Workcover Authority of New South Wales (Inspector Mulder) v Murat Sahin and Avrasya Constructions Pty Limited [2007] NSWIRComm 149 (20 June 2007)

Last Updated: 13 July 2007

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : WorkCover Authority of New South Wales (Inspector Mulder) v Murat Sahin and Avrasya Constructions Pty Limited [2007] NSWIRComm 149



FILE NUMBER(S): IRC 3049 & 3050

HEARING DATE(S): 5 June 2007

DATE OF JUDGMENT: 20 June 2007
PARTIES:
PROSECUTION:
WorkCover Authority of New South Wales (Inspector Mulder)

DEFENDANTS:
Murat Sahin
Avrasya Constructions Pty Limited

CORAM: Staunton J


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 - financial capacity of defendants considered - held not persuaded exercise of discretion under s 10 of Crimes (Sentencing Procedure) Act appropriate in relation to personal defendant - penalty imposed - orders as to penalty, moiety and costs.

LEGAL REPRESENTATIVES

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

DEFENDANTS:
Mr A Campbell of counsel
SOLICITORS:
Taylor & Scott Lawyers


CASES CITED: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
Ferguson v Nelmac Pty Limited (1999) 92 IR 188
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464
Markarian v The Queen [2005] HCA 25: 18 May 2005
R v Gallagher (1991) 23 NSWLR 220
R v Thompson; R v Houlton (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131
Thorneloe v Filipowski (2001) 52 NSWLR 60
WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries [2000] NSWIRComm 142
WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Occupational Health and Safety Act 2000



JUDGMENT:

- 24 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Staunton J

DATE: 20/6/2007

Matter No IRC 3049 of 2006
WorkCover Authority of New South Wales (Inspector Mulder) v Murat Sahin
Prosecution pursuant to section 8(2) and section 26(1) of the Occupational Health and Safety Act 2000

Matter No IRC 3050 of 2006
WorkCover Authority of New South Wales (Inspector Mulder) v Avrasya Constructions Pty Limited
Prosecution pursuant to section 8(2) of the Occupational Health and Safety Act 2000

JUDGMENT
[2007] NSWIRComm 149

1 Both defendants have entered a plea of guilty to an offence arising pursuant to s 8(2) of the Occupational Health and Safety Act 2000 (the Act). As a director of the second defendant, Avrasya Constructions Pty Limited (Avrasya), Mr Sahin's offence under s 8(2) arises pursuant to the deeming provisions of s 26(1) of the Act.

2 In relation to the defendants, it is said that, on 1 December 2004, they:

Failed to ensure that people not employed by Avrasya, 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 the defendant's undertaking while they were at the defendant's place of work.

3 The particulars of the respective offences in relation to Mr Sahin and Avrasya are stated in identical terms 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 (Wall), in particular:

[1.1] It failed to provide any 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 work.

As a result of the breach by Avrasya, persons not in the employment of Avrasya were exposed to a risk of injury.

4 The prosecution has tendered an agreed statement of facts in relation to the two defendants as follows:

[1] At all material times, Dasco Construction Pty Ltd (ACN 092 098 587) (Dasco):

[1.1] Was a duly incorporated company 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 Peter Avramov (Avramov) as foreman of the Development at the premises;

[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:

[4.1] Was a Managing Director of the Defendant;

[4.2] Had sole control over the Development at the premises including with respect to the implementation of its occupational health and safety systems.

[5] At all material times, Murat Sahin (Sahin), of 92 Elm Road, Auburn, New South Wales:

[5.1] Was a director of Avrasya.

[6] At all material times, Fiore, of 15 Donnelly Street, Putney, New South Wales:

[6.1] 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 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.

[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. 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] There was no visible edge or overhead protection installed for neighbouring properties on the western boundary wall of 30-32 Herbert Street, West Ryde;

[15.10]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 2004, 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 first course of the Wall on Level 3A was not cemented directly to the floor, but rather was laid upon a metal sheeting known as a 'damp course'. The Wall was in effect, a free-standing structure with the exception of a form of temporary bracing that was attached to the Wall prior to its collapse.

