WorkCover Authority of New South Wales (Inspector Mulder) v United Admin Pty Limited, Daniel Nicolas and Dasco Construction Pty Limited

CATCHWORDS: Occupational health and safety - pleas of guilty - general principles - foreseeability - objective seriousness of the offences - general and specific deterrence - no prior convictions - subjective features taken into consideration - the principle of parity considered - held not persuaded discretion under s 10 of Crimes (Sentencing Procedure) Act applicable to corporate defendants - held s 10 discretion applicable to personal defendant - personal defendant discharged without conviction and penalty pursuant to s 10(1)(b) of Crimes (Sentencing Procedure) Act - penalties imposed against corporate defendants - orders as to penalty, moiety and costs.

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Lowe v R (1984) 154 CLR 606 Markarian v The Queen [2005] HCA 25: 18 May 2005 Morrison v Powercoal Pty Limited [2003] 130 IR 364 Postiglione v R (1997) 189 CLR 295 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton (2000) 49 NSWLR 383 CASES CITED: R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover Authority of New South Wales v Ecolab Pty Limited (1999) 90 IR 413 WorkCover Authority of New South Wales v Fletcher Constructions Aust Pty Limited (2002) 123 IR 121 WorkCover Authority of New South Wales v Menzies Property Services Pty Limited [2004] 136 IR 449 WorkCover Authority of New South Wales v Walco Hoist Rentals Pty Limited and anor (No 2) [2000] 99 IR 163 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 WorkCover Authority of New South Wales (Inspector Mulder) v Murat Sahin and Avrasya Constructions Pty Limited [2007] NSWIRComm 149

PROSECUTION: Mr P Skinner of counsel SOLICITORS: DLA Phillips Fox

FIRST DEFENDANT: LEGAL REPRESENTATIVES: Mr J Murphy of counsel SOLICITORS: McArdle Legal

SECOND AND THIRD DEFENDANTS: Mr G Boyce of counsel SOLICITORS: Pendlebury Workplace Law

CORAM: Staunton J DATE: 10/8/2007

Matter No IRC 3048 of 2006 WorkCover Authority of New South Wales (Inspector Mulder) v United Admin Pty Limited Prosecution under section 10(1) of the Occupational Health and Safety Act 2000

Matter No IRC 3051 of 2006 WorkCover Authority of New South Wales (Inspector Mulder) v Daniel Nicolas Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

Matter No IRC 3052 of 2006 WorkCover Authority of New South Wales (Inspector Mulder) v Dasco Construction Pty Limited Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

1 The three defendants in this matter have entered pleas of guilty to offences arising under the Occupational Health and Safety Act 2000 (the Act). 2 The incident giving rise to the offences occurred on 1 December 2004. On that day the western brick boundary wall of a building development site located at 34 Herbert St, West Ryde collapsed onto the adjacent premises of the Hypec Information Technology (the Hypec building). The Hypec building was occupied at the time of the collapse but, fortunately, no Hypec employees suffered injuries as a result of the incident. 3 Dasco Construction Pty Ltd (Dasco) was the principal contractor on the building site and one of its two managing directors is Mr Daniel Nicolas. Dasco contracted United Admin Pty Ltd (United Admin) to provide project management services for the development. Avrasya Constructions Pty Ltd (Avrasya) was the sub-contract bricklayer and had been erecting the wall that collapsed on the day of the incident.

4 As result of the incident, the first defendant, United Admin Pty Ltd (United Admin) was charged with an offence arising under s 10(1) of the Occupational Health and Safety Act 2000. 5 The second and third defendants, Daniel Nicolas and Dasco Construction Pty Ltd (Dasco), were charged with offences arising under s 8(2) of the Occupational Health and Safety Act 2000. As a director of Dasco, Mr Nicolas' offence under s 8(2) of the Act arises by virtue of the deeming provisions of s 26(1) of the Act. 6 In relation to United Admin, its failure was particularised as follows: [1] The defendant failed to ensure a safe system of work for the erection of the Level 3A Western Boundary wall at the premises, in particular: [1.1] It failed to ensure erection of adequate fall protection or catch scaffolding to protect adjacent properties, and persons inside those properties, from damage in the event that the wall was to collapse; [1.2] It failed to provide adequate temporary bracing to the Wall to reduce the risk of the Wall collapsing whilst under construction;

[2] The defendant failed to ensure the provision of adequate information, instruction or supervision to ensure the health and safety of persons at the defendant's place of work.

7 In relation to Dasco and Mr Nicolas, it was said the defendants: Failed to ensure that people not employed by Dasco, including employees of Hypec Information Technology Services Pty Ltd (Hypec) were not exposed to risks to their health and safety arising from the conduct of Dasco's undertaking while they were at Dasco's place of work. 8 The particulars in respect of Dasco and Mr Nicolas are stated in identical terms to those applying to United Admin and I do not propose to repeat them. 9 Three other parties were charged in relation to the incident. Matter No IRC 3047 of 2006 was an offence charged against Mr Christopher Fiore, the sole director of United Admin. On the application of the prosecutor, leave was granted to formally withdraw the proceedings. The other two parties charged were Avrasya Construction Pty Limited and a director of the company, Mr Murat Sahin. Both defendants entered a plea of guilty at an earlier time and have already been dealt with by the Court: See WorkCover Authority of New South Wales (Inspector Mulder) v Murat Sahin and Avrasya Constructions Pty Limited [2007] NSWIRComm 149 handed down on 20 June last. 10 At the time of filing, there was disagreement between the parties as to paras [16.9], [20] and [23] in the statement of facts filed by the prosecutor. Following oral evidence received from Mr Fiore, counsel for the prosecutor did not press the disputed statements in paras [16.9] and [20] and accepted the defendants' statement in para [23]. Accordingly, the facts with respect to all three defendants are now agreed in the following terms: [1] At all material times, Dasco Construction Pty Ltd (ACN 092 098 587) (Dasco): [1.1] Was a duly incorporated company and employer with its registered office located at Unit 25, 6-20 Braidwood Street, Strathfield South, New South Wales; [1.2] Was the principal contractor in the construction of 45 units, retail area, car park and landscaping at the premises (Development); [1.3] Conducted and was engaged in the business of the Development at the premises (undertaking); [1.4] Contracted PAV NSW Pty Limited to provide its principal, Peter Avramov (Avramov) as foreman of the Development; [1.5] Contracted United Admin Pty Ltd (ACN 080 427 489) (United Admin) to provide project management services in relation to the Development; [1.6] Contracted Avrasya Construction (ACN 107 884 211) (Avrasya) to provide bricklaying services in relation to the Development. [2] At all material times, Avrasya: [2.1] Was a duly incorporated company with its registered office located at 20 Civic Road Auburn, New South Wales and its principal place of business being 2 Elm Road, Auburn, New South Wales; [2.2] Was contracted by Dasco to provide bricklayers to work on the Development at the premises; [2.3] Employed Cengiz Colak (Colak) as a bricklayer.

