WorkCover Authority of New South Wales (Inspector Tucknott) v Stephen James Corrish t/as AKA Showtime Staging

Industrial Relations Commission (NSW)|2001-03-23|Before: Boland J

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Tucknott) v Stephen James Corrish t/as AKA Showtime Staging [2001] NSWIRComm 96 PROSECUTOR: WorkCover Authority of New South Wales PARTIES : DEFENDANT: Stephen James Corrish t/as AKA Showtime Staging FILE NUMBER: IRC 4816 & 4817 of 1999 CORAM: Boland J CATCHWORDS : Occupational Health & Safety - Offence under s 18(2)(a) and s 18 (3) of the Occupational Health and Safety Act 1983 - People sustained injuries when temporary public seating stand collapsed to the ground - Plea of guilty to both charges - Totality principle in sentencing - Fine imposed - Costs LEGISLATION CITED : Occupational Health and Safety Act 1983 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Thomson, R v Houlton [2000] NSWCCA 309 CASES CITED : Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Tucknott) v Company B Ltd [2000] NSWIRComm119 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 WorkCover Authority of New South Wales (Inspector Tucknott) v Walders Goodtime Pty Ltd [2001] NSWIRComm 94 HEARING DATES: 03/23/2001 DATE OF JUDGMENT: 05/10/2001

PROSECUTOR: Mr M P Cahill of counsel Solicitor: Ms K Parsons WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr B D Hodgkinson of counsel Solicitor: Mr W La Hood Toltz La Hood Lawyers

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 10 May , 2001 Matter No IRC 4816, 4817 of 1999

WorkCover Authority of New South Wales (Inspector Tucknott) v Stephen James Corrish t/as AKA Showtime Staging

Prosecution under s 18(2)(a) and s 18(3) of the Occupational Health and Safety Act 1983 JUDGMENT

1 The defendant, Stephen James Corrish, t/as AKA Showtime Staging, operated a stage construction business in the State. 2 In September 1997, the defendant was contracted by Walders Goodtime Pty Limited, a company engaged in the business of erecting temporary seating at public venues to supply and install a temporary public seating stand for the performance of a play, 'Black Mary', at Wilson Street Carriage Works in Newtown, New South Wales. The play was produced and presented by Company B Ltd, a theatrical production company. 3 On the evening of 23 September 1997, shortly before a performance of Black Mary was due to commence, the temporary seating stand collapsed to the ground. At the time of the collapse about 50 persons were seated in the stand. Approximately 500 persons were to be seated that evening to view the performance. 4 As a consequence of the collapse about 14 people sustained some form of injury. Four people were hospitalised. No person was permanently incapacitated by their injuries. 5 A prosecution was instituted against the defendant by Inspector Trevor Tucknott of the WorkCover Authority of New South Wales for an alleged breach of s 18(2)(a) and s 18(3) of the Occupational Health and Safety Act 1983. 6 At the time of the alleged offence s 18 provided: 18 Manufacturers, suppliers etc to ensure health and safety as regards plant and substances for use at work

