Inspector Gregory v S&P Jackson Pty Ltd and Scott Jackson [2009] NSWIRComm 158 (23 September 2009)

Last Updated: 25 September 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector Gregory v S&P Jackson Pty Ltd and Scott Jackson [2009] NSWIRComm 158



FILE NUMBER(S):
IRC 887
IRC 888
IRC 889
IRC 890

HEARING DATE(S):
25 & 26 August 2009

DATE OF JUDGMENT:
23 September 2009

PARTIES:
Inspector Marie Gregory (Prosecutor)
S&P Jackson Pty Ltd (First Defendant)
Scott Jackson (Second Defendant)

CORAM:
Marks J


CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - breach of ss 8(1) & 8(2) & s 26(1) of the Occupational Health and Safety Act 2000 - amended charge - guilty plea and appropriate penalty - corporate defendant - director defendant - objective seriousness - prior conviction - onus and standard of proof - principle of totality - criminal convictions and overseas travel - s 10 Crimes (Sentencing Procedure) Act 1999 applied to personal defendant

LEGAL REPRESENTATIVES
Mr C Magee of counsel (Prosecutor)
Solicitor:
Legal Group, WorkCover Authority of New South Wales
Mr M Shume of counsel (First and second defendants)
Solicitor:
Fishburn Watson O'Brien Solicitors

CASES CITED:
Diemould Tooling Services Pty Ltd v Oaten (2008) 174 IR 80; [2008] SASC 197
Inspector Downie v Menzies Property Services Pty Ltd [2004] NSWIRComm 259; [2004] 136 IR 449
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Olbrich (1999) HCA 54; 199 CLR 270
WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 - s 10
Occupational Health and Safety Act 2000 - ss 8(1), 8(2), s 26(1), s 106(1)(c)


TEXTS CITED:




JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Marks J

Wednesday 23 September 2009

Matter No IRC 887, 888, 889 & 890 of 2008

Inspector Marie Gregory v S&P Jackson Pty Ltd and Scott Jackson

Prosecutions under ss 8(1) and 8(2) and ss 8(1) and 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000

JUDGMENT

[2009] NSWIRComm 158

1 These proceedings concern four prosecutions instituted by the prosecutor, Inspector Marie Gregory of the WorkCover Authority of New South Wales, against two named defendants. The corporate defendant, S&P Jackson Pty Ltd, carries on business trading as North Coast Cranes. The individual defendant, Scott Jackson, is the sole director and shareholder of the corporate defendant.

2 The corporate defendant operated a business in Coffs Harbour suppling cranes and persons to operate those cranes. On 17 June 2006, the corporate defendant had supplied a crane and operators to work on a site at Coffs Harbour. The crane was used to suspend a workbox in which was situated an employee of the corporate defendant and another person who was an employee of the organisation at whose site the work was being carried out. Whilst the crane was being operated, the workbox fell approximately 15 metres severely injuring the two occupants.

3 The corporate defendant was charged with breaches of ss 8(1) and 8(2) of the Occupational Health and Safety Act 2000 (“the Act”). Scott Jackson was charged with the same breaches by virtue of s 26(1) of the Act because at the relevant time he was a director of the corporate defendant.

4 Relevantly, ss 8(1) and 8(2) and 26 of the Act are in the following terms:

8 Duties of employers

(1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,

(e) providing adequate facilities for the welfare of the employees at work.

(2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.

See section 12 for the penalty for an offence against this section and other provisions of this Division. Division 4 makes ancillary provision with respect to those offences, including:

(a) section 26—liability of directors and managers of corporations,

(b) section 28—defence that compliance not reasonably practicable etc.

See also Division 2 for duty of employer to consult employees.

26 Offences by corporations—liability of directors and managers

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that:

(a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.

(3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed.

(4) In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section.

5 Each of the charges as originally framed has been amended. The defendants have pleaded guilty to the amended charges and this judgment is concerned only with the question of penalty.

6 Each of the charges was, essentially, in identical terms. I set out hereunder the charge in its ultimate amended form brought against Scott Jackson under s 8(1) of the Act, which relates to a breach directed to the employees of the corporate defendant. The charge is that the defendant, being a director of S&P Jackson Pty Ltd (“the corporation”), by virtue of s 26(1) of the Act is taken to have contravened s 8(1) of the Act:

in that the corporation, being an employer, on 17 June 2006, at Lots 1-4 O’Keefe Drive, Coffs Harbour in the State of New South Wales (“the premises”)

FAILED TO

ensure the health, safety and welfare at work of all its employees, and in particular, Brendan Currie, contrary to section 8(1) of the Occupational Health and Safety Act 2000.

