WorkCover Authority of New South Wales (Inspector Macready) v Forcon Pty Limited and Jeffrey Ronald Forsyth

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

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 McMartin v Newcastle Wallsend Coal Company and ors (2005) NSWIRComm 31 Markarian v The Queen [2005] HCA 25: 18 May 2005 Onetech Pty Limited v Shaw [1999] WASCA 289 CASES CITED: R v Gallagher (1991) 23 NSWLR 220 R v Thompson; R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60 Ward v The Ritz Hotel (London) Limited (1992) PIQR 315 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries [2000] NSWIRComm 142 WorkCover Authority of New South Wales (Inspector Larobina) v Drilltest Pty Limited and Douglas Stephen Miller [2006] NSWIRComm 371 WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247

PROSECUTION: Mr P Skinner of counsel

LEGAL REPRESENTATIVES: FORCON PTY LIMITED: Mr P Frazer (on behalf of Liquidator)

JEFFREY RONALD FORSYTH: Mr J H Pearce of counsel

• 35 - INDUSTRIAL RELATIONS COURT OF NEW SOUTH WALES

Matter No IRC 4706 of 2005 WorkCover Authority of New South Wales (Inspector Macready) v Forcon Pty Limited Prosecution arising under s 8(2) of the Occupational Health and Safety Act 2000

Matter No IRC 4707 of 2005 WorkCover Authority of New South Wales (Inspector Macready) v Jeffrey Ronald Forsyth Prosecution arising under s 8(2) of the Occupational Health and Safety Act 2000 pursuant to s 26(1) of the Occupational Health and Safety Act 2000

1 Both defendants have entered a plea of guilty to an offence charged pursuant to the Occupational Health and Safety Act 2000. 2 The offences arise from workplace injuries sustained on 1 October 2003 by Mr Omar El Mahrbani, a self-employed cement renderer, at a residential development site located at 2 - 6 Anglo Square, Carlton (the site). On that day, while performing cement rendering work on the upstairs balcony of a unit on the site, Mr El Mahrbani lost his balance and fell some 4.46 metres. As a result of the fall, he suffered head injuries, fractures to his left wrist and elbow, spinal and neck injuries and was unable to work for a number of months. 3 The principal contractor for the site was the first defendant, Forcon Pty Limited (Forcon) who was in the process of constructing nine townhouses. The second defendant, Mr Jeffrey Forsyth, is the Managing Director and sole shareholder of Forcon. 4 Forcon sub-contracted the cement rendering work for the site to Sydney G & F El Dadoun Cement Rendering (G & F El Dadoun), a partnership between Mr Fawaz El Dadoun (Mr F El Dadoun) and his brother Mr Ghaleb El Dadoun (Mr G El Dadoun). The El Dadoun brothers are defendants in separate proceedings arising out of the incident involving Mr El Mahrbani. For the purposes of these proceedings, it is asserted by the prosecutor and agreed to by the defendants that the El Dadoun partnership engaged the services of Mr El Mahrbani to conduct cement rendering work at the site. In relation to the proceedings in which the El Dadoun brothers are the defendants, the nature of the relationship between the El Dadoun partnership and Mr El Mahrbani is in dispute and is a matter yet to be determined in order to ground the offences alleged with respect to the El Dadoun partnership.

5 As a consequence of the accident involving Mr El Mahrbani, the defendants were charged with offences arising under s 8(2) of the Occupational Health and Safety Act 2000.

6 In relation to Forcon, it is said that the defendant: Did fail to ensure that people other than the defendant's 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 the defendant's undertaking, namely, all work incidental to the construction of townhouses at the site including specifically the cement rendering work, while they were at its place of work, namely the site, contrary to s 8(2) of the Occupational Health and Safety Act 2000. 7 The failure identified with respect to Mr Forsyth is in the same terms, added to by the further assertion that: ... the defendant being at all times a director of the company and a person concerned with the management of the company and being in a position to influence its conduct is deemed to have contravened section 8(2) of the Occupational Health and Safety Act 2000 by operation of section 26(1) of the Occupational Health and Safety Act 2000. 8 The particulars of the charge against Forcon and Mr Forsyth are as follows: [1] 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. [2] As a consequence of the fall the worker sustained a number of injuries including fractures to both his left wrist and elbow, injuries to his head, left leg, lower spine and neck, which injuries prevented the worker resuming his normal work for more than 7 days. [3] At the time the worker fell, there were no measures in place on the balcony of Unit 7 at the site to control risks associated with falls from such a height.

[4] The worker's fall from the balcony resulted from the defendant's failure to maintain a safe system with respect to the conduct of the rendering work in that: (a) There was no stable and securely fenced work platform in situ to enable the worker to perform the work safely. (b) It failed to ensure that the conduct of the work was in accordance with its own safe work method statement. (c) It failed to properly assess the risk in relation to the work being performed and to identify the hazards associated with the performance of such work and to develop an appropriate control measure for its conduct. (d) It failed to ensure that the requirements of the Occupational Health and Safety Regulation 2001, clause 56 were complied with in respect of the conduct of work which involved a risk of a fall from a height of more than 2 metres. [5] 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 500 mm above the concrete balcony such as was necessary to ensure that risks to the health and safety of the worker were avoided.