Adverse weather conditions and Australian Standard 3700 - 2001

[20] Clause C11.4.11 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 C11.9.1 of 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] No adequate overhead fall protection was installed on the Wall to prevent the Wall from potentially collapsing onto the Hypec Building. 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] Nicolas considered that no overhead fall protection was installed on the Wall as it was not practicable to implement such measures due the nature of the roof of the Hypec building, being a 'saw-tooth' truss roof, the highest point of which was above the base of the Wall.

[25] 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.

[26] 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

[27] 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.

[28] 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:

[28.1] the risk to health and safety of members of the public within a close proximity of the premises;

[28.2] 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.

[29] 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.

[30] Dasco failed to implement any systems with respect to the monitoring, checking or assessment of the safe work method statements prepared by Avrasya. Prior to the incident, Nicolas had not read Avrasya's Safe Work Method Statement. Dasco also failed to implement systems of work to ensure the appropriate monitoring was adopted to confirm compliance with its OHS Plan.

[31] 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.

[32] 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.

[33] 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.

[34] Toolbox meetings were held at the premises on a sporadic basis. The risks associated with the erection of boundary walls and the possibility of their collapsing appear not to be covered in any of the toolbox meetings prior to the incident.

[35] 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.

[36] 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

[37] 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.

[38] The impermanent bracing installed by Avrasya was inadequate, particularly given that the Wall itself was not attached in any way to the base upon which it was being erected.

[39] No assessment was conducted in relation to the adequacy of the temporary bracing to prevent the Wall from collapsing due to adverse weather conditions.
[40] Nicolas was not aware of the system of bracing that was utilised during the construction of the Wall.

[41] 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

[42] 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.

[43] Dasco relied on Fiore to run the toolbox meetings and provide any other training to the workers at the premises as necessary.

[44] 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.

[45] 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.

[46] Dasco, Avrasya and United Admin failed to supervise employees of Avrasya to the extent necessary to prevent the collapse of the Wall on the day of the incident.

Wind conditions

[47] 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.

[48] 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.

Following the incident

[49] 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.
[50] 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.

[51] 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.

5 In addition to the agreed statement of facts, the prosecution has also tendered a bundle of documents including:

(1) A factual inspection report compiled by Inspector Richard Mulder, dated 2 December 2004;

(2) A copy of the Dasco Construction Pty Ltd Occupational Health and Safety Plan;

(3) A floor plan for 20 - 30 Herbert Street, West Ryde;

(4) Architectural drawing no. 1228-203 of elevations and sections of 30 - 32 Herbert St West Ryde;

(5) A copy of an Austral Bricks Austral Clay Commons Brochure;

(6) Extract from Australian Standard AS 3700 - 2001: Masonry Structures;

(7) A TestSafe Australia Report, dated 6 January 2005. The report sets out the measurement of bricks from the scene of the brick collapse at West Ryde;
(8) A copy of a Bureau of Meteorology report on wind speed at Sydney Olympic Park on 1 December 2004;
(9) Site inspection report conducted by Australian Consulting Engineers, dated 1 December 2004;

(10) Supplement commentary to Australian Standard AS 3700 - 1998: Masonry Structures.

6 Also tendered by the prosecution, without objection, were a number of photographs. They have assisted me in understanding the layout of the premises where the accident occurred.

7 As is evident from the agreed facts, Dasco Constructions Pty Limited (Dasco) and United Admin Pty Limited (United Admin) together with their relevant personnel, were also involved in the facts and circumstances leading to the offences relating to Avrasya Constructions and Mr Sahin. Both companies as well as Mr Daniel Nicolas of Dasco and Mr Christopher Fiore of United Admin have been charged with offences relating to the collapse of the brick wall on 1 December 2004. All of those defendants have entered pleas of not guilty to the offences alleged. Those matters are listed for hearing at a later date.

