WorkCover Authority of New South Wales (Inspector Macready) v Fawaz El Dadoun and Ghaleb El Dadoun

Industrial Relations Commission (NSW)|2005-05-18|Before: Staunton J, Mr P

CITATION: WorkCover Authority of New South Wales (Inspector Macready) v Fawaz El Dadoun and Ghaleb El Dadoun (No. 2) [2007] NSWIRComm 238

PROSECUTION: WorkCover Authority of New South Wales (Inspector Macready) PARTIES: DEFENDANTS: Fawaz El Dadoun Ghaleb El Dadoun

Occupational health and safety - determination of penalty and costs - general principles on sentencing - foreseeability - objective seriousness of the offence - principle of parity relevant - found culpability of co-defendants greater - general deterrence - held specific deterrence relevant but reduced - financial circumstances of defendants considered - subjective features taken into consideration - held not persuaded discretion under s 10 of Crimes (Sentencing Procedure) Act applicable - penalties imposed - orders as to penalty, moiety and costs. CATCHWORDS:

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 Environment Protection Authority v Barnes [2006] NSWCCA 246 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Lowe v The Queen (1984) 154 CLR 606 Markarian v The Queen [2005] HCA 25: 18 May 2005 Morrison v Powercoal Pty Limited [2003] 130 IR 364 Postiglione v The Queen (1997) 189 CLR 295 CASES CITED: R v Gallagher (1991) 23 NSWLR 220 R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover Authority of New South Wales v Ecolab Pty Limited (1999) 90 IR 413 WorkCover Authority of New South Wales v Menzies Property Services Pty Limited [2004] 136 IR 449 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 WorkCover Authority of New South Wales (Inspector Macready) v Fawaz El Dadoun and Ghaleb El Dadoun [2007] NSWIRComm 169 WorkCover Authority of New South Wales (Inspector Macready) v Forcon Pty Limited and anor [2007] NSWIRComm 132

PROSECUTION: Mr P Skinner of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANTS: Mr K Ginges of counsel SOLICITORS: Regency Lawyers

Matter No IRC 4708 of 2005 WorkCover Authority of New South Wales (Inspector Macready) v Fawaz El Dadoun Prosecution arising under section 9 of the Occupational Health and Safety Act 2000

Matter No IRC 4709 of 2005 WorkCover Authority of New South Wales (Inspector Macready) v Ghaleb El Dadoun Prosecution arising under section 9 of the Occupational Health and Safety Act 2000

1 In an earlier judgment concerning the two defendants, handed down 13 July 2007, I determined the offences charged pursuant to s 9 of the Occupational Health and Safety Act 2000 (the Act) had been proved: See WorkCover Authority of New South Wales (Inspector Macready) v Fawaz El Dadoun and Ghaleb El Dadoun [2007] NSWIRComm 169. 2 This judgment is concerned with penalty and costs. 3 The defendants are brothers and business partners who operate a cement rendering business registered as El Dadoun, Ghaleb and Fawaz. The business is also known as Sydney G & F El Dadoun Cement Rendering and will henceforth be referred to as the Dadoun partnership. 4 The offences arise from an accident that occurred on 1 October 2003 involving Mr Omar El Mahrbani. Mr El Mahrbani was a self employed cement renderer who was working at a residential development site located at 2 - 6 Anglo Square, Carlton (the site). Mr El Mahrbani was performing cement rendering work on the upstairs balcony of a unit on the site when he lost his balance and fell some 4.46 metres. As a consequence of the fall, Mr El Mahrbani suffered head injuries, fractures to his left wrist and elbow, spinal and neck injuries and was unable to work for a number of months. 5 The principal contractor on site for the development was Forcon Pty Limited (Forcon). Forcon had sub-contracted the cement rendering work for the site to the Dadoun partnership. Forcon's Managing Director is Mr Jeffrey Forsyth. As co-defendants in the factual circumstances surrounding Mr El Mahrbani's accident, Forcon and Mr Forsyth entered pleas of guilty to offences arising under s 8(2) of the Act in relation to the accident. Forcon and Mr Forsyth's offences have been dealt with in my judgment handed down on 1 June 2007: See WorkCover Authority of New South Wales (Inspector Macready) v Forcon Pty Limited and anor [2007] NSWIRComm 132. That judgment will be referred to in due course relevant to my considerations as to parity between the respective defendants.