9 The prosecution tendered a statement of facts relevant to Forcon and Mr Forsyth. However, there were relevant parts of the prosecution's statement of facts as filed that were disputed by the defendants. In some respects, it was said, the facts stated by the prosecutor were incorrect or not complete. I will identify those disputed paragraphs in due course. To the extent that disagreement exists as to some factual matters, they are peripheral in nature and, if anything, seek to add a contextual gloss to already agreed facts. Counsel for the prosecutor indicated that, in these proceedings, he did not dispute the additional factual matters asserted on behalf of the defendants.

10 The following facts are pleaded by the prosecutor. I have italicized those paragraphs to which the defendants have sought to elaborate upon in replying to the prosecutor's statement of facts. [1] At all material times Forcon Pty Ltd ('Forcon'), was a company duly incorporated having its registered office at c/- Forrest & Associates, Unit 1, 381 Port Hacking Road, Caringbah in the State of New South Wales. [2] At all material times Forcon was an employer. [3] At all material times Forcon conducted the business of a project developer in the construction industry. [4] At all material times Jeffrey Ronald Forsyth ('Forsyth') was a director of the first defendant. [5] At all material times Forcon was engaged as principal contractor for the development of nine residential townhouses at 2-6 Anglo Square, Carlton in the State of New South Wales ('the Site'). [6] On or about 5 May 2003 the first defendant entered into a subcontract agreement with El Dadoun, Ghaleb & Fawaz ABN 70359833125 a registered business Partnership also known as Sydney G & F El Dadoun Cement Rendering ('the Partnership') to carry out works at the Site described as follows:

'External and internal rendering. Supply and install all materials including scaffold'. [7] The contract price for the works was noted to be: '$20.90 per square metre - external, $12.10 per square metre - internal'. [8] A Work Method Statement ('WMS') in respect of plastering work and a Site Specific Induction ('SSI') in respect of the works at the Site generally, each document bearing the date 30 April 2003, were provided by Forcon to the Partnership in or around the time of the agreement between the Partnership and Forcon to form part of the terms of same. [9] The SSI dated 30 April 2003 contained inter alia the following clauses:

18 Work method statements. Contractors must complete and follow safe work method statements for the work they are contracted to carry out. 19 Contractors employees and subcontractors. Site specific information outlined in this document must be passed onto all contractors' employees and subcontractors before commencing work on Site'. [10] In or about May 2003 the Partnership engaged the services of Omar El Mahrbani ("the worker") to conduct cement rendering services pursuant to the Partnerships contract with Forcon at the Site. [11] At all material times the worker conducted business as a self employed person under the trade name 'The Renderers' and which business was conducted by O & A Mahrbani, license no. 111061C.

[12] Between approximately May 2003 and 1 October 2003 the worker conducted cement rendering work at the Site pursuant to the Partnerships contract with the first defendant. [13] At all material times during which the worker worked at the Site on and prior to 1 October 2003 he worked there without having been provided with the WMS or SSI either from Forcon or the Partnership. [14] At all material times on and prior to 1 October 2003 the arrangements with the Partnership and Forcon for the work did not involve the worker in providing scaffolding for the work being performed.

[15] On or about 26 May 2003 the worker submitted a progress payment invoice, in respect of work performed at the Site, addressed to the first defendant but submitted through the Partnership for works conducted up to 26 May 2003 for an amount of $8,800.00. [16] On 13 June 2003 a cheque was drawn by Forcon payable to the worker in the sum of $6,534.00 in respect of the first progress claim after deduction of a retention. The worker made a further progress claim on or about 19 June 2003 which progress claim was submitted to the first defendant and contained in an invoice from the Partnership for a total amount of $17,199.00 with $7,800.00 of that figure being payable to the worker. The invoice requested Forcon to pay $7,800.00 to the worker direct. [17] On 15 July 2003 a cheque payable to the worker was forwarded by the first defendant for the amount of $7,800.00 in respect of the second progress payment being cheque no. 403329. [18] On or about 1 October 2003 the worker was carrying out rendering work involving the balcony of unit 7 at the Site. [19] Unit 7 at the Site consisted of a two storey red brick building and when viewed from Nielsen Avenue on the right hand side it had a full width balcony which as at 1 October 2003 did not have its permanent hand rails or any temporary hand rails attached. The two storey half of unit 7 had a pitched metal roof with two dormer windows. [20] The left hand half of the second storey when viewed from Nielsen Avenue of unit 7 simply had a grey rendered finish appearance with no brick work and a full width balcony. As at 1 October 2003 it had no permanent hand rail attached. It had a flat roof line and was suspended over a driveway which had not been completed and still consisted of dirt and rubble. There was a grey rendered wall between the balconies on the second storey of the right hand half and the left hand half of unit 7.