8 On behalf of the defendant Mr Murat Sahin, an affidavit sworn on 2 March 2007 was tendered without objection. Mr Sahin's affidavit deposes as to his experience working with various bricklaying companies before forming his own bricklaying business in 2000. As well, Mr Sahin detailed relevant events leading up to the wall collapse and subsequent to it.

9 In addition, assessment notices for Mr Sahin for the 2005 and 2006 tax years as well as financial reports of the corporate defendant for 2005 and 2006 were annexed to Mr Sahin's affidavit.

10 Evidence was adduced from Mr Sahin as well as Senior Inspector Reynolds of the WorkCover Authority.
Relevant principles

11 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.

12 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.'

13 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.

14 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.

15 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.

16 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.

17 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).

18 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.

19 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)

20 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...

21 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

22 Both defendants have no prior convictions. Accordingly, the maximum penalty which may be imposed on Mr Sahin is $55,000. The maximum penalty that may be imposed on the corporate defendant (Avrasya) is $550,000.

23 Avrasya had been initially contracted by Dasco to undertake the bricklaying work at the project site in August 2004. As a consequence, during September and October 2004, Mr Sahin and employees of Avrasya undertook bricklaying work 'on the Ground Floor Block A and Block B up to Level 2 of Block A' of the project.

24 In October 2004, the defendants were removed from the job. As Mr Sahin stated:

[14] At the end of October 2004 I had a meeting with Chris Fiore and he indicated that he was not happy with the speed and progress of the bricklaying on the site and that he had found someone else to complete the work. Accordingly, by the beginning of November 2004 the Second Defendant left the site.

[15] In the middle of November 2004 I received a telephone call from Chris Fiore offering the Second Defendant to come back onto the site to complete the work. I understand that work on Level 3 in Block B had been carried out by CCP Bricklaying.

[16] When the Second Defendant and it's employees returned to the site we commenced work on Level 3 of Block A. Work was commenced approximately 3 days before the accident.

25 The building under construction was a concrete and masonry building with three levels. In the days leading up to the incident, Avrasya's bricklayers were erecting a double brick cavity wall on the third level along the western boundary. Adjacent to the wall being erected was the Hypec Information Technology Services building where some ten Hypec employees worked.

26 It would appear the brick wall being erected on the third level was done in two stages. On the day before the accident, bricks were laid to a height of approximately 1.5 metres. Those bricks were allowed to set overnight. On the following day, the day of the incident, the remainder of the wall was erected to a height of approximately 2.6 metres. Prior to its collapse, the wall was 21 metres in length and some 2.6 metres in height.

27 It was stated on behalf of the defendants that, at the time of the incident, the roof of the adjacent Hypec building was above the base of the wall being erected. I am not persuaded that was the case by the time the wall collapsed. When it collapsed outwards, the brick wall fell onto and through the roof of that building. Such an outcome could only have occurred if the brick wall, when it collapsed, was above the roof.

28 The roof of the Hypec building was of a 'saw tooth' design resulting in different roof heights at certain points along the boundary line of the two properties. Given that the brick wall was some 21 metres in length, it is obvious that, on the day of the incident, as the facts and photographs illustrate, at certain points along the boundary line, the brick wall was higher than the roof of the Hypec building.

29 Further, it is pertinent to note that, at the time of the incident, the brick wall was not secured to the floor of the building. As it stood, the wall was essentially a freestanding structure which sat on a sheet of metal known as a damp course.

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.

31 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).

32 To be fair, Mr Sahin did brace the walls but only in a very rudimentary manner. On the day of the incident, the Avrasya workers finished early for the day because of the extremely hot weather. Mr Sahin secured the brick wall by installing approximately three or four triangular timber trusses along the inside of the wall as a temporary bracing measure. Mr Sahin deposed that he adopted that method because it was ‘...a bracing system I had learnt and used for a long time and I had never had troubles with it before’. He was of the opinion that measure alone was sufficient to brace the wall and '...adequate to stabilise the roof’'.