The particulars of the charge are:

(a) At all material times the defendant was a director of the corporation.

(b) The corporation failed to maintain a safe system of work in relation to accessing the dust extraction unit, requiring work at a height of approximately 15 metres, at the Asphalt Batching plant at the premises, in that an adequate risk assessment was not conducted prior to commencement of the work.

(c) (Omitted)

(d) The corporation failed to provide adequate information and instruction to its employees in that it: failed to provide adequate documents to its employees to assess the permissible lifting load and requirements in relation to lifting personnel in a work box, and failed to provide adequate instruction in the completion of a risk assessment for this task.

7 Essentially, the particulars of the charge with respect to each of the matters are identical. That is, an allegation of failure to maintain a safe system of work and an allegation of a failure to provide adequate information and instruction etc.

8 There was tendered into evidence an agreed statement of facts, which I reproduce hereunder:

1. The prosecutor is an inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (“the Act”) and empowered under section 106(1)(c) of the Act to institute proceedings in these matter.

2. At all material times S & P Jackson Pty Limited trading as North Coast Cranes (ACN 107 771 335), a corporation, whose registered office is situated at 226A Harbour Drive, Coffs Harbour in the State of New South Wales (“the corporate defendant”), being an employer, on 17 June 2006, at Lots 1-4 O’Keefe Drive, Coffs Harbour in the State of New South Wales (“the premises”) failed to ensure the health, safety and welfare at work of all its employees, and in particular, Brendan Currie, contrary to section 8(1) of the Occupational Health and Safety Act 2000 (“the Act”).

3. At all material times the corporate defendant, being an employer, on 17 June 2006, at the premises failed to ensure that persons, other than its employees, in particular, Matthew Coote, were not exposed to risks to their health or safety arising from the conduct of the corporate defendant’s undertaking while they were at the corporate defendant’s place of work, contrary to section 8(2) of the Act.

4. At all material times Scott Jackson of 141 Edinburgh Street, Coffs Harbour in the State of New South Wales (“the Defendant Director”), being a director of the corporate defendant, by virtue of section 26(1) of the Act is taken to have contravened s8(1) of the Act, in that the corporate defendant, being an employer, on 17 June 2006, at the premises failed to ensure the health, safety and welfare at work of all its employees, and in particular, Brendan Currie, contrary to section 8(1) of the Act.

5. At all material times the Defendant Director of 141 Edinburgh Street, Coffs Harbour in the State of New South Wales, being a director of the corporate defendant, by virtue of section 26(1) of the Act is taken to have contravened s8(2) of the Act, in that the corporate defendant, being an employer, on 17 June 2006, at the premises failed to ensure that persons, other than its employees, in particular, Matthew Coote, were not exposed to risks to their health or safety arising from the conduct of the corporate defendant’s undertaking while they were at the corporate defendant’s place of work, contrary to section 8(2) of the Act.

BACKGROUND

6. At all material times the corporate defendant, trading as North Coast Cranes, operated a business in Coffs Harbour supplying cranes.

7. At all material times the defendant director was the sole director of the corporate defendant.

8. On or about 2 February 2004, the corporate defendant purchased the “North Coast Cranes” business from Lindsay Brothers Plant and Equipment Pty Ltd. This included the purchase of assets in the form of four cranes, including a mobile crane described as a 15 tonne Tadano Crane (“the crane”).

9. At all material times the corporate defendant owned and supplied for hire the crane. The crane component had been commissioned in or about 1981 or 1982 and was fitted to a 1979 Ford truck base.

10. At the material times the crane was more than 24-years-old. The corporate defendant’s employees undertook daily visual inspections of the crane. This was usually performed by the crane driver.

11. The corporate defendant also ensured that quarterly minor maintenance such as oil and lubrication changes were performed on the crane.

12. At all material times the corporate defendant employed employees to operate plant, including the crane.

13. At all material times the corporate defendant employed Brendan Currie (“Mr Currie”) as a dogman and crane driver.

14. At all material times the corporate defendant employed Mark French (“Mr French”) as the crane driver of the crane. Mr French was a qualified crane driver, dogman and rigger.

15. At all material times Bitupave Limited, trading as Boral Asphalt (“Boral Asphalt”) conducted the operation of an Asphalt Batching Plant at the premises.