[21] The height of the balcony on the left hand side second storey half above the driveway was approximately 4.46m. The driveway under this part of unit 7 extended front boundary of the Site to underneath unit 7 and sloped towards unit 7 at an approximate gradient of 1 in 7. [22] The balcony on the left hand half of unit 7 above the driveway was accessed from inside that part of unit 7 by two sliding glass doors each measuring approximately 1.43m x 2.1m high. [23] The dimensions of the balcony of unit 7 which was situated above the driveway were 4.19m wide and 1.13m deep. The distance from the floor of the balcony to the ceiling above the balcony was approximately 2.56m. [24] On or about 30 September 2003 scaffolding which had been erected at unit 7 at the Site was removed by the worker.

[25] At about 1.00pm on 1 October 2003 the worker was engaged in performing rendering work above the sliding door on the balcony of unit 7 above the driveway. The worker was in the process of installing a straight edge to the top of the sliding door. In doing so he was tightening a 12mm steel bent rod known as a ' shangle ' into which a square is hung. Whilst pulling back on the shangle it slipped off the inside top of the sliding door causing the worker to lose his balance and fall backwards. At the time the worker was performing the work above the door he had been standing on a temporary work platform situated approximately 500mm above the concrete floor level of the balcony. [26] At the time the worker overbalanced and fell backwards, there was no scaffolding or any appropriate structure in place to protect the edge of the balcony above the driveway of unit 7. Consequently the worker fell over the edge and to the dirt driveway below a distance of approximately 4.46m.

[27] As a consequence of the fall the worker suffered a number of injuries including fractures to his left wrist and elbow, head injuries, an injury to the left leg, injuries to the lower spine and neck as a consequence of which he was unable to resume any work for a period of approximately 10 months following the accident. [28] At some time prior to the fall there had been a temporary hand railing attached to the balcony of unit 7 above the driveway. The hand railing consisted of upright timber supports bolted to the concrete floor with a timber hand rail approximately 1m above concrete floor level. At the time of the worker's fall this hand rail had been removed, bearing only the upright supports in place. [29] At all material times any temporary hand rail which had been in position on the said balcony, was not a protective hand rail which would have complied with the requirements of the AS1657. [30] The temporary hand rail structure which had been erected prior to the worker's fall on 1 October, even if in situ at the time of the fall was not such a proper protective hand railing as would have prevented a person falling from the balcony while working on an elevated work platform 500mm above the concrete floor of the balcony as the worker was doing at the time he overbalanced and fell. 11 Having regard to the above disputed paras: [13], [14], [20], [26] and [30], the defendants replied as follows: Re para [13]: The worker was sub-contracted by El Dadoun, Ghaleb and Fawaz known as Sydney G & F El Dadoun Cement Rendering ('Dadoun'). The work method statement and the site specific induction statement were supplied by Christopher Dean, the Construction Manager of the first defendant, to Dadoun and his wife. Re para [14]: The sub-contract agreement between the first defendant and Dadoun required scaffolding to be supplied by Dadoun (refer to sub-contract agreement dated 5 May 2003). Re para [20] As at 1 October 2003, Unit 7 had a temporary handrail installed by the builder. Up to and including 30 September 2003, Dadoun had erected scaffolding to the outside area of Unit 7 (refer to the answer to question 73 in the Statement of L Carforio). Re para [26]: The handrail installed by the first defendant was removed by the worker on three (3) occasions on 1 October 2003 without the consent of the first defendant (refer to answers to questions 81 to 84 inclusive of L Carforio). Re para [30]: The handrail was typical of handrails utilised in residential construction. 12 Affidavit evidence in relation to the above matters was tendered on behalf of Forcon and Mr Forsyth. I will return to the issues raised further in this judgment. 13 In addition to the statement of facts, the prosecution has also tendered: (i) A factual report of Inspector Denis Macready dated 27 January 2004; (ii) A copy of Australian Standard AS 1657-1992 titled 'Fixed platforms, walkways, stairways and ladders - Design, construction and installation'; (iii) Two copies of an Housing Industry Association ('HIA') pro forma document titled "Work Method Statement: Plastering". One copy, dated 30 April 2003, is signed on behalf of G & F El Dadoun Cement Rendering. The second copy, dated 30 April 2003, is signed, as stated, on behalf of Ghaleb and Fawaz; (iv) A copy of an HIA pro forma document, dated 30 April 2003, titled "Site Specific Induction for 2 - 6 Anglo Square Carlton", signed, as stated, on behalf of Ghaleb and Fawaz;

(v) A signed copy of a Subcontract Agreement, dated 30 April 2003, between Forcon Pty Ltd and Sydney G & F El Dadoun Cement Rendering. 14 Also tendered by the prosecution, without objection, were a number of photos of the site which have assisted me in understanding the layout and nature of the premises where the incident occurred. A number of the photographs were taken by Mr Ghaleb El Dadoun on the day of Mr El Mahrbani's accident (1 October 2003). Others were taken by Inspector Macready on 15 January 2004 when he first visited the site after Mr El Mahrbani's accident.

