WorkCover Authority of New South Wales (Inspector Dubois) v James Nicholas... [2007] NSWIRComm 119 | Case summary

WorkCover Authority of New South Wales (Inspector Dubois) v James Nicholas... [2007] NSWIRComm 119 | Case summary | Zoe

[13]

1 The three defendants the subject of this judgment have each entered a plea of guilty to an offence arising under specific sections of the Occupational Health and Safety Act 2000 (the Act). 2 The first defendant in this matter, James Denson, is the sole director of the second defendant, JB Metal Roofing Pty Limited (JBMR). The third defendant in the proceedings, Garry Denson, is the father of James Denson. He is a director of Garry Denson Metal Roofs Pty Limited (GDMR). 3 GDMR has also been charged with an offence arising from the same factual circumstances as those grounding the offences alleged against the above three defendants. GDMR is currently in liquidation and there has been no appearance entered by the liquidator before the Court on it's behalf. In correspondence received from the liquidator dated 7 August 2006, the Court was advised he would not be contesting the matter on behalf of GDMR. Accordingly, a plea of not guilty has been formally entered in relation to it. That matter is scheduled to be heard at another time in conjunction with other charges concerning other defendants to which pleas of not guilty have been entered. 4 In 2003, GDMR was contracted by Australand Holdings Ltd (Australand) to undertake metal roofing and wall cladding work at a warehouse construction site at Wallgrove Road, Eastern Creek. There were three buildings under construction at that site. The buildings were referred to as SWADS, Costas and Nova. The accident giving rise to the offences before me arose while employees of JBMR were working on the Costas building. 5 JBMR was subcontracted by GDMR to provide labour for the purposes of carrying out the roofing and cladding work on the Costas building. JBMR's employees for that work included Joel Exner, Andrew Jones, Adam Fejgl, Christopher Carter and Matthew Martin. 6 On 15 October 2003, JBMR's employees were laying metal roofing sheets that were to be secured to the metal roof purlins and would form part of the roof structure. The metal sheets were in packs wrapped in plastic. As part of the system of work in place in laying the metal sheets, the above-named employees had to walk across metal roof purlins which were approximately 80 mm wide. At one point, Mr Fejgl and Mr Carter were engaged in cutting the straps around a pack of roof sheets wrapped in plastic. Mr Exner was crouching down on a metal purlin attempting to retrieve the plastic wrapping that had come away from one of the packs of roof sheets. In doing so, he lost his balance and fell through the safety mesh, approximately 11.25 metres to the floor below. Mr Exner suffered extensive internal and other injuries as a result of the fall and died a short time later in hospital. 7 As a result of that accident, the three defendants were charged with offences arising under ss 8(1) and 8(2) of the Act. 8 As a director of JBMR, and by virtue of the deeming provisions of s 26(1) of the Act, the first defendant, James Denson, was charged with an offence under s 8(1) of the Act. In relation to that offence, it is said the defendant: Failed to ensure that persons in its employment and in particular, Joel Exner, Andrew Jones, Christopher Carter, Matthew Martin and Adam Fejgl were not exposed to risks in their health and safety arising from the conduct of its undertaking while at its place of work.

[31]

