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Industrial Relations Commission of New South Wales |
Last Updated: 18 August 2011
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Case Title:
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Medium Neutral Citation:
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Hearing Date(s):
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Decision Date:
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Before:
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Decision:
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Matter No IRC 1030 of 2008
1. The offence is proven and a verdict of guilty is entered. 2. The corporate defendant is convicted of the offence, as charged. 3. The corporate defendant is fined an amount of $40,000 with a moiety thereof to the prosecutor. 4. No order as to costs. Matter No IRC 1036 of 2008 1. The offence is proven and a verdict of guilty is entered. 2. The personal defendant is convicted of the offence, as charged. 3. The personal defendant is fined an amount of $4000 with a moiety thereof to the prosecutor. 4. No order as to costs. |
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Catchwords:
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OCCUPATIONAL HEALTH AND SAFETY - Section 8(2) and
s 26(1) of the Occupational Health and Safety Act 2000 - mining industry -
collapse of scaffold - non employee injured - objective seriousness - assistance
provided to enforcement authorities
- PRINCIPLES - Fines Act 1996 - victim
impact statement - penalties imposed - no order as to costs - s 8(2) and s 26(1)
of the Occupational Health and Safety Act 2000, s 23 of the Crimes (Sentencing
Procedure) Act 1999, s 6 of the Fines Act 1996
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Legislation Cited:
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Cases Cited:
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Capral Aluminium Ltd v WorkCover Authority of New South
Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29
Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd [1999] NSWIRComm 353; (1999) 92 IR 8 Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Inspector Gjaltema v Errington and MJ Baker Constructions Pty Ltd [2010] NSWIRComm 37 Inspector Sharpin v A Team Concrete (Aust) Pty Ltd [2004] NSWIRComm 182 Inspector Yeung v Thiess Pty Ltd (No 2) (2004) NSWIRComm 96 Kauwenberghs v R; [2008] NSWCCA 98; (2008) 186 A Crim R 197 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) [1999] NSWIRComm 343; (1999) 90 IR 464 Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96 R v AD [2008] NSWCCA 289; [2010] ALMD 4187; (2008) 191 A Crim R 409 R v Cartwright (1989) 17 NSWLR 243 R v Chu (unreported, Court of Criminal Appeal, NSW, 16 October 1998) R v El Hani [2004] NSWCCA 162 R v Jenkins [1999] NSWCCA 110 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 R v Z [2006] NSWCA 342; (2006) 167 A Crim R 436 S v R [2008] NSWCCA 186; (2008) 186 A Crim R 505 SZ v R (2007) NSWCCA 19; (2007) 168 A Crim R 249 |
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Texts Cited:
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Parties:
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Representation
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- Solicitors:
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Publication Restriction:
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Particulars of risk:
A. Non-employees were exposed to a risk of falling through scaffolding.
B. Non-employees were exposed to a risk of being struck by people or objects
falling through scaffolding.
The particulars of the failure were:
1. The corporation was sub-contracted by Waco Kwikform (ACN 002 835 396)
("Waco") to erect and dismantle scaffolding at the Douglas
Mine 12 cut through.
2. The Defendant was the sole director of Blue Water Scaffolding.
3. The corporation commenced erecting the scaffolding on 30 June 2006 and
purported to have completed its erection by 7 July 2006.
4. The corporation completed a handover certificate on 7 July 2006.
The particulars of the contravention by the corporation were:
5. It is alleged that the corporation failed to:
(a) Erect safe scaffolding
(b) Erect scaffolding in accordance with design drawing 53/3521
(c) Erect scaffolding which included ledgers in each place ledgers were
required
(d) Conduct a proper inspection of the scaffolding after it was built and
prior to it being used
(e) Properly complete a Scaffold Handover Certificate
As a result of the said failures, the safety of Kenneth Evans, Aaron
Morrison, Wayne Powell, Larry Tynan, Gary Nees and Matthew Withers
was placed at
risk and Kenneth Evans was seriously injured.
Prosecutor's evidence
1. At all relevant times Blue Water Scaffolding Pty Limited (ACN105707855) ( Blue Water ) was a scaffolding company involved in the erection and installation of scaffolding. At all relevant times Stephen King was the sole Director of Blue Water.