[3] At all material times, United Admin: [3.1] Was a duly incorporated company with its registered office located at Unit 14, 35 Old Northern Road, Baulkham Hills, New South Wales; [3.2] Was contracted by Dasco to provide project management services for the Development, and in particular to provide the services of Christopher Fiore (Fiore) as the Project Manager for the Development. On the day of the incident, United Admin did not engage any person as an employee, at the premises, or otherwise; [3.3] Engaged Rick Harper & Associates to provide the services of Rick Harper, consultant, (Harper) to assist with Occupational Health & Safety matters at the premises. [3.4] Had an undertaking in relation to project management of the construction of a residential building at the premises. [3.5] Had control over the construction being performed at the premises in the course of United Admin's business of construction project management.

[4] At all material times, Daniel Nicolas (Nicolas), of 103 The Boulevarde, Strathfield, New South Wales was a Managing Director of the Third Defendant.

[5] At all material times, Murat Sahin (Sahin), of 92 Elm Road, Auburn, New South Wales was a director of Avrasya.

[6] At all material times, Fiore, of 15 Donnelly Street, Putney, New South Wales was the sole director of United Admin. Incident

[7] On 1 December 2004 (the day of the incident), a group of bricklayers, employed by Avrasya, was erecting a double brick cavity wall on the third level Western boundary wall of 'Building A' on the premises (Wall). Avrasya commenced brick work at the premises in approximately September 2004, however, were absent from the premises for around one month during late October and November 2004. Following Avrasya's return to the premises, the bricklayers were working on the third level of 'Building A' for 3 to 4 days prior to the incident.

[8] At the time of the incident, the Wall was 21m in length and around 2.6m in height. At the commencement of the day of the incident, the Wall was partially completed, at a height of around 1.5m. The roof of the adjacent premises, which was occupied by Hypec Information Technology Services Pty Ltd (Hypec) at 34 Herbert Street, West Ryde, New South Wales (Hypec bu.ilding), was a sawtooth truss roof. That is, some points of the roof were higher than others. The peaks of the Hypec roof were higher than the base of the Wall.

[9] The bricklayers ceased working at approximately 11.00am for a lunch break, but did not return to work due to the extremely warm temperatures. At this stage, the Wall was, or was nearly, completed.

[10] At around 4pm to 4.30pm on the day of the incident, a strong wind caused the Wall to topple over, falling onto and through the roof of the Hypec building. The roof of the Hypec building was made of a mixture of Tin and Asbestos Super 6 sheeting. At the time of the incident, ten employees of Hypec were present in the building but none in the vicinity of the area immediately beneath the roof at the front of the building. The Hypec building suffered extensive damage as a result of the collapsing wall. All personnel located within the Hypec building were immediately evacuated.

[11] No physical injuries were suffered by anyone as a result of the incident.

[12] Following the incident, Dasco engaged the services of Australian Consulting Engineers to provide advice on the stability of the partially collapsed wall, corrective actions and future bracing for existing walls, as well as the boundary walls erected on Building B. Investigation

[13] On 1 December 2004, Inspector Adrian Reynolds attended the premises in response to an after hours incident notification from WorkCover's response Duty Officer Rick Bultitude. The Prosecutor was given, and continued, the investigation commenced by Inspector Reynolds.

[14] On 2 December 2004, following the observations and investigations of Inspector Reynolds, the Prosecutor attended the premises in response to a request from Acting Team Coordinator Robert Mayell. Attending the premises with Inspector Phillip Estreich, the Prosecutor met with Fiore, the Project Manager, and observed the following: [14.1] A three level concrete and masonry brick construction on the street face of Herbert Street, West Ryde; [14.2] At the rear of this building to the south, a three level concrete and masonry building with partially erected scaffold on the third level in preparation for the Fourth Level Formwork; [14.3] Both buildings to be accessible on the western boundary by scaffolding at each level.

[15] The incident occurred on Level 3A of the building facing Herbert Street, West Ryde, also known as 3A Parkside, on the western boundary, where the Prosecutor observed: [15.1] A collapsed double brick wall that had penetrated through the asbestos roof sheeting of the adjacent property to the west of 30-32 Herbert Street, West Ryde; [15.2] The double brick wall had been constructed of Austral Schooner bricks on the outside western boundary wall and Austral Maxi bricks for the internal western boundary wall; [15.3] Red Brick ties in amongst the rubble and broken bricks; [15.4] The brick wall had a 40mm cavity and measured approximately 21m in length. It was described to the Prosecutor that the two brick walls had been tied together with brick ties adjoining the outside boundary wall and internal boundary. Fiore informed the Prosecutor that the wall had been completed at 16 courses in height measuring approximately 2.4m in height (16 courses of bricks); [15.5] In the north-eastern roof section of 34 Herbert Street, a satellite dish and an air-conditioning unit mounted on tin roof sheeting surrounded by scattered bricks; [15.6] Further to the south the damage to the roof of 34 Herbert Street, West Ryde appeared to be of broken asbestos sheeting, bent steel supporting purlins and broken timber beams; [15.7] At the south-western corner of the incident scene approximately 7 courses of bricks in height extending approximately 1.5m in length along the western boundary wall remained in tact and their original position prior to the incident; [15.8] On the end of the remaining brick wall there were two red brick tied protruding from the outside boundary wall to the south; [15.9] On the eastern Boundary wall of level 3A Parkside a double brick wall of similar construction stood with temporary timber bracing. The Prosecutor was informed that the timber bracing had been installed subsequent to the incident.

