Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264 PROSECUTOR WorkCover Authority of New South Wales (Inspector Martin Carmody) PARTIES : DEFENDANT Byrne Civil Engineering Constructions Pty Limited FILE NUMBER: IRC 2638 of 1999 CORAM: Hungerford J CATCHWORDS : Occupational Health and Safety - Plea of not guilty - Offence found proven - Assessment of appropriate penalty - Principles to follow in the sentencing process - Objective seriousness of offence in terms of its nature and quality - Subjective considerations particular to the defendant - Multiple contraventions charged as a single offence - Principle of totality - Responsibility of other persons involved in the same occurrence - Parity in sentencing - Contrition - Deterrence - No prior convictions - Defendant convicted - Fine imposed, with moiety to prosecutor - Defendant to pay prosecutor's costs. LEGISLATION CITED : Fines Act 1996 s 6 Occupational Health and Safety Act 1983 s 16(1) s 53 Benbow v Converquip Pty Ltd [2001] NSWIRComm 85 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Haynes v C I & D Manufacturing Pty Ltd (No 2) (1994) 60 IR 149 Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 CASES CITED : Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 Postiglione v R (1997) 189 CLR 295 WorkCover Authority of New South Wales (Inspector Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 1) (2001) 103 IR 80 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263 WorkCover Authority of New South Wales (Inspector Gordon) v Walco Elevators Pty Ltd (unreported, Cullen J, 13 March 1996) WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 HEARING DATES: 05/07/2001; 05/25/2001 DATE OF JUDGMENT: 10/26/2001 PROSECUTOR Mr J J Millar of counsel Solicitor: Ms M Lagana WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr R Moore of counsel Solicitor: Mr J McHarg Malouf Solicitors JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Friday, 26 October 2001 Matter No IRC 2638 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MARTIN CARMODY) v BYRNE CIVIL ENGINEERING CONSTRUCTIONS PTY LIMITED Prosecution under section 16(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2001] NSWIRComm 264 1 On 9 March 2001, I gave judgment in this matter concerning a prosecution of Byrne Civil Engineering Constructions Pty Limited by Martin Carmody, as an inspector of the WorkCover Authority of New South Wales, for a breach of s 16(1) of the Occupational Health and Safety Act 1983 between 29 October 1997 and 15 December 1997: see WorkCover Authority of New South Wales (Inspector Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 1) (2001) 103 IR 80. I then concluded that the charge against the defendant had been made out to the requisite criminal standard and thereupon made a finding that the offence had been proven. It remains now to deal with the question of penalty. 2 The charge against the defendant arose following the collapse of a free-standing brick wall on a construction site at Kent Road, Mascot at about 3.00 pm on 15 December 1997. Two persons, Darragh Whelan and Matthew Twomey, were performing excavation and filling work for the defendant on the site at a location adjacent to the brick wall when it collapsed on top of them and thereby they suffered fatal injuries. The background to and immediate events leading to the incident were stated in my judgment in the following way (103 IR at pp 82-83 in pars [7]-[10]) : [7] It emerged from the evidence that the defendant was engaged in the business of civil engineering, pipeline cable and mains laying, and excavations and bulk haulage. The subject site at Kent Road, Mascot was previously a foundry which had been demolished by Davis Earthmoving and Quarrying Pty Limited many months prior to the present incident and that company then performed the bulk earthworks necessary to restore the site after the demolition work. It seems that in June 1997 Develco Project Pty Limited purchased the site from the former owner and carried out certain excavation and filling work, including footings for new retaining walls. On or about 15 August 1997, the work was suspended while Develco negotiated a sale of the site to Cutler Hammer Pty Limited; the sale was completed on 21 October 1997 and Develco then assumed for Cutler Hammer the role of developer of the site for the construction of a purpose-built development being an office/factory complex. Develco (or a related company, Devico Pty Limited) engaged Consolidated Constructions Pty Limited as the principal contractor for the construction work; van der Meer Bonser Pty Limited, a firm of consulting engineers, was engaged by Develco as the design engineer for the project; and Consolidated Constructions sub-contracted the excavation works to the defendant. [8] Importantly for present purposes, the defendant proceeded to perform the excavation work not with its own employees but, under sub-contracts, by using the services of employees of two labour hire companies, namely, J D Services Pty Limited and Subcrete Constructions Pty Limited - the former employed Mr Whelan, who acted as the site engineer for the excavation works, and a Mark Byrne, who was a machine operator on the site; the latter employed Mr Twomey who was used as a labourer. As the parties agreed, the contract between Consolidated Constructions and the defendant as to the precise excavation works was partly oral and partly written and, in general terms, it appeared the contract required the defendant to dig strip footings, excavate pads and trim existing excavations