33 Further, as the agreed facts disclose, consideration was given to erecting outward fall protection measures but, as stated in para [24] of the facts, none was installed because 'it was not practicable to implement such measures due the nature of the roof of the Hypec building, being a 'saw-tooth' truss roof, the highest point of which was above the base of the wall.' It would seem, for that reason, little consideration was given to the risk of the wall collapsing outwards onto the Hypec building.

34 As I have already stated, I am of the view that, at the time of the incident, the height of the wall was, at certain points, above the roofline of the Hypec building.

35 As became evident, the bracing method Mr Sahin adopted was inadequate when contrasted with the methodology set out in Australian Standard AS 3700 - 2001: Masonry Structures. Under cl C11.9.1, that provides:

Masonry under construction shall be braced or otherwise stabilized as necessary to resist wind and other lateral forces, in such a manner that the structural integrity of the member or structure is not impaired.

36 Although the Standard itself does not specify the necessary distance between temporary braces, the supplement to the Standard at C11.9.1 states that the distance between points of support in bracing for masonry structures should not exceed 2 metres. Mr Sahin's method of installing temporary bracing of 3 or 4 wooden triangular trusses over 21 metres would mean that the trusses were approximately 5.25 to 7 metres apart.

37 At the time of the wall collapse, Mr Sahin was unfamiliar with the provisions of AS 3700. Counsel for the defendants contended that Mr Sahin's unfamiliarity with that Standard was not exceptional, pointing to the statement of Consulting Engineer Mr Anthony Hasham to Inspector Mulder in January 2005. Mr Hasham's company, Australian Consulting Engineers, was called in to inspect and report as to steps to be undertaken following the wall collapse. In his statement to Inspector Mulder, Mr Hasham said he was 'not fully' familiar with the requirements of AS 3700 in relation to the construction of masonry walls.

38 Mr Hasham was not called and, without more, it is not possible to place any weight on his statement referable to AS 3700 that positively assists the defendants.

39 In his affidavit, Mr Sahin conceded that he had failed to meet the threshold distance of 2 metres for temporary bracing as stipulated in the 'Construction Regulations' (sic). The Occupational Health and Safety Regulation 2001 (the Regulation) does not set out any requirement of a bracing support distance of 2 metres, as earlier identified. That provision is to be found in the supplement to AS 3700. Accordingly, I take Mr Sahin’s acknowledgement of the 2 metre requirement within the 'Construction Regulation' to indicate the distance as set out in the Supplement to the Standard referred to above.

40 However, Part 8.4 of the Regulation does set out requirements which must be met in order to control risks arising during construction work. For example, clause 234 dealing with the prevention of structural collapse provides as follows:

(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.

41 The third level brick wall being erected by the defendants on the day of the accident was, as a freestanding structure not secured to the floor, inherently unstable. That inherent instability was further affected by two adverse weather factors - heat and wind. To a degree, it is possible that the bracing Mr Sahin erected may have been adequate to stabilise the wall in what I can only describe as benign wind conditions. I simply do not know, except that the bracing he did erect was inadequate when assessed against the Australian Standard AS 3700 earlier referred to. What I do know and is accepted by the parties is that on the afternoon of the wall collapse, wind speed increased to 48 kilometres per hour with maximum wind gusts reaching 80 kilometres per hour.

42 Reference to the relevant Bureau of Meteorology weather report for the day of the incident reveals that wind speed picked up in the afternoon of 1 December 2004, peaking at or about 4:00pm on that day, reaching the speeds earlier identified. The brick wall collapsed between 4:00pm and 4:30pm that day.