Notices [16] On 1 December 204, Inspector Reynolds issued the following Prohibition Notices: [16.1] Prohibition Notice 141676 on Dasco to ensure that no employees were exposed to asbestos fibres; [16.2] Prohibition Notice 141679 on Avrasya to ensure that no employees were exposed to asbestos fibres; and [16.3] Prohibition Notice 141678 on Dasco to ensure that the company constructed appropriate supports for all future walls to protect the walls from collapse as a result of adverse natural conditions. [17] On 3 December 2004, the Prosecutor issued the following Improvement Notices on Dasco: [17.1] Improvement Notice 267305 - Overhead protection on boundary walls; [17.2] Improvement Notice 267306 - Rectification of inadequate scaffolding; and [17.3] Improvement Notice 267307 - Site Security. System for the erection of the Wall [18] The brickwork for the Wall was laid by the Avrasya employees adopting an overhand method. The Wall was to be built in two stages: on the first day, bricks were laid to a height of approximately 1.5 metres, and allowed to set. On the following day, the remainder of the Wall was laid, to a height of approximately 2.4 to 2.6 metres. [19] The Wall was built with a damp course 2 or 3 bricks up from the floor. There was a form of temporary bracing attached to the Wall.

Adverse weather conditions and Australian Standard 3700 - 2001 [20] Clause 11.4.11 of the Supplement to Australian Standard 3700 - 2001 (AS 3700) provides that '[c]onstruction should not be continued during extreme weather conditions… Extremely high temperatures together with drying winds may cause rapid dehydration of the mortar, and a consequent reduction in bond strength and durability.' [21] Clause 11.9.1 of the Supplement to AS 3700 provides that '[i]t is not unusual for high winds … to cause the collapse of incomplete masonry… Site control should recognise this hazard and should make provision for temporary bracing capable of stabilizing the construction, where necessary, to be installed… Where the wall is to be supported by temporary braces, the distance between the points of support should not exceed 2m…'. Overhead fall protection / protection of neighbouring property [22] Formwork standard plywood was laid on the adjoining roof for the purpose of fall protection. No other physical measures were adopted by Dasco, Avrasya or United Admin for the protection of the Hypec Building against the risk of the Wall collapsing. [23] Prior to the incident, Sahin, Cengiz and Avramov discussed the approach of erecting the western boundary wall. It was decided that there was no sufficient risk of objects falling for overhead protection to be installed. This informal assessment was not documented. [24] Fiore considered that there was a risk of the Wall potentially falling inwards, in the direction of the workers, however did not consider the risk of the Wall falling outwards, towards the Hypec Building. [25] A Safe Work Method Statement prepared by Avrasya following the incident indicated that catch scaffolding was to be installed at the premises. The Safe Work Method Statements prepared prior to the incident did not take into consideration the need for any catch scaffolding to be erected.

OHS Management [26] Dasco prepared an Occupational Health and Safety Plan (OHS Plan) in relation to the premises, however relied on its project manager, Fiore, to implement the safety system in place at the premises. The OHS Plan required, inter alia, that contractors on site supply their own OHS plans and Safe Work Method Statements. The OHS Plan purported to prescribe the respective roles of Nicolas, Salim Nicolas, another director of Dasco, Fiore and Avramov. [27] Avrasya prepared and supplied Safe Work Method Statements in relation to the Development at the premises, however these Statements failed to take into consideration the following: [27.1] the risk to health and safety of members of the public within a close proximity of the premises; [27.2] the risk of damage to adjoining properties caused by the potential of falling objects, including the collapse of newly erected boundary walls at the premises . [28] Employees of Avrasya were not involved with the development of the Safe Work Method Statements used at the premises but were provided some type of induction and training by Avrasya in relation to Avrasya's Safe Work Method Statements. Apart from the Safe Work Method Statements, Avrasya relied on the OHS Plan prepared by Dasco on the advice of Rick Harper.

[29] The only formal written risk assessments prepared in relation to the Development were contained within Avrasya's Safe Work Method Statement. These risk assessments did not specifically consider the risks associated with the task of constructing boundary walls, including the Wall. [30] Dasco placed all responsibility on the contracted companies at the premises to identify the associated risks with the work and implement systems of work to monitor their employees to ensure they complied with all appropriate Safe Work Method Statements. [31] Nicolas attended the premises on various occasions between once and five times a week. Nicolas placed all responsibility for decisions pertaining to OHS at the premises to Fiore, and would discuss these matters with Fiore when he attended the premises. Fiore was given full control to make decisions he considered were necessary to ensure the health and safety of the workers at the premises. Dasco itself was not directly involved in the decision-making process with regard to OHS matters, but left these matters to Fiore. [32] At approximately fortnightly intervals, site inspections were also conducted with the assistance of Harper. Any results emanating from the site inspections and toolbox meetings were posted on a notice board at the premises. [33] There was no organised Safety Committee at the premises. Avramov, Fiore and George Jabbour, an employee of Dasco, were considered to be 'safety representatives'. Despite experience in the industry, none of Avramov, Fiore and Jabbour had attended the WorkCover accredited OHS Consultation training course for OHS Committee members and OHS Representatives.

Temporary support bracing for the Wall [34] Impermanent timber bracing was installed by Avrasya to stabilise the Wall whilst it was under construction. The bracing was installed prior to the lunch break on the day of the incident and was attached to the brickwork with 'G-clamp' units. At least two timber braces may have been installed on the inside of the Wall prior to its collapse. [35] The impermanent bracing installed by Avrasya was inadequate.

[36] No assessment was conducted in relation to the adequacy of the temporary bracing to prevent the Wall from collapsing due to adverse weather conditions.

[37] Nicolas was not aware of the system of bracing that was utilised during the construction of the Wall. [38] Fiore was aware of the system of bracing used on the day of the incident, however was not aware who installed it or when. Fiore was also not aware as to whether or not the bracing system had been assessed for safety. Instruction, training and supervision [39] Toolbox meetings run by Fiore and Harper were conducted at the premises for all workers at the premises on a regular basis. The meetings were documented. Nicolas, on behalf of Dasco, neither attended the toolbox meetings, nor did he follow up any of the recommendations made in the meetings. Nicolas relied on Fiore to follow up on any OHS recommendations, and may have received copies of the minutes from these meetings. [40] Dasco relied on Fiore to run the toolbox meetings and provide any other training to the workers at the premises as necessary. [41] Site inductions were conducted on the premises by Fiore and Avramov for all new workers, as well as on a regular basis for workers at the premises. [42] The evidence indicates that employees of Avrasya received site induction training however there is no evidence to suggest that this induction specifically addressed issues in relation to the bracing of cavity walls against adverse weather conditions. Employees of Avrasya were not trained in Avrasya's Safe Work Method Statement, however had read the document prior to commencing work on the day of the incident. [43] Employees of Avrasya were not supervised to the extent necessary to prevent the collapse of the Wall on the day of the incident. Weather conditions [44] Despite there being no witnesses to the incident, it appears likely that the Wall collapsed due to strong winds and/or a storm that hit the premises during the afternoon on the day of the incident. [45] A report from the Bureau of Meteorology noted that between the hours of 4pm and 5pm on the day of the incident, wind speeds reached a maximum of 48 km/h with maximum wind gusts reaching 80 km/h.

