Inspector Foley v Campbell Barrett Holmes & Anor [2006] NSWIRComm 289 (8 September 2006)

Last Updated: 16 November 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Foley v Campbell Barrett Holmes & Anor [2006] NSWIRComm 289



FILE NUMBER(S): IRC 5269, 5270, 5271 and 5272

HEARING DATE(S): 07/08/2006

DECISION DATE: 08/09/2006
PARTIES:
PROSECUTOR
Inspector Lisa Foley

DEFENDANTS
Campbell Barrett Holmes
Holcomm Marine Pty Limited

JUDGMENT OF: Staff J


LEGAL REPRESENTATIVES

PROSECUTOR
Ms P McDonald of counsel
Solicitor: Mr R Higgins
Carroll & O'Dea
DEFENDANTS
Mr B Hodgkinson SC
Solicitor: Ms A Koelmeyer
Workplace Law

CASES CITED: Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
Crown in the Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181
Fisher v Samaras Industries Pty Limited (1996) 82 IR 384
Inspector Colin Price v Hunter Galvanising Pty Limited; Inspector Colin Price v Kerry Bartholomew [2006] NSWIRComm 43
Inspector Paul Wade v Litchfield Roofing (Australia) Pty Ltd [2005] NSWIRComm 394
Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266
Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464
Morrison v Powercoal Pty Ltd & Anor (No 3) (2005) 147 IR 117
Pearce v The Queen (1998) 194 CLR 610
WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383
WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd (t/as Stylewise Interiors) (2002) 113 IR 78
WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited and Anor (No 2) (2000) 99 IR 163
WorkCover Authority (NSW) v Atco Controls Pty Limited (1998) 82 IR 80

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



JUDGMENT:

- 1 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: STAFF J

8 September 2006

Matter No IRC 5269 of 2005

INSPECTOR LISA FOLEY v CAMPBELL BARRETT HOLMES

Prosecution under s 8(2) of the Occupational Health & Safety Act 2000 by virtue of 26 of the Act


Matter No IRC 5270 of 2005

INSPECTOR LISA FOLEY v CAMPBELL BARRETT HOLMES

Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 by virtue of s 26 of the Act


Matter No IRC 5271 of 2005

INSPECTOR LISA FOLEY v HOLCOMM MARINE PTY LIMITED

Prosecution under s 8(2) of the Occupational Health & Safety Act 2000


Matter No IRC 5272 of 2005

INSPECTOR LISA FOLEY v HOLCOMM MARINE PTY LIMITED

Prosecution under s 8(1) of the Occupational Health & Safety Act 2000

JUDGMENT

[2006] NSWIRComm 289

1 This matter concerns an accident which occurred at approximately 4.30 pm on 30 March 2004 at 5 Wunulla Road, Point Piper, New South Wales, where Holcomm Marine Pty Limited ("the corporate defendant") operated a marina management business. The corporate defendant owned and operated the slipway at the site and also leased the slipway to a number of tenants, including Slipstream Marine Enterprises Pty Limited ("Slipstream"), a company that undertakes shipwright work. The corporate defendant was responsible for slipping of vessels on the inclined slipway which included positioning vessels within a cradle which allows a vessel to be floated into the cradle and then pulled up a track out of the water.

2 The cradle is a framework of horizontal and lateral beams with two sets of vertical arms that are laterally adjusted by means of a mechanical chain and pulley system. The manual controls for the cradle arms are located on work platforms, which are attached to the side of each cradle and are approximately four metres above the ground. The cradle arms are moved laterally to hold the vessel upright and the cradle arms are locked into position with a removable pin.

3 At some time prior to the accident, the corporate defendant had agreed to perform work on a timber motor cruiser, the "Mary Lou" (Halvorsen style of approximately 20 to 25 tonnes, and approximately 46 feet in length and 13 feet wide).

4 This work included slipping the vessel on the slipway which occurred prior to the accident. When the "Mary Lou" was placed in the cradle arms, it was not stabilised or chocked, so as to ensure that the vessel could not tip or slip sideways within the cradle arms of the slipway.

5 Slipstream had also agreed to perform work on the "Mary Lou".

6 On the day of the incident, Mr Laurie Lewis, an employee of the corporate defendant, was working underneath the vessel retouching the anti-foul paint. He offered to assist two employees of Slipstream, Mr Loughrey and Mr G Clark who were also working on the "Mary Lou".

