling towards Paul ... Paul wasn't getting out of the way as they were falling" whereas in July this year, he deposed that Mr Marshall was "straining, attempting to take the weight of the sheets without success". In both scenarios, Mr Cluff said he called out "Leave it". A further relevant inconsistency on this point is that, in his statement to Ms Speakman of 17 February 2004, he simply says he saw Mr Marshall 'falling backwards. He fell to the ground like a log ...'. 53 When pressed in cross examination, Mr Cluff adhered to his evidence that Mr Marshall had taken a couple of steps backwards rather than fallen 'like a log' as he had first stated on 17 February 2004. By reference to measurements taken, including the length of the sheets and Mr Marshall's height as well as his position after his fall together with the location of the sheets at the time they fell, counsel for the prosecutor contended it was possible to conclude Mr Marshall did take a couple of steps backwards rather than fell 'like a log' - the inference being that if he had fainted and/or become giddy as per Professor Hilton's two other alternative hypotheses, he would not have taken any steps backwards but simply fallen straight down 'like a log'. 54 Professor Hilton's evidence on this point was as follows: Q. In terms of the evidence of what occurred at the time, you've indicated that it's possible that Mr Marshall sustained some physiological event - absent the altercation, just generally - and moved backwards, overbalanced and fell. If someone does experience giddiness or faintness - and I take it there's a range of different ways in which that can be manifested? A. Yes. Q. Someone might collapse on the spot? A. Yes. Q. Without moving their feet, effectively? A. Yes.

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Q. And, therefore, inconsistent with the theory of giddiness and faintness? A. No. I think - I would hate to think I gave the impression it was inconsistent with the person feeling giddy or faint. The two are not mutually exclusive. 55 Overall, on the evidence I have from Mr Cluff, together with the height of the sheets as well as the location of the sheets on Mr Marshall's legs after the fall, it appears that Mr Marshll did take a couple of steps backwards. However, it is not possible to conclude beyond reasonable doubt that the sheets fell because their combined weight was too great for Mr Marshall to bear or that they fell because some sudden physiological event, including the after effects of his earlier assault injuries, caused Mr Marshall to faint. Given the system of work prevailing and the evidence before me, particularly as to the cumulative weight of the sheets, I am of the opinion that it was more likely that it was those factors that precipitated Mr Marshall's fall and the subsequent head injury but I am unable to so conclude to the requisite standard. 56 In any event, I am satisfied beyond reasonable doubt that the defendant's failures as particularised created a risk to safety that was foreseeable and that, given the nature and extent of the defendant's breach, there was every prospect of serious consequences to employees affected by the breach. Again, on the evidence, I cannot be satisfied beyond reasonable doubt that the serious consequences would have included fatal head injuries such as that sustained by Mr Marshall in the circumstances of his accident. However, I do believe, in the context and circumstances of the work being undertaken by Mr Marshall and the foreseeability of serious consequences, that the type of injury sustained by Mr Marshall could occur. That is, a head injury as a result of being struck in the head by the falling sheets or, as in Mr Marshall's case, the impact of the falling sheets causing him to hit his head in some way. Whether such an injury would have the fatal consequences such as occurred to Mr Marshall, it is simply not possible, on the evidence, for me to conclude.

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62 In August 2004, following the construction of the MDF board racks, Ms Skipworth also retained the services of ISR Services Pty Limited (ISR), an occupational health and safety consultancy firm, to conduct an overall risk assessment at the defendant's joinery/cabinet making premises. 63 ISR compiled a report identifying the hazards present in the defendant's premises. The report identified that the defendant still had stocks of other types of board stored by leaning the boards vertically against a wall. The manner in which the other boards were stored was similar to the method by which the MDF boards were stored prior to the accident. The report recommended installing "suitable storage racking to safely contain all stocks of board and provide improved stability" (emphasis added). 64 The accident to Mr Marshall should have alerted the defendant to the need to ensure that fibreboard sheeting or sheeting of any kind, regardless of whether they were MDF sheets or not, should be stored in racks to avoid the risk of collapse. The fact that the defendant was still adopting the practice of storing some sheeting boards by leaning against a wall after the accident suggests that the defendant did not consider that the risk to safety earlier highlighted by Mr Marshall's accident extended beyond the MDF boards. However, once the risk was identified by ISR, Ms Skipworth immediately adopted the suggested solutions made by ISR. 65 While it is commendable the defendant undertook risk assessment and hazard identification following the accident as well as introducing board racks for storage, they were all matters that could have been addressed before the accident involving Mr Marshall. 66 Taking into account all of the above matters, I assess the offence as being objectively serious and will assess penalty on that basis. 67 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:

