WorkCover Authority of New South Wales (Inspector Howard) v Ronald Joseph Bezzina and Peter Butterfield

PROSECUTOR Mr P Skinner of Counsel

SOLICITOR Moray & Agnew SYDNEY LEGAL REPRESENTATIVES: DEFENDANT Mr R Reitano of Counsel

SOLICITOR Deacons Lawyers SYDNEY

JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR HOWARD) v RONALD JOSEPH BEZZINA

Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983.

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR HOWARD) v RONALD JOSEPH BEZZINA

Prosecution under s16(2) of the Occupational Health and Safety Act 1983.

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR HOWARD) v PETER BUTTERFIELD

Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983.

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR HOWARD) v PETER BUTTERFIELD

Prosecution under s16(2) of the Occupational Health and Safety Act 1983.

1 This judgment concerns the issues of penalty and costs in relation to two charges made out against the defendants, Ronald Joseph Bezzina and Peter Butterfield. The defendants were prosecuted as individuals but in relation to identical charges arising from the same facts. This occurred because they operate as builders by way of a partnership, Bezzina Butterfield Builders. 2 The charges are that, in relation to a home unit building site in Cronulla, they had breached ss16(2) and 17(1)(a) of the Occupational Health and Safety Act 1983 ('the OHS Act'). The charges were heard by Maidment J and led to a finding, by judgment given on 16 March 2001, that each of the charges had been made out. Due to his Honour's retirement from office, the matter was allocated to me for sentencing. Counsel for the parties agreed, and I accept, that it is appropriate to determine the outstanding issues on the basis of the findings of Maidment J.

3 The terms of the s16(2) charges and particulars thereof are: On 10 November 1997 at a residential home unit construction site situated at 19-23 Marlo Road, Cronulla in the state of New South Wales, the defendant being a self-employed person did fail to ensure that persons not in his employment, more particularly Pietro Scalise, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while those persons not in his employment were at the defendant's aforesaid place of work contrary to section 16(2) of the Occupational Health & Safety Act, 1983 in that:

(a) there was no perimeter fencing of the third level of the building under construction at the site to prevent persons falling in excess of 1.8 metres;

(b) there was no scaffolding erected to enable work to be conducted safely by persons when work could not be conducted safely by such persons standing on permanent or solid construction;

(c) there was no artificial lighting provided to enable work to be conducted safely. Particulars: 1. The defendant was a partner in a business which traded in the name of Bezzina Butterfield Builders ("the builder").

At all material times the builder was constructing twenty-one residential home units of a three storey walk-up type in addition to a basement level carpark ("the building") at 19-23 Marlo Road, Cronulla ("the site").

The builder had engaged General Beton Co. Pty Limited (ACN 002 385 305) ("the contractor") to carry out work at the site involving the placement of steel and the placement and finishing of concrete.

The contractor at all material times employed Pietro Scalise ("the worker")

At all material times the worker was engaged as a concreter/finisher at the site.

Prior to 7.20pm on 10 November 1997 concrete had been poured to form the second residential floor level slab of the building.

Immediately prior to 7.45pm on 10 November 1997 the worker was using a hand trowel to close up the last footprints which were made in the freshly laid concrete for the second residential floor level slab of the building.

When carrying out the work aforementioned in paragraph 6 the worker was alone and not being supervised.

At approximately 7.45pm on 10 November 1997 the worker slipped and as a consequence fell from the edge of the second residential floor level of the building a distance of approximately 5.9 metres and landed on the concrete slab at ground level.

The worker suffered serious injuries as a result of the fall.

At the time the worker fell from the building there was no fencing in place around the perimeter of the second residential floor level of the building.

At the time the worker fell from the building there was no scaffolding erected to enable him to safely carry out his work at the edge of the building.

At all material times the worker was carrying out the work when the natural light was failing.

At the time the worker fell from the building there was no artificial lighting in place to illuminate the area where he was working. The charges brought under s17(1)(a) were in like terms.

4 The prosecution failed to establish the absence of fencing and lighting but succeeded in part in that Maidment J found that "catch scaffolding", reinforcing mesh attached to the side of the building which could have the effect of restraining a fall from an upper floor, was installed although there was a gap through which the employee had fallen 5.9m to the ground below.

5 The issues going to penalty involve considerations of co-operation, or lack of it, by the defendants with the prosecutor. This arises in circumstances where the prosecutor has elected to bring charges which are not sustainable in the light of exculpatory evidence which, had appropriate enquiries been undertaken by the prosecutor, would have been available to him. Other issues are whether a discount of penalty is appropriate to be given in circumstances where a defendant is by that process denied the opportunity to plead guilty to an appropriate charge; and the operation of the principle of totality. A matter of proportionality of sentence also arises in the context of the penalty of $70,000 imposed by Kavanagh J on General Beton Pty Limited, the employer of the injured worker in the present case. So far as the costs questions are concerned, the prosecutor has sought its costs, it having been successful in achieving a conviction on each of the charges although a considerable amount of court time was taken up by aspects of the charges which were not made out. The defendants argue that each party should pay its own costs or, in the alternative, the prosecutor should only receive a proportion of its costs in respect of the charges made out.