7 Whilst working underneath the vessel, the keel of the vessel slipped off the timber support blocks and fell to the right (starboard) side impacting on Mr Lewis and Mr Loughrey.

8 As a result of the incident, Mr Lewis sustained a fractured rib and soft tissue injury to the lower back. Mr Loughrey sustained a crush fracture to the L5 vertebrae. Immediately prior to the impact, Mr Lewis was in a crouched position, leaning forward and Mr Loughrey was crouched forward and on one knee.

9 The corporate defendant was prosecuted under s 8(1) of the Occupational Health & Safety Act 2000 ("the Act") for an alleged failure to ensure the safety of its employee, Mr Lewis, and under s 8(2) of the Act, for an alleged failure to ensure the safety of persons other than employees of the corporate defendant, and in particular, Mr Loughrey.

10 The failures alleged in the particulars of the s 8(1) charge and also the particulars of the s 8(2) charge were that the corporate defendant:

(1) failed to provide and maintain a system of work that was safe and without risks to health in relation to the undertaking of cleaning, anti-fouling and repair work of vessels placed on the slipway. The system of work failed to require that vessels on the slipway be adequately jacked, shored or chocked so as to ensure the lateral stability of the vessel whilst in the slipway;

(2) failed to adequately assess the risks of a vessel in the slipway tipping over, such a risk assessment had it been undertaken or had it been adequate would have required a vessel to be supported by the use of akro props, wedges, or other means to stabilise a vessel in the slipway.

11 Mr Campbell Barrett Holmes ("the individual defendant") was charged under s 8(1) and s 8(2) of the Act pursuant to the provisions of s 26(1) in relation to the offences committed by the corporate defendant on the basis of his directorship of the corporate defendant. The failures particularised in the charges were the same as those for the corporate defendant.

12 Each of the defendants pleaded guilty to the charges laid against them.

Evidence

13 The prosecutor relied on the following evidence during the sentencing proceedings:

1. Agreed statements of facts.

2. 26 colour photographs of the incident scene taken by Inspector Elizabeth Benbow of WorkCover on 30 and 31 March 2004.

3. 27 colour photographs taken by the Police of the scene of the accident on 30 March 2004.

4. 15 colour photographs taken by Inspector Lisa Foley of WorkCover of the Marina on 22 June 2004.

5. A factual report by Senior Inspector Elizabeth Benbow dated 15 April 2004.

5. Statements regarding prior convictions of the defendants. Neither defendant has a prior conviction.

6. Two invoices in respect of work carried out by the corporate defendant on the "Mary Lou".

14 Ms P McDonald of counsel, who appeared for the prosecutor, called Mr Lewis to give evidence. Mr Lewis stated that he had been employed three months short of five years as the Slipway Manager for the corporate defendant. Mr Lewis could not recall ever having any discussions with the individual defendant about the maximum weight of boats that could be slipped on the Slipway. Mr Lewis did not recall anything having been done in writing or verbally in respect of the exact weight for boats that could be slipped. Mr Lewis recalled that early in his employment, weekly management meetings occurred. However, it was very rare for such meetings to occur during the last year of his employment before the date of the incident. He could not recall any discussions regarding the possible formation of an occupational health and safety committee. Mr Lewis described where he was working at the time of the accident.

15 During cross-examination, Mr Lewis acknowledged that part of the anti-foul paint was provided by the owner of the boat and part of it was provided by the corporate defendant. Mr Lewis' evidence was that he was required to negotiate new employment with the purchaser of the Marina after the sale. This contradicts the evidence of Mr McElhone, the Financial Controller of the corporate defendant, who provided affidavit evidence on behalf of the defendants. His evidence, which I will deal with shortly, was he negotiated with the new owners of the marina for the employment of Mr Lewis. However, little turns on this aspect as Mr Lewis acknowledged that upon becoming fit for work after the accident, he was employed as the Slipway Manager by the new owner of the Marina. Mr Lewis acknowledged during his employment with the corporate defendant, it had never employed a shipwright. If such work was required to be done, it would be done by a firm other than the corporate defendant. On the majority of occasions, Slipstream was engaged to carry out such work.