6 In my judgment as to liability concerning the two defendants, I made findings that the Dadoun partnership, as part of their undertaking and pursuant to their contract with Forcon, engaged the services of Mr El Mahrbani to perform some of the cement rendering work for them and that the Forcon site was the defendants' undertaking and place of work at the relevant time. 7 The facts relevant to the offences have already been set out in the principal judgment. I do not repeat them except where necessary. 8 The prosecutor did not tender any affidavit material in the sentencing proceedings except to confirm that the defendants had no prior convictions. 9 On behalf of the defendants, the following material was tendered without objection: (i) Annexures K, L, N, O and M from the affidavit of Mr Fawaz El Dadoun, sworn 7 April 2006. Annexures K and L are Partnership Tax Returns for 2004 and 2005. Annexure L includes a number of tax invoices from Pronto Building & Landscape Supplies Pty Ltd, addressed to the Dadoun partnership for January and February 2006. They represent evidence of the partnership's outstanding liabilities.

Annexures N and O are personal testimonials from Mr Georges Chaaya, the Construction Manager of Teroll Pty Ltd and Mr Jamil Hanna, a co-director of Kane Developments Pty Ltd.

An identical bundle in respect of Mr Ghaleb El Dadoun was also tendered and I do not repeat its contents as such.

(ii) Affidavit of the defendant Mr Ghaleb El Dadoun sworn on 28 August 2007. Mr El Dadoun's affidavit detailed the partnership's history, its past and current occupational health and safety practices and the circumstances of the accident involving Mr El Mahrbani. Mr El Dadoun also deposed as to his current financial circumstances.

(iii) Affidavit of the defendant Mr Fawaz El Dadoun sworn on 28 August 2007. Mr El Dadoun's affidavit canvasses identical matters to those detailed in his brother's affidavit as identified above except for his financial circumstances, which differ slightly. 10 No oral evidence was received in the sentencing proceedings.

General principles on sentencing 11 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. 12 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.'

13 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' ...

14 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: ... 15 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]. 16 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. 17 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. 18 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). 19 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.

20 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)

21 The offences found established were that on 1 October 2003 the defendants, as joint partners in the Dadoun partnership: Did fail to ensure that people other than his employees and including Omar El Mahrbani, a self employed cement renderer ('the worker'), were not exposed to risks to their health and safety arising from the conduct of his undertaking, namely, cement rendering work incidental to the construction of townhouses at the site, while they were at his place of work namely the site, contrary to s 9 of the Occupational Health and Safety Act 2000 in that:

(a) There was no stable and securely fenced work platform in situ to enable the worker to perform the work safely.

(b) The defendant failed to provide appropriate information, instruction, training and supervision in relation to the conduct of work involving the rendering of the straight edge above the top of the sliding door when it involved the worker standing on a platform approximately 500mm above the concrete balcony floor such as was necessary to ensure that risks to the health and safety of the worker were avoided. 22 As neither defendant has a prior conviction, the maximum penalty that may be imposed on each defendant is $55,000. 23 At the outset, in determining the objective seriousness of the offence with respect to each of the defendants, it is necessary to consider my judgment in relation to the co-defendants in the incident giving rise to these offences. In that respect, this judgment should be read in conjunction with my judgment in WorkCover v Forcon Pty Limited and Jeffrey Ronald Forsyth (the Forcon judgment) earlier referred to. The two judgments, taken together, reflect my sentencing considerations and penalty with respect to all defendants involved in Mr El Mahrbani's accident. They are co-defendants in the overall factual matrix giving rise to their respective offences. 24 As is made clear in the Forcon judgment and earlier in this judgment, the Dadoun partnership was subcontracted by Forcon to undertake cement rendering work at a residential development site overseen by Forcon. In that respect, Forcon had a significant role to play in the overall events that transpired concerning these offences and, ultimately, overall responsibility for safety on the building site. As I said in my judgment in relation to Forcon: [29] The overall responsibility of Forcon and it's relevant supervisory employees was to ensure a safe system of work was in place and being observed at it's worksite. That overall responsibility included the work being undertaken by Mr El Mahrbani. That they failed to do that is reflected by the entry of a plea of guilty by Forcon and Mr Forsyth to their respective offences.