16. At all material times Boral Construction Materials Group Limited employed production employees performing work at the Asphalt Batching Plant at the premises.

17. At all material times Boral Construction Materials Group Limited employed Matthew Coote (“Mr Coote”) as a Grade 4 Plant Operator at Boral Asphalt’s Asphalt Batching Plant at the premises.

18. On 17 June 2006, Mr Currie and Mr Coote, suffered serious injuries as a result of a fall of approximately 15 metres whilst they were working from a personnel box (“workbox”) that was suspended from the crane (“the incident”).

19. At the time of the incident the crane’s fly jib was attached to the main jib.

20. The crane was suitable for the performance of the work required to be performed with the fly jib attached.

21. The incident occurred as a result of a failure in the hydraulics and/or controls of the crane causing the workbox to fall to the concrete pavement at the site. It is not known what caused the failure in the hydraulics and/or controls of the crane. A hypothesis proposed by Paul Kiem of Newstart Assessments Pty Ltd t/as Paul’s Crane Inspections, an accredited inspector, is that a foreign object was momentarily caught in a valve seat, causing the valve to remain open for a short period of time.

TASK TO BE PERFORMED

22. During the week prior to 17 June 2006, Boral Asphalt had arranged for Mr Coote to perform a task that involved the clearing of a blockage in the dust extraction unit of the Asphalt Batching Plant at the premises.

23. The work required cutting into a duct in the dust extraction unit to clear the blockage. The duct was to be cut by Mr Coote using an oxyacetylene cutter and a rod used to clear the blockage. The blocked duct was located approximately 15 metres above ground level and was not able to be accessed via the dust extraction unit itself.

24. Boral Asphalt initially sought to hire an 80 foot boom lift from another company to perform the task. However, such a unit was unavailable to perform the task on 17 June 2006. As a result Boral Asphalt determined to utilise an alternative method of using a workbox suspended via a crane to perform the task on 17 June 2006.

25. On the afternoon of the 16 June 2006 Boral contracted the corporate defendant to provide a crane and workbox to enable access by Mr Coote to the blocked duct at approximately 15 metres above ground level.

SYSTEMS OF WORK BEFORE THE INCIDENT ON 17 JUNE 2006

26. The corporate defendant failed to maintain a safe system of work in relation to the process of accessing the dust extraction unit requiring work at a height of approximately 15 metres at the Asphalt Batching plant, in that an adequate risk assessment was not conducted prior to the commencement of work.

27. North Coast Cranes did not have a written procedure for determining what piece of plant was appropriate to safely perform a particular task when a prospective client contacted them. In particular, there was no written procedure requiring North Coast Cranes to obtain from prospective hirers, details of the task to be performed including the height, radius of work to be carried out and weights to be lifted, prior to determining the appropriate piece of plant to perform the task. Nor was there a written procedure requiring that a pre-hiring inspection of the site be undertaken by North Coast Cranes in respect to short duration special tasks, including lifting of persons in workbox via a mobile crane.

28. The process adopted was essentially an informal one.

29. The corporate defendant’s system did not require it to enquire of a prospective hirer of a crane and workbox, whether an assessment had been made of the appropriateness and necessity to lift persons in a work box via a mobile crane and whether another reasonably practical method to perform the task was available and, if so, why it was not being utilised.

30. On 16 June 2006, John Lulham (“Mr Lulham”), North Coast Cranes Assistant Manager, was the “person-in-charge” in relation to the corporate defendant.

31. Mr Lulham had commenced in the role of Assistant Manager for the corporate defendant in approximately February 2006. Mr Lulham did not perform this role on a full time basis, but primarily performed this role in the absence of the Defendant Director. Mr Lulham was a qualified Dogman and had approximately 6 years experience in the ‘Crane Industry’.

32. Mr Lulham was the person who spoke to Boral Asphalt regarding the contracting of the crane from North Coast Cranes. Mr Lulham was the person responsible for the selection of the crane to perform the task at the Boral Asphalt plant.

33. Mr Lulham states that Boral Asphalt did not specifically request any size crane for the particular task required in 17 June 2006.

34. Mr Lulham did not request formal job specifications from Boral Asphalt as to the task required to be performed by the corporate defendant’s employees and non-employees.

35. Mr. Lulham states that North Coast Cranes were not advised by Boral Asphalt as to the approximate estimate of the reach of the crane that may be required to perform the task prior to contracting of the crane/equipment.

36. Mr Lulham determined what item of plant should be utilised to perform work in relation to the task.

37. Mr Lulham provided basic instructions to Mr Currie and Mr French as to what work was required to be undertaken the next day.