2. At all relevant times Stephen King was qualified as an advanced scaffolder and received this qualification in 1995. At all relevant times Danny King held a basic scaffolding ticket.
3. On about 19 June 2006 Blue Water submitted a quote to Waco Kwikform Limited (ACN002835396) (Waco) for a task of erecting and dismantling scaffolding at a work site in the Appin Colliery at the Douglas Project.
4. Waco was at all relevant times a scaffold hire company in the business of erecting and dismantling scaffolding.
5. On 19 June 2006 Blue Water was notified by Waco that the quote was accepted.
6. In accordance with the acceptance of the quote Blue Water was required to undertake the erecting and dismantling of the scaffolding at the "Douglas Project".
Background - Further Relevant Entities
7. The Douglas Project was the name given to work to be done in the "Douglas District" which was one of the mining areas within the Appin Colliery. The Appin Colliery is located on Douglas Park Road, Douglas Park near Appin in the State of New South Wales. At all relevant times Endeavour Coal Pty Limited (ACN09983046) ( Endeavour Coal ), a company in the BHP Billiton Limited corporate framework was the leaseholder of Consolidated Coal Lease 767 at the Appin Colliery.
8. Illawarra Coal Holdings Pty Limited (ABN 69 093 857 286) ( Illawarra Coal ) as agent for and on behalf of Endeavour Coal entered agreements with various corporate entities for the supply of labour to various BHP Billiton companies as and when required for the Douglas, Appin, Westcliffe, Elouera and Dendrobien Mines. Two companies which supplied labour pursuant to agreements with Illawarra Coal on behalf of Endeavour Coal ( Special Service Agreements ) were Delta Mining Pty Limited (ACN056692883) ( Delta Mining ) and Southern Colliery Maintenance Pty Limited (ACN090533681) ( Southern Colliery ).
The work area and work task
9. In August or September 2005 an area of high roof was developed within a portion of the Douglas District with a view to the later installation of a belt transfer.
10. As part of the development of the high roof area, bolts (mega bolts) were required to be installed into the roof prior to the installation of the belt transfer.
11. Relevant persons at the Mine decided to have scaffold installed so that workers could stand on the scaffold to install the required megabolts.
12. The area of the Mine where the scaffolding was required is known as "C12". C12 is a reference to cut through 12. This is also referred to as "12C/T" and the "Douglas mains drive head site".
The process of engaging Blue Water
13. Once the decision was made to install the megabolts from scaffolding it was necessary to contract an entity to erect and install the scaffolding. Waco had previously worked as a sub-contractor to Southern Colliery. A decision was made by those operating the Mine to have Southern Colliery contract Waco to do the relevant scaffolding work.
14. On 14 June 2006 David Loach, Delta Mining's Project Co-ordinator for the Douglas Project had Gary Johnson, Sales Representative from Waco's Port Kembla Branch, attend the Douglas District to discuss underground scaffold needs for the installation work.
Shortly after attending this meeting, Waco arranged for Blue Water, with whom Waco had an existing labour sub-contract agreement in place ("the labour sub-contract agreement"), to provide it with a quote for the erection and dismantling of the scaffolding .
15. The labour sub-contract agreement between Waco and Blue Water was dated 31 October 2003.This agreement provided, among other things:
"Clause 10 Safety
The Sub-Contractor must at all times carry out the erection, alteration, dismantling and movement of the scaffolding in a safe and secure manner and in accordance with the Australian Standards AS1576 and AS4576 and all other applicable statutory requirements. The subcontractor must ensure that all safety measures, procedures and requirements are strictly enforced and upheld.
The Sub-Contractor must at all times comply with the safety policy of the builder on a site and with any regulations issued by it and in particular must comply with the provisions of the Occupational Health and Safety Act 2000 (as amended) including any changes to a replacement of such legislation."
16. On about 19 June 2006 Blue Water submitted to Waco the quote referred to at paragraph 14 herein for:
"Erecting and dismantling scaff (sic) as per plan Douglas Project (Delta Mining)"
The quoted price was $2,688 exclusive of GST.
17. The unsigned short form Sub-contract Agreement dated 19 June 2006, between Blue Water and Waco, reads that the quote was accepted subject to the standing labour sub-contract agreement, and the "scope of works" was defined as:
"Erect and dismantle scaffold as per the design drawing also as per the collieries risk assessment."