to enable the construction of footings and retaining walls at various locations on the site. Such earthworks were commenced on 24 November 1997 and were under the overall supervision of a Rodney Taylor, Consolidated Constructions' site engineer. [9] The offending brick wall, which collapsed and crushed Mr Whelan and Mr Twomey, was located along the western boundary of the site on an adjacent property owned by The Blue Mountains Water Company. It was of solid brick construction approximately 4.1 m high, 6.9 m long and 230 mm thick with 950 mm returns at each of its ends; the wall was supported by a concrete driveway slab on the adjacent property, but, about 185 mm west of the wall, there was a saw cut in the driveway parallel to the wall and a further saw cut in the driveway about 500 mm to the west of the wall. It was the prosecutor's case that those saw cuts, which had been done some 15 months beforehand when a water main connection was installed, weakened the stability of the wall by removing the benefit of the previous slab and beam construction. [10] On the day the incident occurred, Seamus Benedict Byrne, the principal and sole director of the defendant, visited the site at about 7.00 am and conferred with Benjamin New, the site manager for Consolidated Constructions, concerning the need to further excavate various footing pads on the site, including the length of the brick wall on the adjacent property along the western boundary. Mr Seamus Byrne then left the site leaving Mr Whelan and Mr Twomey to carry out Mr New's instructions. That afternoon, excavation work along the western boundary was performed, with Mr Mark Byrne using an Hyundai 21 tonne excavator and Mr Whelan and Mr Twomey using shovels to dig in the trench beside the brick wall. While using the excavator just north of the wall, Mr Mark Byrne turned around and saw that it had collapsed on Mr Whelan and Mr Twomey who were lying in the trench. 3 The particular statutory breach found established against the defendant was that it failed, contrary to s 16(1), to ensure that persons not in its employment, Mr Whelan and Mr Twomey, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work by not making arrangements to ensure safety and the absence of risks to health in connection with the excavation work carried out adjacent to the brick wall at the Mascot site. Specifically, eight such failures were identified in the initiating summons, namely : The defendant failed to: a) Assess the stability of the said wall and the effect excavation work adjacent to the said wall would have on its foundations. b) Commission a dilapidation survey that encompassed the said wall. c) Prop, underpin or otherwise stabilise the foundations of the said wall to minimise or eliminate the risk of its collapse. d) Develop and submit to Consolidated Constructions Pty Ltd a Safety Plan prior to commencing excavation work on the said site. e) Develop and submit a safe work method statement to Consolidated Constructions Pty Ltd for excavation work carried out adjacent to the said wall. f) Conduct periodic safety audits on the stability of the said wall. g) Provide such supervision of Darragh Whelan and Matthew Twomey, whilst carrying out excavation work adjacent to the said wall's foundations, as may be necessary to ensure their health and safety. h) Assess whether Darragh Whelan and Matthew Twomey were adequately trained and experienced to safely undertake the duties required of them. As a result of the said failures, Darragh Whelan and Matthew Twomey sustained fatal injuries. 4 Each of those said failures was found to have been established by the prosecutor and I concluded (103 IR at p 115 in par [62]) : [62] In terms of the summons, I am satisfied that the failures alleged against the defendant by the prosecutor, as set out in the eight particulars, resulted in the exposure of Mr Whelan and Mr Twomey to risks to their health or safety during the relevant period at the Kent Road site in relation to the free-standing brick wall and as a result of which those two persons sustained fatal injuries. It was the defendant who relevantly failed to assess and implement measures to ensure that Mr Whelan and Mr Twomey were not so exposed to detriments to their safety and that is so even though the precise cause for the collapse of the wall was not ascertained. ... 5 The defendant's reliance on the statutory defence contained in s 53 of the Occupational Health and Safety Act, to the effect that it was not reasonably practicable for it to comply with s 16(1) or that the offence was due to causes over which it had no control and against the happening of which it was impracticable for it to make provision, was rejected (see 103 IR at p 116 in pars [64]-[65]). 