38. The defendant’s system did not require it to explicitly establish the experience of its crane drivers and dogmen in relation to the task of lifting and suspending of persons in a workbox via a mobile slewing crane.

39. Mr Currie had worked as a crane driver of non-slewing mobile cranes in Queensland for a period of three years. During this time he had, on multiple occasions, operated a fixed crane and workbox as a crane driver. However, this was a different type of crane and workbox to that involved in the incident. Mr Currie had obtained his OHS Certification qualification as a dogman on or about 13 May 2006. He had not worked as a dogman in a workbox previously. The corporate defendant was aware of his qualifications and general experience.

PERFORMANCE OF THE TASK

40. On 17 June 2006, the corporate defendant supplied the crane and a workbox. The corporate defendant also supplied a crane driver, Mr French and a dogger, Mr Currie with the crane to Boral Asphalt.

41. The corporate defendant had a ‘Daily Crane Operator Checks’ document that the Crane Driver was required to complete at or prior to the commencement of the use of the crane. Mr French did not complete the “Daily Crane Operator Checks” document for the crane on 17 June 2006.

42. Mr. French obtained from the corporate defendant a copy of a ‘Crane or Derrick Suspended Work Platforms' document and ‘North Coast Cranes Suspended Work Platform Worksheet' (“the Worksheet”).

43. On 17 June 2006, Mr French and Mr Currie attended the premises and commenced to set up the crane.

44. As part of the set up process, Mr French partially completed a generic ‘Pre Work Risk Assessment and Safe Work Method Statement’ document. This document formed part of the corporate defendant’s ’Tax Invoice’. Mr French did not have this document read and signed by the Site Foreman or Client’s Representative.

45. Mr. French then commenced to undertake the assessment of the ‘permissible lifting load’ as was required by the Worksheet.

46. Mr. French was not provided with any oral instruction as to the completion of the Worksheet by the corporate defendant.

47. The Worksheet document was inadequate.

48. Mr. French failed to fully or adequately complete the Worksheet prior to commencing the task of suspending persons in the workbox via the use of the crane.

49. The Worksheet required that a “Platform and Rigging Proof Test” and a full cycle trial lift be performed before the task was performed with personnel in the workbox. Mr French did not perform a “Platform and Rigging Proof Test” or perform a full cycle trial lift, before the task was performed with personnel in the workbox.

50. The Worksheet required that the relevant “Foreman” complete a section of the form attesting to the need for using a suspended work platform. This was not completed by the relevant “Foreman’.

51. Whilst setting up the Crane Mr French identified that the crane did not have adequate reach for the workbox to be hung safely from the main jib. Mr French determined to utilise the fly jib extension section of the crane, which meant that the workbox would be attached to the auxiliary winch.

52. On 17 June 2006, during the set up stage, Mr French identified that the anti-two block unit on the auxiliary winch of crane was getting caught on the cables of the crane. The anti-two block unit ensures that the hook block does not hit the boom/jib or top sheave when the hoist is being raised. The catching of the anti-two block unit on the cables of the crane could cause the anti-two block unit to come in contact with the boom/jib or top sheave and cause an alarm. If the alarm failed to work the weight on the anti-two block could be pulled through the sheave and dislodge the cable.

53. Mr French disconnected the anti-two block. Mr French states that the workbox would at all times be well below the sheave and the sheave was observable by Mr French from the cabin of the crane.

54. The crane clutch lever is located on the right hand side of the drivers seat. It has three positions, auxiliary, off and main. The three settings are inset and the lever was spring loaded towards the insets. The crane clutch lever did not have a catch installed, known as a positive lockout, which required the driver of the crane to manually remove a pin or latch to allow the clutch lever to be moved from one position to another.

55. Upon arrival of the crane at the Boral Asphalt site an inspection of the area where the work was to be performed was conducted. A suitable site was selected for the crane to be operated from. The crane was then set up by Mr French, while Mr Currie returned to North Coast Cranes to collect the workbox and deliver it to the Boral Asphalt site.

56. Once the crane and workbox were properly set up, Mr. Currie and Mr. Coote entered the workbox. Mr Currie, as dogman, was required to be in the workbox to assist the crane driver in manoeuvring the workbox.

57. Mr. French then proceeded to lift the workbox into position near the dust extraction unit at a height of approximately 15 metres.

