Inspector Hinton v Tekman & Tekman Group Pty Ltd [2011] NSWIRComm 149 (9 November 2011)

Last Updated: 1 February 2012

Industrial Court of New South Wales

Case Title:	Inspector Hinton v Tekman & Tekman Group Pty Ltd
Medium Neutral Citation:	[2011] NSWIRComm 149
Hearing Date(s):	26 September & 24 October 2011
Decision Date:	09 November 2011
Jurisdiction:	Industrial Court of NSW
Before:	Marks J
Decision:	1. Each of the defendants is found guilty of the offence charged and convicted accordingly. 2. A monetary penalty of $80,000 is imposed on Tekman Group Pty Ltd and of $8,000 on Hassan Tekman with a moiety in each case to the prosecutor. 3. The defendants are to pay the costs of the prosecutor in an amount assessed in default of agreement in such proportion as the penalty imposed on each of them bears to the aggregate of the penalties.
Catchwords:	OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1) of the Occupational Health and Safety Act 2000 - personal defendant deemed guilty of same offence by virtue of s 26 - early guilty pleas - appropriate penalty - objective seriousness - inadequate site induction - inadequate risk assessment - general and specific deterrence - remorse and contrition - cooperation with the WorkCover Authority - inappropriate in circumstances to apply s10 Crimes (Sentencing Procedure) Act 1999 - penalties imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 - s 10 Occupational Health and Safety Act 2000 - s 8(1), s 26
Cases Cited:
Texts Cited:
Category:	Principal judgment
Parties:	Inspector Jamie Hinton of WorkCover Authority of New South Wales (Prosecutor) Hasan Tekman (First defendant) Tekman Group Pty Ltd (Second defendant)
Representation
- Counsel:	Mr P Ginters of counsel (Prosecutor) Mr P Kintominas of counsel (First and second defendants)
- Solicitors:	DLA Piper Australia (Prosecutor) Senses Legal (First and second defendants)
File number(s):	IRC 1391 of 2010 IRC 1392 of 2010
Publication Restriction:

JUDGMENT

1. The prosecutor, Inspector Jamie Hinton of the WorkCover Authority of New South Wales, has charged each of Tekman Group Pty Ltd ("the company") and Hasan Tekman with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). The charge brought against the company is that, being an employer on 1 December 2008 at a construction site at 324 William Street Kingsgrove, it failed to ensure the health, safety and welfare at work of its employees and in particular Sabahattin Secim and Nevzat Tekman. The particulars of the charge brought against the company are as follows:

(a) The 'work' referred to in these particulars refers to the work of laying bricks and blocks at the site, in particular, bricking up the opening/access way in the wall between units 8 and 9 at the site including but not limited to incidental tasks such as cleaning the wall or knocking out any temporary wooden lintel(s).

(b) The 'risk' referred to in these particulars and in the charge is the risk of Sabahattin Secim and Nevzat Tekman falling from height to the ground.

(c) Tekman Group did not ensure that:

i. a fall arrest device, such as a harness or similar device, that was capable of preventing the risk was provided and used by Sabahattin Secim and Nevzat Tekman whilst they were undertaking the work;

ii. a scaffold or elevated work platform, or similar equipment, with hand rails or other forms of physical barriers that were capable of preventing the risk was provided, positioned and used in units 8 and 9 at the site so that Sabahattin Secim and Nevzat Tekman could work from them whilst they were undertaking the work;

iii. handrails or other forms of physical barriers that were capable of preventing the risk were provided, positioned and used on the walkway/accessway between units 8 and 9 of the site; and/or

iv. there was guarding or physical barriers for a penetration on the upper level between units 8 and 9,

so as to ensure Sabahattin Secim and Nevzat Tekman's health, safety and welfare at work.

(d) Tekman Group did not provide any or any adequate supervision to Sabahattin Secim and Nevzat Tekman such as by having a supervisor monitor the work to ensure they:

i. were using a harness or similar fall arrest device that was capable of preventing the risk;

ii. worked from a scaffold, elevated work platform, or similar equipment, with hand rails or other forms of physical barriers that were capable of preventing the risk, positioned in units 8 and 9 at the site, whilst they were undertaking the work;

iii. did not use a walkway/accessway between units 8 and 9 of the site that did not have handrails or other forms of physical barriers that were capable of preventing the risk; and/or

iv. did not work next to an unguarded penetration on the upper level between units 8 and 9,

so as to ensure Sabahattin Secim and Nevzat Tekman's health, safety and welfare at work.