[30] The nub of the respective defendants' culpability in relation to the offences pleaded is a failure to adequately address the risk to safety posed to Mr El Mahrbani in working from a height in the circumstances that he was. That risk to safety centred around the need to ensure adequate fall protection. It was entirely obvious that a failure to address that hazard created real and foreseeable risks to safety should Mr El Mahrbani lose his balance and fall from the balcony, which is exactly what he did. As the particulars of the charge assert: At about 1.00 pm on 1 October 2003, the worker was in the process of rendering a straight edge above the top of a sliding door on the southern end of the balcony of Unit 7 at the site when he slipped and fell from the balcony onto a dirt driveway, a distance of 4.46 m below. 25 Likewise, as I determined in the liability judgment relating to the current defendants, their failures centred around a failure to provide adequate fall protection measures in relation to the work being undertaken by Mr El Mahrbani and further, a failure to provide Mr El Mahrbani with proper instructions, training and supervision such as to ensure appropriate fall protection measures were in place at the time he was undertaking cement rendering work. 26 There is little that can be added to the well recognised risk to safety that working from heights represents in any industry, particularly in the building and construction industry. As is undisputed, Mr El Mahrbani was performing cement rendering work on the upstairs balcony of a unit when he lost his balance and fell some 4.46m. At the time, there were no fall protection measures such as scaffolding in place to prevent Mr El Mahrbani falling as he did. 27 It goes without saying that the risk to safety present in relation to the work being undertaken by Mr El Mahrbani was ever present and readily foreseeable. As the facts disclose, there was a failure to ensure scaffolding or any other fall protection measure was in place at the time Mr El Mahrbani was working. As I said in relation to my penalty considerations in Forcon: [46] Taking into account the relevant principles as well as all the matters to which I have referred, I consider the respective offences to be objectively serious and will determine penalty on that basis, subject of course to relevant considerations to be taken into account. 28 The relevant consideration that concerns me in these sentencing proceedings is the culpability of the defendants vis-a-vis the culpability of Forcon when comparing the respective roles of Forcon and Mr Forsyth with that of the Dadoun partnership in the context of the factual circumstances of their respective offences. In short, the principle of parity is a relevant consideration. 29 The approach to be considered as to parity in sentencing is well settled. It is a matter to be determined having regard to the circumstances of the offences, the role of the co-offenders and their respective degrees of culpability: See Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295. 30 In my view, the culpability of the Dadoun partnership is considerably less than that of Forcon and Mr Forsyth. In coming to that view, it is necessary to assess the role of the Dadoun partnership compared with that of Forcon in particular, in the overall factual matrix of their offences. 31 As already emphasised, the overall responsibility to ensure a safe system of work was in place at the worksite rested with Forcon and its relevant supervisory employees. That overall responsibility included the work being undertaken by the Dadoun partnership and, in turn, Mr El Mahrbani as their subcontractor. 32 As my primary judgment in relation to the Dadoun partnership makes evident, the critical issues underpinning the entry of the plea of not guilty by the defendants was their view that the work being undertaken by Mr El Mahrbani was separate and apart from their subcontract with Forcon. Accordingly, the work being undertaken by Mr El Mahrbani was not part of their undertaking pursuant to the contractual arrangements between them and Forcon and the Forcon site was not their place of work at the time of Mr El Mahrbani's accident. On those issues, I found against the Dadoun partnership but, in doing so, I formed the view that Forcon bore a fair degree of responsibility for the defendant's failures by failing to adequately explain to the Dadoun partnership their workplace safety obligations in relation to Mr El Mahrbani. 33 There were a number of matters disputed by the defendants relevant to their contractual arrangement with Forcon. They were as follows: (i) Forcon did not provide any interpreters or Arabic translations to the Dadoun partnership to enable them to understand the Work Method Statement and the subcontract agreement between the partnership and Forcon; (ii) Forcon did not provide a Site Specific Induction Statement to the Dadoun partnership; (iii) On behalf of the Dadoun partnership, Mr Ghaleb El Dadoun did not sign the second page of the agreement or the Site Specific Induction Statement. 34 As my judgment on liability makes clear, I concluded on the evidence that I could not be satisfied beyond reasonable doubt that Forcon did provide a Site Specific Induction Statement to the Dadoun partnership. Further, I was also critical of the absence of any relevant information conveyed by Forcon to the Dadoun partnership concerning the nature of their contractual obligations pursuant to their subcontract with Forcon, particularly in the area of safety. As I said: [50] It is indisputable that Forcon's approach to dealing with it's administrative responsibilities of finalising written contractual agreements with the defendants and, on Mr Dean's evidence, with it's subcontractors generally, was distinctly haphazard. For example, in addition to my finding in relation to the SSIS, the following inconsistencies emerged in relation to the subcontract agreement and the WMS between Forcon and the Dadoun partnership: (i) on the copy of the subcontract agreement produced by Forcon and tendered by the prosecution (exhibit 7), Mr El Dadoun's signature appears on the second page at the bottom right hand side of the page and Mr Dean's signature appears at the bottom left hand side of that page. On the original of the subcontract agreement produced by the defendants (exhibit 10) Mr Dean's signature appears at the bottom right hand side of the page. Mr El Dadoun's signature does not appear at all on the second page. (ii) On the copy of the WMS produced by Forcon and tendered by the prosecution (exhibit 8A) the first page identifies the defendants as 'Sydney G & F El Dadoun Cement Rendering'. The first page of the original WMS produced by the defendants (exhibit 19) identifies the defendants as 'Ghaleb and Fawaz'. A further copy of the WMS (exhibit 9) does likewise. ... [53] Notwithstanding that, Mr Dean's explanation as to how the inconsistencies probably arose in relation to the contractual documentation between Forcon and the Dadoun partnership was disconcerting to say the least. To my mind, it does demonstrate a sloppy, almost negligent, approach to it's overall responsibilities for project management and worksite safety.