58. Another Boral employee, Mr Mick Taylor, was working on the screen deck of the Asphalt Batching plant. It was part of Mr Taylor’s role to supply tools and equipment as required by Mr Coote to utilise whilst he was working from the workbox.

59. Mr Currie and Mr Coote were suspended in the workbox at a height of approximately 15 metres for approximately 20 to 30 minutes when Mr Currie advised the crane driver, Mr French, to lower the workbox approximately 1 metre so that Mr Coote could access another section of the duct.

60. As the clutch pressure had fallen, apparently due to the length of time that the crane had been inactive and because this model crane was not equipped with an accumulator, Mr French proceeded to take the workbox up approximately half a metre in order to activate the crane clutch. Then in order to position the workbox to a lower height Mr French released the hoist brake.

61. At this point the incident occurred.

62. As the workbox fell, it collided with part of the exhaust extraction unit and a fence on the way down. Due to mechanical resistance in the crane working mechanism, the workbox did not freefall.

63. The task of accessing and clearing the duct in the dust extraction unit of the Asphalt plant was successfully completed by Boral Asphalt with equipment supplied by another supplier the following weekend after 17 June 2006.

DEFENDANT DIRECTOR

64. The defendant director had a hands on, day to day role in the management of the corporate defendant.

65. He was familiar with the plant owned and operated by the corporate defendant, including the servicing requirements and the need for major inspections. He was also familiar with the qualifications of employees, and the operation of the plant.

66. The defendant director was away on holidays at the time of the incident. He did not have any role in the selection of the plant used on the day of the incident.

67. The defendant director had a direct role in the systems of work developed by the corporate defendant, in relation to the systems for maintenance of plant, and in relation to instruction of employees of the corporate defendant.

9 Certain attachments were referred to in that document and were also tendered into evidence:

Attachments

1. Factual Inspection Report of Inspector Marie Gregory dated 10 July 2006.

2. Colour photographs 1 to 13 taken by Inspector Marie Gregory on 17 June 2006

3. North Coast Cranes –Tax Invoice (incorporating Pre work Risk Assessment and Safe Work Method Statement) - undated

4. North Coast Cranes –Suspended Work Platform Worksheet dated 17 June 2006, and the Crane or Derrick Suspended Work Platforms –information sheet

5. North Coast Cranes – Daily Crane Operator Checks’ document –Week ending 18/6/06

6. WorkCover Authority of NSW - Position Paper “Advice on the use of Crane Workboxes”

7. Australian Standard AS2550 – Cranes, Hoists and Winches,

8. WorkCover Prior Conviction Reports (x 2) for S&P Jackson Pty Ltd and Scott Jackson.

10 During the course of the hearing, a supplementary agreed statement of facts was tendered into evidence, which is in the following terms:

SUPPLEMENTARY AGREED STATEMENT OF FACTS

1. There was a risk of a fall of the workbox which arose from:

(a) the failure to have an adequate task specific risk assessment;

(b) the provision of inadequate documents to assess the permissible lifting load;

(c) the failure to provide adequate documents as to the requirements in relation to lifting personnel in a workbox; and

(d) the failure to provide adequate instruction in the completion of a risk assessment for the task.

2. The above listed failures increased the risk of the workbox falling to the ground as they removed layers of safety designed to prevent the risk of the workbox falling to the ground.

11 It is important to point out at this stage that [21] of the agreed statement of facts makes it clear that there was no evidence as to what caused the failure in either the hydraulics and/or the controls of the crane which in turn caused the workbox to fall. In this context, the prosecutor acknowledged that any factual matter which was adverse to the interests of the defendants would need to be proven to the criminal standard and that there was simply insufficient evidence to allow any conclusion to be made as to the reason why this unfortunate incident occurred.

12 It was for this reason that the supplementary agreed statement of facts was prepared and the reason why [2] of that document is framed in the manner in which it is. It is for this reason also that there is no specific allegation contained within the particulars of the charge to the effect that the incident which occurred resulted from any particular omission or conduct of the corporate defendant.

13 Documentary evidence was tendered on behalf of the defendants. In an affidavit, Scott Jackson described, inter alia, the standard procedures utilised by the corporate defendant at the time of the accident that were designed to comply with its occupational health and safety obligations. Mr Jackson readily conceded that there had not been any inspection of the site where the work was to be carried out before the day of the particular job. However, he said that the particular crane had been used at those premises before and was seen to be suitable for use in them having regard to its small wheelbase and reach. He also conceded that a representative of Boral had not signed a site safety induction form prior to the job being completed and that other forms had not been completed in their entirety, or had been completed incorrectly. Nevertheless, I am satisfied on the basis of the evidence of Mr Jackson that the personnel engaged to perform the work for the corporate defendant that day were experienced, were generally well-trained and instructed and that they were attentive to the occupational health and safety risks which accompanied the particular work to be performed. Furthermore, it was the evidence of Mr Jackson that a number of changes to the company’s work practices had been implemented after the incident, firstly at the request of the prosecutor and more latterly of its own initiative.