[46] The Bureau of Meteorology report for that day shows that between 12:30pm and 2:30pm the air temperature was above 40C degrees and for a further number of hours was between 38C and 39C degrees.

Following the incident [47] Dasco engaged the services of Australian Construction Engineers (ACE) to provide advice on how to brace the remaining walls at the premises and how to ensure that further walls would not collapse against heavy gusts of wind. [48] Discussions were held between Fiore and a representative of ACE. The engineer from ACE was not requested by Dasco to sign off on the rectification work. Nicolas was unaware of when the rectification work was signed off by ACE, and was not certain as to whether certification was provided in relation to that work. [49] Temporary timber as well as brick sacrificial/blade walls were erected to strengthen all boundary walls to ensure that they could withstand heavy gusts of wind whilst under construction.

OHS Regulation [50] Clause 234 of the Occupational Health and Safety Regulation 2001 provides: (1) An employer must ensure that any danger to persons arising from the collapse of a building during a temporary state of weakness or instability before its construction is completed is controlled by the use of adequate temporary guys, stays, supports and fixings or other measures. (2) An employer must ensure that, if construction work is likely to reduce the stability of an existing building or a building in the course of construction so as to endanger a person, shoring is used or other appropriate measures are taken to prevent the collapse of the building. 11 In addition to the statement of facts, the prosecution also tendered a bundle of documents including: (1) Seventeen colour photographs depicting the site of the collapsed brick wall taken on 1 and 2 December 2004; (2) Reports from WorkCover dated 24 July 2007 disclosing no prior convictions with respect to each defendant; (3) Internal and external photographs of the damaged Hypec building taken in December 2004 and January 2005; (4) A copy of Dasco Construction Pty Limited's Occupational Health and Safety Plan for the 30 - 32 Herbert Street West Ryde Project; (5) A copy of the floor plan for 20 - 30 Herbert Street West Ryde; (6) Architectural drawing no. 1228-203 of elevations and sections of 30 - 32 Herbert St West Ryde;

(7) Extract from Australian Standard AS 3700 - 2001: Masonry Structures; (8) A TestSafe Australia Report, dated 6 January 2005. The report sets out the measurement of bricks and the calculation of the weight of the wall involved in the brick wall collapse; (9) A copy of a Bureau of Meteorology report on wind speed at Sydney Olympic Park on 1 December 2004; (10) Supplement commentary to Australian Standard AS 3700 - 1998: Masonry Structures; (11) A factual inspection report compiled by Inspector Richard Mulder, dated 2 December 2004. 12 On behalf of United Admin, an affidavit of Mr Christopher Fiore was tendered without objection. Mr Fiore is the sole director of United Admin. He operates in the role of construction project manager on behalf of the company. The company provides services including selecting contractors and contract administration. 13 Mr Fiore's affidavit detailed the corporate defendant's approach to the work undertaken on site prior to the brick wall collapse, the events on the day of the incident and the steps taken by United Admin following the incident. 14 On behalf of Dasco and Mr Nicolas an affidavit of Mr Nicolas was tendered without objection. Mr Nicolas is one of two managing directors of Dasco. His responsibilities as director include employing project managers for those construction sites Dasco has responsibility for, inspection of construction sites, and liaising with clients and professionals such as engineers. 15 Mr Nicolas's affidavit outlined Dasco's approach to occupational health and safety and Dasco's expectations of his project and site manager as well as each of the contractors on site in relation to safety. His affidavit also detailed his recollection of the events on the day of the wall collapse as well as the steps taken by Dasco following the incident. 16 Mr Fiore was required for cross-examination. Relevant principles

17 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 18 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.'

19 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 20 Further, as was said in Morrison v Powercoal Pty Limited [2003] 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: ...

21 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646. 22 On the issue of foreseeability, the Full Bench in Capral also stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. 23 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 24 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 25 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. 26 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) 27 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... 28 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to. Considerations

