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

WorkCover Authority of New South Wales (Inspector Macready) v Forcon Pty Limited and Jeffrey Ronald Forsyth - [2007] NSWIRComm 132 - NSWIRComm 2005 case summary — Zoe

[24]

[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;

[26]

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.

[30]

... 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...

[33]

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:

[34]

"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:

[36]

(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.

[37]

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.

[47]

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:

[51]

(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.

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