Later the Full Bench also said:
As we have observed, the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the Court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence.
9 The cases which are reviewed in Lawrenson repeatedly indicate that the determinant of penalty, before a consideration of subjective features, is "the nature and quality" or the "objective seriousness" of the offence. The offence itself is not, as Fisher CJ noted in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994), a reflection of the tragedy of a death at work, but rather of the failure by the employer to ensure safety and the means or omissions by which that failure occurred.
10 A consideration of that question is often a most difficult task in the context of legislation which imposes absolute liability for the offence. The defendant in these proceedings has accepted that liability by its plea of guilty. The prosecutor for its part has urged upon the court the view that the nature and quality of the offence involved is of the highest order. I am unable to see how this could be so. It may be readily recognised that an offence of the highest order is likely to involve a case of the worst features, of a reprehensible or even outrageous kind. The offence involved in the present matter cannot possibly fall within such a category.
11 Here the work was being undertaken according to a system which was in conformity with WorkCover's guidelines; it was being performed by an experienced and qualified person; it was being undertaken by a building company with very considerable experience, having constructed, among its building jobs, the Governor Macquarie Tower and the Chifley Tower in Sydney and having employed over the five years up to the date of the accident in November 1997, one thousand persons on those projects without any conviction under the OHS Act. The metal framework constructed to support the facade of the building was designed by mechanical engineers, approved by the Sydney City Council and erected during the course of the demolition of the old Coles building on the site. It protected the pedestrian traffic along the footpath and supported the building facade which was to be retained. It was inherited by the defendant. The metal framework did not present a flat and even face to the street, up which loads could be lifted by crane without catching on the metal framework. However, after the occurrence of the events here no such timber fascia was installed by the defendant or required to be installed by the prosecutor. Work continued thereafter, I infer from the agreed facts, merely with the addition of tag lines, which themselves are recognised by those facts to involve an inherent safety risk. This variation in procedure was made in conformity with WorkCover requirements.