43 The second weather factor that would appear to have been a contributing issue to the wall collapse was the high temperatures also experienced on the day. Again, the Bureau of Meteorology report for that day shows that between 12:30pm and 2:30pm the air temperature was above 40C and for a further number of hours was between 38 to 39C. It seems evident that factor was also relevant to the overall stability of the brick wall as cl 11.4.11 of the Supplement to AS 3700, Masonry Structures makes clear as follows:

Construction should not be continued during extreme weather conditions. Torrential rain can wash fresh mortar out of joints. Under freezing conditions, particularly if clay masonry is saturated, fretting and spalling of the surface of the units may result. Because hollow and perforated units have a greater capacity for storing water, their protection against rain, snow or frost is more important than for solid units. Extremely high temperatures together with drying winds may cause rapid dehydration of the mortar, and a consequent reduction in bond strength and durability. Previous site experience may be taken into account when assessing the suitability of conditions. (emphasis added)

44 When taken together, it seems clear that the extremely high temperature coupled with the strong winds later in the afternoon had the effect of significantly and adversely affecting the inherent instability of the wall, causing it to collapse onto the adjoining building.

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.

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.

47 Avrasya was required under the site occupational health and safety plan prepared by Dasco to supply its own occupational health and safety plan and safe work method statement. Avrasya initially provided a safe work method statement when it first commenced bricklaying work at the premises during September and October 2004. At that time, Avrasya and its employees primarily performed work on the first and second floors of the development and, as I would understand it, adjacent to the side wall of the Hypec building.

48 The safe work method statement at the time did not address risks associated with constructing boundary walls such as collapse, nor did it provide measures to guard against that risk. As Mr Sahin deposed:

The original safe work method statement did not take into consideration the need for any scaffolding to be erected on the western wall of Block A as all work was being carried out below the roof line of Hypec.

49 As earlier stated, Avrasya ceased work at the site some time at the end of October and did not return to the site until the end of November. At that time, the work required to be done was on the third floor. That was where the wall collapse occurred.

50 Despite the change in elevation and the greater proximity of the bricklaying work to the roof line of the Hypec building, the safe work method statement remained unchanged from the form it was drafted in September, when the brick laying was at a lower level.

51 Once the defendants returned to the site in November, the changed work circumstances should have alerted Mr Sahin to the need to change the safe work method statement. He should have conducted a risk assessment identifying potential hazards to the stability of the wall and the need to address them. Mr Sahin was an experienced bricklayer. His familiarity with building sites should have alerted him to the risk to safety that the inherent instability of the brick wall represented. As well, the need to consider adequate bracing and, as the wall at certain points went above the Hypec roof line, the need for scaffolding. He should have revised the safe work method statement to deal with such risks.

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.

54 The only action taken by Mr Sahin upon return to the site which remotely resembled risk assessment was an informal discussion between Mr Avramov, Mr Sahin and his employee Mr Colak about the possibility of installing scaffolding. The consensus was there was no risk of objects falling for overhead protection to be installed. As events transpired, that was clearly not the case.

55 Ultimately, the overall responsibility for those matters rested with Mr Sahin. His inadvertence and, I believe, his inexperience in such matters, resulted in scaffolding not being erected and the wall being inadequately braced.

56 The failure to conduct a proper risk assessment with respect to the brick work being conducted on the third level as well as the reliance Mr Sahin placed on his past experience was clearly inadequate.

57 The safety of Avrasya’s workers was also compromised by Mr Sahin's failure on behalf of the corporate defendant to provide proper instructions or training for the work which was to be undertaken. No training was conducted and the workers were acquainted with the safe work method statement and it's requirements only through reading it. In any event, given the inadequacy of the defendants' safe work method statement, the risks to safety of a wall collapse would not have been identified as a workplace safety issue.

58 Subsequent calculation of the weights of the inner and outer wall as conducted by TestSafe Australia at the request of WorkCover revealed that the inner and outer walls each weighed approximately 6,815 kg and 9,173 kg respectively. Considering the immense weight that collapsed on the Hypec roof and the speed of the wind in the afternoon, it is fortunate that nobody was killed or injured as a result.

59 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.

60 Following the accident, safe work method statements prepared by Avrasya indicated that catch scaffolding was to be installed at the work site. Timber bracing was also installed following the accident. Mr Sahin now ensures that any freestanding walls are properly braced to "comply with the regulations and not just with my understanding and experience of the expectations of the industry".