(1) In this section: credit-sale agreement means an agreement for the sale of goods, under which the purchase price or part of it is payable by instalments, but which is not a hire-purchase agreement. hire-purchase agreement includes: (a) a hiring of goods with an option to purchase and; (b) an agreement for the purchase of goods by instalments (whether the agreement describes the instalments as rent or hire or otherwise); but does not include any agreement whereby the property in the goods passes at the time of the agreement or upon or at any time before delivery of the goods. lease means any kind of agreement or arrangement under which payments are, or are to be, made for the supply of goods for use by any person, except a credit-sale agreement, a hire-purchase agreement or a contract of sale. manufacture includes design. plant for use at work means any plant designed for use or operation (whether exclusively or not) by persons at work, and includes any article designed for use as a component in, or an accessory to, any such plant. substance for use at work means any substance intended for use (whether exclusively or not) by persons at work. supply , in relation to any plant or substance, means supply the plant or substance by way of sale, transfer, lease or hire, whether as principal or agent for another. (2) A person who manufactures or supplies any plant for use at work or any substance for use at work shall: (a) ensure that the plant or substance is safe and without risks to health when properly used; (b) carry out or arrange for the carrying out of such research, testing and examination as may be necessary for the purpose of the discovery and the elimination or minimisation of any risks to health or safety to which the plant or substance may give rise, and; (c) take such steps as are necessary to make available in connection with the use of the plant or substance at work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about the results of any relevant tests which have been carried out on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) A person who erects or installs any plant for use at work in any premises where that plant is to be used by persons at work shall ensure that nothing about the way in which it is erected or installed makes it unsafe or a risk to health when properly used. (4) Nothing in this section shall be taken to require a person to repeat any research, testing or examination which has been carried out otherwise than by the person or at the person's instance, in so far as it is reasonable for the person to rely on the results thereof for the purposes of this section. (5) A requirement imposed on any person by any of the provisions of this section shall extend only to things done in the course of a trade, business or other undertaking carried on by the person (whether for profit or not). (6) Where a person manufactures or supplies any plant for or to another on the basis of a written undertaking by that other to take specified steps sufficient to ensure, so far as is reasonably practicable, that the plant will be safe and without risks to health when properly used, the undertaking shall have the effect of relieving the first-mentioned person from the requirements, in relation to the plant, of subsection (2) (a) to such extent as is reasonable having regard to the terms of the undertaking. (7) Where a person (in this subsection referred to as the ostensible supplier) supplies any plant for use at work or substance for use at work to another (in this subsection referred to as the customer) under a hire-purchase agreement or credit-sale agreement, and the ostensible supplier: (a) carries on the business of financing the acquisition of goods by others by means of any such agreements, and (b) in the course of that business acquired the person's interest in the plant or substance supplied to the customer for the purpose of financing its acquisition by the customer from a third person (in this subsection referred to as the effective supplier), (c) the effective supplier and not the ostensible supplier shall be treated for the purposes of this section as supplying the plant or substance to the customer, and any requirement imposed by this section on suppliers shall accordingly fall on the effective supplier and not on the ostensible supplier. (8) Where a person (in this subsection referred to as the ostensible supplier) supplies any plant for use at work to another (in this subsection referred to as the customer) under a lease, and the ostensible supplier: (a) carries on the business of financing the use of goods by others by means of leases; (b) in the course of that business acquired the person's interest in the plant supplied to the customer for the purpose of financing its provision to the customer by a third person (in this subsection referred to as the effective supplier), and; (c) has not had physical possession of the plant or has had physical possession only for the purpose of passing it to the customer, the effective supplier and not the ostensible supplier shall be treated for the purposes of this section as supplying the plant to the customer, and any requirement imposed by this section on suppliers shall accordingly fall on the effective supplier and not on the ostensible supplier. (9) For the purposes of this section, any plant or substance is not to be regarded as properly used where it is used without regard to any relevant information or advice relating to its use which has been made available by a person by whom it was manufactured or supplied. (10) Nothing in this section shall affect the operation of the Sale of Goods Act 1923 or the Fair Trading Act 1987. 7 The charge against the defendant pursuant to s 18(2)(a) was that: Between 9 September 1997 and 23 September 1997 at Wilson Street Carriage Works, 229 Wilson Street, Newtown in the State of New South Wales, the defendant being a person who supplied plant, to wit, temporary seating public stand capable of seating approximately 600 persons, DID FAIL, contrary to Section 18(2)(a) of the Occupational Health and Safety Act 1983, to ensure that the said temporary seating public stand was safe and without risks to health when properly used at work in that on 23 September 1997 the said stand collapsed when persons were seated in the stand. As a result of the said public stand collapsing, several persons were injured. The Particulars of the charge are : a) At all material times Walders Goodtime Pty Limited was contracted by a theatrical company Company B Ltd [ACN: 002 866 828] to build and supply a temporary seating public stand for the performance of a play 'Black Mary' at Wilson Street Carriage Works, 229 Wilson Street, Newtown in New South Wales. b) Walders Goodtime Pty Limited being unable to supply the requisite seating subcontracted this work to the defendant, who supplied the components for temporary public seating stand and also installed and erected the stand. c) The installation of the temporary public seating stand was completed on 9 September 1997. Further work was then carried out by both Walders Goodtime Pty Limited and the defendant to extend the rear of the said stand to seat an additional 60 to 80 persons thereby increasing the overall seating capacity of the stand to about 600. The extension was completed by 11 September l997. d) On 16 September 1997 further additional work was carried out on the said stand by the defendant] (sic) to raise the rear seating by about 10mm, so as to remove a potential trip hazard posed by a protruding 10mm metal strip on the edge of the seating. e) On the evening of 23 September 1997, shortly before the performance of the 'Black Mary' play the temporary seating public stand in which about 50 persons were seated collapsed to the ground and several members of the public and employees of Company B Ltd, the theatrical company, were injured. f) The defendant Stephen James Corrish t/as AKA Showtime Staging failed in any or all of the following aspects: (i) The defendant failed to ensure that the temporary seating public stand had been inspected and certified safe for use by an engineer on completion. (ii) The defendant failed to ensure that the said public stand was adequately braced and secured as required by regulations 1571 (3) (b), (h) & (i) of the Constructions Safety Regulations. (iii) The defendant failed to ensure that variations in erection materials and seating configuration for the said public stand had been designed and approved by an engineer. (iv) The defendant failed to ensure that the said public stand was safe and without risks to health when properly used at work. g) On 23 September 1997, the said public stand collapsed and several persons seated in the stand sustained injuries.