[54] My findings so far in relation to the contractual documentation between Forcon and the Dadoun partnership are indicative, in my view, of an overall lax approach on Forcon's part to ensuring a coherent and reliable approach to doing business with subcontractors. ... ...

[56] On Mr Dean's own evidence, the only information conveyed by Forcon to Mr Ghaleb El Dadoun in relation to the partnership's safety responsibilities on site was the limited conversation between Mr Dean and Mr Ghaleb El Dadoun on 5 May 2003, utilising Mrs El Dadoun as interpreter. Otherwise, it was left to whatever was conveyed to them on site. That would appear to have been negligible, if the evidence of Mr Carforio, Forcon's building supervisor for the site, is to be accepted. 35 In relation to Mr Carforio, Forcon's Building Supervisor for the site, the discharge of his responsibilities as Building Supervisor with overall responsibility for workplace safety, was clearly unsatisfactory. That much is evident from the questions and answers that appear in his statement to Inspector Macready, particularly the following extract: Q46: What information did Forcon Pty Ltd provide to Omar El Mahrbani about the work he was undertaking at the time of the incident? A: Information was given to El Dadoun as subcontractor, the work method statement would have been given to El Dadoun by our head office together with the contract.

A: It would be Chris Dean, construction manager for Forcon. 36 In relation to any information, Mr Dean may have given Mr Ghaleb El Dadoun, I said: [39] As I understand it, Mr Dean signed the documents on behalf of Forcon and left them with Mr Ghaleb El Dadoun after he had gone through them with him and his wife. As he explained: I just basically pointed out the areas of information we required from them, places to sign, advised them to go through the conditions and return on completion.