6 As to penalty Mr. Skinner for the prosecutor submitted that the principal of totality should apply given that the charges arose out of the same facts and indeed he submitted that the prosecutor did not press separate penalties. The defendants had no prior convictions.

7 Mr. Reitano for the defendants reiterated the failings of the prosecution case in relation to hand railing and lighting. As to hand railing he focused upon Maidment J's agreement with the submissions for the prosecutor that, on the basis of the summons as particularised in connection with this issue, the prosecution was quite "dead in the water". This concession was made in light of the evidence of Mr. Katsikis, that he had erected handrails. However, he had not been interviewed by the prosecutor. It is unnecessary that I deal further with the issue of lighting.

8 As to scaffolding he submitted that Maidment J had not found there was no scaffolding, as the summons alleged, but that there was a gap in the catch scaffolding provided. He submitted that this was not the case that WorkCover had brought against the defendant. 9 Mr. Reitano traced the history of the matter, concluding in his submissions on this point with the proposition that the defendant's had, in relation to the various charges, in effect posed to the prosecutor the question "what facts do you want us to plead to"? The prosecutor took the position that it had no obligation to respond in kind but persisted with charges which, in the view of the defendant, it could not make out. It was submitted that the findings did not reveal a blatant disregard for safety. The defendants had been in partnership in the building industry for nine years, Mr. Bezzina and Mr. Butterfield having 30 and 25 years experience respectively in the industry.

10 As to penalty, the maximum applicable in each case is $55,000. I note a submission made by the prosecutor was to the effect "that there is large amount of totality to press upon your Honour". I will give effect to that submission. I consider that it would be inappropriate to sentence each of the defendants here to a single penalty the amount of which would reflect, in respect of that defendant, the whole of a relevant penalty. Here Messrs Bezzina and Butterfield worked as a single employer, namely through their partnership. They were not incorporated and consequently stood to be charged as individuals. Whilst strictly they are individually liable, I consider penalty ought take into account the fact that for the purposes of these breaches their conduct was in substance the conduct of one offender, namely the partnership. I propose to assess a single penalty on that basis but then divide that penalty by two and to impose the resultant amounts as a penalty upon each individual. This will be consistent with the Prosecutor's submission.

11 As to the idea of proportionality being attained with the penalty imposed by Kavanagh J in WorkCover Authority of New South Wales (Inspector Howard) v General Beton Pty Ltd [2001] NSWIRComm 80, it is relevant to note that Her Honour, in the context of a plea of guilty, found the facts to be: …the defendant required employees to work as concretors at night, in the dark, ...on the second floor of an apartment building site in wet and rainy conditions without lights.

12 By contrast, the relevant facts, as found by Maidment J, about the same incident, but in the proceedings in which I am now concerned were: The evidence in this regard fails to disclose any failure to provide lighting, nor does it demonstrate any causal connection between the level of lighting and the danger occasioned by the work being performed by Mr. Scalise.

The work was being performed after dark. Whilst the work was suspended on account of rain Mr. Bezzina attended the site, found nobody there and assumed that work had been finished for the day. In fact Mr. Scalise and Messrs Marra had been instructed by their employer, Mr. Pizzinato to go home but, on account of a respite in the weather, had not complied with that direction.

13 Given that the penalty imposed by Kavanagh J upon General Beton Pty Limited arose from the same accident but involved a different charge and findings of fact of a more serious kind than those applicable here, I consider the defendants in this matter are entitled to be treated more favourably in the assessment of penalty than was General Beton Pty Limited. This will achieve a consistency of sentencing. I will not afford the defendants any discount given their pleas of not guilty and the consequential usage of court time. I see no relevance in the concept of a discount for the utilitarian value of a plea of guilty being extended to defendants who might consider themselves guilty in one respect, not guilty in others but driven to plead not guilty because of the other charges pressed against them. Any benefit which might be extended to the defendants by virtue of their acquittals on certain charges seem to not involve a theory of discount but rather issues relating to costs.

14 If one was to take a simply mathematical approach to the assessment of penalty, which I consider inappropriate, the proportionality with penalty imposed by Kavanagh J on General Beton Pty Limited would lead to the imposition of a penalty on the defendants of $8800. I consider this course inappropriate for a number of reasons including the fact that sentencing is not a mathematical exercise but, more importantly, because the critical indicator of penalty is an assessment of the seriousness of the offence. It cannot be forgotten that the defendants have been convicted in relation to an offence which involved failure to properly protect Mr. Scalise in the event of his fall from the building. The failure may be minimised as one relating merely to "a gap" in the catch scaffolding, it was however a gap which enabled Mr. Scalise to fall from the first floor level to the ground and to sustain serious injury. I would consider in those circumstances a fine of $8800 to be disproportionate to the seriousness of the offence. I would impose a penalty of $15,000 divided equally between each of the defendants.