8 The charge against the defendant pursuant to s 18(3) of the Act was that: Between the 9 September 1997 and the 23 September 1997 at Eveleigh Railway Workshops at Wilson Street Carriage Works, 229 Wilson Street, Newtown, in the State of New South Wales, the defendant, being a person who was sub-contracted by Walders Goodtime Pty Ltd to erect or install plant, to wit, a temporary seating public stand capable of seating approximately 600 persons, DID FAIL to ensure that nothing about the way in which the plant was erected or installed made it a risk to health when at work, contrary to Section 18(3) of he Occupational Health and Safety Act, 1983, in such case made and provided.

a) At all material times the defendant was subcontracted by a company Walders Goodtime Pty Limited [ACN: 067 608 931] to supply and install a temporary seating public stand for the performance of a play 'Black Mary' by a theatrical company Company B Ltd at Wilson Street Carriage Works, 229 Wilson Street, Newtown in New South Wales. b) Walders Goodtime Pty Limited had been contracted by the said theatrical company to supply and install the said public stand for the play and being unable to supply the requisite seating subcontracted this work to the defendant, who supplied the components for said public stand and also installed it. c) The defendant completed the installation of the temporary public seating stand on 9 September 1997. Further work was then carried out by both the defendant and the company Walders Goodtime Pty Limited to extend the rear of the said stand to seat an additional 60 to 80 persons thereby increasing the overall seating capacity of the said stand to about 600. The extension was completed by 11 September 1997. d) On the evening of 23 September 1997, shortly before the performance of the 'Black Mary' play, the temporary seating public stand in which about 50 persons were seated collapsed to the ground and several members of the public and employees of Company B Ltd the theatrical company were injured. e) The defendant failed in any or all of the following aspects: (i) The defendant failed to ensure that the temporary seating public stand had been inspected and certified safe for use by an engineer on completion. (ii) The defendant failed to ensure that the said public stand was adequately braced and secured as required by regulations 1571 (3) (b), (h) & (i) of the Constructions (sic) Safety Regulations. (iii) The defendant failed to ensure that variations in erection materials and seating configuration for the said public stand had been designed and approved by an engineer. (iv) The defendant failed to ensure that the said public stand was safe and without risks to health when properly used at work. f) As a result of the said failures, the temporary seating public stand collapsed 23 September 1997 and several persons seated in the stand were injured. 9 The defendant entered a plea of guilty to both charges. 10 Charges arising out of the same factual circumstances applying to the defendant were laid against two other defendants, namely, Company B Ltd and Walders Goodtime Pty Ltd. In respect of those defendants, the charges have already been dealt with: see WorkCover Authority of New South Wales (Inspector Tucknott) v Company B Ltd [2000] NSWIRComm119; WorkCover Authority of New South Wales (Inspector Tucknott) v Walders Goodtime Pty Ltd [2001] NSWIRComm 94. 11 An Agreed Statement of Facts was tendered in the proceedings. The Statement described the erection of the seating stand in the following terms: 14. The defendant started to erect the seating on 5 September 1997. According to the defendant, he was asked to supply and erect a stand to seat 500 people. He was not able with the existing installation on hand (sic) do so. This was due to the upright columns left and right of the temporary seating stand. The initial installation was capable of only carrying 384 persons. He realised this two days after initial erection of the first seating plant. The stand erected by the defendant was a composite stand joined together by means of a stringer system and locking devices. It was a modular system. To increase the overall seating capacity to around 500 the defendant had to extend the temporary seating stand. The defendant completed the installation of the stand on 9 September 1997 as originally envisaged, being the date for the technical rehearsal for the play.