(e) Tekman Group did not ensure that Sabahattin Secim and Nevzat Tekman were provided with any or any adequate instruction and training to ensure that they:

i. did not work at height unless they used a harness or similar fall arrest device that was capable of preventing the risk;

ii. worked from a scaffold, elevated work platform or similar equipment, with hand rails or other forms of physical barriers that were capable of preventing the risk, positioned in units 8 and 9 at the site, whilst they were undertaking the work;

iii. did not use a walkway/accessway between units 8 and 9 of the site that did not have handrails or other forms of physical barriers that were capable of preventing the risk; and/or

iv. did not work next to an unguarded penetration on the upper level between units 8 and 9,

so as to ensure Sabahattin Secim and Nevzat Tekman's health, safety and welfare at work.

(f) Tekman Group did not have and did not provide to Sabahattin Secim, Nevzat Tekman and Mono Constructions Pty Ltd [ACN 107 404 679] a Safe Work Method Statement for the work at the site so as to ensure the health, safety and welfare at work of Sabahattin Secim and Nevzat Tekman.

(g) Tekman Group did not ensure that a risk assessment or an adequate risk assessment was conducted for the work that identified the risk at the site and the means by which it could be controlled, such as:

i. using a fall arrest device, such as a harness or similar device, whilst working at height;

ii. working from a scaffold, elevated work platform or similar equipment, with hand rails or other forms of physical barriers that were capable of preventing the risk, positioned in units 8 and 9 at the site;

iii. ensuring that handrails or other forms of physical barriers that were capable of preventing the risk were provided, positioned and used on the walkway/accessway between units 8 and 9 of the site; and/or

iv. providing guarding or physical barriers for a penetration on the upper level between units 8 and 9,

so as to ensure the health, safety and welfare at work of Sabahattin Secim and Nevzat Tekman.

As a result of Tekman Group's acts and omissions, Sabahattin Secim and Nevzat Tekman were exposed to the risk at the site. Sabahattin Secim's injury was a manifestation of that risk.

2. Mr Tekman is charged with the same breach of the Act in that, being a person concerned in the management of the company he is deemed by virtue of s 26(1) of the Act to have taken to have contravened the same provision as the company. The particulars of the charge are identical with those brought against the company.

3. Both defendants pleaded guilty to the charges and this judgment is concerned only with the question of penalty.

4. For the prosecutor, there was tendered into evidence an agreed statement of facts with supporting documentation including photographs.

5. The agreed statement of facts is in the following terms:

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 said Act to institute proceedings in the within matter.

2. The prosecution relates to an incident at 324 William Street, Kingsgrove, New South Wales ("the site") on 1 December 2008.

3. At all material times, Hasan Tekman (DOB 1 May 1956) was a person concerned in the management of Tekman Group Pty Ltd (ACN 132 759 794) ("Tekman Group").

Background

4. On 1 December 2008, Mr Sabahattin Secim, a 64-year-old labourer/bricklayer employed by Tekman Group Pty Ltd [ACN 132 759 794] ("Tekman Group"), and Mr Nevzat Tekman, a labourer/bricklayer employed by Tekman Group, were exposed to risks of falls from heights while performing work at the site.

5. Mr Secim and Mr Nevzat Tekman were bricking up void in the wall between units 8 and 9 which involved working at a height of approximately 2.77 - 3.02 metres without adequate fall protection. They arrived at the site at approximately 7:00am.

6. At approximately 2:00pm, Mr Secim fell approximately 3m through the void whilst trying to either clean some excess mortar off a brick wall or knock out a temporary wooden lintel. Mr Secim was working above unit 9 where the staircase was to go (the scaffold was in unit 8), and fell into unit 9.

7. As a result of the incident, Mr Secim suffered serious injuries including a shattered knee cap, open knee wound (which became infected as a result), broken left wrist and fractured C1 and C2 vertebrae (requiring the wearing of a halo brace). Mr Secim ceased wearing a halo brace on 28 March 2009 and has not returned to work.

8. Albatross Property Group Pty Ltd and Chevron Holdings (NSW) Pty Ltd owned the site and contracted Mono Constructions as the principal contractor to build residential and commercial units at the site ("the project").

9. Mono Constructions is a construction company and undertakes the business of residential and commercial construction.

10. The construction work for the project was valued at in excess of $250,000.

11. During the course of the construction work for the project access ways (voids) were left in the units being constructed to allow easier access for persons and materials from one part of the site to another.