61 While it is commendable Mr Sahin implemented these measures promptly, they were measures that could have been implemented prior to the accident.

62 Considering all the facts and circumstances identified, I consider the offence with respect to the defendants to be in the mid range of objective seriousness and will determine penalty on that basis.

63 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.

64 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.

65 The risks presented to workers by virtue of the type of work conducted in the construction industry are obvious. Considerations of general deterrence are clearly relevant in this context.

66 I consider specific deterrence to be a relevant consideration with respect to Mr Sahin, tempered, to some extent, by the actions undertaken by him following the incident. Also, I do accept that the failure giving rise to the offence, particularly with respect to the adequacy of bracing wall structures and the need for scaffolding can be attributed predominantly to inexperience rather than to a general disregard for workplace safety.

67 The circumstances relating to the corporate defendant are somewhat different in that, since March 2006, it has ceased to trade. As Mr Sahin stated in cross examination, the corporate defendant is still registered but it does not have any work contracts and has not had any since the middle of 2006. According to Mr Sahin, he 'didn't close it off because of this case. I just wanted to hold on.' What Mr Sahin has done is to form another company, Avrasya Construction Co Pty Limited. That company was registered in October 2005 and is engaged in the same type of work as the corporate defendant although, according to Mr Sahin, the new company does not have any work at the moment. No financial statements of that company were produced.

68 In all the circumstances, I consider specific deterrence to be of limited relevance in my considerations relating to the corporate defendant.

69 The defendants have produced material as to their respective financial circumstances.

70 In assessing a defendant's position to pay a fine, the court is guided by s 6 of the Fines Act (1996) which states as follows:

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and

(b) such other matters as, in the opinion of the Court, are relevant to the fixing of that amount.

71 Mr Sahin initially set up Avrasya as a partnership in 2000. The company was incorporated in 2004, with Mr Sahin and a fellow bricklayer Mr Seyfi Tuna serving as directors. Mr Sahin did not elaborate in his affidavit to what extent Mr Tuna was involved in the business.
72 It appears overall that the company, when operating, was a small one and that Mr Sahin, was very much involved in the day to day management of the business of the company. Mr Sahin has stated that the company ceased to trade in March 2006.

73 Mr Sahin provided the company's 2005 and 2006 financial reports and tax returns. The 2005 profit and loss statement revealed that the company made an operating profit of $24,501 after tax with retained profits from the 2004 tax year of $21,337, giving total retained profits for the 2005 tax year of $45,838. The figures for the 2006 tax year disclose retained profits of $55,197 but with an operating profit after tax of $9,359.

74 The downturn in profits for that period is probably due to the company ceasing to trade. The financial report for 2006 also revealed that the company owned assets and property totalling $69,733, which included plant, equipment and motor vehicles.

75 Based on the material put before me, it would appear that the company is a small company which traded on a relatively modest basis. It is unclear what assets or money remains in the hands of the company currently and if the liabilities listed within the financial statements have been met.

76 On his own behalf, Mr Sahin provided two Tax Office Notice of Assessments for the 2005 and 2006 tax years. Mr Sahin's gross income for 2005 was $22,581. After allowing for the Medicare levy and tax paid, Mr Sahin was entitled to a refund of $1,907.75. The Notice of Assessment for 2006 reveals Mr Sahin's gross income was $38,863. Again allowing for tax paid and the associated Medicare surcharge, he was entitled to a refund of $359.15.

77 Mr Sahin did not provide any other documentation relevant to his personal financial circumstances except to say that he did not own any substantial assets and that he was married with children. In evidence, he elaborated somewhat in that he said he had a home mortgage of approximately $2000 per month. His family is in receipt of Centrelink child benefit payments of approximately $300 per fortnight. According to Mr Sahin, he does not have any money in the bank. No financial or bank statements on behalf of Mr Sahin or the corporate defendant were produced in support of that assertion but it was not challenged in cross examination and I am satisfied I can accept it for the purposes of my considerations.