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75 As mentioned above, the defendant had two businesses which were the focus of its commercial activities. One was the business of the dress boutique, which the defendant is still engaged in. The other is the kitchen joinery business, which was sold in 2005. The agreed purchase price of that business was $315,000. Ms Skipworth received $255,000 in July 2005 and is currently awaiting the receipt of the remainder of the purchase price, amounting to $60,000. 76 Ms Skipworth deposed that the proceeds from the sale of the kitchen joinery business were used to pay creditors of the corporate defendant and the broker who facilitated the sale of the kitchen business. Additionally, she said, proceeds from the sale were used to make worker's compensation payments, pay taxes, wages and superannuation. Ms Skipworth also took out a personal loan to bankroll the corporate defendant during a downturn in the kitchen joinery business following the accident. The defendant repaid that loan, which amounted to $40,000. As a result, Ms Skipworth deposed, there is nothing left from the proceeds of the sale of the business. The defendant also owes Ms Skipworth approximately $15,000 in long service leave entitlements. 77 The defendant has retained the boutique business which, according to Ms Skipworth, averages sales of $5,500 per week, including GST, with the running costs of the business being some $4,500 per week. That figure includes rent ($900 per week), wages ($1,560 per week) and stock and incidentals ($1,900). The boutique employs four staff members. Overall, the net result amounts to an approximate pre-tax profit of $140 per week. 78 Ms Skipworth's affidavit also included a copy of the tax return for the defendant for the tax year ending 30 June 2004 which revealed the defendant had a pre-tax profit of $36, 471. That profit amount had been generated, it was said, from both the kitchen and the boutique businesses. In that tax year, the company had paid $127,736 in total salary and wage expenses. No company return for the financial year ending 30 June 2005 or 2006 was provided as the company's accountant had not yet completed the return.

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79 In a letter dated 27 July 2006 written by the defendant's accountant, seemingly for the purposes of these proceedings, he estimated that the turnover of the company for the 2005 financial period would be similar to the 2004 financial year, that being approximately $26,000. The only information that the defendant's accountant was able to provide for the 2006 financial year was that the retail boutique would be the only business generating income. As was stated: The turnover of the company for the 2005 financial year is similar to the 2004 financial year which (all things being equal) could result in a similar profit for the 2005 year as what was shown for 2004, namely $26,000. However, one variable is that the 2004 figures showed management fee income of $20,000 which did not re-occur in the 2005 year. In relation to the 2006 financial year, as the company only operated the retail shop, the profits for this year will be somewhat lower again. 80 Finally, in relation to a defendant's ability to pay, I note the observation of the Full Bench in WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 at [51] as follows: ... where a defendant desires to plead incapacity to pay as a determinative issue in the imposition of penalty, it behoves the defendant to discharge the onus that such a submission invokes by placing before the Court all of the information it relies upon in support of that submission in order for the Court to give that information proper consideration in the exercise of its sentencing discretion. 81 I appreciate the defendant does not plead incapacity to pay but rather a limited capacity to pay by dint of it's size and overall trading position. Nevertheless, the affidavit and documents supplied by Ms Skipworth setting out the defendant's financial details are insufficient to gain a full understanding of the defendant's current financial circumstances. Based on the scant documentation provided, I can discern the company is a small one and trades on a modest basis. It does not appear that the defendant has large reserves to draw from in order to meet the fine to be imposed but the information provided does not allow me to be any more definite on that issue. From the evidence received, it is apparent that Ms Skipworth is effectively the company and any resultant penalty may well fall upon her to meet. I have no information as to Ms Skipworth's financial position. 82 Although the defendant appears to be of relatively limited means, it is not impecunious. In determining the amount to be fixed for penalty, I adopt the position as set out by Wright J in President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed: ... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence. 83 In the determination of penalty, the defendant is entitled to have taken into account the plea of guilty entered. In assessing the impact of the plea, the Court is guided by the principles established in R v Thomson; R v Houlton (2000) 49 NSWLR 383. Those principles are well settled and require no elaboration. I determine that discount at twenty five per cent.