14 Mr Jackson said that the corporate defendant was experiencing some financial difficulties as a result of the general downturn in the building industry and that he was endeavouring to sell the business and resume work as a sole contractor.

15 Mr Jackson was of particular concern about the impact that any conviction would have upon the corporate defendant in terms of its ability to secure work especially from large organisations and upon himself in terms of his requirement to disclose any personal conviction when entering a foreign jurisdiction, and in particular the USA and some Asian countries.

16 It was the evidence of Mr Jackson, his father, mother and long-standing partner that the incident which gave rise to these proceedings has had a profound effect on him personally and that he had become withdrawn and subject to mood swings. I am satisfied that the incident and its sequelae have had a profound effect upon Mr Jackson and that he has been sincere in his expression of remorse and contrition concerning the occurrence. Furthermore, he has formed a close personal relationship with one of the injured persons and has gone to some lengths to enquire about the welfare of the other person.

17 Character references and other material indicate that Scott Jackson is a person of good character and that the defendant corporation is a good corporate citizen.

18 Finally, there is evidence, as conceded by the prosecutor, that the defendants co-operated fully with the WorkCover Authority in and about its investigation of the incident and in compliance with its requests for improvements to the occupational health and safety processes used by the corporate defendant.

19 The commencing point for the assessment of penalty is the objective seriousness of each of the offences. Obviously, each breach of the Act must be regarded seriously, having regard to the objects of the legislation. However, there are also, obviously, degrees of seriousness. The defendants submitted that, viewed objectively, these breaches were in the lower order of seriousness and the prosecutor did not contend otherwise. I agree.

20 In essence, the particulars of the charge allege a failure to carry out particular matters in a particular way. The risk assessment was said to have been incomplete because of the failure to visit the site and the failure to evaluate the risks associated with the work and to complete certain documentation. As against this, the corporate defendant’s personnel were familiar with the site. Furthermore, there was said to be a failure to provide information and instruction to employees to ensure that these matters were attended to. However, all of these failures occurred in the context of existing systems, procedures and documentation, which albeit not perfect, were in operation. Some of the omissions may also be sheeted home to Mr French who had failed to complete some of the forms correctly. Furthermore, it must be borne in mind that the risks created by these omissions “removed layers of safety” but, on the evidence, did not themselves cause the incident which occurred.

21 When considering the objective seriousness of the offence, the focus of attention must be on the offence as charged in the context of the relevant factual matrix. Furthermore, there must be a causal nexus between the conduct of the defendants and the offences with which they are charged.

22 All of this will require an evaluation of the available factual material. In considering the factual material, I should also refer to the established principles that deal with the onus and standard of proof in connection with the fact-finding process involved in the sentencing component of criminal proceedings. There is a discussion about these matters in the joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ in the High Court of Australia in R v Olbrich (1999) HCA 54; 199 CLR 270. At [25] and [27], their Honours said:

[25] Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say “if necessary” because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)

(Footnotes omitted)

...

[27] As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey [1998] 1 VR 359 at 369 (per Winneke P, Brooking and Hayne JJA and Southwell AJA) - that a sentencing judge

“may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.”

23 I should refer also briefly to the decision of the High Court of Australia in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. The Court concluded that in the circumstances of those proceedings, and in criminal proceedings generally, the sentencing process must be directed to the manner in which the charge is framed. If, for example, it is asserted by the prosecutor that the particular proceedings constitute an aggravated example of the offence, the prosecutor is required to prove the facts that establish that conclusion beyond reasonable doubt.

24 The conduct, whether by way of act or omission, asserted against the defendants in the charges brought against them is concerned with a failure to ensure the health, safety and welfare at work of all of the employees of the corporate defendant and in particular the two named persons. In that these are directed essentially to a failure to maintain a safe system of work and the failure to provide adequate information and instruction, they are directed to a “state of affairs” (per Doyle CJ in the Full Court of the Supreme Court of South Australia in Diemould Tooling Services Pty Ltd v Oaten (2008) 174 IR 80; [2008] SASC 197 at [31]), a situation. And, as pointed out by Doyle CJ, it is necessary that the employee or employees “must be shown to be affected by the contravention, because of the failure to ensure ...”