12. Mono Constructions subcontracted Tekman Industries Pty Ltd [ACN 114 020 905] ("Tekman Industries") to do brick and block work for the project at the site. This contract is in writing.

13. Tekman Industries was a brick laying company and was established on 28 April 2005. On 24 October 2008, notification of the appointment of a Liquidator of Tekman Industries was made. On 24 January 2010, Tekman Industries was deregistered. Mr Hasan Tekman was the sole Director of Tekman Industries ("Mr H Tekman").

14. Tekman Group [ACN 132 759 794] ("Tekman Group") is also a brick laying company and was established on 15 August 2008. Mrs Yuming Li, the wife of Mr Hasan Tekman, is the sole Director of Tekman Group. Mrs Li has very little involvement in the running of Tekman Group and handed complete control of Tekman Group to Mr Hasan Tekman. Mrs Li completes some administration work as instructed by Mr Hasan Tekman, such as paying telephone bills. Other than that, Mrs Li stays at home to care for their children.

15. Tekman Industries completed most of the bricking work on the project except bricking up the access ways between the units.

16. After Tekman Industries was placed under external administration, Tekman Group Pty Ltd took over the contract of Tekman Industries to complete the bricking work, that is, to brick up the access ways at the site.

17. Tekman Group told Mono Constructions that Tekman Industries was under external administration about 2 to 3 months prior to the incident. Officers of Mono Constructions have stated that they had no contract with Tekman Group and that the first time they heard about Tekman Group was in or about October 2008, when Mr Hasan Tekman asked them to write a cheque out to Tekman Group. Mono Constructions refused to write the cheque out to Tekman Group.

18. Mono Constructions believed that it had overpaid Tekman Industries by approximately $5000 for work it had done at the site. Tekman Group agreed to do the patch up brick work at the site to settle the overpayment and to maintain a good working relationship with Mono Constructions.

19. There is no written contract between Tekman Group and Tekman Industries or Mono Constructions to complete the brick and block work or the patch up work for the project at the site.

20. Mr Secim was employed by Tekman Group to do "labouring, carrying bricks, preparing the cement" on the day of the incident.

21. Mr Secim was previously employed by Tekman Industries "on and off for about a year" and had "worked on the same site about 5-6 times before". Mr Secim had previously worked for Tekman Industries in the same building for 3 days in May 2008 and 2 days in July 2008 and was paid by Tekman Industries in cash.

22. Mr Secim has been in the bricklaying industry as a labourer for twenty years.

23. Mr Nevzat Tekman was employed by Tekman Group on the day of the incident and stated that he had been employed with "Tekman Company" as a labourer/bricklayer for 6 years.

The incident

24. When Mr Secim and Nevzat Tekman were at the site on 1 December 2008, Mr Peter Khamis, Site Supervisor employed by Mono Constructions, instructed Mr Nevzat Tekman to brick up the opening/access way in the wall between units 8 and 9. This task involved working at a height of approximately 2.77 - 3.02 metres. There were unsecured planks (without handrails) which formed a walkway running perpendicular across the void between the floor above units 8 and 9. There was scaffolding in unit 8, which had been placed perpendicular to the planks. There was no scaffolding in unit 9.

25. According to Mr Khamis he told Mr Nevzat Tekman that before they were to start, they were to remove the planks and slide the scaffold located in unit 8 across to the right so that they would have a safe working platform to work from. Mr Khamis then left Mr Nevzat Tekman and Mr Secim to do the job. Mr Secim's fall occurred about 20 minutes to half an hour later.

26. Mr Secim and Mr Nevzat Tekman could speak English but had limited English language skills and required interpreters when interviewed. It is not clear whether Mr Secim received or understood Mr Khamis' instructions to remove the planks, however, he did not remove the planks.

27. The scaffolding could not be easily moved. There was no scaffolding in unit 9.

28. Mr Khamis thought the walkway had handrails but did not check this prior to instructing Mr Secim and Mr Nevzat Tekman to perform the task.

29. The system of work, even if the planks had been removed, was unsafe because the scaffold did not have adequate handrails and there was a risk of the workers falling from the scaffold into unit 9. The workers were also able to access the floor of the next level above units 8 and 9, and when working from this level the void constituted an unguarded penetration.

30. Neither Mono Constructions nor Tekman Group undertook a documented risk assessment for the work to be completed by Mr Secim and Mr Nevzat Tekman on 1 December 2008.

31. Neither Mr Secim nor Mr Nevzat Tekman received an adequate induction at the site which explained to them that they were not to work at height without adequate fall protection or next to unguarded penetrations.