The specifications for the scaffold
18. On 15 June 2006 Waco had received a fax from Delta setting out the specifications for the required scaffold and requesting that it and Blue Water attend the Mine on 21 June 2006 to participate in a risk assessment.
19. On or about 19 June 2006 Gary Johnson:
a) prepared a hire agreement between Waco and Southern Colliery;
b) designed, in consultation with Waco's engineer, Pedro Camus, the scaffold to be erected at the Mine based on his discussions with David Loach as to the design;
c) sent the design (Drawing No. 53/3521) to Mr Camus for certification (the Design Drawing), which Pedro Camus provided later that day;
d) sent the certified Design Drawing to David Loach.
20. The Design Drawing included the following specific direction:
"Ledger to take out bow in 3.1 metre ledger transom".
21. Ledgers are horizontal supports/beams used to provide horizontal separation of adjoining vertical support/beams of a scaffold (known as "standards"). The ledgers were inserted into V presses or stars. Transoms are generally formed from steel angle, welded back to back to form an inverted T section. The horizontal legs of the T section are used to support the ends of scaffold planks on one or both sides of the T section. Ledger transoms perform the function of ledgers as well as transoms in that they provide horizontal separation to the standards as well as supporting planks where working platforms are required.
22. 3.1 metre ledger transoms were required by the design drawing to accommodate the span of the scaffold bays required to straddle the conveyor belt where the roofing work was to be performed. Ledgers and ledger transoms are usually 2.4 metres in length. The 3.1 metre ledger transoms were adjustable. When using the 3.1 metre ledger transoms, additional ledgers were required to prevent the 3.1 metre ledger transoms from bowing, and to ensure that the decking of the scaffold was held in place. Annexure A contains a diagram indicating the position of the ledgers and transoms, and extendable transoms.
23. The design drawing 53/3521 was the "plan" referred to in Blue Water's quote as referred to at paragraph 14 herein.
The risk assessment
24. On 19 June 2006 the risk assessment process referred to in the fax from Delta to Waco on 15 June 2006 commenced. The qualitative risk assessment for the Douglas Project in relation to "Installing Secondary Support from Scaffolding" was commenced on that day with the ultimate written risk assessment finalised on 21 June 2006.
25. Representatives from Delta Mining, Douglas Project and Waco were involved in the risk assessment. Danny King and Stephen King from Blue Water also attended as part of that risk assessment process on 21 June 2006.
26. The executive summary of the risk assessment stated:
"The primary objective of this risk assessment is to identify hazards and existing controls associated with installation of secondary support from scaffolding at 12C/T Douglas Mains Drivehead Site, and to make recommendations for further controls where appropriate."
27. The focus of the risk assessment was upon the task of installing megabolts from the scaffolding rather than the erection of the scaffolding.
28. Erection and dismantling of the scaffolding was, however, identified in the assessment. The controls indicated as necessary for the risks arising from the erection and dismantling of the scaffolding were " scaffolding company standards and procedures ".
Installation work
29. Southern Colliery entered a hire agreement with Waco dated 22 June 2006 for the supply, erection and dismantling of the scaffolding at the Mine.
30. On 23 June 2006 Waco delivered the scaffold required for the scaffolding work to the Mine. Waco supplied scaffold material.
31. On 29 June 2006 Stephen King and his brother, Danny King, attended Waco's offices for a pre-job meeting, which lasted for approximately 1 hour. During that meeting Gary Johnson:
a) Told Stephen King and Danny King that the scaffolding had to be erected and dismantled;
b) Showed Stephen King and Danny King the OHS management plan;
c) Told Stephen King and Danny King that 3.1m ledger transoms were to be set in place as per the Design Drawing;
d) Told Stephen King and Danny King that ledgers had to be fitted into the V-pressings between the 3.1m ledger transoms;
e) Showed them the 3.1m ledger transoms and the V-pressings;
f) Told Stephen King to take the final OHS Management Plan to site on 30 June 2006 at 5.30am for a 6am underground start.
32. Gary Johnson did not tell Stephen or Danny King at this meeting that they would have to erect and dismantle the scaffolding with only their helmet lamps/torches.
33. Neither Stephen nor Danny King had previously worked with extendable transoms, and this was made known to Waco during this meeting on 29 June 2006. Stephen King had advised Johnson that they had never worked with 3.1m long transoms and had only worked with 2.4m long transoms.