[63]

84 Counsel for the defendant submitted that there were additional subjective matters which weighed in favour of the defendant. Ms Skipworth cooperated with WorkCover in conducting its investigation. The prosecutor has properly acknowledged this. Additionally, as detailed above, the defendant took positive and prompt steps to amend it's workplace practices in order to address those areas that the failures grounding this offence have highlighted. I accept they are factors that operate in the defendant's favour in my considerations as to penalty. 85 Counsel for the prosecution submitted that the defendant had not expressed any contrition or remorse for the accident which resulted in Mr Marshall's death. Counsel for the defendant stated that the company's practical efforts, that is, assisting WorkCover in its investigation, its prompt changes to the system of work and assistance to other employees affected by the accident are evidence that the defendant is truly contrite. 86 As a mitigating factor, provision is made for remorse in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 in that the Court can take it into account where: (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner; 87 The issue of contrition and remorse as a mitigating factor in the sentencing process was referred to by Cummins J in DPP v Esso Australia Pty Limited [2001] VSC 263 (30 July 2001) at [48] as follows: Normally in sentencing, a failure to accept responsibility sounds in the matter of specific deterrence. This is not so here, because Esso has demonstrated by its subsequent operational reforms that it has acted responsibly to remedy past deficiency. But its lack of acceptance of responsibility has a relevance in my not accepting that Esso's expression of remorse is practical and operational. Esso's failure still to accept responsibility for these tragic events is a serious deficiency. 88 I had cause to consider the issue of contrition and remorse in my judgment Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 particularly at [133] and following. At [141] I stated, in part: I agree with his Honour's view expressed in Esso that contrition and remorse are best evidenced by an acceptance of responsibility. 89 Further, at [268] in relation to one of the personal defendants: The issue of contrition and remorse has been raised on his behalf as a factor that should operate in mitigation. I have to say it is difficult to detect an unequivocal expression of contrition and remorse on the part of Mr Robinson. I come to that view on the basis that I interpret contrition and remorse as embodying an acknowledgement of personal responsibility for the offence accompanied by a deep and painful regret for that wrongdoing. ... 90 It should be said that, in relation to the above matters, the defendants had pleaded not guilty. That is not the case here. 91 Adopting the above approach to the circumstances before me, I accept that Ms Skipworth has expressed sincere and deep regret at the circumstances surrounding Mr Marshall's accident and subsequent death. As Ms Skipworth is, for all practical purposes, the mind of the corporate defendant, I accept her expressions of regret at Mr Marshall's death as being on behalf of the defendant. Whether such an expression embodies acceptance of responsibility on behalf of the defendant for Mr Marshall's accident is not clear but, on balance, I accept the steps taken by the defendant after Mr Marshall's accident by way of remediation and assistance to Mr Cluff may be seen as some evidence of that. 92 On behalf of Mr Marshall's wife, Mrs Tammy Marshall, the prosecutor has tendered a Victim Impact Statement pursuant to s 28 of the Crimes (Sentencing Procedure) Act 1999. That section sets out the necessary considerations to be taken into account by the court in receiving a victim impact statement. 93 At the time of the accident, Mrs Marshall was separated from her husband. However, their relationship spanned some 24 years and their marriage resulted in two children, Mathew and Casey. Casey is a mother to a young daughter, Layne, and Mathew was 13 years old at the time of the accident involving Mr Marshall.

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Cases Cited (13)