[13] Mr Exner received extensive internal and head injuries as a result of the fall and was transported to Nepean Hospital. Mr Exner died as a result of the injuries sustained at approximately 12.10pm on 15 October 2003. [14] The shoes worn by Mr Exner were white coloured 'Globe' brand sneakers. On 2 December 2003 Senior Constable Agius examined the shoes and found that the soles of both shoes were worn and the shoelaces of both shoes were untied. Mr Carter observed Mr Exner's shoes prior to the incident and noticed that the shoes were not tied properly. The industry practice is for roof labourers to wear thin soled and close fitting shoes such as Dunlop volley sandshoes when performing roofing work. The job safety analysis that was created by Garry Denson for the work provided that the workers would be issued with volley sandshoes Mr Exner was not issued with volley sandshoes. Mr Jones stated that Volley sandshoes are the normal roofing shoe but skater brands are used by some roofers. [15] On 15 October 2003, Inspector Dubois of the WorkCover Authority of NSW attended the site and observed the following: (1) A factory warehouse steel column (approximately 10 metres apart) and steel beams (at spacings of 1.7 metres) type building under construction. The building area covered 13 206sqm. (2) The roof above a dirt floor was approximately 12 metres high. (3) Red and white plastic taping around an area approximately 15m x 5m in the north-western corner of the building. (4) Approximately one third of the roof sheeting had been installed. (5) Eight bundles of roof sheeting positioned on the roof at intervals of approximately 5 metre spacings. (6) Plastic wrapping scattered over the roof area. (7) Wire meshing covering the steel purlins on the roof. (8) Silver coloured insulation under the roof sheeting, 3 bundles of insulation in pink coloured plastic bags positioned in various areas on the roof. (9) A red and white coloured elevated work platform with Australian Skyreach painted on the telescopic boom, Snorkelift painted on the body of the machine. (10) An area of safety mesh (approximately 1.5m x 1m) approximately 3m from the completed roof sheeting, the wire area appears torn apart and hanging down towards the ground. The safety mesh was positioned parallel with the other safety mesh. In some areas the meshing was approximately 150mm apart. [16] Inspector Dubois then inspected the roof area where the mesh had failed and pulled away from the steel purlin and he observed the following: (1) The safety mesh lengths positioned parallel approximately 30mm apart. (2) The end wiring of the safety mesh where it joins together with the end of the previous length of wiring, one end was passed through a hole drilled through the purlin, the other end of the adjoining length was positioned over the purlin and wrapped around the wires. The wiring was wrapped around twice at the end of the meshing that was opened up. (3) Pieces of plastic sheeting. (4) Nail bags and extension leads approximately 4m from the safety mesh opening. (5) Bundles of insulation positioned in various areas on the completed roof sheeting. (6) Lengths of roof sheeting 300mm away from the opening in the safety mesh.

[34]

[22] There was also provision made in section 3.2 of the Code for the correct method of installation of the safety mesh. [23] Both the Australian Standard AS/NZS 4389:1996 Safety Mesh ("Australian Standard") and the Code provide that the recommended method of securing the longitudinal end wire ties of the safety mesh to metal purlins is to pass the thirteen end wires through holes drilled through the purlins. The end wires should then be tied off with at least four full turns around the same wire. [24] Where there is the need to join two rolls of safety mesh at the end of a 50 metre run, the Code and the Australian Standard recommended method is to hook each longitudinal end wire with the corresponding end wire of the next roll. The end wire is then twisted back on itself for a minimum of four full turns. The effect of this method is to create a continuation of the mesh. [25] The Australian Standard and the Code also provide guidance for the correct method to be applied when the safety mesh must be side lapped with the adjacent roll of safety mesh. This is sometimes referred to as "abutting" within the roofing industry. The purpose is to overlap adjacent rolls sufficiently so as to maintain the strength of the safety mesh. However, the Australian Standard and the Code differ in their stated method for side lapping. [26] The Australian Standard provides that the runs of mesh shall be side lapped by 150 millimetres (one mesh spacing), and if the purlin spacing exceeds 1.7 metres, intermediate fixing between the runs shall be provided. [27] The Code provides that the runs of mesh should be side lapped by a minimum of 150 millimetres and if the purlins spacing exceeds 1.5 metres, then the side lapping should increase to 300 millimetres with intermediate fixing of 2 millimetres staples. [28] Mr Exner fell on the safety mesh at a point where the two lengths of the 50 metre safety mesh had been incorrectly joined and where the adjacent rolls of mesh met (or abutted), rather than were overlapped as was required by the Code and the Australian Standard. [29] The two lengths of the safety mesh had been joined at a metal purlin. At the end of the first 50 metre roll of safety mesh five of the thirteen longitudinal end wires had been tied off through five holes drilled into the purlin. The second roll of safety mesh was then pulled over the top of the metal purlin and the ends were twisted around the five secure wires of the first roll of mesh. These ends were not tied off through the holes in the purlin. The method of end joining was not in accordance with the Code or the Standard. [30] Following the incident, Senior Constable Agius of NSW Police examined the three of the five longitudinal end wires that had pulled away from the first roll of safety mesh. Two of the wire ties were bent at approximately 90 degrees and the other wire tie was bent slightly and appeared to have been twisted. [31] There was no side lapping between the adjacent rolls of safety mesh on the roof of the Costas building.