32. Mr Nevzat Tekman and Mr Secim were not provided with safety harnesses or other fall protection devices when they were undertaking the bricking up work.

33. Mr Khamis did not monitor the work performed by Mr Secim and Mr Nevzat Tekman to ensure that any instructions he had issued were carried out.

34. Mr Secim and Mr Nevzat Tekman did not slide the scaffold across and stood on the part of the planks that were in unit 9 to brick in the opening/access way in the wall. Immediately prior to the incident, Mr Nevzat Tekman was standing on the floor of the level above unit 8 and Mr Secim was standing near to Nevzat Tekman either adjacent to the unguarded penetration or on the walkway planks.

35. It is unclear as to whether Mr Secim wanted to clean some excess mortar off the bricks or knock out the temporary timber lintels. Prior to Mr Secim's fall he and Mr Nevzat Tekman were cleaning bricks or knocking out a temporary timber lintel with a hammer and that he took over this task from Mr Nevzat Tekman when he got tired.

36. Mr Nevzat Tekman told Mr Secim not to worry about cleaning the bricks as he would do it later.

37. Prior to his fall, Mr Secim swung at either a piece of excess mortar or a timber lintel and lost his balance and fell into the ground in unit 9.

38. Mr Khamis heard someone screaming and ran into unit 9 to find Mr Secim on the ground. Mr Khamis immediately called for an ambulance and asked what had happened.

39. The ambulance subsequently arrived and took Mr Secim to hospital. The NSW Police also attended the site.

40. After Mr Secim fell, "Hasan", a contractor from NSW Formwork, advised him that before the incident, Mr Secim had dropped a tool down to the level below where Hasan was working. Mr Secim allegedly apologised and said that he was feeling a bit dizzy as he was on medication. Mr Secim denied that this was the case.

Systems of work prior to incident

41. In relation to Mono Constructions:

(a) Mono Constructions did not obtain a Safe Work Method Statement from either Tekman Industries or Tekman Group prior to them commencing work on the site. There was no Safe Work Method Statement prepared for the task of bricking up the void that Mr Secim and Mr Nevzat Tekman were performing on the day of the incident.

(b) Mono Constructions did not have or follow an adequate, safe system in place for working at heights or guarding penetrations at the site.

(c) Mono Constructions' safe work method statement for working at heights was not discussed with subcontractors either when they were inducted onto, or after they started work at the site.

(d) Prior to the incident on 1 December 2008 Mono Constructions had identified that it had a lack of occupational health and safety systems ("OH&S systems") in place. On 27 November 2008, Mono Constructions engaged Acumen Management Services Pty Ltd, OHS consultants, to develop its OH&S systems. However, the OH&S systems were not developed until after the incident.

(e) Mono Constructions did not document or record all toolbox talks at the site.

(f) Employees of Mono Constructions (other than Christopher and Peter Moujalli and Peter Khamis) and employees of entities subcontracted to do work by Mono Constructions were not present during Mono Constructions' toolbox talks.

(g) Mono Constructions does not have a record of inducting Mr Tekman or Mr Nevzat Tekman into the site, although it had a record of inducting Mr Secim in May 2008.

(h) Mono Constructions did not undertake a documented, site specific, risk assessment for the site.

(i) Mr Khamis did not supervise Mr Nevzat Tekman and Mr Secim to ensure that they moved the scaffold in Unit 8 and did not work on the concrete floor of the next level next to the unguarded penetration on the floor above units 8 and 9.

(j) Mono Constructions failed to provide two sets of scaffolding, one for each side of the void.

(k) The scaffolding in Unit 8 could not be easily moved.

42. In relation to Tekman Group:

(a) Tekman Group did not have a Safe Work Method Statement for the brick and block work at the site. Mr Secim had never seen a Safe Work Method Statement for the work at the site and was never involved in any toolbox talks. Mr Nevzat Tekman confirmed that no Safe Work Method Statements were completed and that he didn't know what a Safe Work Method Statement was.

(b) Mr Tekman did not attend the site to inspect it prior to Mr Secim and Mr N Tekman starting work on the day of the incident.

(c) Tekman Group did not conduct a risk assessment or a toolbox meeting for the brick and block work at the site.

(d) Tekman Group does not have any training records for its employees. Mr Secim never received any training from Tekman Group or Tekman Industries.