16 Mr Lewis' evidence was that the "Mary Lou" had been on the slipway for "a good four, five days" and that he had been involved in putting it on the slipway. He did not think that there were going to be any problems in the short term. Mr Lewis agreed that he had the capacity as Slipway Manager to refloat the boat and bring it up again if he perceived that there were any problems with the way the boat was in the cradle. He stated that prior to the incident, none of the corporate defendant's work ever involved jacking a boat up while it was on the slipway. The work of jacking the boat up was performed by Slipstream so they could replace the docking strip (a piece of wood located along the bottom of the boat) which was a shipwright's job and not one performed by the corporate defendant.

17 Mr Lewis stated that it was rare for him to talk to the individual defendant as he was mainly in the office and Mr Lewis worked on the slipway. Mr Lewis' evidence was that on the day of the incident, Slipstream provided certain hydraulic jacks for the purpose of jacking up the boat, or part of the boat to replace the docking strip. This required jacking the boat up on a number of occasions. Mr Lewis's evidence was that he was not involved in the first three jackings of the boat. These were done by Mr Clark and Mr Loughrey on behalf of Slipstream. Mr Lewis' evidence was that he was in the area when the third jacking of the boat occurred and he released the pressure on the jack to lower the boat down. He could not recall whether he offered his services or he was asked to help. He could see Mr Clark and Mr Loughrey were struggling. His evidence was that there was no discussion between he and Mr Clark regarding the use of props. In any event his evidence was he could not see how they would assist. Mr Lewis agreed that the work itself had not been organised through the corporate defendant.

18 In re-examination, Mr Lewis stated that he did not envisage any problems occurring whilst the "Mary Lou" was on the slipway. Mr Lewis recalled that he was fixing a grate or something under the boat when he saw that Mr Clark and Mr Loughrey needed an extra hand. He confirmed that Slipstream had advised him that the "Mary Lou" needed to remain in the cradle for an additional time so that extra work could be done because they were engaged to replace the docking strip on the vessel.

19 Mr B Hodgkinson SC, who appeared for the defendants, relied on the following evidence:

(a) an affidavit of Mr Holmes, the individual defendant, who was required for cross-examination;

(b) an affidavit of Donald Edward Fletcher, the maintenance manager, employed by the corporate defendant. He was not required for cross-examination;

(c) an affidavit of Andrew Dennis McElhone, the Financial Controller of the corporate defendant. He was not required for cross-examination.

20 Mr Holmes deposed that in about December 1995, he commenced employment with the corporate defendant as its General Manager. At that time, the corporate defendant employed a full-time slipway manager, a mechanic, a slipway hand and an apprentice. Although Mr Holmes held the title of General Manager, the Slipway Manager was responsible for and made all decisions relating to the slipway and boat repairs to be carried out by the corporate defendant as he did not have the necessary experience in the industry. He was responsible for administration, marketing, business developments and the rental of berths and moorings.

21 As a result of the resignation of the slipway manager, the corporate defendant no longer had an employee with the necessary expertise to continue with boat repair and maintenance work. As a result, the corporate defendant began leasing space in the Point Piper Marina to other businesses (tenancies). Tenancies were leased to a marine engineering company, some shipwrights, a boat detailer, and boat brokers.

22 Mr Holmes deposed that the corporate defendant did maintain control of the slipway with regard to its operation and the scheduling and slipping of boats as he and the slipway hand had sufficient experience and competence to continue performing that work. The corporate defendant also continued to do some minor maintenance work such as cleaning and anti-fouling work, which the slipway hand was competent to perform. Any work that required a mechanic or a shipwright was referred to one of the tenancies.

23 Mr Holmes stated that when work was referred to one of the tenancies and use of the slipway was required, the tenant would book the slipway with the corporate defendant which would then attend to slipping the vessel. Once the vessel was safely out of the water and secured, the tenant was then cleared to do their work. The corporate defendant would invoice the client for slipping the vessel only. The tenancies would perform their work on the boat and invoice the client separately for their work.