The next day, 10 September 1997, following discussions between Company B Ltd and Walders Goodtime Pty Limited on the number of people to be seated the assessment was that the seating stand would not have the capacity to seat 600 people. Company B Ltd and Walders Goodtime Pty Limited agreed that it would be necessary to add to the structure by building more seats at the back of the stand so as to add an additional 60 to 80 seats. On 11 September 1997 Walders Goodtime Pty Limited carried out the work for additional seating by building a platform at the back of the temporary seating stand upon which the extra 60 to 80 seats were to be placed. On the same day, having been given prior notice of the additional seating requirements, the defendant came to the site and constructed an additional part of the stand on the newly built platform to provide for an extra 60 to 80 seats. 16. On 16 September 1997 there was further work carried out on the structure by Walders Goodtime Pty Limited. On that day, Rachel Healy employed as General Manager by Company B Ltd raised an issue with regards to a protruding 10mm strip of metal on the edge of the temporary seating stand and voiced her concerns that the protruding metal strip was a potential trip hazard. Following discussions between Company B Ltd and Walders Goodtime Pty Limited, on that day, the seating was raised 10mm so as to be the same height as the metal strip thereby eliminating the potential for any tripping. Walders Goodtime Pty Limited carried out the raising of the seating.

12 The Agreed Statement of Facts revealed that there was a requirement that the seating stand be certified in situ by an appropriately qualified engineer. In this respect the Statement said: 20. Investigations revealed that Company B Ltd was aware that Walders Goodtime Pty Limited had subcontracted to the defendant to supply and erect the stand. Wayne Tomas, employed as the production manager by Company B Ltd, stated that he dealt directly with the defendant on issues regarding the construction of the stand and in particular on the issue of obtaining the necessary certification for the stand so as to satisfy the Building Approval requirements of South Sydney City Council that the structure complied with approved safety standards.

Following requests from Company B Ltd that the defendant supply certification by an engineer for the temporary seating stand, the original certification for the temporary seating stand by the designer Jens Clemensen & Associates was provided to the Council by Company B Ltd. [Annexure D]. That certification did not relate to the actual temporary seating stand, which had been erected by the defendant. That certificate did not satisfy the Council. Company B Ltd then pressed Corrish requesting him for a confirmation that an engineer had certified the seating. The defendant then provided a hand written document purporting to be a certificate from Jens Clemensen & Associates Consulting Structural & Civil Engineers dated 23.1.97 (prior to the accident) which was faxed to the Council by Company B Ltd. That document is not entirely clear and legible and is handwritten on headed paper. [Annexure E].

Company B Ltd then requested the defendant to come on site to check and verify the adequacy of the whole structure. On 13 September 1997, the defendant informed Tomas on behalf of Company B Ltd that the structure had been "checked out" by him and "was okay".

Investigations further revealed that neither the defendant, Company B Ltd, nor Walders Goodtime Pty Limited caused the structure to be inspected by an engineer and no steps were taken to obtain an engineer's certificate to show that the structure was safe and complied with the requirements of South Sydney City Council, the Building Code of Australia and Australian Safety Guidelines. No action was taken so as to ensure compliance with Regulation 1571 (3) (b) of the Construction Safety Regulations on the design, construction and erection of public stands which provides that "...all members including seating and flooring members of a stand shall be secured in position". Regulation 1571 (3) (h) of the Construction Safety Regulations further provides that "Raker joists, stringers, stays and other sloping members of a public stand shall where resting on the ground or other surface on which the stand is erected be so braced internally to the structure of the stand or, if the nature of the ground or surface permits, be so secured or stakes of timber or steel and of adequate section driven into the ground or surface so as to eliminate any tendency for the joists, stringers, stays and other members to sink, or to slide in any direction".

13 The defendant gave evidence in the proceedings and he was subject to cross examination. His evidence went to a number of matters including: i. He had been in the business of supplying and installing temporary seating for ten years;

ii. He had had business dealings with Walders Goodtime on many occasions;

iii. Personally checking the seating in situ at the play venue;

iv. The erection of additional seating at the request of Company B;

v. That changes had been made to the seating on or about 16 September without the defendant's involvement or knowledge;

vi. That the defendant had erected the same system of seating at many other venues without incident;

vii. That following the collapse of the seating, modifications had been made to the seating system;

viii. That the defendant had taken steps to undertake training in occupational health and safety matters;

ix. That the defendant was involved in charitable works.