(e) Mr Nevzat Tekman does not have a trade certificate for bricklaying or a licence to erect scaffolding. Mr Nevzat Tekman was trained in bricklaying and erecting scaffolds by Mr Hasan Tekman. Mr Secim did not have a trade qualification for bricklaying but had a TAFE College Statement dated 5 September 1991 certifying that he had completed the requirements of the LMP - Handypersons Course at Randwick college of TAFE.

(f) Mr Secim was never provided with a harness nor had received training on how to use a harness from Tekman Group or Tekman Industries.

(g) Tekman Group did not provide supervision at the site and relied on the supervision of Mono Construction. Mr Nevzat Tekman was not a supervisor although he was more experienced than Mr Secim.

Systems of work after the incident

43. After the incident Mr Nevzat Tekman returned to the site two days later to complete the work but with no instructions from Mr Hasan Tekman about how the work could be done more safely. Tekman Group did not attend the site to inspect it or conduct a risk assessment to ensure the site was safe.

6. For the defendants, Mr Tekman gave evidence on his own behalf and on behalf of the company. He said that the injury sustained to Mr Secim was the first serious injury that any person working for him had suffered in 29 years experience. He had known Mr Secim for 10 - 15 years and regarded him as a friend. He was very upset when Mr Secim was injured and attended to his needs.

7. Mr Tekman gave evidence as to steps that were taken by him since the accident to prevent a similar incident occurring. He said that he now reads out a safe working statement to the workers and always talks to them, asking that they not put themselves in an unsafe situation.

8. On this occasion Mr Tekman did not inspect the site before the incident because he was doing something else on another site. Now it is his practice to inspect all building sites. He also obtains information from the principal builder about whether his employees are required to work at heights and then personally inspects the site. He said that he tells the workmen to tell him and the foreman if they think something is unsafe. Furthermore, if safety harnesses or safety railing are not available he will not allow his men to work on the site.

9. Mr Tekman now employs someone to prepare Safe Work Method Statements for every job and that person conducts toolbox meetings with his employees.

10. In explaining what had happened at the particular building site where the incident occurred, Mr Tekman explained that he had been requested to send two bricklayers because they needed "to fix a few holes". He sent his brother because he was very experienced and had worked for a long time as a bricklayer, both in Australia and previously in Cyprus.

11. Furthermore, he had previously attended the site when building works had first commenced and had seen that there was scaffolding and that railings had been provided. He was satisfied that there would be no danger to the persons whom he sent on the day of the incident and no reason to think that the worksite would be unsafe.

12. Mr Tekman said that, through his company, he normally did bricklaying work for both large and small builders. He had undertaken work for the Mirvac organisation for about five years and had prepared Safe Work Method Statements for them, and they had their own safety procedures. I gather from his evidence that some of the safety procedures used by Mr Tekman whilst working for Mirvac were motivated by the requirements of that organisation.

13. Mr Tekman gave evidence about his own personal circumstances. He is married with two children aged 10 and 5 and supports a stepson who is a university student. He also supports his mother-in-law. Mr Tekman owns a house in which he and his family live which has a mortgage of about $280,000. He did not indicate what he thought might be the value of that house. It is about 50 years old and needs to be renovated or demolished and a new home built on the site. Mr Tekman had recently sold another property and intends using the proceeds of sale to pay off the mortgage on the home and to pay off some other debts. After paying off these debts and the mortgage, there would be left about $200,000, which he had intended to use either to renovate or rebuild the existing home.

14. There was tendered into evidence some draft trading profit and loss statements for the company and draft income tax returns for Mr Tekman. There is shown as a current asset of the company a loan made to a director, the sole director being Mr Tekman's wife, in the amount of $185,000.

15. For the 2010/2011 financial year, the company had sales of almost $812,000. By far the biggest expense was an item "Contract Work" which Mr Tekman said represented payments to subcontractors. Salaries and wages were $75,230.

16. Mr Tekman's individual taxation return shows gross salary from the company of almost $37,000. There is no evidence as to where the remaining approximately $38,000 of wages and salaries was paid. In the 2010/2011 year, the company made a profit of about $10,000.

17. Although the company's balance sheet showed an asset of a loan to Mrs Tekman of $185,000, it also showed liability to the ATO of $192,000 for GST. The net assets of the company as at 30 June 2011 were $15,000.