15 On behalf of Forcon and Mr Forsyth, the following material was tendered without objection: (i) Affidavit of Mr Luigi Caforio, sworn 3 April 2006. Mr Caforio was a Building Supervisor employed by Forcon at the time of the accident. He was employed on 1 October 2003 to supervise the building site at 2 - 6 Anglo Square, Carlton. Mr Caforio deposed to the events on 1 October 2003 leading up to the accident involving Mr El Mahrbani, including the steps undertaken by him to install a temporary handrail on the balcony where Mr El Mahrbani was working. (ii) Affidavit of Mr Christopher Stephen Dean, sworn 3 April 2006. Mr Dean was employed as a Construction Manager by Mullaley Properties Pty Limited. Forcon is the construction division of Mullaley Properties. In his role as Construction Manager, Mr Dean's general duties included gathering quotes and issuing invoices, organising sub-contractors' agreements, calculating costs of projects and supervising on-site staff. Mr Dean was also responsible for the project management of the construction site at 2 - 6 Anglo Square, Carlton. In his affidavit, Mr Dean outlined the occupational health and safety policies of Forcon as well as the cement rendering sub-contract between Forcon and Ghaleb and Fawaz El Dadoun Cement Rendering. Mr Dean also deposed that he prepared and gave to the Dadoun Partnership copies of the Work Method and Site Specific Statements at the time Forcon entered into the sub-contract agreement with them. As stated by Mr Dean, those documents were signed by Mr Ghaleb Dadoun on behalf of the El Dadoun partnership. (iii) Affidavit of Ms Vesna Stivic, sworn 3 April 2006. At the relevant time, Ms Stivic was the General Manager of the Mullaley Group of Companies, which includes Forcon. She commenced employment with Forcon in 1990. Her responsibilities as the General Manager included running the daily financial operations of the Mullaley Group, the financial management of the company's building projects, and preparation of HIA Occupational Health and Safety documents, sub-contractor agreements and work method statements. In her role, Ms Stivic reported to Mr Jeffrey Forsyth. (iv) Two affidavits of the defendant Mr Jeffrey Ronald Forsyth, sworn 5 April 2006 and 14 April 2007 respectively. Mr Forsyth is the Managing Director of both Forcon and Mullaley Properties Pty Limited. Mr Forsyth's affidavits go to the corporate defendant's occupational health and safety policies at the time of the accident involving Mr El Mahrbani as well as the corporate defendant's and his own current financial circumstances. (v) Four personal testimonials on behalf of Mr Forsyth.

16 No oral evidence was received in the course of proceedings.

17 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 18 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.' 19 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 20 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646. 21 On the issue of foreseeability, the Full Bench in Capral also stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:

... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. 22 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 23 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]:

... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 24 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 25 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added) 26 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...

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

28 Forcon has no prior convictions. Accordingly, the maximum penalty which may be imposed is $550,000. As well, as an individual without prior convictions, the maximum penalty which may be imposed with respect to Mr Forsyth is $55,000.

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. 31 Clearly, given the facts, not disputed, the central failure of Forcon and Mr Forsyth was a failing to ensure that all sub-contractors and persons engaged on their project site adhered to safe systems of work in accordance with the defendant's own Safe Work Method Statement. I accept on the evidence before me that Forcon did have in place a process designed to ensure sub-contractors and others they contracted with were aware of their occupational health and safety obligations. The Work Methods and Site Specific Induction Statements issued by the defendants attest to that. However, the failure of Forcon and Mr Forsyth was in not following through with their policies by ensuring the systems of work incorporated in those statements were scrupulously adhered to. 32 When regard is had to the affidavit of Mr Luigi Caforio, there is some evidence the defendants attempted to enforce their work safety obligations. As the building supervisor for Forcon on the day of Mr El Mahrbani's accident, Mr Caforio stated: [2] On 1st October 2003, about mid morning, as part of my job as Building Supervisor, I was walking around the building site looking at the progress of the work when I noticed that the temporary safety railing on Unit 7 had been taken down. Temporary hand rails had been constructed on all balconies of the Town Houses when the formwork was constructed and were to remain in place until the work in each Unit had reached 'lock up' stage. That is the windows and doors were in place and locked. [3] At this time the renderers were working on Unit 7 and I went up to them and said to the one named Omar words to the effect:

"You need to put that hand rail back up, you cannot work without it." Omar said words to the effect: "O.K., O.K." I then watched Omar and two of his labourers replace the hand rail using a hammer and nails. [4] About one hour later I walked past Unit 7 and I noticed that the temporary hand rail was missing again. I then approached Omar and said words to the effect: "Listen mate, you cannot work without the hand rail." He said words to the effect: "Sorry, sorry I'll fix it up." I said words to the effect: "Don't worry, I'll get a carpenter to do it. Don't do any more work until the hand rail is back up." This time instead of leaving it to Omar, I called a carpenter on site to come and fix it. I then remained there until the work was complete. Omar and his labourers waited until the carpenter was finished before resuming work. [5] When the carpenter was finished I said words to the effect: "Now don't touch the railing." [6] It was about half an hour later that Omar fell off the balcony of Unit 7. [7] The temporary hand railing on each Unit, including Unit 7, was constructed of two (2) 1.1 metre uprights made from 90mm x 35mm pine wood, with a top rail made from the same timber. This structure was secured to a 90mm x 35mm x 300mm to 400mm base by "Ramset Nails" through a plywood base and into the concrete balcony. The uprights were also secured by two (2) 90mm x 35mm braces secured to the base and the uprights. 33 Despite the steps undertaken by Mr Caforio as detailed above, they were inadequate. As the facts filed by the prosecutor and not disputed by the defendants emphasised: [28] At some time prior to the fall there had been a temporary hand railing attached to the balcony of unit 7 above the driveway. The hand railing consisted of upright timber supports bolted to the concrete floor with a timber hand rail approximately 1m above concrete floor level. At the time of the worker's fall this hand rail had been removed, bearing only the upright supports in place. [29] At all material times any temporary hand rail which had been in position on the said balcony, was not a protective hand rail which would have complied with the requirements of the AS1657. [30] The temporary hand rail structure which had been erected prior to the worker's fall on 1 October, even if in situ at the time of the fall was not such a proper protective hand railing as would have prevented a person falling from the balcony while working on an elevated work platform 500mm above the concrete floor of the balcony as the worker was doing at the time he overbalanced and fell. 34 As earlier stated, the defendants' reply to the facts asserted in para [30] above was that the handrail in place was 'typical of handrails utilised in residential constructions'. Even accepting that to be the case, it was clearly inadequate. 35 Reference in para [29] above to AS1657 is reference to Australian Standard: Fixed platforms, walkways, stairways and ladders - Design construction and installation. That Standard sets out: ... requirements for the design, construction and installation of fixed platforms, walkways, stairways and ladders which are intended to provide means of safe access to and safe working at places normally used by operating, inspection, maintenance and servicing personnel. 36 The relevant provision contained in AS1657 is to be found at 3.4 Guarding that sets out the recommended dimensions for guardrailing together with Table A1 in Appendix A of that document. 37 As I understand the situation, what was put in place by Mr Caforio on behalf of the defendants did not match the dimension provisions in AS1657 in relation to guardrailing. 38 While Australian Standards have been accepted by Courts at appellate level as 'the consensus of professional opinion and practical experience as to the sensible safe precautions': See Onetech Pty Limited v Shaw [1999] WASCA 289 at [17], it has also been held, correctly in my view, that such Standards are 'not legally binding' and it is 'for the judge to decide how much weight it deserved in the particular circumstances of the case': See Ward v The Ritz Hotel (London) Limited (1992) PIQR 315. 39 In the proceedings before me, without more, I attach little, if any, weight to AS1657 in assisting me to establish the objective seriousness of the offences as part of the culpability of the respective defendants. 40 Of more significance on that issue, in my view, are the provisions of clause 56 of the Occupational Health and Safety Regulation 2001 which provides as follows:

56 Prevention of falls from heights - particular risk control measures (1) An employer must ensure that risks associated with falls from a height are controlled by use of the following measures: (a) provision and maintenance of: (i) a stable and securely fenced work platform (such as scaffolding or other form of portable work platform), or (ii) if compliance with subparagraph (i) is not reasonably practicable - secure perimeter screens, fencing, handrails or other forms of physical barriers that are capable of preventing the fall of a person, or (iii) if compliance with subparagraph (ii) is not reasonably practicable - other forms of physical restraints that are capable of arresting the fall of a person from a height of more than 2 metres, (b) provision of a safe means of movement between different levels at the place of work.

(2) If a fall arrest device is provided for use by persons at work, the employer must ensure that: (a) all anchorage points for the device are inspected by a competent person before their first use and then on a regular basis so they are capable of supporting the design loads, and (b) if the load-bearing capacity of an anchorage point is impaired, the anchorage is immediately made inoperable so as to prevent its use, and (c) any harness, safety line or other component of the device that shows wear or weakness to the extent it may cause the device to fail is not used, and (d) all persons using the device have received training in the selection, assembly and use of the system, and (e) adequate provision is made for the rescue of a person whose fall is arrested by a fall arrest device. 41 Despite the assertion filed on behalf of Forcon and Mr Forsyth that the handrail in place at the time of Mr El Mahrbani's accident was 'typical of handrails utilised in residential constructions', I am not persuaded that it was a handrail that conformed with clause 56 of the above Regulation. 42 Further, it is not clear to me whether Mr El Mahrbani removed the handrail that was in place or whether it broke when he fell from the balcony to the ground below. Certainly, the photographs taken by Mr Ghaleb El Dadoun on the day of the accident show no handrail on the balcony of unit 7, simply two wooden uprights. 43 Following the accident involving Mr El Mahrbani, Mr Forsyth reviewed, updated and vigorously reinforced the company's occupational health and safety systems in relation to sub-contractors as follows: (i) sub-contractors agreements; (ii) project safety plans; (iii) site specific induction provisions; (iv) work method statements; (v) occupational health and safety policies. 44 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable.