34. Stephen and Danny King had only worked underground on one previous occasion, and on that occasion, the underground area where they worked was fully lit. Johnson did not tell Stephen and Danny King that they would be working in total darkness with only a cap lamp.
35. Waco had never inducted the Blue Water employees about Waco's work systems and occupational health and safety systems.
36. The scaffolding work commenced on 30 June 2006. Stephen and Danny King worked in darkness with the only lighting available to them being from their helmet lamps/torches.
37. On 30 June 2006, Stephen and Danny King erected scaffolding at Bays A to E. Stephen King inadvertently failed to install ledgers in Bay D.
38. Due to the fact that the V presses or stars did not line up, Blue Water was only able to install 2 ledgers in the other bays rather than the 3 ledgers specified in the design drawing.
39. On the two days that Blue Water worked at the Mine, Stephen King called Gary Johnson and discussed with him the work done on that day and issues which arose in regard to the erection of the scaffolding.
40. After the first day (30 June), Stephen King told Johnson that the ledgers did not "line up" with the V presses. Johnson told Stephen King that they should have "lined up". Stephen King also told Johnson that he had not built the decks according to the design drawing in that he had changed the height of some of the decks. He indicated this change on the Scaffold Handover Certificate No 17854 (the handover certificate) on 30 June 2006. King did not indicate on the scaffold certificate that he had only inserted 2 ledgers per bay and that he had not inserted any ledgers in Bay D.
41. On 7 July 2006, Stephen and Danny King erected bays F and G. After they completed their work on that day, Stephen King told Johnson that he had not built the bays according to the design drawing in that he had made changes to the widths of Bays F and G. He indicated these changes on the handover certificate on 7 July 2006.
42. On 7 July 2006, Stephen King provided the handover certificate to Larry Tynan from Delta Mining. Stephen King did not indicate whether or not the scaffolding "passed" inspection.
Incident
43. During the course of 7 July 2006, at about 4.50pm, Kenneth Morris Evans ( Ken Evans ), an employee of Delta Mining, fell, dislocating both shoulders and fracturing one of those shoulders when sections of the decking boards on one of the platforms of the scaffolding, on which he was working, collapsed. At the time of the fall, Ken Evans was working on the scaffolding constructed by Blue Water. He was working in Bay D preparing to install a bolt (megabolt). He fell approximately 3.3 metres onto the conveyor belt above which the scaffolding was built. Due to injuries sustained in the fall Mr Evans could not get off the conveyor belt. Work colleagues Morrison and Powell who had heard the noise of Mr Evans falling were able to stop the conveyor belt. By the time the belt was stopped Mr Evans had travelled some sixty metres from the point of his fall.
44. At the time of the incident Aaron Morrison was on the scaffolding. At the same time Wayne Powell was on the ground adjacent to the scaffolding. In the collapse three steel decking boards had fallen. One fell to the side of the belt and two fell onto the conveyor belt. Earlier in that day Larry Tynan, Gary Nees and Matthew Withers had all worked on the scaffolding including working on and from Bay D.
45. The scaffolding collapsed because Blue Water omitted to install ledgers immediately below the working platform in Bay D necessary to provide stability to the scaffolding structure as required by the design drawing.
46. In the expert report from the Marron Consultancy under the hand of DW Crawford, the author states at Executive Summary on page 1:
"Notwithstanding that the scaffold as erected does not satisfy the relevant Australian Standards in a number of aspects, it proved strong enough for the installation of a number of roof bolts from Bay A. The sole cause of the accident was the departure from the [the Design Drawing] in the omission of the three centre ledgers immediately below the working platform in Bay D. The omission of the specified ledgers allowed the segmented ledger transom on the outbye side of Bay D to deflect away from a straight line in a direction of the outbye. This increased the distance between the ledger transom at the outbye end of Bay E and the upper level ledger transom at the outbye end of Bay D such that some of the 2.4 metre long metal scaffolding planks on which Ken Evans was working to fall through the increased gap between the supporting ledger transoms carrying Evans with them. [sic] "
47. A report by Inspector John Gjaltema, WorkCover Authority of NSW, dated 7 July 2006 states at paragraphs 25 and 26:
"25. It is my opinion that had the scaffold and in particular Bay D been erected in compliance with the [Design Drawing] then this incident would not have occurred.