24 The slipping process ended with the boat being locked into place on the slipway sitting in the cradle. The purpose of the cradle is to support the boat while it is out of the water. The cradle is designed to allow work to be carried out on the sides of the boat beneath the water line and also underneath the boat. On the slipway there are two cradles. Smaller boats required only one cradle and the bigger boats required two. Once the boat is in the cradle, the keel of the boat rests on the foot of the cradle. Each cradle has two sets of arms that lock the boat into an upright position. The arms are held in place with locking pins so they cannot move. Once the boat is sitting in the cradles with the arms locked upright along the length of the boat, the winch brake is locked and a safety chain is attached to the top cradle (closest to the land) in case the winch brake fails.

25 Mr Holmes deposed that at times the slipway hand would be required to work under the boat. As the cradle was designed to allow work to take place underneath the boat, the corporate defendant assessed that it was safe for its employees to perform work such as removing barnacles and seaweed with a scraper, or to access some areas for painting.

26 For the entire period that the corporate defendant was present at the Point Piper Marina, it did not have cause to jack up a boat off the cradle. Mr Holmes was not aware of any other tenancies jacking up a boat on the slipway except Slipstream on 30 March 2004.

27 Approximately three months after the resignation of the slipway manager, the corporate defendant employed a new slipway manager, Mr Lewis. During the period without a slipway manager, Mr Holmes attended to the duties of slipway manager with the assistance of the slipway hand.

28 Upon the commencement of Mr Lewis' employment, Mr Holmes trained him to use and maintain the equipment on the slipway. He worked with him slipping boats for at least a month. Mr Lewis did not slip boats alone until Mr Holmes was confident he could do so. Mr Lewis was supported by the slipway hand who had a total of 20 years experience working at marinas.

29 As a result of increased responsibilities, Mr Holmes reduced his attendance at the Marina to two days a week, confident that Mr Lewis had the knowledge and experience to operate the slipway. This occurred after the corporate defendant purchased the Church Point Marina and Mr Holmes became General Manager of both Marinas. Weekly management meetings were introduced at the Point Piper Marina. Maintenance was a regular agenda item at these meetings. Mr Lewis also had the support of the maintenance manager of the Church Point Marina.

30 Mr Holmes deposed that he recalled that a meeting was held to discuss forming an occupational health and safety committee on the site. However, it was decided that for such a small workplace, it was more efficient to deal with occupational health and safety matters as they arose generally in the weekly meetings.

31 Mr Holmes stated that on the day of the accident he was at the Church Point Marina. At this time, the Point Piper Marina was in the process of being sold with settlement scheduled to take place on 31 March 2004. Upon being advised of the accident, Mr Holmes called Mr A McElhone, the Financial Controller for the corporate respondent and requested him to attend the Marina.

32 Mr Holmes attended the Marina at 8.00 am on 31 March 2004 and spoke to the owner of the boat and to the slipway hand. Mr Holmes deposed that in conjunction with Mr Lewis, in order to ensure that boats too big to be handled by the slipway were not slipped, they determined that the maximum weight of boats that would be slipped would be 20 tonnes (48 Riviera equivalent).

33 Mr Holmes recalled seeing the boat on 29 March 2004 sitting safely out of the water and secured believing that it had been slipped for the purpose of anti-fouling. Mr Holmes stated that if he had been aware that the boat was to be jacked up by Slipstream for work to be carried out, he would have directed that it be removed from the slipway. He stated that Mr Lewis did not seek his permission to slip a boat exceeding the agreed weight level and he was angry about this.

34 Mr Holmes stated that he was aware Mr McElhone was attending to Mr Lewis who was in hospital and that he monitored his rehabilitation and arranged for the new owners of the Marina to employ him. Hotel accommodation was also provided to Mr Lewis when he was discharged from hospital.

35 Mr Holmes stated that the corporate defendant reviewed its occupational health and safety systems after the incident and developed formal occupational health and safety systems and a manual, the table of contents of which was annexed to his affidavit. The corporate defendant is again in the process of reviewing and updating its safety systems and procedures. New staff undergo an occupational health and safety induction.

36 During cross-examination, Mr Holmes acknowledged that nowhere on any of the machinery on the slipway at the time of the incident was there any indication of a safe working load limit for boats. Mr Holmes acknowledged that he did not visit Mr Lewis in hospital, but left Mr McElhone to have contact with Mr Lewis. Mr Holmes also acknowledged that he was aware that the "Mary Lou" had been slipped previously on the slipway and he had no issue with that at the time.