45 While I accept Mr Forsyth, on behalf of Forcon, had been proactive in his approach to occupational health and safety prior to Mr El Mahrbani's accident in October 2003, the additional rigour he brought to this issue after October 2003 was always available to be undertaken. 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. 47 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 48 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 49 Given the high risk nature of the construction industry, I believe that general deterrence should be a factor in my sentencing considerations. Counsel for the personal defendant contended that specific deterrence was not applicable with respect to his client, as he is no longer directly engaged in the industry and unlikely to re-offend. Mr Forsyth is currently employed as a construction management consultant and no longer has day-to-day carriage of managing a construction company. I do not agree that specific deterrence should be discounted entirely. It should be given weight, tempered appropriately having regard to the remedial steps Mr Forsyth has taken to address workplace safety generally. 50 In respect of Forcon, I accept the Prosecutor's assertion that as the company is currently in liquidation and is not trading, specific deterrence is of limited weight. 51 In October 2003, at the time of the accident giving rise to this offence, Mr Jeffrey Forsyth was the Managing Director of a group of companies that, by his own description, were 'primarily holding companies'. As Mr Forsyth deposes, the relevant companies in the building side of the group were: (i) the defendant Forcon which is a building company and of which Mr Forsyth held the Building Supervisor's license; (ii) Mullaley Properties Pty Limited which was the development company involved in the building side of the group. 52 The way in which the two above companies inter-related is that Mullaley Properties Pty Limited purchased a site for development purposes and, in turn, contracted with Forcon to build the project. In this instance, the project consisted of a number of residential units. The property that is the subject of these proceedings, that is Anglo Square, Carlton is still owned by Mullaley Properties Pty Limited. 53 When it was trading, it would be fair to describe Forcon as a small to medium sized building company engaged in medium sized residential and commercial building project development. Mr Forsyth was very much involved in the day to day work of Forcon and the accompanying development corporation Mullaley Properties Pty Limited. Prior to the accident involving Mr El Mahrbani, Forcon, via the managerial impetus of Mr Forsyth, had put in place policy documents designed to address Forcon's occupational health and safety responsibilities at it's worksites. As Mr Forsyth deposed: [17] During my career in the building industry, I have been extremely cautious about safety. On the introduction of the OH&S legislation in New South Wales, I implemented what I thought were the requirements under the legislation, namely: (i) A project safety plan introduced on 12 November 2001. (ii) I prepared an OH&S Policy on 30 October 2001 (being Exhibit 'D5' hereto). [18] I have been a member of the Housing Industry Association for some seventeen (17) years. I have been a member of the Australian Institute of Construction since 1979 and have now been incorporated into the Australian Institute of Building. I hold a General Induction Card. [19] I have implemented HIA recommendations during the time I have traded and have incorporated their documentation, including: (i) Work method statement; (ii) Sub-contractor's agreement; (iii) Work hazard statement 54 Counsel for the defendants has submitted that, in exercising my sentencing discretion, the respective financial positions of both defendants should be given considerable weight. That submission is premised on s 6 of the Fines Act (1996) which states as follows: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and (b) such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. 55 On behalf of Forcon, Mr Forsyth has deposed as to the financial position of Forcon, linked as it is to that of Mullaley Properties Pty Limited. He was not required for cross examination and I am satisfied I can rely on the material filed. At all relevant times, Mr Forsyth was the controlling mind of both corporate entities.

56 Neither Forcon nor Mullaley Properties are currently trading. Documents tendered to the Court on behalf of the liquidator support Mr Forsyth's affidavit of 14 May 2007 that Forcon is in liquidation and does not own any assets. Mr Forsyth has also provided personal guarantees to assorted creditors for liabilities incurred by Forcon Pty Ltd. The total amount that he is contingently liable for comes to a total of $36,832.

57 Mullaley Properties is in receivership along with Ocean Realty Pty Limited, another company of which Mr Forsyth is the sole director and shareholder. Mr Forsyth has personally guaranteed the majority of debts accrued by both those companies which he deposed is approximately $7 million. According to Mr Forsyth, 'the receivers of these companies are hopeful that trade sales of the assets of these companies will be sufficient to extinguish that liability'.

58 Mr Forsyth's affidavit of 5 April 2006 reveals the status of the companies prior to receivership and liquidation as follows: [20] Due to the downturn in property sales over the past two (2) years, our development company, Mullaley has been unable to sell any of its stock of properties at realistic prices. The subject property in these proceedings, Anglo Square, Carlton, is still owned by Mullaley. Only two (2) of the nine (9) units have been old at a price of $610,000 and $635,000. Offers to purchase the remaining seven (7) units are being received at $500,000 per unit, which is unacceptable due to the commitments of Mullaley. Mullaley owes approximately four million dollars on the Anglo Square property. This loan is accruing interest at an annual rate of seven and a half per cent (7.5%) representing an annual interest bill of $300,000. Mullaley has rented the remaining seven (7) units and after taking into account the annual rentals, is currently losing approximately $190,000 per annum. The Australian Taxation Office is demanding the payment of GST on the Anglo Square property in the sum of $203,000.00. Exhibited hereto and marked 'D9' is a true copy of the Demand from the Australian Taxation Office. Mullaley is currently disputing it's liability for GST as the properties have not been sold. Exhibited hereto and marked 'D10' is a true copy of the financial statements for Mullaley for year ending 30 June 2005. [21] The failure of two (2) major insurance contracts to proceed during 2005 has reduced Forcon's turnover by at least $900,000. This reduction in turnover has had significant negative impact on the financial viability of Forcon which is expected to show a loss for the financial year 2005/2006. The financial returns of Forcon have been annexed to the affidavit of Vesna Stivic sworn 3 April 2006.