6 Relevantly for present purposes in assessing penalty, the identified detriment to safety here was found to be "the presence of an unstable brick wall at the south western boundary of the Kent Road site and the risks to health and safety thereby occasioned to persons working near the said wall if it collapsed"; it followed from that that the essential element of the charge against the defendant was its "failure to make arrangements for ensuring safety and absence of risks to health in connection with the excavation work carried out adjacent to the free-standing wall" (103 IR at p 111 in par [50]). In determining the degree of culpability of the defendant in committing the subject offence, and having in mind the fundamental basis for its resistance to the charge was that it was not it but rather other persons (such as the developer, the design engineer and the principal contractor) who had responsibility for safety on the site and for what occurred, it is timely to repeat what I said in the earlier judgment (103 IR at p 109 in par [45]) : [45] The nature of the duty cast on the defendant by s 16(1) in relation to the work performed on the site on 15 December 1997 by Mr Whelan and Mr Twomey was, in terms of the sub-section, to ensure those two persons were not exposed to risks to their health or safety. In other words, and even though others (such as Develco, Consolidated Constructions and van der Meer Bonser) may have had a like obligation, the defendant here in conducting its undertaking was still subject to the statutory duty at the site concerned as its place of work. It is no answer to the charge, but as Mr Moore sought to put, that the Australian Standard in setting out guidelines for earthworks for commercial developments imposed duties on the designer of the project; the question here was not whether the defendant had breached the Australian Standard but rather whether it failed to comply with s 16(1) of the Occupational Health and Safety Act . Indeed, the fact that the two persons performing the excavation work were doing so at a location where they had worked for only a few days, and where other employers also were performing work, places, in my view, a special obligation on the defendant to ensure the workplace was safe and free from risks: see WorkCover Authority of New South Wales (Inspector Charles) v Mainbrace Constructions Pty Ltd (1999) 94 IR 451 at p 463. 7 The defendant has no prior convictions for breaches of occupational health and safety legislation. The maximum penalty for this offence at the time it was committed was, as I think the parties correctly agreed, $550,000. 8 The prosecutor, represented by Mr J J Millar of counsel, submitted that the circumstances of this case as found in the evidence, particularly the continued attitude expressed by the defendant that it was not it but others who were to blame for what occurred so as to "highlight the more serious aspects of the matter", operate to "elevate the matter beyond the lower range that might have applied for a case where there were good systems in place but failed on an occasion for a defendant who pleaded guilty and had no prior convictions". Mr Millar addressed the nature and quality of the offence by reference to the particulars of the breach as dealt with in the evidence of its principal and director, Seamus Benedict Byrne. Counsel submitted : It's one thing for the defendant to believe, however wrongly at the time of the accident, that other people are responsible for these measures to be taken and for putting systems in place, but another thing for the defendant to maintain that position at the time of the trial for an offence arising out of circumstances. The defendant should have been well enough informed at the time of the accident to know what its responsibilities were. But even if that were not the case it should surely have undergone some education process about the very bringing of these proceedings and taking advice in relation to the offence and in relation to its plea. It seems from the evidence of Mr Byrne, and from the submissions made, in reliance upon the defence that was put forward, that the defendant maintains the view that it's the fault of other people. It's one thing to say "I'm at fault and others are at fault as well", and the Court must consider everyone's responsibility. It's another matter to say "I have no fault in this and others are entirely at fault". As I say, even if that was the Defendant's honest but wrong belief at the time of the accident, it's concerning that the defendant maintains that position at the very time the matter is before the Court. Nonetheless, the defendant's position seems to be that other people have responsibility for the failures here, not it. 9 In emphasising the importance in assessing penalty of the aspect of deterrence, both general and subjective to the defendant, Mr Millar put "the fact that the defendant still asserts it's the responsibility of others and not itself indicates that the penalty needs to bring home to this particular defendant the fact that it has the responsibility and obligations that your Honour has identified in the reasons for judgment and which your Honour found the defendant failed in on this particular occasion". Added to that was the finding by the Court, as Mr Millar said, "that the defendant had a somewhat casual approach to the allocation and supervision of the work ... This whole matter is characterised by assumptions made by the defendant in the absence of proper enquiry about safety requirements and about training. And it's characterised by the casual approach that your Honour found with respect to the allocation and supervision of work. ... that applies to the defendant's approach to safety". 10 Mr Millar accepted that the defendant had the benefit of a prior record showing no convictions but it did not have the benefit of contrition that would flow from a plea of guilty. Counsel in that respect stressed that the charge was defended to the end and by an endeavour of the defendant in asserting other people were to blame and not it. And so it was, as counsel submitted, "that is relevant because it shows that the defendant still does not appreciate the blame that it must bear for what happened to these men on this occasion, and not just them, but the danger that was posed to anybody working in the area, having regard to what was found to be this unstable wall". Those objective aspects should be taken into account in assessing an appropriate penalty, conditioned, of course, by the subjective matters relied upon by the defendant as well as its financial circumstances. 