25 In that, essentially, the prosecutor relied upon the material in the supplementary agreed statement of facts, which I have reproduced at [10] above, it is the “risk of a fall” which must be measured in order to assess the objective seriousness of the offence.

26 Obviously, the workbox may have fallen as a result of some event external to the equipment, by the manner in which the equipment was operated, or some innate failure of the equipment itself, or a combination of all or any of these. However, these are causes that may only be the subject of speculation given the factual circumstances surrounding these proceedings. Furthermore, the focus of attention must be directed to the material in the supplementary agreed statement of facts that refers to an increased risk of the workbox falling because layers of safety designed to prevent such a risk were removed because of the four matters set out in [1] of the supplementary agreed statement of facts.

27 The difficulty that I have in assessing the objective seriousness of the offence is that any determination about the nature and extent of the risk itself and, more importantly, an increase in that risk by reason of the matters referred to in [1] must be a matter of speculation. The only factual material before the Court is that which I have previously set out. Any matter that is adverse to the interests of the defendants must be proven beyond a reasonable doubt as is plain from the decision of the High Court in Olbrich, to which I have earlier referred. There is no appropriate evidence about the nature of the risk and the extent of any increase in that risk.

28 In all the circumstances, I conclude that I am unable to determine the extent to which the risk of the workbox falling may have been increased by reason of any of the matters set out in [1] of the supplementary agreed statement of facts with sufficient precision and in a manner that cannot be described as speculative. In all the circumstances, I am unable to conclude that I could appropriately impose any penalty other than that involving the payment of a nominal fine.

29 I have given consideration as to whether I should have the proceedings relisted for the purpose of receiving submissions about whether, in all the circumstances, I should contemplate the application of the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999, the provisions of which are set out later in these reasons for judgment. I have determined that I would not take this step in the proceedings not only because I was not asked to do so by any of the parties but also because there were clear failures on the part of the corporate defendant, as conceded, which would in all the circumstances render the application of s 10 of that Act problematic.

30 In assessing penalty, I shall also take into account the general and specific deterrent effect that any penalty will have. The operation of mobile cranes is always accompanied by inherent dangers. Even though Mr Jackson has indicated that he wishes to sell the business being conducted by the corporate defendant, it nevertheless continues to operate within the building industry.

31 The defendants are entitled to have certain mitigating factors taken into account. Pleas of guilty were entered after a stage had been reached where significant amendments to the charges had been agreed upon between the parties and I would assess the relevant discount which would apply in these circumstances as being of the order of 20 per cent. Furthermore, there are other mitigating factors that should be taken into account including co-operation with the prosecutor in and about her enquiries, expressions of remorse and contrition and evidence of an overall commitment to occupational health and safety obligations.

32 The prosecutor submitted that the Court should have regard to the principle of totality when determining the appropriate penalty to be imposed for each of the offences. The defendants embraced this submission. In circumstances where both of the charges levelled against both the defendants arose out of the same set of circumstances and where charges brought under ss 8(1) and 8(2) arose simply because there was an employee and a non-employee of the corporate defendant working the same workbox, it is appropriate, in my opinion, to apply the principle of totality and I intend to do so.

33 The personal defendant submitted that he should have the benefit of the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 which is in the following terms:

10 Dismissal of charges and conditional discharge of offender

(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) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(2B) Subsection (1) (c) is subject to Part 8C.

(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.

(4) An order under this section has the same effect as a conviction:

(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and

(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and

(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

34 It is clear, as the prosecutor submitted, that the application of s 10 of that Act will only be available in rare and limited circumstances in relation to proceedings brought for a prosecution of the provisions of the Act. The prosecutor referred me to WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21 and Inspector Downie v Menzies Property Services Pty Ltd [2004] NSWIRComm 259; [2004] 136 IR 449. The prosecutor accepted, however, that the exercise of discretion to apply s 10 was available to be considered by the Court in the circumstances of these proceedings.

35 It was submitted on behalf of Mr Jackson that there were a number of matters that would militate towards the exercise of discretion in his favour. These included the fact that he had worked in the building industry for over 30 years without, seemingly, any prior convictions for breach of occupational health and safety legislation, that he was a person of good character, that he was the sole shareholder of the corporate defendant and any fine imposed on the corporate defendant would ultimately be borne by him in terms of its depleted assets, that the breaches arose in some measure by the failure of an employee, Mr French, to carry out his required tasks appropriately, that the offence was at the low end of seriousness, and the extent to which he was personally affected by the incident.