37 Mr Fletcher's evidence was that he started working for the corporate defendant as its maintenance manager operating the Church Point Marina in about December 2000. One of the first jobs he did at the Point Piper Marina was to refurbish the cradle arms. If any of the employees at Point Piper had a maintenance problem they would telephone Mr Fletcher and he would record it in an issue book. If it was urgent, he would attend the site immediately, otherwise he attended on a weekly basis. He acknowledged that at the date of the accident there was no written maintenance schedule for the Marina although he stated there was an unwritten schedule. Mr Fletcher stated he created, with Mr Holmes, a document entitled "Slipway Maintenance Schedule" after the incident, which was provided to WorkCover.

38 Mr McElhone, the Financial Controller of the corporate defendant, deposed he has held this position since January 2002. Mr McElhone stated that the corporate defendant supports charitable organisations, such as Sporting Chance (supporting children with cancer), the Police Association of New South Wales and usually participates in the world's biggest morning tea. Last year it contributed over $2,000 to various charities.

39 Mr McElhone, at the request of Mr Holmes arrived at the site at approximately 5.45 pm on the day of the incident. He endeavoured to find out how the incident had occurred and the condition of the injured persons. He attempted to contact Mr Lewis at St Vincent's Hospital to enquire of his condition, however, he was unable to speak to Mr Lewis until the following morning when he made arrangements to send him a fruit basket.

40 Mr McElhone stated Mr Lewis spent two nights in hospital. Upon his discharge, he arranged for him to stay at the Cranbrook Hotel at Rose Bay. He organised a taxi to pick him up from hospital. Mr Lewis spent one night in a hotel before he returned to live aboard his boat. He spoke to Mr Lewis frequently on the telephone during the two weeks he had off work recovering from his injuries. Mr McElhone stated, after the sale of the business, he negotiated with the new owners for the re-employment of all existing employees. Mr Lewis commenced working for the new owners when he recovered from his injuries.

Consideration

41 It is common ground that the principles of sentencing adopted by the Industrial Court of New South Wales for offences under the Act involve a consideration of both objective and subjective factors relevant to the offence and the offender. Counsel for the prosecutor submitted the Full Bench in Morrison v Powercoal Pty Ltd & Anor (No 3) (2005) 147 IR 117, observed that the sentencing practices established by the Court conform with the requirements of the Act and the Crimes (Sentencing Procedure) Act 1999 ("the CSP Act").

42 The two primary factors in the assessment of penalty are:

(i) the nature and quality of the offence, that is, the objective seriousness of the offence charged, and

(ii) subjective factors.

43 In determining penalty, the Court must take into account all relevant considerations in sentencing and make a judgment as to the appropriate sentence in the circumstances. The objective and subjective factors to be considered include those set out in s 21A, s 22 and s 23 of the CSP Act: Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266 at [39] - [40].

44 This process involves the balancing of the objective and subjective factors: Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 474 - 475.

45 Relevant subjective factors prescribed by s 21A(3) of the CSP Act may include:

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

...

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

...

(h) the offender has good prospects of rehabilitation, whether by reason of offender's age or otherwise,

(i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner,

...

(k) a plea of guilty by the offender (as provided by section 22),

...

(m) assistance by the offender to law enforcement authorities (as provided by section 23).

46 In Morrison v Powercoal (No 3), the Full Bench endorsed the statement by Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 386 in which his Honour said the duty of the Court in imposing penalties for offences under the Act and its predecessor is:

... to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high.

47 A fundamental consideration in assessing penalty will be the maximum penalty for the relevant offence. In the present case, the individual defendant is facing two maximum penalties of $55,000, and the corporate defendant is facing two maximum penalties of $550,000. Neither defendant has any prior convictions.

48 In my view, there was a collective failure on the part of the defendants to ensure the health and safety of both employees and non-employees at the Point Piper Marina. The corporate defendant had the overall control of the site and had a slipway manager (Mr Lewis) in place.

49 The risk to health and safety was the risk of the vessel tipping or slipping when employees were working underneath it. This risk, in my view, was reasonably foreseeable. The work undertaken by the corporate defendant's employees involved work underneath the vessel. Immediately before going to the assistance of the Slipstream employees, Mr Lewis was working underneath the vessel applying anti-fouling paint. The vessel weighed between 20 to 25 tonnes. It is a long vessel that required the use of two cradles to support it. In my view, an additional layer of safety, which was subsequently introduced after the incident, should have come into operation. There should have been some form of chocking or wedging through the use of other blocks or some other support system such as akro supporting props being placed under the vessel.