[22] I have lodged my own personal taxation returns for year ending 30 June 2005. Exhibited hereto and marked 'D11' is a true copy of my tax returns. [23] I currently own all the issued shares in Forcon and Mullaley (my shares). Exhibited hereto and marked 'D12' is a true copy of company searches. In my opinion, under current market conditions, my shares are only worth the paid up value of the shares after taking into account the value of the assets of the companies less the commitments to the mortgagees thereon.

59 The financial return for Forcon for the year ending 30 June 2005 was annexed to the affidavit of Ms Vesna Stivic, the General Manager of Forcon. Those results show a trading loss on the Profit and Loss Statement of $195 for that year. Ms Stivic deposed to Forcon's current work projects as follows: (i) The company has no current or future projects except for the Caringbah development and consists of fifteen (15) townhouses. This project is due to complete late April 2006. (ii) The company expected to enter into two (2) contracts for major insurance rectification works. The company had won tenders for both projects in November 2004. Those projected works were supposed to commence in January 2005. Work has not commenced as the Body Corporates for each site have not settled with Bigcorp, the organisation approved by the State Government. (iii) Forcon currently employs five (5) staff with the company sub-contracting all its work.

60 Mr Forsyth's tax return for the year ending 30 June 2005 discloses that his gross income for that year was $32,000. After allowing for tax paid and associated Medicare surcharge, Mr Forsyth was assessed as being entitled to a refund of $738.19. On those figures, Mr Forsyth can hardly be described as a high income earner. 61 Mr Forsyth is currently employed as a construction management consultant with JJEL Pty Ltd. His sole source of income is a salary of $45,000 derived from this position. The only assets which Mr Forsyth owns are detailed as follows:

(i) A bank account with a balance of $49.79; (ii) Tools of the trade valued at approximately $3,000; (iii) Life insurance policy; and (iv) Personal effects valued at approximately $1,000.

62 Mr Forsyth also has accumulated personal liabilities on assorted credit cards amounting to $145, 523.68

63 Given the information I have before me, it is apparent that Forcon's ability to pay any fine imposed by this Court will be virtually non-existent due to liquidation of the company. Counsel for the prosecutor submitted that while Forcon was essentially unable to pay any fine imposed, a sentence should be imposed nevertheless. 64 Similarly, having considered Mr Forsyth's financial circumstances as disclosed and which were not challenged, I am of the view that while he may not be strictly impecunious, he appears to have limited financial means.