29 The defendants have no prior convictions. Accordingly, as corporate defendants, the maximum penalty that may be imposed on United Admin and Dasco is $550,000. As an individual, the maximum penalty that may be imposed upon Mr Nicolas is $55,000. 30 Dasco was the head contractor and exercised control over the whole site. It had retained the services of United Admin to operate as project manager over the site. As the on-site project manager for Dasco, it was United Admin's responsibility to oversee contract administration, selection of subcontractors and general liaison. As the sole director of United Admin, Mr Fiore, as part of his arrangement with Dasco, 'accepted full responsibility on the site for all safety matters'. Accordingly, United Admin's responsibilities included implementing and overseeing the occupational health and safety aspects of the worksite. In that respect, United Admin was given complete on site control. 31 While United Admin provided overall management of the construction site through Mr Fiore, the site foreman was Mr Peter Avramov. He was contracted by Dasco through his company PAV NSW Pty Limited to be the site foreman. His job, amongst others, was described by Mr Nicholas as: [19] Peter was the Site Foreman and his role included monitoring of subcontractors work, quality and safety. He generally would have reviewed the Safe Work Method statements and he would be aware of various tool box meetings. Peter was required to follow up on tool box meetings and ensure compliance with matters discussed at those meetings. 32 It was Dasco who contracted with Avrasya and Mr Sahin to undertake the bricklaying work at the site. 33 Adjacent to the western boundary of the building under construction was the Hypec building. At the time of the incident, employees of Avrasya were in the process of erecting a double brick cavity wall on the third level of the western boundary wall of Building A on the site. At that point, the wall was, in part, adjacent to the roof of the Hypec building. The roof of the Hypec building was unusual, as the agreed facts disclose: [8] ... The roof of the adjacent premises, which was occupied by Hypec Information Technology Services Pty Ltd (Hypec) at 34 Herbert Street, West Ryde, New South Wales (Hypec building), was a sawtooth truss roof. That is, some points of the roof were higher than others. The peaks of the Hypec roof were higher than the base of the Wall. 34 As the brick wall under construction was some 21 metres in length and approximately 2.6 metres in height, at certain points along the boundary line, as the facts and photographs illustrate, the brick wall was higher than the roof of the Hypec building. 35 When that point had been reached in the construction of the wall, consideration would need to have been given as to what overhead fall protection measures were required in order to address the possibility of objects such as bricks falling from the construction site onto the Hypec roof. That consideration was imperative given that once the height of the brick wall rose above the height of the Hypec building, in whole or in part, and until the wall was properly anchored, its stability was susceptible to adverse weather conditions, particularly wind. 36 To a certain extent, that risk was recognised by the defendants as well as Mr Sahin on behalf of Avrasya. As Mr Fiore deposed: [16] A risk assessment that was carried out by Rick Harper, Peter Avramov, Murat Sahin, Seyfi Tuna and myself, identified the need to provide overhead protection to the adjoining roof in case of a brick or a tool being dropped or people walking on to the roof. At no time was it suggested by any of these people that the wall may collapse. I had never experienced a wall collapse. [17] To protect the adjoining roof we placed "planks" directly on the roof covered with formwork plywood. I personally observed the plywood on the roof next door. [18] The only other overhead protection available is scaffold protection (fall protection). This could not be provided due to the adjacent roof design, the fact that it was actually above the level of the floor for the large part and the construction process that had been devised by the architects, Mellor Gray Architects. 37 Mr Fiore does not indicate when the above risk assessment was conducted. It must have been at a time just before the incident because, on the evidence, it was only at or about that time that the height of the wall under construction had reached a point where it was, in part, above the roof of the Hypec building. 38 While the formwork plywood and planks may well have provided some overhead fall protection, it seems no consideration was given to the need for anything more robust, notwithstanding the relatively free standing nature of the brick wall under construction. Further, it cannot be said that adverse weather conditions are an unknown phenomena in the construction industry. 39 It is difficult to see how, during the discussions that resulted in the plywood being put in place as overhead protection, that no consideration was given to the need to stabilise and brace the wall. Although Mr Fiore did not have any specialised masonry knowledge or experience, it would seem reasonable to concede that if a single brick could fall onto the Hypec roof, the hazard of wall collapse whilesoever the brick wall was relatively freestanding and the risk to safety it represented should have been considered and addressed. In terms of risk assessment, what was done was clearly inadequate. 40 In any event, on the day of the incident it was clear the brick wall was only partially completed when work was stopped because of the hot weather. In short, it was still inherently unstable and, unless properly braced and supported, represented a foreseeable risk to safety. 41 It is relevant at this point to refer to my comments in my earlier judgment concerning the co-defendants, Avrasya and Mr Sahin. They are equally applicable to the defendants now before me. [30] The dimensions of the wall, the fact that it was a free standing structure on the third level of the building under construction, coupled with the wall's exposure to the elements and it's proximity to the roof of the adjacent office building, should have alerted Avrasya to the need to brace the wall and erect external scaffolding in order to prevent the possibility of the wall collapsing both inwards and outwards due to natural forces such as the weather. It was reasonably foreseeable that a risk to the safety of the site workers or damage to the neighbouring building and it's occupants would arise if appropriate safeguards such as bracing and scaffolding were not implemented. ..................

[46] Nevertheless, the need to stabilise the wall during it's erection by adequately bracing it was clearly a risk factor known to the defendants. That Mr Sahin braced the wall to the extent that he did is evidence of that. As well, the risk to safety if the wall was not properly stabilised was self evident. On any view, the hazard of wall collapse and the risk to safety it represented should have been identified on the defendants' occupational health and safety plan and, in particular, the safe work method statement for the job at hand. 42 As was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). 43 On the issue of foreseeability however, I reaffirm my finding in WorkCover v Sahin and Avrasya as follows: [45] I accept that, in all the circumstances, the combined weather factors of extreme heat and strong winds on the overall stability of the brick wall under construction were not readily foreseeable. 44 Any decision made as to how best to stabilise the unfinished wall would appear to have been left to Mr Sahin on behalf of Avrasya. If Mr Avramov was involved in the decision to brace the wall in the way Mr Sahin did, I cannot determine on the evidence. Certainly, on behalf of Dasco, Mr Nicolas' belief was as follows: [32] In relation to the risk to safety which was created by the combination of extreme weather conditions and the unfinished western wall (which could not be finished due to the effect of the extreme heat that day on workers) it was my expectation that the construction and bracing, if necessary, of the wall by the bricklayers would have been supervised, in the first instance, by Murat Sahin and his Foreman, Mr Khan. Further, it was my expectation that the Site Foreman, Peter Avramov, would have ensured that the wall was not left in an unsafe state on that day, despite the heat. Lastly, it was also my expectation that the Project Manager, Chris Fiore, assisted as he was by the OHS Consultant, Rick Harper, would have ensured that the bricklayers and the Site Foreman did not leave the site in a state which created a risk to safety. I believed that these layers of safety which I had ensured were built into the system of work on the site would have prevented an incident of the type that occurred on 1 December 2004. 45 Mr Nicolas clearly believed that once Avrasya was engaged as the subcontractor to undertake brick work on the construction site, responsibility for safety in relation to such work passed to Mr Sahin on behalf of Avrasya. As he stated: [21] Avrasya Construction Pty Limited ("Avrasya") were the bricklaying contractors on the job. Dasco's engagement with Avrasya was verbal (See Doc 27A, Vol. 2, Tab 11 of Prosecution Brief). I understood that as a licensed contractor, Murat Sahin, of Avrasya, knew the relevant Code more than any builders, as there could be up to twenty (20) different trades on the job. As far as the wall is concerned, it is my belief that Avrasya should have known the spacing of the braces. Although, the Code itself is very vague, it talks about spacing without giving regards to the height or thickness of the wall. [22] Avrasya were bricklayers and were engaged to carry out work in accordance with a Subcontractor Agreement (See Document 27A). At Clause 8 of this Agreement it reads: "8 Safety/Insurances

8.1 The Subcontractor to provide a work method statement and copies of relevant insurances to the builder prior to work commencement on site. 8.2 To show evidence that all employees that are to work on site have undertaken a Current Occupational Health and Safety Induction Course. 8.3 ................ 8.4 All work Undertaken by the Subcontractor to be in accordance with the bricklaying Code of practice and all works to comply with the provisions set down in the Occupational Health and Safety Act (as amended)."