[40] To the best of Mr Dean's recollection, no documents were signed in front of him. What he did, as he acknowledged, was to put an asterisk next to the sections Mr Ghaleb El Dadoun was to sign or complete on behalf of the partnership. 37 Overall, the view I formed as to the knowledge and understanding the Dadoun partnership had with Forcon as to the partnership's obligations in relation to workplace safety, was summarised by me as follows: [59] While I am satisfied Mr Ghaleb El Dadoun did sign the original subcontract agreement and the WMS, I am not satisfied he necessarily understood the full import of the partnership's obligations flowing from such an agreement, including matters going to workplace safety. Apart from the assistance of Mrs Intisar El Dadoun, whose English skills, while reasonably good, are not colloquially fluent, no effort was made by anyone on behalf of Forcon to explain in a language the defendants readily understood, or ensure the defendants fully comprehended, the workplace safety obligations that arose pursuant to their contractual agreement with Forcon. Indeed, Mr Fawaz El Dadoun does not appear to have had any discussions with Mr Dean or anybody else on behalf of Forcon about workplace safety responsibilities. They are matters going more to mitigation on sentence, should such considerations arise. 38 I believe the defendants genuinely did not understand the nature of their absolute responsibility for the work being undertaken by Mr El Mahrbani. While that does not excuse them in relation to the offence, which I have found proved, I do place the blame for that lack of understanding predominantly at the feet of the relevant Forcon personnel, particularly Mr Dean and Mr Carforio. 39 It was abundantly clear in the course of proceedings before me that neither of the Dadoun partnership were fluent in English. Both required the assistance of an interpreter. The only member of their family who spoke English, and she was only reasonably fluent in it, was Mrs Intisar El Dadoun, the wife of Mr Ghaleb El Dadoun. 40 It seems abundantly self evident that if persons such as the defendants, essentially professionally skilled tradesmen operating within a small partnership, ply their skills within the building and construction industry, getting by with a limited understanding of English, then it behoves a principal contractor to ensure that subcontracts entered into are entered into ensuring that the subcontractors fully understand their legal responsibilities, particularly in relation to workplace safety. If that means subcontract agreements with skilled tradespeople such as the Dadoun partnership have to be translated or an official interpreter has to be utilised, then so be it. Unless that issue is properly and comprehensively addressed, the Court will continue to encounter defendants such as the Dadoun partnership, in circumstances where they have not fully appreciated the extensive and absolute nature of their obligations to subcontractors who they engage or introduce to undertake work on their behalf at a particular site. 41 By reference to the particular facts and circumstances, responsibility for a 'sub' sub-contractor is the issue that has given rise to the liability of the defendants. Otherwise, there is no evidence to suggest the defendants generally went about doing their job of cement rendering in an unsafe manner. It was simply that they did not believe they were responsible for Mr El Mahrbani. Indeed, the affidavit evidence tendered on their behalf, which was not challenged in any way, confirmed that while the partnership did not have any formal occupational health and safety policy document, the defendants have always taken safety seriously and ensured that anybody who worked for them always took proper precautions, including the use of harnesses and scaffolding as required, they provided employees with verbal safety instructions and took steps to assess and address potential hazards and risks to safety in relation to the work to be performed as a protection for them and their employees. 42 The personal testimonials tendered on behalf of the defendants attest to the belief of those companies that have utilised the services of the partnership that the defendants are a partnership that was conscientious in its commitment to workplace safety. 43 All in all, whilst I consider the nature of the offence, which has been proved against the defendants to be an objectively serious one, that finding has to be weighed against the particular features of this offence, particularly in relation to the belief held by the defendants, albeit incorrectly, that they did not have responsibility for the safe work performance of Mr El Mahrbani and saw that as the responsibility of Forcon. I have found to the contrary, but in doing so, for the reasons expressed, I place considerable responsibility for that misunderstanding at the feet of Forcon. That is a factor I take into account in my ultimate assessment as to penalty in relation to the defendants. 44 In my view, general deterrence is a relevant consideration in these proceedings. The nature of the building and construction industry, particularly the ever present risks to safety that working from heights represents, demands attention by way of general deterrence. 45 In relation to specific deterrence, I accept it cannot be dismissed totally as a factor in my sentencing considerations. I do, however, note that since the incident involving Mr El Mahrbani, the defendants have, in addition to their well established reputation in relation to workplace safety, prepared and implemented a formal, comprehensive safety plan. A copy of that was before me. Given the relatively small nature of the defendants' business, it is an impressive document. As the defendants depose, it complements and confirms, in many respects, the verbal safety instructions and procedures they had and have always provided and observed in their working environment. 46 Further, as the defendants deposed, and it was not challenged, they have invested a considerable amount of time and money in formalising this comprehensive safety plan and management system to ensure an incident such as that involving Mr El Mahrbani will not occur in the future. 47 These are all commendable and relevant considerations in relation to specific deterrence such that whilst I consider it a factor to be taken into account, it should be tempered considerably having regard to the steps taken by the defendants by way of ongoing rehabilitation and attention to workplace safety. 48 In relation to the respective defendants' financial circumstances, there is material before the Court that supports the contention raised on their behalf that the financial circumstances of the respective defendants are very modest. There are some differences in the respective defendants' financial positions. 49 Mr Ghaleb El Dadoun is married with two children. He lives with his wife and family on a property at Greenacre. That property comprises two residences. Mr Ghaleb El Dadoun and his family live in one of the houses and the other house on the property is leased to a third party. Overall, Mr Ghaleb El Dadoun has a 75% joint interest in the equity of that property which he jointly shares with his wife. The remaining quarter equity in that property is owned by his brother, the other defendant, Mr Fawaz El Dadoun. According to information contained in Mr Ghaleb El Dadoun's affidavit, which was not disputed, that property was purchased for $300,000 some years ago and is now worth approximately $450,000 - $500,000 at current market value. It has a mortgage to the Westpac Banking Corporation of $220,000. 