[36]

[33] There were no inspections carried out by any persons to ensure that the safety mesh was installed correctly prior to work on the roof commencing. [34] After the safety mesh had been installed, the metal roof sheet packs were loaded onto the purlins by a mobile crane to enable the roofing workers to lay the metal roofing. The packs contained 6 to 7 metal roofing sheets which were approximately 30 metres in length. The packs were wrapped in plastic and secured by a number of straps. The packs were positioned on the roof at intervals of approximately 5 metres. [35] The manufacturers of the mesh installed on the Costas building had previously arranged testing of the safety mesh. The testing was performed by Technisearch Limited in 1988 using a sand bag weighing 169.5kg dropped onto the mesh. The mesh withheld the weight of the sand bag in circumstances where the mesh was secured to purlins or joined together with longitudinal wire ends in accordance with the Code and Standard. Training [36] Joel Exner commenced working at the site on 13 October 2003. Mr Exner had previously worked for a roof tiler on residential housing. [37] Ben Ireland has stated that he inducted Mr Exner to the site on 13 October 2003 for a period of approximately one hour and fifteen minutes. Mr Ireland has stated that he ensured that Mr Exner read the job safety analysis and noted on the skills/competency assessment register that Mr Exner had 2 months experience and a 'Green Card'. Mr Ireland has stated that he asked Andrew Jones to ensure that Mr Exner had all the necessary safety equipment and did not perform any dangerous work. [38] Andrew Jones, Matthew Martin and Adam Fejgl stated that they instructed Mr Exner not to do any work he did not feel comfortable with and not to go near the edge of the roof. Mr Fejgl told Mr Exner not to walk on the purlins if he was not comfortable in doing so. Mr Exner did not receive any training in walking on the metal roof purlins. [39] The job safety analysis for the work was created by Garry Denson and reviewed by Ben Ireland. Mr Ireland required amendments to the job safety analysis and provided GDMR with documentation to make the necessary amendments. He raised the issues of installing rockwool. The documentation referred to the activity of installing safety mesh, and the need for the workers to wear safety harnesses while working near the edge or out of machines, hazards involved with the activity including the mesh not being appropriately fastened to the purlins, the mesh not been appropriately lapped or joined and the footwear of workers being inappropriate for roof work. [40] Ben Ireland stated that he inducted the employees of JBMR to the site and took them through the job safety analysis issued by GDMR for the metal roofing work. [41] The employees of JBMR that were installing the mesh were not trained or instructed to install the mesh in accordance with the requirements of the Code. Safety inspections [42] Mr Jones said that Garry Denson attended the site "a couple of times a week" to supervise the workers and the progress of the work.