14 Mr M P Cahill of counsel appeared for the prosecution. His submissions in the matter may be summarised as follows: i. The approach to be taken in sentencing the defendant under s 18(2)(a) and s 18(3) of the Act is that laid down in Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326.

ii. The maximum penalty for each offence is $55,000. The maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence; a large penalty indicates the gravity of the offence as perceived by the community. The task of the court is thus to assess the relative seriousness of the offenders particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the penalty scale of penalty set by the legislature from zero to the maximum: WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at 185-186.

iii. The defendant constructed the seating stand incorporating a number of defects that could have been identified and rectified if there had been an inspection of the stand by an engineer.

iv. Although the defendant was unaware of the alteration of the seating to overcome the trip hazard, the alteration had only a marginal impact on the stability of the stand, which was inherently unstable.

v. It was a requirement under the Construction Safety Regulations that the seating stand be inspected and certified by an engineer prior to its use. The stand was not inspected or certified at any stage of its construction or after construction had been completed.

vi. Company B had communicated to the defendant the need to have the seating stand inspected by an engineer. The defendant knew or ought to have known of the requirement for the seating stand to be inspected and certified by an engineer.

vii. The defendant issued two certificates from Jens Clemensen and Associates. This was done without any inspection by an engineer of the seating stand in situ . The defendant knew that Company B would rely on those certificates. The defendant should have taken steps to ensure that the seating stand had been inspected and certified by an engineer. The defendant was the expert and Company B was merely the client. The obligation was on the defendant to ensure inspection and certification.

ix. The subjective features of the offence that the court may take into account include: a plea of guilty (albeit not an early plea); cooperation with the WorkCover Authority; the defendant's previous good record. In assessing the discount to be applied in relation to the guilty plea the court should have regard to the guideline judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton [2000] NSWCCA 309.

x. The court is entitled to take into account the defendant's capacity to pay any fine. Submissions for the Defendant

15 Mr B D Hodgkinson of counsel appeared for the defendant. Mr Hodgkinson 's submission may be summarised as follows: i. As a general observation the court should keep in mind that it is dealing with an individual and not a corporate defendant. This is not a submission, however, about capacity to pay any fine.

ii. In assessing the defendant's culpability, regard must be had for the role of Walders Goodtime, who originally contracted with Company B to supply and erect the seating and who continued to be fully involved, notwithstanding that Walders had contracted the task to the defendant. Nothing prohibited Walders from organising an inspection of the seating and providing a certificate. The defendant was entitled to rely on Walders providing a certificate because they had done so in the past.

iii. The defendant was not aware of the modifications to the seating stand carried out by Walders on 16 September 1997 to remove the trip hazard. The defendant's culpability should be limited to the period prior to 16 September. It could be said that there was a shared culpability of the defendant and Walders in relation to the failure to arrange for certification of the seating stand up to 16 September, but because of the modifications undertaken by Walders on 16 September, culpability after that date rested solely with Walders.

iv. The seating stand design had been used many times previously without incident. The defendant was not aware of any design faults in the seating stand prior to its collapse on 23 September 1997.

v. South Sydney Council, which had requested inspection and certification of the seating stand by an engineer, did not convey to Company B or to the defendant that the second certificate supplied by Jens Clemensen was unacceptable.

vi. The court should have regard to the principles of parity (with Company B) in determining any sentence subject to the fact that Company B was a corporate defendant and the defendant in these proceedings is an individual.

vii. There has been cooperation by the defendant with the WorkCover Authority.

viii. Although the guilty pleas were not entered early, nevertheless they were entered, thereby saving the cost of a trial.

ix. The defendant has been engaged in community activities of a charitable nature.

16 After reviewing the agreed facts, and in light of the charges and the particulars thereof, I am satisfied the offences have been proven. The pleas of guilty by the defendant were properly made and I will enter verdicts accordingly. 17 It remains to deal with the questions of an appropriate penalty and costs. The maximum penalty for each offence at the time they were committed was $55,000. It is to be noted in this respect that the defendant was not a corporation. 18 I consider the nature and quality of the offence as serious. What leads me, in particular, to that conclusion is: (i) The defendant was experienced in the supply and erection of seating stands of the type that collapsed on 23 September 1997. Although there had been no previous incident where the seating stand of this type had collapsed, it was foreseeable that such a stand might collapse if it were not properly erected. In those circumstances and given the fact that it was to seat more than 500 members of the public, there was an onus on the defendant to ensure that he carried out a very careful inspection of the stand before it was put to use. The evidence was that various components of the stand were not properly braced and secured and that bolts were missing. A proper inspection by the defendant would have revealed the shortcomings in the erection of the stand.