18. The starting point for the assessment of penalty is a consideration of the objective seriousness of the offence. This is yet another case involving a construction site where, on the evidence, it is plain that there has been a significant failure to provide a safe working environment for employees. The uncontroversial factual situation is that both employees were required to work at a height of about three metres above the ground in circumstances where no adequate protection was afforded to them to prevent them falling. On the evidence, neither employee received an adequate induction at the site, neither were they directed to ensuring that there was adequate fall protection or some form of guarding whilst working at height, they were not provided with safety harnesses or fall protection devices, there was no documented risk assessment nor was a Safe Work Method Statement prepared. Indeed, the totality of the evidence is to the effect that the company did not take any appropriate steps to assess the work that was to be carried out, the conditions upon which it was to be carried out and what steps needed to be taken to make sure that it could be carried out safely. This disregard for the safe work environment was undertaken in circumstances where these employees were working at a considerable height. It was reasonably foreseeable that if they fell, as one of them did, serious injuries would be sustained, as occurred.

19. The prosecutor submitted that the offences should be assessed as being serious and at the mid to upper end of the range of penalties available to the Court. Whilst it was not contended that this was a worst-case scenario, there must be some doubt as to why it should not be so regarded.

20. For the defendants, it was submitted that their culpability should be considered in the context that the overall construction site was under the substantial control of the principal contractor, Mono Constructions Pty Ltd. The scaffolding upon which the company's employees were required to carry out their work was provided by Mono Constructions and the overall control of the worksite vested in that company. Furthermore, Mr Tekman had previously inspected the site and was satisfied that Mono Constructions had made provision for an adequate safe work environment for all persons performing work on it.

21. Whilst I acknowledge that where the principal contractor and a number of subcontractors are all involved in the carrying out of work on a construction site, and facilities and equipment in the nature of scaffolding and the like are provided by one particular entity, questions will arise about the differential culpability of each of them when an accident occurs. However, the legislation creates concurrent duties on each contractor and subcontractor whose operations expose employees and others to an unsafe work environment. There is an obligation on each of them to ensure that a safe work environment is provided. Culpability cannot be avoided by relying on others unless appropriate steps are taken to ensure that those others comply with their obligations. Notwithstanding these observations, I approach the consideration of the assessment of the objective seriousness of this offence as being slightly less than that of Mono Constructions, which had assumed overall control of the site and whose supervisor directed the work to be performed by the company's employees.

22. In summary, I would assess the objective seriousness of this offence as within midrange.

23. In determining penalty, the Court is required to take into account the general and specific deterrent effect that any penalty will provide. There is always an inherent risk of injury to persons who carry out work in the construction industry. It is important that any penalty imposed should provide some deterrent to others who may be tempted to carry on business in the same way as was exhibited by the company in these proceedings. Furthermore, the company continues to operate in the industry and it is necessary to take into account the specific deterrent effect that a penalty will have on its continued operations.

24. On the evidence, the defendants pleaded guilty at an appropriately early stage of the proceedings, they expressed contrition and remorse for what occurred and co-operated with the WorkCover Authority of New South Wales in and about its investigation of the incident. There is evidence also that the defendants changed their work practices after the incident. These subjective considerations will be applied to the maximum permissible extent in assessing an appropriate penalty.

25. In submissions made on behalf of Mr Tekman, Mr Kintominas, counsel for the defendants, argued that given his age and his limited circumstances, and his desire to use whatever monetary assets were available to him to provide an improved home for his family, that some leniency should be afforded in the imposition of a penalty. Mr Kintominas conceded that there was no principle of general law, nor any statutory provision that would enable such an approach to be taken in favour of Mr Tekman, and I do not propose to take this into account.

26. There was some faint attempt by the defendants to rely on the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 in aid of the dismissal of the charges. Given the circumstances surrounding this incident, and given the seriousness of the offences, which I have found, and notwithstanding the defendants' prior good record, I am not constrained to consider the application of s 10 of that Act in the circumstances of these proceedings.

27. The maximum penalty that may be imposed on the company is $550,000 and upon Mr Tekman is $55,000. By virtue of the provisions of s 26(1), Mr Tekman is taken to have contravened the same provision as the company and, accordingly, his culpability will reflect that of the company.

28. Having regard to all of the matters to which I have referred, I propose imposing a penalty upon the company of $80,000 and upon Mr Tekman of $8,000.

29. The prosecutor sought orders for costs and a moiety, which were not opposed.

Orders

30. I make the following orders:

1. Each of the defendants is found guilty of the offence charged and convicted accordingly.

2. I impose a monetary penalty of $80,000 on Tekman Group Pty Ltd and of $8,000 on Hassan Tekman, with a moiety in each case to the prosecutor.

3. The defendants are to pay the costs of the prosecutor in an amount assessed in default of agreement in such proportion as the penalty imposed on each of them bears to the aggregate of the penalties.

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