It was expected that experts in the field of bricklaying would know better than a builder about the relevant codes and that is why one would engage them. In Avrasya's statement, reference is made to bracing the wall by timber trusses and he had done this on multiple occasions and it was suitable. This is the assurance the builder gets on the job from experts, such as Avrasya. 46 To a certain extent, Mr Nicolas is correct. Equally however, as the building construction company overseeing the project, Dasco and Mr Nicolas had an obligation to ensure that subcontractors engaged on site complied with Dasco's occupational health and safety plan for that site. As that plan stated, as General Manager of Dasco, Mr Nicolas had 'overall responsibility for the safe conduct of work in all activities conducted by Dasco Construction Pty Limited'. 47 To the extent that Dasco, via Mr Nicolas, delegated that task to Mr Avramov and Mr Fiore, it does not remove Mr Nicolas' obligation through Dasco to ensure all work undertaken on site was done safely absent risks to safety. As Dasco's occupational health and safety plan stated in relation to harm minimisation: All existing parts of and areas within the site which are in proximity to the areas and parts of the site within which the Works are to be executed will be adequately protected at all times during the execution of the Works. 48 As is well established, as head contractor, Dasco's obligation to ensure safety cannot be transferred or delegated, consciously or otherwise, to some other person or entity: See WorkCover Authority of New South Wales v Fletcher Constructions Aust Pty Limited (2002) 123 IR 121 at [40] and [41] where Walton J, Vice-President said as follows: [40] I accept that the Act obliges corporations to engage appropriately qualified persons to ensure that "safety is pursued in an active and ongoing way" and that in meeting its obligations under the Act on a practical level, a corporation may undertake a number of different steps, one of which is the appointment of supervisors with the necessary skills, training and experience to ensure that work is carried out safely. [41] However, it was not, in my view, open to the corporate respondent in these proceedings to entirely delegate its obligations under the Act to a supervisor or manager, regardless of how well qualified he or she may be. The corporate respondent could not simply appoint a manager, instruct him to develop safe systems of work (including work methods and systems for training, supervision and the like) and then, having done so, turn its back on matters of occupational health and safety, taking no further steps to ensure that these systems of work, training and otherwise, had been adequately established and were being complied with.

49 In my view, the defendants' plea of guilty is evidence of their acknowledgement of that obligation. 50 On behalf of United Admin, Mr Fiore also believed that, between them, Mr Sahin and Mr Avramov had all safety matters under control. As he deposed: [26] I do not have expertise in masonry construction and rely upon the expertise of the architects to provide appropriate construction design and the masonry contractors to determine what process is used to build masonry structures such as walls. ................ [28] I was not advised about the requirements for bracing any masonry structure by Mr Harper, Mr Avramov, Mr Sahin, Mr Tuna or the architects. [29] On 1 December 2004, I arrived at the site at about 8 am. Construction was proceeding as normal, the site supervisor Peter Avramov was present and supervising the work. [30] I noted nothing out of the ordinary. In accordance with standard practice, at about 9 am, I left the Site and went to my office on Ryedale Road West Ryde where I did general administrative work. The site supervisor, Peter Avramov, remained in charge of the Site. To the best of my recollection, brickwork was proceeding on level 4 of Building A (the building at the front of the site). [31] At about 10 am on 1 December 2004, I noted an increase in the temperature. I recall checking to see that I had my air-conditioning on at the highest level. I then continued on with the administrative work. [32] At approximately 11 am, I received a telephone call from Peter Avramov who said words to the effect: It's extremely hot. Too hot for the men to keep working. I'm closing the Site and sending them home. [33] I said words to the effect: OK. Yes, it's incredibly hot. Let them go home. It's not safe to work in this heat. [34] I do not recall saying anything else. I have not seen any statement by Mr Avramov to WorkCover as to what steps he took to make the Site safe. Had I gone down to the Site, I would not have been able to claim any superior knowledge as to the bracing of the wall. 51 It is apparent that the roof of the Hypec building presented some difficulty with regard to appropriate overhead protection. The difficulty arose due to the fact that the majority of the roof was higher than the slab on site and that it was a saw tooth truss roof. Scaffolding had been erected around the perimeter of the building except for the side of the building abutting the Hypec building. The scaffolding was not installed as it was said the features of the roof made it impossible to install. 52 Quite apart from the obligations of Mr Sahin on behalf of Avrasya, the defendants had an obligation to ensure the job Avrasya was undertaking was properly risk assessed and safe work methods were in place. To a degree the defendants did that. 53 As earlier stated, United Admin was contracted by Dasco to provide construction management services for the site. On behalf of United Admin, Mr Fiore confirmed he personally accepted full responsibility for all safety matters on site. As well, the Dasco OHS plan stated that one of Mr Fiore's responsibilities was to give "...due consideration to safety aspects in the planning and implementation of works". 54 In order to meet the occupational health and safety needs of the site, Mr Fiore had retained the services of Rick Harper and Associates as a site safety consultant. Mr Harper was relied upon to design site safety protocols such as the OHS plan and to assist the contractors with their safe work method statements. 55 Mr Fiore stated that he: ... required both Mr Harper and Mr Avramov to keep me informed of all safety matters. For example, we had regular toolbox meetings to discuss matters as they arose, and when we were about to embark on a new task or stage of construction. I followed the advice of Mr Harper and Mr Avramov, and made some of my own suggestions.

56 Mr Fiore's affidavit evidence that he relied upon individuals whom he considered to be experts such as Mr Harper and Mr Avramov as well as Mr Sahin and Avrasya's experience to ensure the work was being done safely can only go so far. 57 Mr Harper may have devised the on-site occupational health and safety plan and be an expert as far as occupational health and safety was concerned. But he was only present on site on a fortnightly basis. Mr Fiore's responsibility for on-site occupational health and safety went beyond merely relying upon a purported expert such as Mr Harper to formulate the work site safety plan. It was Mr Fiore's responsibility to ensure that the work was carried out safely and that Mr Avramov, the site foreman who reported to him, was also rigorous in assessing and dealing with safety issues when overseeing subcontractors. 58 This was particularly important given that Mr Harper was not on site daily to be available to oversee subcontractors. If anything, that was the job of Mr Avramov and Mr Fiore. 59 There is no evidence from Mr Avramov that would assist the Court in understanding his actions on behalf of the defendants on the day of the accident. It is apparent Mr Avramov was involved in discussions as to the decision to put the plywood in place across the Hypec roof. 60 Beyond that, it is difficult to discern exactly what steps Mr Avramov took, in conjunction with Mr Fiore, to enforce Dasco's occupational health and safety plan on the site except in a somewhat rudimentary way. For example, the Safe Work Method Statement (SWMS) initially prepared by Avrasya was not reviewed and updated to reflect the work being undertaken on level 3 adjacent to the Hypec roof and the risk of damage to adjoining properties caused by the potential of falling objects, including the collapse of newly erected boundary walls at the premises. Further, the defendants had no organised safety committee on site. 61 As best as I can determine, when the decision was made to stop work because of the excessive heat on 1 December 2004, any decision to brace the wall was made by Mr Sahin on behalf of Avrasya. Certainly, Mr Fiore was not involved and neither was Mr Nicolas. As Mr Fiore stated: [34] ... I have not seen any statement by Mr Avramov to WorkCover as to what steps he took to make the Site safe. Had I gone down to the Site, I would not have been able to claim any superior knowledge as to bracing of the wall. 62 If Mr Avramov was involved in the decision with Mr Sahin to brace the wall in the manner he did, then he clearly failed to ensure the wall was properly braced and stabilised and that adequate perimeter safety measures were in place. As I determined in my judgment in relation to Avrasya and Mr Sahin: [52] Mr Sahin did not include the need to erect scaffolding in the safe work method statement for Avrasya because he did not consider that it was his responsibility to do so. It had been his experience on previous building sites that the builder was responsible for erecting perimeter safety measures, which included scaffolding. He also pointed to the contract between Avrasya and Dasco to undertake the bricklaying work, which stated, inter alia: The builder shall be responsible for: ................. 2.5 Providing full perimeter external scaffolding.