26. Had the three ledgers described shown in [the Design Drawing] been installed to take out the bow in the 3.1 metre ledger transom in Bay D then the planks would have remained stable and not fallen while persons were working on them".
Events post incident
48. On and from the date of the incident the defendants assisted DPI investigators and Mine management in their investigation into the incident.
49. The Defendants have assisted the prosecuting authorities in providing
additional statements which have been served on the other
defendants in this
matter. The assistance provided by Stephen and Danny King is considered by the
prosecuting authorities to be truthful,
complete and reliable.
1. 20 Numbered Photographs of scaffolding and surrounds.
2. Single captioned photograph of Scaffold supports.
3. Sub-contract Agreement between Waco Kwikform Limited and Blue Water
Scaffolding Pty Ltd dated 31 October 2003 (Contract no. 53003).
4. Letter from Dave Loach of Delta Mining to Gary Johnson dated 15 June 2006
and faxed copy bearing handwriting.
5. Short form Sub-Contract Agreement between Waco Kwikform Limited and Blue
Water Scaffolding Pty Ltd dated 19 June 2006 (No. A530912).
6. Order Form - Southern Colliery Maintenance bearing a date of 27 June 2006.
7. Hire Agreement between Southern Collieries Maintenance and Waco Kwikform
Limited dated 22 June 2006 (Contract No. 53/5321).
8. Job Creation Form, Works Order and Delivery Docket of Waco Kwikform
Limited.
9. Quote from Blue Water Scaffolding to Waco dated 19 June 2006.
10. Design Drawing No. 53/3521 dated 19 September 2006.
11. Waco Kwikform Ltd OHS Management Plan for Southern Collieries
Maintenance.
12. Qualitative risk assessment - 21 June 2006.
13. Safe Work Method Statement - Appendix D to Waco OHS Management Plan - 28
June 2006.
14. Safe Work Method Statement - Blue Water Scaffolding Pty Ltd and signed
Acknowledgement of WACO SWMS.
15. Handover Certificate 17854.
16. Visitor Underground Induction - Douglas Project Underground Visitor
Assessment Level 4 - Stephen King.
17. Douglas Project - Service Induction Details of Stephen King.
18. Inspection Checklist (Appendix J to AS4576:1995).
19. Australian Standard AS4576:1995 - Guidelines for Scaffolding.
Defendants' evidence
The personal defendant: The transoms are 500mm so you can't build in 500mm
increments. I had to make the decks 1.0m apart. Also, I
have only put two
ledgers in because the stars would not line up for a third ledger to go in.
Mr Johnson: The V-pressings should line up for ledgers to go in.
The personal defendant: They don't.
Mr Johnson: They should.
The personal defendant: I've made changes to Bays F and G. There was not
enough room to build as per the dimensions on the drawing.
I changed the
dimensions to 2.4m x 2.4m.
Mr Johnson: Did that fit then?
The personal defendant: Yes, just.
Mr Johnson: Was that all you changed? And you checked it?
The personal defendant: Yes.
Mr Johnson: Then it should be ok.
Mr Haggart: There's been an incident. You're finished with us. It's all over.
The personal defendant: What? It's all over for me?
Mr Haggart: Yes.
The personal defendant: Will you stick with me if there is an investigation?
Mr Haggart: No. You're on your own.
The personal defendant: What about my workers, what do I tell them.
Mr Haggart: Not my problem.
Q. If I could ask you about your expenses, your monthly expenses?
A. Yeah.
Q. So you have a mortgage that you pay
A. Yes.
Q. each month. Do you know what the amount of that mortgage is?
A. 1550.
Q. You also have some water bills that you are responsible for?
A. Yeah.
Q. Do you know the amount of those water bills?
A. Yeah.
Q. That is about $100?
A. Yeah.
Q. Land rates are about a $100 a month?
A. Yeah.
Q. Electricity is about $150 a month?
A. Yeah.
Q. Petrol of about $400 a month?
A. Yep.
Q. You pay food of about $600 a month?
A. Yeah.
Q. You have a debt in relation to some roof maintenance that you did on a house?
A. Yes.
Q. And you are paying off that debt?
A. Yes.
Q. At $50 per fortnight?
A. Yes.
Q. Are there any other expenses that you have, your regular expenses which you haven't mentioned?
A. Did you say phone?
Q. You have a phone expense?
A. Yeah.
Q. What is that?
A. About a hundred bucks a month.
Q About $100. And you continue to be in casual employment?