[37]

Events following the incident [43] A Prohibition Notice 2003/022562 was issued to GDMR by Inspector Dubois on 15 October 2003 to ensure the following: s That a Work Method Statement is developed and implemented prior to any persons working on the roof. s That all personnel involved in the installation of the roof are trained and inducted with the Work Method Statement. s That the safety mesh for buildings known as Costas and SWADS is installed in compliance with Clause 3.2 Safety Mesh of the Code, prior to any person accessing the roof to install safety mesh. [44] A report was prepared by Anthony Martin, the Manager of the Physical Testing Branch of TestSafe Australia on 6 October 2005. Mr Martin had undertaken testing of the safety mesh and found that the test weight broke the mesh connections when there were five wire connections of the mesh at a metal purlin and no side lapping of the mesh. The tests were repeated when the mesh was installed in accordance with the Code and the Standard and the mesh held the test weight. 15 In addition to the agreed statement of facts, the prosecutor has also tendered a bundle of documents including: (i) A TestSafe Report, dated 6 October 2005 in relation to testing undertaken of Aus Mesh 300 Roof Safety Mesh. That mesh was of the exact same type of mesh used by GDMR on the day of the accident; (ii) A letter from Vladimir Rhouhliadeff & Associates Consulting Engineers addressed to Australand, dated 9 January 2004 in relation to test work undertaken by them in relation to the roof safety mesh; (iii) A letter from Australand to WorkCover, dated 3 February 2004 enclosing the above correspondence received by Australand from Vladimir Rhouhliadeff & Associates; (iv) A copy of an Aus Mesh 300 wrapping label. The original was provided at the hearing; (v) Copies of assorted Job Safety Analyses prepared by GDMR attached to a fax from Australand dated 28 July 2003; (vi) A copy of WorkCover Code of Practice 'Safe work on roofs - Part 1 Commercial and industrial buildings'; (vii) Copies of prior conviction reports of JB Metal Roofing Pty Ltd, Garry Denson and James Denson; (viii) A copy of the decision of Boland J in WorkCover (Inspector Jones) v James Denson and anor [2006] NSWIRComm 234 dated 18 July 2006.

[45]

... 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). 26 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. 27 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) 28 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 ...

[47]

30 All three defendants have a prior offence arising under the current Act or it's statutory predecessor. Counsel for the prosecutor and the defendants both submitted that, given the relevant statutory provisions and legal authority, the defendants were not 'previous offenders' such as to invoke the relevant penalty provisions under s 12 of the Act. 31 For my part, and without detailing all relevant facts and considerations at this time, I had some difficulty with the approach contended for given the provisions of s 12 of the Act together with the definition of 'previous offender' in s 4 of the Act. 32 On further consideration and in light of the submissions received in the proceedings on this point and before proceeding to judgment, it was my view that this issue raised questions of law relevant to all three defendants that should be submitted to the Full Bench of the Court pursuant to s 5AE of the Criminal Appeal Act 1912 as applied by s 196 of the Industrial Relations Act 1996. 33 The proposed questions were in the following terms: (1) As a matter of law and having regard to the relevant background detailed above, whether James Denson and JBMR are previous offenders for the purposes of s 12 of the Occupational Health and Safety Act 1983 when taken together with the definition of 'previous offender' in s 4 of the Occupational Health and Safety Act 2000. (2) As a matter of law and having regard to the relevant background detailed above, whether Garry Denson is a previous offender for the purposes of s 12 of the Occupational Health and Safety Act 1983 when taken together with the definition of 'previous offender' in s 4 of the Occupational Health and Safety Act 2000. (3) In considering the above questions, regard should be had to the decision of the Full Bench of the Court in Morrison v Powercoal Pty Limited (No 3 ) (2005) 147 IR 117 and the principle enunciated therein relevant to this issue. 34 The Full Bench has now considered and determined the above questions in the negative. The reasons for their decision are to be found in their judgment handed down on 30 April last: See WorkCover Authority of New South Wales v Denson and ors (2007) NSWIRComm 69. 35 Having regard to the above decision, the maximum penalty able to be imposed on James Denson and Garry Denson is, respectively, a penalty of $55,000. In relation to JBMR, the maximum penalty is $550,000. 36 As the agreed facts disclose, GDMR was contracted by Australand to carry out metal roofing work on a number of projects at an Eastern Creek construction site. Before that work could be done, wire safety mesh had to be installed to the roof frames.