36 It was also submitted by Mr Jackson that if a conviction was recorded against him, this would hamper his ability to travel. He said,

“I am a keen international sailor, and a criminal conviction will affect my ability to obtain entry visas to a number of countries. My partner and I were planning to travel to the United States next year, and I fear that a conviction will prevent me from entering the country.”

37 Solicitors for both the prosecutor and Mr Jackson filed affidavits after making enquiries about the possible impact of a conviction on the ability of Mr Jackson to obtain a visa for travel to the USA. The information obtained was to the effect that a “previous arrest or conviction” would affect entry into the United States. Information contained on the website of the US Department of State said in relation to a previous arrest or conviction that

“In most cases, it makes you ineligible for the visa waiver program which means you must apply for a visa instead. In some cases, a previous arrest or conviction might also make you ineligible for a visa, although, depending on the nature of the offence and its outcome, a consular officer may find it appropriate to recommend a waiver of this ineligibility.”

38 I doubt that the matter can be taken further than acknowledging that any conviction recorded against an individual for a breach of the Occupational Health and Safety Act, whether as an employer etc or by reason of the application of s 26 of the Act, such conviction will need to be disclosed to US immigration authorities and may need to be disclosed to the authorities of other countries requiring such a disclosure. Whether and to what extent any such conviction might impact upon an ability to obtain a visa or to otherwise enter a country will obviously depend upon the circumstances applying to the conviction and the attitude of the relevant authorities in each jurisdiction.

39 However, the mere fact that a person has committed a criminal offence and is therefore exposed to conviction that might impact upon a person’s ability to obtain authority to travel to other countries should not, in my opinion, of itself influence a court in determining whether to impose a conviction. In making this assertion, however, I am conscious that the general criminal courts have afforded some leniency in circumstances where a conviction for a relatively minor offence might impact upon the ability of a person to seek admission to practise as a legal practitioner and the like. I do not regard the ability of Mr Jackson to travel overseas as falling in the same category as a young student charged with a relatively minor offence of the kind that some university students habitually face. I am not persuaded that this fact either taken alone or in conjunction with any other fact should mandate the application of s 10 of the Crimes (Sentencing Procedure) Act.

40 Nevertheless, there are other matters that do, in the aggregate, persuade me that it is appropriate to apply that provision to Mr Jackson’s circumstances. Of most importance in this regard is the fact that I have characterised the offences with which the corporate defendant is charged as warranting the imposition of nominal penalties only. Furthermore, as is plain from the evidence, the corporate defendant is the manifestation by which Mr Jackson operates the business and he will, in effect, be responsible for meeting any financial penalty imposed on the corporate defendant. Accordingly, any penalty imposed on the corporate defendant will be transformed into a loss borne by Mr Jackson as the sole shareholder of the corporate defendant. However, in referring to this matter I should not be seen to ignore the fact that the legislature has seen fit to create a separate and distinct offence under s 26 of the Act which militates, in my opinion, against accepting any such argument as being the sole basis for the application of s 10 of the Crimes (Sentencing Procedure) Act.

41 There are a number of other matters that, in the aggregate, persuade me that in the circumstances of these proceedings s 10 of that Act should be applied. They are the matters referred to in [35] which I have set out above.

42 Having regard to all the matters to which I have referred, I assess an appropriate penalty for the corporate defendant for each of the charges levelled against it in the sum of $5,000 each.

43 Having regard to the application of s 10 of the Crimes (Sentencing Procedure) Act, I intend finding Scott Jackson guilty of each of the offences with which he is charged but will discharge him on condition that he enter into a good behaviour bond for a term of 3 months.

44 The prosecutor sought, and the defendants did not oppose, an order for a moiety of the penalty to the prosecutor and an order for costs in favour of the prosecutor.

Orders

45 I make the following orders:

1. S&P Jackson Pty Ltd is found guilty of each of the charges brought against it and convicted accordingly.

2. I impose a penalty of $5,000 for each of the charges with a moiety to the prosecutor.

3. I find Scott Jackson guilty of each of the offences with which he is charged. I order that he be discharged on condition that he enter into a good behaviour bond for a term of 3 months.

4. S&P Jackson Pty Ltd is to pay the costs of the prosecutor in all of these proceedings in an amount assessed by the Court in default of agreement.



LAST UPDATED:
23 September 2009