[53] While Dasco may have been responsible for erecting any necessary perimeter scaffolding, Mr Sahin should, as the brick wall became level with and, in some parts, went above the Hypec roof line, have considered the need for it and requested it to be erected. 63 Further, Mr Avramov was not without an understanding of the principles involved in stabilising a freestanding wall. As Mr Nicolas said: [20] Peter is a Civil Engineer by profession and Dasco had full faith in his ability to put the structure up. Peter is a member of the Australian Institute of Engineers and it was expected that an experienced engineer, such as him, would assess stability of free standing walls. Peter worked under the direction of Chris Fiore and Peter answered to Chris Fiore. 64 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. 65 Following the accident, as para [50] of the agreed facts confirms, steps were taken to further strengthen the boundary wall. These were steps readily able to be done before the accident in order to deal with adverse weather conditions such as wind. 66 Considering all the facts and circumstances, I consider the offences to be in the mid range of objective seriousness and I will determine penalty on that basis.

67 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.

68 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. 69 In my view, both general and specific deterrence are relevant considerations. No submissions were made to the contrary. 70 As co-defendants in the offences arising out of the incident, the principle of parity is relevant. The principle demands consistency in sentencing outcomes as between co-offenders determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability: see Lowe v R (1984) 154 CLR 606 and Postiglione v R (1997) 189 CLR 295. However, 'if there are relevant differences, due allowance should be made for them': Postiglione v R at 301. 71 Counsel for United Admin stated that the defendant's culpability was greater than that of Dasco and Mr Nicolas. I would agree. United Admin, through Mr Fiore, had full responsibility for all safety matters on site. As well, Mr Avramov, although engaged by Dasco, reported to Mr Fiore and clearly liaised with him on a daily basis in relation, inter alia, to safety matters. Dasco and Mr Nicolas, having appointed Mr Avramov and Mr Fiore through United Admin, were a step removed from the day to day activities and responsibilities of United Admin and Mr Avramov. 72 The issue to be determined is the relative culpability of United Admin vis-a-vis Avrasya and Mr Sahin. In that respect, I accept Mr Fiore's unchallenged assertion that his knowledge of bracing and wall support was limited. He looked to Avrasya and Mr Sahin in the first instance and, as site manager, Mr Avramov, in relation to safety measures to be adopted in the erection of the brick wall. Nevertheless, Mr Fiore acknowledged his involvement in the risk assessment carried out as to the need for overhead protection for the adjoining Hypec roof. As he acknowledged, no consideration was given as to the possibility the wall may collapse. As events transpired, that was an error of judgment. 73 Mr Fiore, on behalf of United Admin, was not without experience in the building and construction industry. As he said: [2] Since 1990, I have worked on 16 buildings ranging from luxury residential buildings to multi-storey unit blocks and commercial structures. [3] Neither I nor any company I have been a director or manager of have ever been prosecuted for a breach of the occupational health and safety legislation since I started work in the construction industry in 1990.

[5] In 1994, I completed an Associate Diploma in Applied Science (Building) at Sydney Institute of Technology. 74 Mr Fiore was not at the site when the decision was taken to stop work because of the heat. On the evidence, there was no discussion between Mr Avramov and Mr Fiore at that time about the need to brace the wall when work stopped for the day. While it could be said Mr Fiore should have asked Mr Avramov about that issue, I accept it was not a matter that, being removed from the site, Mr Fiore could reasonably be expected to have been raised. 75 On balance, taking the above matters into account, I am of the view that the culpability of United Admin is less than the culpability of Avrasya and Mr Sahin. 76 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 Thomson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration, reinforced as they are by s 22 of the Crimes (Sentencing Procedure) Act 1999. 77 Counsel for the prosecutor pointed out that the defendants did not enter their pleas at the earliest available opportunity. Initially, when all the matters arising from this incident came before the Court, all defendants entered a plea of guilty to their respective offence. Following further considerations, the present defendants, including Mr Fiore, sought leave to withdraw their pleas of guilty. Leave was granted and the matters were set down for hearing for five days commencing on 23 July last. As co-defendants, Avrasya and Mr Sahin adhered to their pleas of guilty and have been dealt with by the Court in my judgment earlier referred to. 78 On 20 July last, the Court was advised that the present defendants would be further reversing their pleas to guilty and requesting the hearing dates already allocated to be vacated. That was done and the matters proceeded before me on 27 July last as submissions on the pleas of guilty. In entering their respective pleas, the defendants did so in terms of the summonses initially filed. 79 Notwithstanding the late change of plea, counsel for the prosecutor did concede that there was still utilitarian value in their pleas as a lengthy and protracted hearing had been avoided. I agree. 80 Counsel for the defendants asked the Court to apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 in relation to the respective defendants. 81 Section 10 of that Act relevantly provides: (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed; (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years; (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. ..................... (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition; (b) the trivial nature of the offence;