[51]

41 On behalf of GDMR, the risks attached to improperly installed safety mesh were emphasised to Garry Denson before the commencement of the work to be undertaken on the Costas building by employees of JBMR. 42 The contract that GDMR had with Australand involved the installation of metal roofing on the construction of two buildings at the Eastern Creek site. One building was known as Swads and the other Costas. At the time of the accident involving Mr Exner, the employees of JBMR were working on the Costas building. 43 As I understand from the evidence of Garry Denson, the installation of metal roofing on the Swads building was undertaken prior to the Costas building. 44 As part of it's contractual obligations with Australand, GDMR was required to submit a Job Safety Analysis (JSA) and Safe Work Method Statement (SWMS) to Australand for approval prior to commencing work on the buildings. On behalf of GDMR, Garry Denson prepared both documents. It would seem that he submitted the first JSA on or about 24 July 2003 in relation to the Swads project. In that document, he identified the hazard involved in installing the safety mesh simply as 'falling'. Further, he expressed the steps to be taken to address that hazard as follows: Men will have safety harness attached to retractable pulling the wire from side of building to side by rope to save falling. (sic) 45 After submitting it's initial JSA to Australand, GDMR was advised by Mr Ben Ireland, Safety Coordinator for Australand, that it was required to be amended in a number of areas. One of the areas requiring amendment was that of installing the safety mesh. Mr Ireland attached what I can only describe as a pro forma hazard profile in relation to metal roofing in order to assist GDMR to amend it's JSA. Specifically, by reference to the document, in identifying the risk of falling while working from a height when installing the safety mesh, the following were identified as matters arising from the identified risk (falling from the edge or through the roof or roof framing) that required to be controlled: s inadequate fall prevention system provided when rolling out mesh; s mesh not appropriately fastened to purlins; s mesh not appropriately lapped and/or joined; s inappropriate working platform provided; s sub-standard mesh - not approved to AS1639; s footwear inappropriate for roof work. 46 On behalf of GDMR, Garry Denson subsequently amended his JSA in relation to installation of safety mesh for the Swads building and the Costas building as follows:

[68]

76 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. 77 General deterrence is a relevant consideration in this matter as metal roofing work presents grave and serious threats to the safety of workers, as exemplified by the tragic death of Joel Exner. 78 As was stated earlier, GDMR is no longer in operation. After a period of voluntary administration it is now in liquidation. However, Garry Denson continues to work in the industry as an employee at Surfside Metal Roofing. It should be noted that the director of Surfside Metal Roofing is Garry Denson's other son, Brenton Denson. Garry Denson stated that he does not have control of Surfside Metal Roofing, as his son Brenton is the sole director and shareholder of that company. However, Garry Denson acts in a supervisory role on jobs undertaken by Surfside Metal Roofing and is involved in ensuring the work is conducted safely. As such, specific deterrence is an important consideration with respect to the offence to which he has pleaded guilty. 79 James Denson gave evidence that he is no longer involved in any form of metal roofing work. He is currently studying Human Resources at TAFE and seeking work outside the industry. He also gave evidence that the corporate defendant has ceased to operate for the last 18 months to two years. Steps have been taken to place JBMR in liquidation but that step is hampered by lack of funds. A letter dated 20 September 2006 from PPB, Chartered Accountants & Business Reconstruction Specialists addressed to James Denson in his capacity of sole director of JBMR was tendered without objection. Relevantly, it says: I refer to the discussions concerning the possible liquidation of the above Company.