50 The evidence of Mr Lewis was that the boat was originally slipped for anti-fouling work to be done. His evidence was that he was informed that the boat needed to remain for an additional time in the slipway. However, there was no adequate risk assessment carried out in respect of the further work that had to be conducted. No enquiries were made as to whether the boat was properly stabilised in respect of the work that was to be carried out.

51 The evidence before the Court is that the system of occupational health and safety at the Marina was quite rudimentary. There was really no documentation in place, nor was there any real system in place. The obligations imposed on an employer under the Act require the employer to be pro-active. As Hill J said in WorkCover Authority (NSW) v Atco Controls Pty Limited (1998) 82 IR 80 at 85:

This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace.

52 In the circumstances of this offence, a proper risk assessment would have taken into account the work being undertaken not only by the employees of the corporate defendant, but the work to be undertaken by the employees of Slipstream. The replacement of the docking strip was performed in parts and necessitated the jacking up and down of the boat. The work also necessitated employees working underneath the boat. An adequate risk assessment would have revealed that additional support was necessary.

53 The true measure of penalty lies in the nature and quality of the offence and not merely the result. The gravity of the injury actually resulting from the breach does not, of itself, dictate the amount of penalty. Nevertheless, the occurrence of death or serious injury manifests a degree of seriousness of the relevant detriment to safety. Clearly, there was the potential for serious injuries to occur. Employees were working underneath a vessel weighing between 20 to 25 tonnes. At the time of the impact, fortunately both employees were in a crouched position.

54 An additional factor to be taken into account in assessing the objective seriousness of the offence is whether death or serious injury occurred. Section 21A(2) of the CSP Act provides that an aggravating factor that may be taken into account in determining the appropriate sentence for an offence is:

(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

55 The agreed statement of facts recorded that Mr Lewis suffered a fractured rib and soft tissue injury to the lower back. Mr Loughrey, the employee of Slipstream suffered a crush fracture to the L5 vertebrae. Mr Lewis was incapacitated for work until May 2004 and Mr Loughrey until July 2004. In respect of the offence under s 8(2) of the Act, Mr Loughrey was an apprentice aged 17 years at the time of the incident. The presence of young and inexperienced persons in the workforce gives rise to increased responsibilities for an employer and reflects the seriousness of the offence: WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd (t/as Stylewise Interiors) (2002) 113 IR 78 at 100; Inspector Paul Wade v Litchfield Roofing (Australia) Pty Ltd [2005] NSWIRComm 394.

56 Furthermore, the seriousness of the offence is demonstrated by the simple and straightforward steps the corporate defendant would have been able to implement to meet its obligations under the Act. In my view, when it slipped the vessel it should have ensured that there were measures undertaken to stabilise the boat. These should have included chocking or shoring the vessel, or supporting the vessel by use of akro props, wedges or blocks. These simple remedial steps were adopted after the accident.

57 In respect of general deterrence, marinas where boats are slipped are a common feature along the New South Wales coast and its waterways and their operation presents significant risks. It is appropriate to draw attention to the need for employers operating slipways and having employees, particularly young and inexperienced employees working in the proximity of boats: WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 at 452; Inspector Colin Price v Hunter Galvanising Pty Limited; Inspector Colin Price v Kerry Bartholomew [2006] NSWIRComm 43 at [13] - [14]. I have, therefore, included an element in each of the penalties for general deterrence.

58 In respect of specific deterrence, the Full Bench in Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [77]:

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 (Court of Criminal Appeal, 19 December 1997, unreported) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (Court of Criminal Appeal, 8 December 1995, unreported).

59 Although the corporate defendant sold the Point Piper Marina, the day after the incident, it continues to be an employer and operates a marina at Church Point. I should, therefore, include an element in the penalties for specific deterrence, although it would only be small, as I am of the view that the incident was a lesson for the defendants and it is unlikely they will re-offend.