65 Overall, the approach I propose to adopt is as enunciated in WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 where the Full Bench cited, with approval, the decision of Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed: ... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence. 66 In the determination of penalty, the defendants are entitled to have taken into account the plea of guilty entered. In assessing the impact of the plea, the Court is guided by the decision of R v Thompson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. With respect to each defendant, I assess that discount at twenty five per cent. 67 There are in addition a number of subjective features warranting further favourable consideration for the defendants. 68 Both defendants cooperated with WorkCover in its investigation into the matter. Mr Forsyth, on behalf of the company and himself, has also expressed his contrition for the incident involving Mr Mahrbani. Those matters were not challenged by the prosecution. 69 As earlier mentioned, a number of personal testimonials were tendered without objection attesting to the good character of Mr Forsyth. That fact is not in issue and I accept as correct the sentiments expressed in them. Given the size of the company and Mr Forsyth's hands-on role, it is to be expected that his personal qualities and good character referred to would be reflected in the way the corporate defendant conducted it's business. 70 Counsel for Mr Forsyth asked the Court to consider the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 in relation to his offence that, relevantly, provides as follows: (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. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) ... (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,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider. 71 The proper approach for assessing applications under s 10 to offences under the Act were outlined in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries [2000] NSWIRComm 142 at [24] - [26] which considered s 556A, the statutory predecessor to s 10, as follows: [24] ... 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 s 556A , 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 s 556A 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 Limited v WorkCover Authority of New South Wales (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 Pty Ltd v WorkCover Authority of New South Wales (1998) 83 IR 338 at 340. [26] Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999) 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. The obligation is increased rather then diminished in a situation, such as the present, where the exercise of the discretion is not sought by the defendant but raised by the Court. 72 In support for his application for the exercise of the s 10 discretion, counsel for Mr Forsyth highlighted Mr Forsyth's unblemished history of workplace safety and commitment to occupational health and safety throughout his many years involvement in the industry. As well, he said Mr Forsyth was 55 years old and approaching retirement with a somewhat bleak financial future. Further, he emphasised Mr Forsyth's good character and his involvement in lecturing on construction matters at TAFE, his longstanding contribution and membership of the Sutherland Shire Council Economic Committee and his community involvement with children's charities. 73 While the above submissions go some way in support of the exercise of my discretion under s 10, I am of the view that the circumstances in this case are not such to warrant the exercise of the discretion in Mr Forsyth's favour. On any view, the nature of the offence was objectively serious and Mr Forsyth's hands-on role in the activities of the corporate defendant placed him in a position of direct responsibility to ensure that the occupational health and safety systems he had put in place were reviewed and enforced in a more thorough manner with respect to sub-contractors. 74 As an alternative, it was raised that consideration be given to dealing with Mr Forsyth in accordance with the provisions of s 10A of the Crimes (Sentencing Procedure) Act 1999 that provides for the imposition of a conviction with no other penalty. That provision was inserted into the Crimes (Sentencing Procedure) Act to take effect from 29 November 2006 and, in accordance with the provisions of the Crimes and Courts Legislation Amendment Act 2006, it extends to 'proceedings commenced (but not concluded)' before the commencement of the s 10A provisions. 75 The application of s 10A in relation to Mr Forsyth would, on one view, properly reflect the objective seriousness of the offence but make proper provision for Mr Forsyth's financial circumstances. However, on closer consideration, the provisions of s 10A are not available to Mr Forsyth because the provisions of s 253 of the Criminal Procedure Act 1986 (now repealed) apply to the making of any order going to conviction and costs when viewed against the time when these proceedings were commenced, that being 8 September 2005. 76 On this point, I refer in the first instance to my decision in McMartin v Newcastle Wallsend Coal Company and ors (2005) NSWIRComm 31 at [306] and [387] as follows: [306] In considering the provisions of s 253, it is clear the discretionary power to award costs allows a court to order an accused person to pay the prosecutor's costs (s 253 (1)) or to order the prosecutor to pay the accused person's costs (s 253 (1A)). In each case, the amount of costs must be specified and must be made concurrent with the requisite conviction or orders as the respective sub-sections provide. ... [387] I have already concluded that in making an order for costs, I must do so in accordance with the provisions of s 253 of the CPA. The costs to be paid must be such costs as the Court specifies and the costs specified must be made 'in and by a conviction or order'. In order to effect that provision it is necessary for the prosecutor's costs to be assessed. Having determined the basis of my costs order, I would direct the parties to confer with a view to reaching agreement pursuant to the provisions of s 253(2)(a) of the CPA. 77 Further, on this point, I refer to my decision in WorkCover Authority of New South Wales (Inspector Larobina) v Drilltest Pty Limited and Douglas Stephen Miller [2006] NSWIRComm 371 as follows: [66] On the question of costs 'in and by a conviction or order', I note that s 253 of the Criminal Procedure Act 1986 has now been repealed as of 13 July 2006. On the question of costs to be awarded to the prosecutor, s 257B of the Criminal Procedure Act inserted by s 3 of the Courts Legislation Amendment Act 2006 and operative from 13 July 2006 provides: 257B When costs may be awarded to prosecutor A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G, if: (a) the court convicts the accused person of an offence, or (b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence.

[67] Further, s 257G of the Criminal Procedure Act now provides: 257G Calculation of costs The professional or other costs payable by a prosecutor or accused person in accordance with an order directing that the amount of costs is to be determined under this section are to be determined: (a) by agreement between the prosecutor and accused person, or (b) if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004 (with or without modifications prescribed by the regulations). [68] However, the relevant Savings, transitional and other provisions applying to the above amendments provide:

amending Act means the Courts Legislation Amendment Act 2006 .

(1) An amendment made to this Act by the amending Act does not extend to proceedings instituted before the commencement of that amendment. (2) Such proceedings may be dealt with as if the amendment had not commenced. [69] Accordingly, the provisions of s 253 of the Criminal Appeal Act 1912 continue to apply to the orders I can make in these proceedings relevant to costs 'in and by a conviction or order': See my decision in McMartin v Newcastle Wallsend Coal Company and ors (2005) NSWIRComm 31 at [306] and [387]. 78 Given the above, as the provisions of s 253 of the Criminal Appeal Act 1912 continue to apply to these proceedings, s 10A of the Crimes (Sentencing Procedure) Act 1999 cannot apply. Notwithstanding the above, I have had due regard to Mr Forsyth's financial circumstances in my penalty considerations. 79 Taking into account all the matters I have referred to, I determine penalty in these matters as follows:

(1) Matter No IRC 4706 of 2005: WorkCover Authority of New South Wales (Inspector Macready) v Forcon 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 $73,125. (iii) I allocate a moiety to the prosecutor on the usual terms.

(2) Matter No IRC 4707 of 2005: WorkCover Authority of New South Wales (Inspector Macready) v Jeffrey Ronald Forsyth : Prosecution arising under s 8(2) of the Occupational Health and Safety Act 2000 pursuant to s 26(1) of the Occupational Health and Safety Act 2000

(i) The defendant is guilty of the offence charged. (ii) I impose a penalty of $4,100. (iii) I allocate a moiety to the prosecutor on the usual terms.

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

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