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

(d) any other matter that the court thinks proper to consider. 82 The application of the provisions of s10 to an offence arising under the Occupational Health and Safety Act 1983 have been considered in prior decisions of this Court and more particularly in the decision of WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 and more recently WorkCover Authority of New South Wales v Menzies Property Services Pty Limited [2004] 136 IR 449. In particular, I note reference within Profab to the comments of Wright J President in WorkCover Authority of New South Wales v Ecolab Pty Limited (1999) 90 IR 413 and at 430 where his Honour noted the limited utility of comparing cases where provisions of the then s 556A (the statutory predecessor to s10 of the Crimes (Sentencing Procedure) Act) had been applied. On that issue his Honour stated: In my view, those matters turn purely upon their own facts and by virtue of the nature of the power that is being exercised when consideration is being given to the application of the ameliorative effects of s556A, each matter has to be considered in relation to its own particular circumstances and an analysis of earlier decisions and their particular approach to the discretion arising under the section are of limited value. (In any event, as observed by the prosecutor's counsel, a number of those matters involved significant contributory negligence by the injured worker. That is not the case here). 83 In WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Limited (2000) 100 IR 64 the Full Bench of the Court said at [21]: The judgment of the Full Court (Fisher CJ, Bauer and Cullen JJ) of the former Industrial Court in WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 at 101, is clear authority for the proposition that the discretion under s556A would rarely be available in significant offences against the legislation and any application for the benefit of the provision should be rigorously tested. 84 The need for a rigorous approach and the proper application of the provisions of s 10 to the offences under the Act is reinforced in Profab as follows: [24] Accordingly, 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 s556A, 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 s556A 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 Ltd v WorkCover Authority (NSW) (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 & Sons Pty Ltd v WorkCover Authority (NSW) (1998) 83 IR 338 at 340.

[26] Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s556A (cf s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) 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. 85 In WorkCover v Menzies Property Services the Full Bench reaffirmed the approach enunciated in Profab in the following terms: [45] There is abundant, clear authority for the proposition that s10 of the Crimes (Sentencing Procedure) Act, like its predecessor s556A of the Crimes Act , will be available only in rare, limited circumstances in proceedings under the Occupational Health and Safety Act (see, for instance, Riley v Australian Grader Hire and McCarthy v Sell & Parker. ) ...................

[47] We consider the statements of principle in Profab Industries, summarised in Department of Mineral Resources v Berrima Coal and affirmed in Riley v Australian Grader Hire , as to the application of s10 of the Crimes (Sentencing Procedure) Act are correct and we apply those principles in the present matter. 86 In considering the facts and circumstances of the offences and the role of the respective defendants, including the acts and omissions of the corporate defendants and my assessment as to the objective seriousness of the offences, I am not persuaded the provisions of s 10 are applicable to them. The particulars to which the corporate defendants have pleaded guilty go directly to their overall culpability and their respective failures to monitor the worksite more directly in line with their responsibilities under the Act. Delegating that responsibility in the manner in which they appear to have done is not an adequate response to the onerous responsibility the Act requires. In short, they do not, in my view, meet the 'exceptional circumstances' test that s 10 requires. 87 In relation to Mr Nicolas, I take a different view. I accept that as one of two directors of Dasco, he put in place a comprehensive occupational health and safety plan for the project site. He proceeded to appoint persons, namely Mr Fiore via United Admin and Mr Avramov, via PAV NSW Pty Limited, to be wholly responsible, inter alia, for all aspects of safety on the site. Mr Fiore acknowledged as much when he stated that, as part of the overall arrangement with Dasco and Mr Nicolas, he personally accepted full responsibility for all safety matters on the site. 88 Likewise, in relation to Mr Avramov, his role as Site Foreman as asserted by Mr Nicolas, was to monitor subcontractors, the quality of their work and safety. That assertion was not challenged and there was no evidence from Mr Avramov to the contrary. 89 Mr Avramov has not been charged with any offences arising from this incident. As well, the prosecution has been granted leave to withdraw proceedings against Mr Fiore. It is understandable, given Mr Nicolas' further removed role from the immediate circumstances surrounding the incident, that he may feel a sense of injustice. On that issue, I refer to the decision of Wright J, President in WorkCover Authority of New South Wales v Walco Hoist Rentals Pty Limited and anor (No 2) [2000] 99 IR 163 at [34] where he said, correctly in my view, as follows: The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them . (emphasis added) 90 Having regard to the facts and circumstance before me, I am satisfied I can properly exercise the discretion available to me in favour of Mr Nicolas. I do so primarily because, on the material before me, to which no issue was taken, it is clear that in his role as a director of Dasco, Mr Nicolas had taken steps to appoint two persons who would be directly responsible for supervising the work being undertaken on behalf of Dasco. By all accounts, Mr Fiore and Mr Avramov were both aware of Dasco's occupational health and safety plan for the site. They were able to contact Mr Nicolas if there were any problems in carrying out the job at hand. They did not do so and, in my view, Mr Nicolas was entitled to assume there were no problems. Further, on the evidence before me, as a director of Dasco, Mr Nicolas had taken those steps that he saw as necessary to ensure safety matters were properly addressed on site. To the extent that did not occur, the culpability that flows is not, for the purposes of sentence, a culpability that should be visited upon Mr Nicolas as one of two directors of the corporate defendant who has already entered its plea of guilty. 91 In all the circumstances and taking account of the material referred to, I am satisfied that, in relation to Mr Nicolas, I can properly exercise the discretion available to me and discharge Mr Nicolas without conviction and penalty on the condition he enter into a bond to be of good behaviour for a period of eighteen months pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act. 92 Taking into account all the matters I have referred to, I determine penalty in these matters as follows:

(1) Matter No IRC 3048 of 2006: WorkCover Authority of New South Wales (Inspector Mulder) v United Admin Pty Limited : Prosecution arising under s 10(1) of the Occupational Health and Safety Act 2000: (i) The defendant is convicted of the offence charged; (ii) I impose a penalty of $45,500; (iii) I allocate a moiety to the prosecutor on the usual terms;

(2) Matter No IRC 3051 of 2006: WorkCover Authority of New South Wales (Inspector Mulder) v Daniel Nicolas : Prosecution arising under s 8(2) of the Occupational Health and Safety Act 2000 pursuant to s 26(1) of the Occupational Health and Safety Act 2000: (i) Pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act, the defendant is discharged without conviction and penalty on the condition that he enter into a bond to be of good behaviour for a period of eighteen months. (3) Matter No IRC 3052 of 2006: WorkCover Authority of New South Wales (Inspector Mulder) v Dasco Construction Pty Limited: Prosecution arising under s 8(2) of the Occupational Health and Safety Act 2000: (i) The defendant is convicted of the offence charged; (ii) I impose a penalty of $35,000; (iii) I allocate a moiety to the prosecutor on the usual terms; (4) I order the corporate defendants between them to pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment.

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