(ii) The seating stand did not comply with the Construction Safety Regulations.

(iii) The defendant was well aware, or given his experience ought to have been aware, of the need to provide a certificate to the effect that the seating stand had been inspected in situ by an engineer and had been certified as safe. The defendant was requested to provide such a certificate by Company B. He did not say to Company B that provision of a certificate was not his responsibility. Instead, he obtained a certificate from the designer of the original seating stand, Jens Clemensen and Associates, but this was not a certificate relating to the stand as it had been erected at the Wilson Street Carriage Works. The certificate was rejected by South Sydney Council and the defendant was requested by Company B to provide the necessary certificate. The defendant then provided a hand-written document purporting to be a certificate from Jens Clemensen and Associates dated 23 January 1997. The document, again, was patently not a certificate in relation to the seating stand in situ.

19 Mr Hodgkinson submitted that South Sydney Council did not indicate that the second certificate was unacceptable and that the court should take this into account in assessing the defendant's culpability. The first purported certificate was rejected by the Council and the defendant was requested by Company B to confirm that an engineer had certified the seating. The second purported certificate provided by the defendant was a barely legible hand written document dated 23 January 1997 that, frankly, had only the most obscure connection with the seating stand at the Company B site. In my view the defendant was attempting to take a short cut in relation to certification that was improper and impermissible. The defendant cannot transfer culpability to the Council for his failure to provide adequate certification in the first place, especially given that he had taken on the responsibility to do so. 20 Mr Hodgkinson submitted that the responsibility for providing a certificate properly rested with Walders and not the defendant. The defendant was requested by Company B to provide a certificate; the defendant responded by providing what purported to be certificates but which were not. Having accepted the task of obtaining a certificate, the defendant cannot subsequently plead it was not his responsibility. 21 Mr Hodgkinson submitted that the defendant should not be held wholly responsible for the collapse of the seating stand given that modifications were made to the seating stand on 16 September 1997 and in respect of which the defendant was not aware. On my view of the evidence the modifications did not contribute to the instability of the stand. 22 It is the case that the defendant is charged with two offences arising from the same set of facts and the gravamen of the offences is substantially similar. 23 In Pearce v The Queen (1998) 194 CLR 610 at 623 a majority of the High Court held that to the extent to which two offences of which a person is convicted contain common elements it would be wrong to punish the offender twice for the commission of elements which are common. The majority ( McHugh, Hayne and Callinan JJ) said "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." (at 624). 24 In Mill v The Queen (1988) 166 CLR 59 the High Court referred with approval to the following quote from Thomas, Principles of Sentencing , 2nd ed. (1979), pp 56- 57: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'.

25 It is appropriate in my view to apply the principle of totality in relation to the two offences with which the defendant has been charged and in respect of which it has been found guilty on both counts. 26 The are a number of subjective factors that I am prepared to take into account and they include the plea of guilty, cooperation by the defendant with the WorkCover Authority, the steps taken to modify the design of the seating stand and the undertaking of occupational health and safety training by the defendant. 27 I would consider an appropriate penalty to be $15,000 for each of the two offences considered separately. However, that would result in a total fine of $30,000. By applying the principle of totality, I consider an appropriate fine to be in the aggregate an amount of $20,000 comprising a fine of $10,000 for each offence. 28 Having regard to the plea of guilty and the guideline judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton [2000] NSWCCA 309 I would allow a discount of 12.5 per cent in respect of each offence. For the other subjective factors mentioned, I would allow a further reduction of 12.5 per cent for each offence. In the result, I consider an appropriate penalty in this case to be $15,000. 29 I find the defendant guilty of the offences charged and enter a verdict accordingly. I order that the defendant is convicted and is fined an amount of $15,000 with a moiety to the prosecutor. The defendant is ordered to pay the prosecutor's costs in an amount as agreed or assessed.

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Judgment (48 paragraphs)

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Cases Cited (6)