[71]

84 Counsel for the defendants submitted that they had a very limited capacity to pay a penalty. The affidavits of Garry Denson and James Denson were relied upon in support of that submission. 85 In assessing the defendants' ability to pay a fine, the Court is guided by 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. 86 Following the liquidation of GDMR, Garry Denson and his wife entered into a deed with GDMR's creditors, personally guaranteeing the debts of the company to it's creditors. As a result, the family home located at 15 Molsten Avenue, Tumbi Umbi was sold as well as additional land owned at 8A Sals Lane, Tumbi Umbi. Mr and Mrs Denson's savings, which at the time came to $56,0000, also had to be directed towards satisfying the debts of GDMR to it's creditors. 87 The only assets currently owned by Garry Denson as a result of the payments to the creditors on behalf of GDMR are personal effects and household items. He and his family are renting the home they currently live in. 88 As stated earlier, Garry Denson is currently employed by Surfside Metal Roofing. His payroll advice for July 2006, annexed to his affidavit, reveals that he was being paid approximately $746 per week after tax by Surfside Metal Roofing. His personal income tax return for 2004/2005 revealed his taxable income was $48,075. However, Garry Denson deposed that he has not been paid any wages recently as Surfside Metal Roofing has been unable to secure any work for some time and that there was a very real possibility of that company being placed in liquidation. Garry Denson gave evidence that he performs some metal roofing work casually for a company of which his wife is the director. That work pays him approximately $800 nett per week. 89 Garry Denson detailed his family's weekly expenses, including items such as rent, groceries, school fees and utility bills, which amount to $1,200 per week. In terms of other liabilities, Mr and Mrs Denson also owed $3,352 and $3,598.05 on two credit cards as at 7 August 2006.

[72]

90 The financial circumstances of James Denson are somewhat similar to his father's situation. He does not own any real estate or substantial assets other than personal effects and household furniture. He is also living in rented property. He owns five shares in JBMR but says the shares are essentially worthless as the corporate defendant is no longer trading. 91 A Notice of Assessment from the Australian Taxation Office reveals James Denson's income for the 2004/2005 year was $79,731. However, he is currently studying Human Resources at TAFE, and is unemployed. He is not deriving any form of income and is living off a $4,000 ACIRT payment, which is a building industry fund for employee entitlements. James Denson gave evidence that he is currently looking for work outside the metal roofing industry but has been unsuccessful so far. 92 In terms of liabilities, James Denson has a personal loan with St George Bank on which he owes approximately $6,500. He repays that loan at an amount of $200 per fortnight. The fine of $5,000 imposed by Boland J in WorkCover (Inspector Jones) v James Denson and anor [2006] NSWIRComm 234 as well as payment of the prosecutor's costs in that matter are also outstanding. James Denson calculated his weekly living expenses came to approximately $588 including items such as rent, groceries and other day-to-day expenses. 93 As stated earlier, JBMR has ceased trading and does not own any assets. Along with James Denson, the company was fined $75,000 and required to pay the prosecutor's costs in WorkCover (Inspector Jones) v James Denson and anor. That has not been able to be done. 94 Based on all of the above, it is clear that all three defendants are confronting difficult financial circumstances. Garry Denson is 48 years of age and his only work experience is in the metal roofing industry. The corporate defendant, JBMR, is without assets and is in liquidation. James Denson is currently studying to obtain a qualification in an area unrelated to metal roofing and, in the meantime, has been unable to secure alternative employment. Both personal defendants, it seems to me, face short to medium term difficulty in improving their financial circumstances. 95 In light of the evidence going to the financial circumstances of Garry Denson and James Denson, I accept they are of limited financial means. As far as JBMR is concerned, it could properly be said the company is impecunious. 96 Prior decisions of the Court have acknowledged there will be circumstances where it is appropriate that the quantum of penalty imposed be reduced in light of a defendant's limited means or impecuniosity: See the decision of Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v David Karl Schrader (2002) 112 IR 284 at [86]. 97 Given the conclusion I have reached as to the objective seriousness of these offences and notwithstanding the relative difference in culpability of Garry Denson as distinct from JBMR and James Denson, the necessity that such a conclusion demands of imposing a substantial penalty on all three defendants is obviously compromised by their respective financial circumstances. It is a factor to which I have given due consideration. 98 Notwithstanding the financial circumstances as outlined in relation to the defendants, the approach I adopt is as stated by 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. 99 I have before me a Victim's Impact Statement prepared on behalf of Mr Exner's family by his mother, Mrs Susan Exner. I have received that statement in accordance with s 28(3) of the Crimes (Sentencing Procedure) Act 1999, which sets out: ... (3) If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. 100 To a parent, the loss of a child is profound and ongoing. Upon the death of her son, Mrs Exner described experiencing feelings of shock and devastation, particularly when learning that the circumstances surrounding the tragic accident could have been avoided. I have noted the immense impact that her son's death has had on Mrs Exner's life. As she wrote: This has just turned my world upside down… Losing Joel has completely changed my whole life because my life is my boys… 101 As is evident from her statement, Mrs Exner feels the loss of Joel deeply and fears for the safety of her other two sons, Brendan and Ashley. 102 The early entry of the pleas of guilty made by the defendants entitles them to a discount in the determination of penalty. In doing so, 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. 103 There are other factors the defendants are entitled to have taken into account as mitigating factors in their favour.