15 WorkCover sought an order for costs on a party-party basis for four days of trial on the issue of liability and also the hearing as to penalty.

16 The defendants asked that the Court order each party pay its own costs: alternatively, it was submitted that WorkCover should not have any order for costs beyond one third thereof. This argument depended upon the views expressed by Maidment J as to the prosecution's failure to fully investigate the incident and its concession at the conclusion of the defence case that it was "dead in the water" on the handrail issue. It also depended upon the view expressed by the High Court in Latoudis v Casey (1991) 170 CLR 534 (per Mason CJ and Toohey and McHugh JJ in separate judgments) to the effect that normally an order for costs should be made in favour of the defendant against whom a prosecution has failed, subject to the discretion to refuse costs, particularly upon the basis of the defendant's conduct before the charges were laid or in the course of the proceedings (See also the confirmation of that approach by the Full High Court in Yanner v Eaton (1999) 168 ALR 1. See also Rosniak v Government Insurance Office (1997) 41 NSWLR 608).

17 Mr. Skinner accepted that Latoudis v Casey is the final word on the cost matters in this jurisdiction. It was argued that the prosecution would normally be entitled to all its costs unless it has done something to disentitle itself to part thereof. In this case, it was submitted, the defendants had withheld information from the prosecution; the evidence of Mr. Teasel and Mr. Katsikis was not known to the prosecution until they gave their evidence. However, the prosecution recognised the right of the defendant to adopt that course.

18 The defendants emphasised their fundamental right to silence. They submitted that the prosecutor should not be entitled to use that right against the defendant in circumstances where the prosecutor has failed to investigate.

19 It is important to note that at the outset of the proceedings before Maidment J, Mr. Reitano summarised certain difficulties which he contended the defence was then facing, describing his position this way: …we would really just like to know what precisely it is that is alleged against us so that we can consider whether the matter is one that is appropriate to plead to or is appropriate to defend in hearing and I say that bearing in mind that I was only provided with colour photographs and they are fairly important and if need be I will illustrate to your Honour the difference between the coloured and black and white photographs but they are fairly important in order to properly advise my client and as I say a statement of facts would have been of considerable assistance.

20 Mr. Skinner dealt with some of these matters and adverted to certain conflicts in the evidence particularly in respect to the existence or otherwise of perimeter fencing and said: The prosecution does not have to tell the defence a final view of the evidence. The case is that there was no perimeter fencing to prevent persons falling in excess of 1.8 metres. It has been particularised quite clearly.

21 Later in the course of this discussion the following exchange occured: His Honour: There is a more fundamental matter I would have thought and that is that Mr Reitano said that if a statement of facts is provided to him it is possible that a plea will be entered to that prevailing document.

Skinner: Yes there have been discussions about the facts and there is a disagreement upon one fundamental fact which I think is the problem. His Honour: I have not understood that from Mr Reitano. Mr Reitano, is there disagreement on one critical fact?

Reitano: There is certainly disagreement between me and my learned friend. There is disagreement in the prosecution case and we want to know which version the prosecution presses. The disagreement within the case, and I understand what my learned friend says about the policeman, the only person who seems to adopt a particular version of the events that is adverse to the prosecution establishing a particular fact, there are other people who would support properly read as I understand it the policeman's report and we want to know which version the prosecution is putting forward. … It is on two levels, your Honour, no fencing, inadequate fencing and then the second level is no fencing on the whole of the perimeter area or no fencing at a particular point and similarly inadequate fencing on the whole of the perimeter of the area or inadequate fencing or particular points so there is the two considerations.

His Honour: And in the absence of that material being made available to you?

Reitano: We are in an extremely difficult position. We do not know what the case is that is advanced against us. This difficulty was not resolved and all matters were defended.

22 In these circumstances it seems to me the defendants are entitled to the benefit, on the issue of costs, of the fruits of their "success" in respect of two of the four prosecutions. I accept that the defendants were willing to consider the factual position advanced by the prosecutor with a view to deciding whether or not they should enter pleas of guilty or defend the matters. They were thus left in a position where they had no practical alternative but to proceed with their defence. It seems to me in these circumstances the success means that Mr. Reitano's submission, to the effect that each party should pay its own costs, is an adequate and appropriate one. I would so order.

23 Each defendant is convicted of the charge relating to the scaffolding. A fine in the sum of $7500 is imposed on each defendant with a moiety to WorkCover. Each party shall pay its own costs.

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