A. Yes.
Q. And you still earn between $250 and $1,000 gross a week, depending on how much work you get?
A. Yeah.
Q. So on average your current annual income is between $38,000 and $42,000 gross, is that correct?
A. Yes, that's over the last three years.
Q. Over the last three years?
A. Yeah, before that I was working with Blue Water.
The bracing runs, like, diagonally up the scaffold to take the sway out of
it, and the ledgers runs horizontally with the scaffolding,
the same, the boards
run the same way as the boards, long ways with the boards.
Q. Did they ask you any question or make any comment about your inspection of the scaffold?
A. No. Sorry when I was inspecting the scaffold I just said to one of them
that I was just inspecting it and I am giving the handover
like if they wanted
to have a look at whatever and they said they don't know anything about
scaffolding so pretty much you tell us
it is all right then it is all right.
Relevant principles
[8] The overall approach to be followed in relation to the determination of
sentence is to be found in the first instance within the
statutory provisions of
the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation
to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating,
mitigating and other factors in sentencing.
[9] In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 it was emphasised that the
provisions of the Crimes (Sentencing Procedure) Act 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]:
'[I]t 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 [was] intended to provide "further guidance and structure
to judicial discretion.'
[10] The starting point for consideration as to penalty is the objective
seriousness of the offence. That is a well established sentencing
principle and
was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting
Pty Ltd v WorkCover Authority (NSW) [1999] NSWIRComm 343; (1999) 90 IR 464 at 474 as follows:
'[I]t is important to reiterate that the primary factor to be considered when
a judicial officer is determining the appropriate sentence
to impose is the
objective seriousness of the offence charged. In case of prosecutions under the
OH&S Act, this proposition has
often been expressed by saying that the "true
measure of penalty lies in the nature and quality of the offence' ...
[11] The principle of foreseeability as a factor in determining the objective
seriousness of an offence as part of the sentencing
process was considered in
the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New
South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows:
'The question of foreseeability is relevant to the assessment of the
seriousness of the offence. We consider that the appropriate
approach is that of
Walton J, Vice President, in Department of Mineral Resources of NSW
(McKensey) v Kembla Coal and Coke Pty Ltd [1999] NSWIRComm 353; (1999) 92 IR 8 at 27:'
'Whilst the reasonable foreseeability of an accident may not be relevant to
the question of liability under the Act (see Drake Personnel Ltd t/a Drake
Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999)
90 IR 432), the degree of foreseeability is a significant factor to be taken
into account when assessing the level of culpability of the defendant.
The
existence of a reasonably foreseeable risk to safety which is likely to result
in serious injury or death is a factor which will
be relevant to the assessment
of the gravity of the offence.'
[12] On the issue of foreseeability, the Full Bench in Capral also
stated at 646; 62 - 63:
'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. So much is clear
from the structure and language of the section which is premised on the
requirement to 'ensure ... health, safety and welfare at
work' and the decided
cases which make plain the nature of the obligation.'
[13] It is also necessary to consider the damage and injury suffered in the
context of the evidence and "in light of the principles
which have been laid
down in relation to the relationship between the seriousness of injuries which
have been suffered, or which
may have been suffered, and the gravity of the
offence" ( Capral at 650; 66). On that point the Full Bench in Capral
stated:
'We consider that the relevant principle can be stated in this way. The
gravity of the consequences of an accident, such as the damage
or injury, does
not, of itself, dictate the seriousness of the offence or the amount of penalty.
However, a breach where there was
every prospect of serious consequences might
be assessed on a different basis to a breach unlikely to have such consequences.
The
occurrence of death or serious injury may manifest the degree of seriousness
of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47
IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378,
Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v
Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New
South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409,
Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New
South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and
WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at
[22]).'
[14] The principles of general and specific deterrence are also relevant in
sentencing. The approach to be taken on that issue was
also dealt with in some
detail in Capral at 643 - 645; 59 - 62. Without detailing all that the
Full Bench had to say we consider the approach to deterrence in the sentencing
process is encapsulated in the following passage from the Full Bench in
Capral at 644; 60 as follows:
'[B]oth 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, Workcover Authority (NSW) v Walco Hoist
Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 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.'