78 Overall, I accept Mr Sahin is of limited means. In relation to the corporate defendant, it is unclear as to the extent or otherwise Mr Sahin may be personally liable for any penalty imposed but, as one of two directors, I accept he may ultimately have to meet the penalty imposed from his own financial resources.

79 The material produced by the defendants as to their respective limited capacity to pay a fine is somewhat unsatisfactory, particularly with reference to Mr Sahin's personal circumstances. As was stated in WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 at [51] as follows:

... where a defendant desires to plead incapacity to pay as a determinative issue in the imposition of penalty, it behoves the defendant to discharge the onus that such a submission invokes by placing before the Court all of the information it relies upon in support of that submission in order for the Court to give that information proper consideration in the exercise of its sentencing discretion.

80 Considering all of the above, I propose to take the approach of the Full Bench in WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 who cited, with approval, the decision of Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed:

... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence.

81 Both defendants are entitled to have their plea of guilty taken into account in determination of penalty. In doing so, the court is guided by the decision of R v Thompson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. I assess that discount at twenty five per cent.

82 There are additional mitigating factors in the defendants' favour which should be taken into account in the determination of penalty.

83 By all accounts, Mr Sahin has cooperated fully with the WorkCover Authority of New South Wales in their investigations into the incident. He has also expressed remorse for the incident. He stated:

I entered a plea of guilty at the earliest opportunity as I was deeply concerned and I still am about how the incident occurred. I am remorseful that the incident occurred on a site which I worked and I am relieved that no one was injured in the Hypec building.

84 Considering the subjective elements I have identified, a further discount as to penalty in favour of both defendants is warranted.

85 Counsel for Mr Sahin asked the Court to consider the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 in relation to his offence that, relevantly, provides as follows:

(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.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to release the person on a good behaviour bond.

(2A) ...
(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.

86 The proper approach for assessing applications under s 10 to offences under the Act were outlined in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries [2000] NSWIRComm 142 at [24] - [26] which considered s 556A, the statutory predecessor to s 10, as follows:

[24] ... 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 s 556A , 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 s 556A 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

Limited v WorkCover Authority of New South Wales (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 Pty Ltd v WorkCover Authority of New South Wales (1998) 83 IR 338 at 340.

[26] Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999) 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. The obligation is increased rather then diminished in a situation, such as the present, where the exercise of the discretion is not sought by the defendant but raised by the Court.

87 In support of his application for the exercise of the s 10 discretion, counsel for the defendant pointed to those factors going to the assessment of the objective seriousness of the offence, particularly that, while the offence was foreseeable, it was not, in his terms, 'blatantly foreseeable'. In other words, the combined weather effects of high temperatures and wind were out of the defendant's control.

88 I have already acknowledged that. Nevertheless, Mr Sahin was actively involved in the work being undertaken in the erection of the wall and the inadequacies in the system of work in place. I am not persuaded that, in all the circumstances, the exercise of my discretion pursuant to s 10 is warranted.

89 Taking into account all the matters that I have referred to, I determine penalty as follows:

(1) Matter No IRC 3049 of 2006: WorkCover Authority of New South Wales (Inspector Mulder) v Murat Sahin: Prosecution arising under s 8(1) and s 26(1) of the Occupational Health and Safety Act 2000:

(i) The defendant is guilty of the offence charged.
(ii) I impose a penalty of $8,000.
(iii) I allocate a moiety to the prosecutor on the usual terms.

(2) Matter No IRC 3050 of 2006: WorkCover Authority of New South Wales: (Inspector Mulder) v Avrasya Construction Pty Ltd: Prosecution arising under s 8(1) of the Occupational Health and Safety Act 2000:

(i) The defendant is guilty of the offence charged.
(ii) I impose a penalty of $52,500.
(iii) I allocate a moiety to the prosecutor on the usual terms.

(3) Between them, I order the defendants to pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment.



LAST UPDATED: 20 June 2007