60 There are a number of elements for subjective consideration. Each defendant entered an early plea of guilty and a discount of 25 per cent is warranted. The defendants co-operated with the WorkCover Authority and have no prior convictions. The defendants also took immediate steps to avoid a re-occurrence of the incident.

61 In the context of this particular incident, it is irrelevant that the "Mary Lou" had been slipped on a number of other occasions and weighed between 20 and 25 tonnes. There were no markings or indications anywhere at the corporate defendant's premises of a weight restriction, although the new owners have erected signs with particular weight restrictions applying to vessels.

62 I accept that the corporate defendant had expressed contrition and remorse by the entry of its early plea and as reflected through its Financial Controller, Mr McElhone, attending the site and arranging for one night's hotel accommodation for Mr Lewis after he was released from hospital and before he could return to his home on a boat. In respect of the individual defendant, he attended the site the following morning after directing the Financial Controller to immediately attend the site when advised of the accident. Although he did not attend the hospital to visit Mr Lewis, I am prepared to accept that the actions of the individual defendant reflect contrition and remorse.

63 Turning to the respective culpability of the defendants, Wright J, President in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited and Anor (No 2) (2000) 99 IR 163 at [38] said:

Having reached those conclusions in relation to the culpability of the first defendant it is necessary to consider that of the second defendant. The construction and implications of s 50 are relevantly these. First, the level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s 50(1) cannot be greater than that of the corporation who has been convicted or otherwise assumed to be guilty for the purposes of the operation of the section. However, most pertinently for the present proceedings, it must be recognised that the culpability of the personal or individual defendant may be less than that of the corporate defendant. It is not, in my view, a question of considering their relative contribution but assuming that the purpose of the provision is to make an individual who is responsible to an extent for the management of the corporation similarly responsible and culpable for the acts or omissions of the corporation. Although the relevant consideration is not whether, or to what extent, there is a level of contribution as between the corporate and individual defendants for the particular breach of safety which arose under the Act, it is nevertheless necessary when dealing with the precise gravity of the offence committed, or deemed to have been committed by the personal defendant, to accept the possibility or, in many cases where the individual is not simply the alter ego of the corporation, the likelihood that the level of gravity of the offence attributable to the personal defendant may be less than that which has been found to have been committed by the corporate defendant – that is, in these proceedings the first defendant.

64 At the time of the accident, the individual defendant was a director of the corporate defendant and also the General Manager of the Point Piper and Church Point Marinas. The individual defendant, on the evidence, appears to be the only active manager and was active in the management of the slipway. He was in a position to influence the systems of work undertaken by the company on the slipway. In my view, the individual defendant's culpability is the same as the culpability of the corporate defendant.

65 I turn to consider the respective culpabilities of the individual defendant and the corporate defendant and that of Slipstream and its director, Mr Clark, who were each charged with breaches of s 8(1) of the Act, and were subject to the same particulars. The defendants here were charged with offences not only in respect of the corporate defendant's employee, but also in respect of the employees of Slipstream. Ms McDonald submitted that the primary control for the operation of the slipway and the slipping of the vessel was vested in the corporate defendant. The responsibility of stabilising the boat within the cradle is also primarily the responsibility of the corporate and individual defendants. Mr Holmes' evidence was that once the vessel was safely out of the water and secured, the tenant was then cleared to do its work.

66 On this issue Mr Hodgkinson submitted that at no other time was the jacking of the boat undertaken on the corporate defendant's slipway. Senior counsel submitted that it was Mr Clark and Slipstream who had control of the system of work. Counsel contended in respect of the issue of culpability, particularly of the corporate defendant, its failure was that it did not check whether Slipstream was doing its work properly. Slipstream did not tell the corporate defendant what the work was, nor did they tell Mr Lewis. They did not provide a work method statement. It was their work. Mr Hodgkinson emphasised that this was not a case where the boat could fall over altogether as the cradle in which the boat sat remained intact at all times during and after the incident. It therefore was not a failure of equipment.

67 Although the work being performed by Slipstream of jacking the boat may have contributed to the incident, in my view, it was primarily a matter of not providing support and stabilisation of the vessel that caused the incident. The primary responsibility for this lay with the corporate and individual defendants here under consideration. It was their slipway. They were informed that the boat had to stay for a longer period for work to be carried out. The onus was on these defendants to assess whether the additional work that had to be done could be done safely within the confines of how the vessel had actually been stabilised.