50 The net earnings of the partnership for the financial year ending 30 June 2003 was $76,638. Mr Ghaleb El Dadoun earned a total of $34,984, being half of the net profits of the partnership and an additional $3,335 by way of rent received from the Greenacre property. 51 In the financial year ending 30 June 2006, the net earnings of the partnership was $14,704 of which Mr Ghaleb El Dadoun earned a total of $7,352. 52 The financial position of the partnership for the years ending 2004 - 2005 were also before the Court. They reflect a similar outcome by way of a modest overall net income for the partnership in those respective years. For example, for the year ending 30 June 2004 the partnership tax return disclosed a net income of $59,666 and for the year ending 30 June 2005, the partnership net income was $49,028. Obviously, as equal partners in the business, the brothers each receive income representing half of the net income of the partnership for that year. 53 As both defendants deposed, again unchallenged, since 2003 the partnership has sustained a downturn in work because of the depressed state of the housing market and jobs have become more difficult to obtain. It is hoped and expected by them that prospects may pick up in the coming year with some increase in the income stream for both defendants. 54 In addition to his mortgage, as the sole provider for his family, Mr Ghaleb El Dadoun has financial responsibility for his wife and children. All told, when his mortgage payments to Westpac Banking Corporation as well as his general living and associated expenses are taken into account, he is left in the position of being a person of very modest financial circumstances. He describes himself as being in a 'restricted financial situation'. That is a description I would agree with. 55 In relation to Mr Fawaz El Dadoun, he has a property in Condell Park where he currently resides with his wife and two sons. He has a mortgage against this property of $340,000 and he purchased the property in April 2007 for $385,000. Mr Fawaz El Dadoun also confirms his 25% equity interest in the Greenacre property with his brother and sister in law. He says he has 'willed my share to them upon my death and receive no benefit whatsoever from this property'. 56 Mr Fawaz El Dadoun's personal income as a member of the partnership during the years 2003 - 2006 reflects that of his brother, Mr Ghaleb El Dadoun, to which I have already referred and which I do not propose to repeat. In short, both defendants' sole source of income comes from the partnership earnings. As confirmed by both of them, the partnership has seen a downturn in work of recent years because of the depressed state of the housing market but there is some hope and expectation that prospects may pick up in the coming year. 57 Mr Fawaz El Dadoun's expenses include his responsibilities for his wife and children, his mortgage payments to Westpac Banking Corporation of approximately $2,700 per month as well as general living expenses. Like his brother, Mr Fawaz El Dadoun describes his current financial position as being a 'restricted financial situation'. Again, I have no issue with such an assessment with respect to Mr Fawaz El Dadoun. 58 In imposing a penalty on the defendants for their respective offences, it seems to me I cannot totally ignore the principle of totality. The defendants' respective offence arises from their joint partnership arrangements. While the principle of totality is not directly applicable, it seems that the fairest approach I can take in my sentencing task is from the position of acknowledging that the defendant, overall, is the partnership. The defendants have been found severally liable for the breach of the partnership. In that sense, I would assess their respective culpability on behalf of the partnership as equal. 59 One additional factor that is relevant in determining the defendants' financial capacity to pay a fine are the costs the defendants will also have to bear. 60 Section 6 of the Fines Act (1996) provides: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and (b) such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. 61 The meaning of 'fine' for the purposes of the Fines Act is any monetary penalty imposed by the Court as well as any costs payable by the defendant. 62 As part of the defendant's financial circumstances, the question of costs in these proceedings is a matter I cannot ignore. In addition to the penalty imposed, the defendants will be left with a significant costs burden. In determining penalty, the Court is entitled to take account of the defendant's obligation to pay the prosecutor's costs: See Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78] and [88]. 63 Counsel for the prosecutor advised the Court that the costs estimate prepared on behalf of the prosecutor was $65,000. That is a considerable sum and is a relevant factor in my penalty considerations. In other words, given the costs order that will flow as a result of my decision, it is a factor that acts in mitigation of the penalty I impose. 64 The defendants ultimate decision to enter a plea of not guilty was done in the genuine belief that the work being performed by Mr El Mahrbani at the time of his accident was not part of their undertaking nor was the Forcon site their place of work at the relevant time. That was a threshold issue they were entitled to test. Having failed in that, it is noted that both defendants have stated they: ... accept the findings of this honourable Court pursuant to the particulars of the offence contained in 6(a) and 7 as pleaded and appear before the Court to take full responsibilities for such failures on our part to ensure Omar's safety. Omar is a very close friend and I would never wish this incident to happen to anybody. 65 The defendants have cooperated with WorkCover and, in addition to accepting responsibility for the offence found proved, they have assisted Mr El Mahrbani in a positive way, both financially and otherwise. As they have both deposed, they visited Mr El Mahrbani in hospital on a number of occasions and attended his house to visit his wife and children. Further, they provided Mr El Mahrbani's wife with money to help with the bills that were required to be paid while Mr El Mahrbani was recovering. Mr Ghaleb El Dadoun's wife also cooked meals for Mr El Mahrbani's family during his recovery process. 66 It is clear, to this day, the El Dadouns remain close friends with Mr El Mahrbani and are thankful he has made a full recovery from his injuries. 67 The personal testimonial material provided in relation to both defendants and, more particularly, with respect to the partnership, indicates a partnership that has been operating in the building and construction industry for a number of years. As stated, they have always been very conscious of workplace occupational health and safety and are noted as being extremely conscientious in all areas of safety in relation to both their employees and contractors while on the job. In short, they have displayed, up to this time, good industrial citizenship. 68 Counsel for the defendants asked the Court to apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 in relation to the respective defendants. 69 Section 10 of that Act relevantly provides: (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed; (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years; (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. ...