[15] 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 of the Crimes
(Sentencing Procedure) Act relevant to the respondents before the Full
Bench. As was said in R v Way at [56]:
'[I]t 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).'
Consideration
a) that they had very limited lighting, and apart from the cap lamps attached
to their helmets, they worked in total darkness;
b) they had only worked underground on one previous occasion, in
circumstances which were substantially different and included a well
lit working
area;
c) they had never worked with extendable transoms;
d) they were unable to construct the scaffolding in accordance with the
design drawings and had to alter the way the scaffolding was
built; and
e) Stephen King did a visual inspection of Bay D on the day it was completed
and had notified Waco Kwikform Ltd of the difficulties
encountered in erecting
the scaffolding.
General deterrence
It is clear from the Full Bench's consideration in Capral Aluminium
that general deterrence is a major consideration in occupational health and
safety cases but I do not consider the Full Bench was
suggesting it should be
allowed to override, to an impermissible degree, the offender's favourable
subjective circumstances, particularly
that the defendant is unlikely to
re-offend: R v Jenkins [1999] NSWCCA 110 at [38] per Simpson J.
I include an element in the penalty for general deterrence.
Specific deterrence
Subjective factors
23 Power to reduce penalties for assistance provided to law enforcement authorities
(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:
(a) (Repealed)
(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,
(d) the nature and extent of the offender's assistance or promised assistance,
(e) the timeliness of the assistance or undertaking to assist,
(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,
(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,
(h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist,
(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,
(j) (Repealed)
(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:
(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and
(b) state the penalty that it would otherwise have imposed, and
(c) where the lesser penalty is being imposed for both reasons-state the amount by which the penalty has been reduced for each reason.
(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(6) The failure of a court to comply with the requirements of subsection (4)
with respect to any sentence does not invalidate the
sentence.
The financial position and more particularly the means of the defendant
should be taken into account in relation to the question of
penalty ... Whilst I
accept that 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.
Whether a person or company's financial circumstances will sound in
mitigation of penalty however will very much depend on the particular
facts and
circumstances... So far as the company is concerned all I know is that it is no
longer trading. It is difficult to see
how its largely indefinite financial
circumstances should mitigate the fine to any appreciable extent. It is not in
receivership
and could possibly trade again. In any event, the means of the
company may not have the same impact on third parties as with an individual
defendant.
Victim Impact Statement
Victim impact statements presently serve two distinct purposes. In the case
of family victims, where a family member has died as a
result of a breach of the
Occupational Health & Safety Act 2000, it provides an opportunity for
the family to express their feelings of grief and loss, and allows proper public
respect to be
paid to these feelings. In cases where there has not been a death,
not only does the victim impact statement provide an opportunity
for the victim
to have proper public respect paid to their pain and suffering, but it also has
a role to play in the determination
of the appropriate sentence to be imposed by
the Court. The statement will explain to the Court the extent of the impact the
crime
has had on the victim's life.
Costs
... again we don't seek any order as to costs. We do so in these exceptional
circumstances; (a) the defendant company was effectively
a one man company, that
it is not trading, indeed it was deregistered and then reregistered; (b) there
was no evidence whatsoever
and we accept there was no evidence whatsoever, that
steps were taken by Mr King to deregister the company in order to avoid any
consequences as a result of this hearing and indeed we accept that is not the
case.
Not only is the company not trading, but does not have any capital or funds
to meet any order for costs, and for those reasons we
don't seek orders for
costs but submit that ought not have any precedent for any other company which
may be deregistered or any precedent
value for any other defendant in this case,
Orders
Matter No IRC 1030 of 2008
1. The offence is proven and a verdict of guilty is entered.
2. The corporate defendant is convicted of the offence, as charged.
3. The corporate defendant is fined an amount of $40,000 with a moiety
thereof to the prosecutor.
4. No order as to costs.
Matter No IRC 1036 of 2008
1. The offence is proven and a verdict of guilty is entered.
2. The personal defendant is convicted of the offence, as charged.
3. The personal defendant is fined an amount of $4000 with a moiety thereof
to the prosecutor.
4. No order as to costs.
**********
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