68 The focus of the charges is in respect of the stability of the vessel in the slipway and in the cradle. The statement of agreed facts provides at [14] that the company slipped the "Mary Lou" onto the slipway and positioned the vessel within the cradle arms of the inclined slipway. However, the "Mary Lou" was not stabilised or chocked, other than reliance on the cradle arms, so as to ensure that the vessel could not tip or slip sideways within the cradle arms of the slipway. It therefore seems to me that the overall control of the site lay with the corporate defendant and the individual defendant who had a site manager in place. There is no evidence before me which would allow me to conclude what caused the boat to slip. For these reasons, to my mind, and I find, that the corporate and individual defendants were more culpable than Slipstream and Mr Clark.

69 Each of the defendants have been charged with two offences. The offences arise from the same incident and involve the same conduct of the defendants and have common elements. It is therefore necessary to apply the principle of totality. The approach to the application of the principles of totality is found in the decision of the Full Bench in Crown in the Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181, which considered the High Court's ruling in Pearce v The Queen (1998) 194 CLR 610. The Full Bench held that:

[23] The effect of Pearce is that, in sentencing a defendant for more than one offence, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflected the totality of the criminality involved.
...

[29] In an appropriate case, however, it may still be appropriate to impose a single penalty for multiple offences under the Act, but only as the result of the operation of the principle of totality after separate penalties have been assessed for each offence. However, we consider that the preferable course is that separate penalties should be imposed after the principle of totality is applied.
...

[51] In view of our conclusion that the two offences contained very substantial common elements, it could not be considered that the deduction made by her Honour was appropriate and sufficient. In a case such as this, the totality principle must be applied to ensure that the defendant is not punished more than once for the common elements of the offences and that the resultant penalty is appropriate to the overall criminality of the offences for which the defendant is being sentenced.

70 I have applied the principle of parity in this matter in assessing the sentences applicable for the defendants and Slipstream (the shipwright proprietor) and Mr Clark. I adopt my discussion of this issue in Inspector Foley v Slipstream Marine Enterprises Pty Limited and Anor [2006] NSWIRComm 290 at [49].

71 In determining the penalty to be applied to Mr Holmes, I should observe it is not entirely clear to me why direct prosecutions were brought against him, as there does not seem, on the evidence, any particular aspect warranting this approach. However, having said that, I proceed to sentence the individual defendant. I consider the appropriate penalty to be:

1. In matter No IRC 5269 of 2005 - $6,000.

2. In matter No IRC 5270 of 2005 - $6,000.

72 Having regard to the common elements of the two offences, by applying the totality principle and having regard to the overall criminality, I consider the total fine should be reduced to $7,000.

73 Accordingly, the fines to be imposed in relation to each offence are:

1. In matter No IRC 5269 of 2005 - $3,500.

2. In matter No IRC 5270 of 2005 - $3,500.

74 In determining the penalty to be applied to the corporate defendant, I consider the appropriate penalty to be:

1. In matter No IRC 5271 of 2005 - $65,000.

2. In matter No IRC 5272 of 2005 - $65,000.

75 Having regard to the common elements of the two offences, by applying the totality principle and having regard to the overall criminality, I consider the total fine should be reduced to $75,000.

76 Accordingly, the fines to be imposed in relation to each offence are:

1. In matter No IRC 5271 of 2005 - $37,500.

2. In matter No IRC 5272 of 2005 - $37,500.

ORDERS

77 The Court makes the following orders:

In matter No IRC 5269 of 2005:

1. The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $3,500 with a moiety to the prosecutor.

4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, if agreement cannot be reached, as assessed in accordance with the Rules of the Court.

In matter No IRC 5270 of 2005:

1. The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $3,500 with a moiety to the prosecutor.

4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, if agreement cannot be reached, as assessed in accordance with the Rules of the Court.

In matter No IRC 5271 of 2005:

1. The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $37,500 with moiety to the prosecutor.

4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, if agreement cannot be reached, as assessed in accordance with the Rules of the Court.

In matter No IRC 5272 of 2005:

1. The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $37,500 with a moiety to the prosecutor.

4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or, if agreement cannot be reached, as assessed in accordance with the Rules of the Court. of the offence as charged.

LAST UPDATED: 08/09/2006