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition; (b) the trivial nature of the offence;

(d) any other matter that the court thinks proper to consider. 70 The application of the provisions of s 10 to an offence arising under the Occupational Health and Safety Act 1983 have been considered in prior decisions of this Court and more particularly in the decision of WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 and more recently WorkCover Authority of New South Wales v Menzies Property Services Pty Limited [2004] 136 IR 449. In particular, I note reference within Profab to the comments of Wright J President in WorkCover Authority of New South Wales v Ecolab Pty Limited (1999) 90 IR 413 and at 430 where his Honour noted the limited utility of comparing cases where provisions of the then s 556A (the statutory predecessor to s10 of the Crimes (Sentencing Procedure) Act) had been applied. On that issue his Honour stated: In my view, those matters turn purely upon their own facts and by virtue of the nature of the power that is being exercised when consideration is being given to the application of the ameliorative effects of s556A, each matter has to be considered in relation to its own particular circumstances and an analysis of earlier decisions and their particular approach to the discretion arising under the section are of limited value. (In any event, as observed by the prosecutor's counsel, a number of those matters involved significant contributory negligence by the injured worker. That is not the case here). 71 In WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Limited (2000) 100 IR 64 the Full Bench of the Court said at [21]: The judgment of the Full Court (Fisher CJ, Bauer and Cullen JJ) of the former Industrial Court in WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 at 101, is clear authority for the proposition that the discretion under s556A would rarely be available in significant offences against the legislation and any application for the benefit of the provision should be rigorously tested. 72 The need for a rigorous approach and the proper application of the provisions of s 10 to the offences under the Act is reinforced in Profab as follows: [24] Accordingly, when an application is made to a judge of this Court in sentencing proceedings under the Occupational Health and Safety Act for the exercise of the discretion under s556A, that will invariably occur in relation to a serious breach of the Act. The purpose of the statute, which is well known and often referred to in judgments of this Court, may be referred to as one for the benefit of the public generally and particularly employees at work to prevent, deter and punish breaches of health and safety requirements. Although the discretion under s556A is wide, it is not unfettered; rather, it is limited initially to a series of defined circumstances and then extended to 'any other matter which the court considers it proper to consider.'