[75]

I lost my father as an 11 year old boy. This is the only experience in my life which enables me to begin to comprehend Mrs Exner's grief and loss. Losing a child in the circumstances of the accident on 15 October 2003 must be unimaginably worse. 106 I accept that the testimonials for Garry Denson as well as that for his son James Denson demonstrate they are of otherwise good character on a personal and professional level. 107 Counsel for the prosecutor submitted that no weight should be attached to any submission on behalf of the defendants that they have assisted the prosecutor by agreeing to give evidence in an associated prosecution in relation to others yet to be heard as provided for in s 21A(3)(m) and s 23 of the Crimes (Sentencing Procedure) Act 1999. On that point, counsel for the prosecutor submitted that the prosecution case against the other defendants did not depend on either of the personal defendants giving evidence and that their evidence would be of limited assistance to the prosecutor. 108 In arguing to the contrary, counsel for the defendants submitted that as Garry Denson and James Denson were issued with subpoenas to attend and give evidence, they were clearly required by WorkCover for the purposes of the other prosecutions and therefore were providing assistance to the prosecutor as contemplated by s 23(1) of the Crimes (Sentencing Procedure) Act 1999. 109 I do not doubt that the Densons have endeavoured to assist WorkCover in its investigations. However, as to whether any weight can be attached to their apparent willingness to give evidence in the forthcoming prosecutions of the other defendants is another matter. Section 23(1) of the Crimes (Sentencing Procedure) Act 1999 provides: A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. 110 The position seems to be that while the Densons have indicated their willingness to assist the prosecutor in relation to other defendants and have been subpoenaed for that purpose, their evidence may be ultimately of limited probative value. That is not a factor that should count against the defendants in my penalty considerations. Equally, it seems to me, it is of limited weight as a factor in mitigation. 111 As an offender, James Denson's culpability was less that that of his father Garry Denson. If anything, James Denson's culpability can be characterised as that of an inexperienced young man who went into business under the mentorship of his father. I am of the view that his knowledge and understanding of many aspects of the responsibilities that his business venture involved, including workplace safety, were either unknown to him or he relied on his father to guide him. In other words, his culpability springs predominantly from ignorance and inexperience rather than a deliberate intention on his part to ignore his work safety obligations. 112 Further, James Denson has removed himself from the metal roofing business and, by all accounts, is intent on pursuing further career opportunities far removed from the operational aspects of the construction industry that metal roofing is a part of. 113 Taking into account all the matters I have referred to, I determine penalty as follows:

WorkCover Authority of New South Wales (Inspector Dubois) v James Nicholas Denson, JB Metal Roofing Pty Limited and Garry James Denson

At a glance

Court

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Before

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Judgment (79 paragraphs)

Parties

Cases Cited (14)

Cited By (6)