[25] The extent of reasons for decision that a judge is required to give varies. For example as observed in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 464 at 478: The extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided ( see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-273 per Mahoney JA and at 280-281 per McHugh JA and Yates Property Corporation Pty Ltd (In liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA). In sentencing, the purpose of reasons is to make clear why the particular offence warrants the sentence imposed and it is not necessary to give detailed reasons as to all of the factors and circumstances which led to a particular conclusion: see J Robins & Sons Pty Ltd v WorkCover Authority (NSW) (1998) 83 IR 338 at 340.

[26] Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s556A (cf s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission. 73 In WorkCover v Menzies Property Services the Full Bench reaffirmed the approach enunciated in Profab in the following terms: [45] There is abundant, clear authority for the proposition that s 10 of the Crimes (Sentencing Procedure) Act, like its predecessor s 556A of the Crimes Act , will be available only in rare, limited circumstances in proceedings under the Occupational Health and Safety Act (see, for instance, Riley v Australian Grader Hire and McCarthy v Sell & Parker. ) ...

[47] We consider the statements of principle in Profab Industries , summarised in Department of Mineral Resources v Berrima Coal and affirmed in Riley v Australian Grader Hire , as to the application of s 10 of the Crimes (Sentencing Procedure) Act are correct and we apply those principles in the present matter. 74 In considering the facts and circumstances of these matters directly involving the acts and omissions of the respective defendants and my assessment as to the objective seriousness of the offence, I am not persuaded the provisions of s 10 are applicable in this case. The failures of each defendant rests expressly with them. While I have found extenuating circumstances as to the defendants' understanding of their responsibilities in relation to the work being performed by Mr El Mahrbani and I do not doubt they are each of good character and have generally conducted themselves as good industrial citizens, those matters operate in mitigation as to penalty rather than, in this case, the application of s 10. In short, the defendants' actions in relation to the offence are not such as to bring them into the range of 'exceptional circumstances' such as to attract the operation of s 10. 75 Taking into account all I have considered, as identified above, I determine penalty and make orders as follows:

(1) Matter No IRC 4708 of 2005: WorkCover Authority of New South Wales (Inspector Macready) v Fawaz El Dadoun : Prosecution arising under s 9 of the Occupational Health and Safety Act 2000:

(i) The defendant is guilty of the offence as found proved; (ii) I impose a penalty of $1,500; (iii) I allocate a moiety to the prosecutor on the usual terms. (2) Matter No IRC 4709 of 2005: WorkCover Authority of New South Wales (Inspector Macready) v Ghaleb El Dadoun : Prosecution arising under s 9 of the Occupational Health and Safety Act 2000:

(i) The defendant is guilty of the offence as found proved; (ii) I impose a penalty of $1,500; (iii) I allocate a moiety to the prosecutor on the usual terms.

(3) Between them, I order the defendants to pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matters may be referred to the Registrar for assessment.

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