11 Counsel for the defendant, Mr R Moore, based his plea in mitigation of penalty on the proposition expounded by me in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at p 388 in following what Cullen J said in WorkCover Authority of New South Wales (Inspector Gordon) v Walco Elevators Pty Ltd (unreported, Industrial Court, 13 March 1996), namely, that "the fundamental duty of the Court in this important area of public concern ... (was) ... to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high". Counsel accepted, as he said, that "in essence ... there was one issue pressed in full, and that was whether or not the actions of others were such as to remove the defendant from any liability". In the result, that submission failed in terms of the defendant's liability for what occurred and the offence was found to be proven; however, counsel emphasised as a relevant consideration in sentencing the defendant the culpability of others and the application of the principle of parity in assessing the relative position of the defendant. 12 Finally, Mr Moore placed much reliance on the quite small size - $20,000 - of the contract made with the principal contractor by the defendant to perform the detailed excavation work on the site and as covering both the hiring of equipment and labour to perform the work. That aspect was to be seen, as counsel submitted, in light of the size and nature of the defendant's operations, including its financial position, which, as I understood the submission, were such as to require a modest penalty. 13 I have to say that I consider the relevant failures by the defendant here to be at a most serious level. Throughout the trial the defendant resisted responsibility for each of the failures alleged against it on the basis that others (whether the developer, the design engineer or the principal contractor) should be held accountable for what occurred but not it. That attitude continued in the present proceedings as to penalty. Indeed, in the earlier judgment as to liability in this matter, I was led to make the comment, which I now affirm, that the evidence showed the defendant adopted to workplace safety "a somewhat casual approach ..., particularly in the allocation and supervision of work on a day-to-day basis": see 103 IR at p 114 in par [61]. The present submissions made by Mr Millar as to the effect of those aspects in the assessment of an appropriate penalty are accepted. 14 Essentially, it seems to me, the defendant sought to rely again on the responsibility of others rather than itself and then to plead its nature as a small corporation with limited financial means. Apparently, the defendant at the time of the incident employed only two persons, Mr Byrne and his wife; in the conduct of its business operations in the building and construction industry, the defendant performed work by making available its equipment for use by persons not its employees but engaged from labour hire companies. It is, I think, therefore appropriate to emphasise what I said in the earlier judgment (103 IR at p 109 in par [46]) by reference to observations made in Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at p 49, namely : I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose "to secure the health, safety and welfare of persons at work"; ... . Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. 15 Mr Moore's submission in relation to the nature of the defendant as a corporation and its financial position is to be viewed in light of the evidence in those respects. Mr Byrne swore an affidavit on 11 May 2001, filed by leave with the consent of the prosecutor after the hearing on penalty had concluded, which set out details of the defendant's income and expenses for the period from 1 July 2000 to 31 March 2001. For that period of nine months, the document disclosed the defendant's income totalled $430,824 with expenses of $359,620 giving a net income before tax of $71,204. Mr Byrne deposed further that as at 11 May 2001 the defendant had no employees. In a further affidavit sworn on 25 May 2001, again filed by leave with the consent of the prosecutor, Mr Byrne annexed a true copy of the defendant's balance sheet for the year ended 31 March 2001 indicating its position for that year and for the previous year ended on 31 March 2000; also annexed was a true copy of the trading, profit and loss statement as at 31 March 2001 showing details for that year together with the previous year ended on 31 March 2000. I do not propose to analyse in any detail those financial documents, suffice it to indicate that they disclosed the defendant had an authorised capital of 1.0 million ordinary shares at $1.00 each but its issued and paid-up capital was $2.00 from two ordinary shares at $1.00 each. The balance sheet for the current year disclosed net assets of $201,000 and for the previous year of $187,652; current assets for the present year showed loans to directors in the sum of $83,067. For the present year, the net operating profit was $13,347 compared to an amount of $188,952 for the previous year which amounted to unappropriated profit as at 31 March 2001 of approximately $201,000. 16 The Fines Act 1996 in s 6 requires a court in exercising discretion to fix the amount of any fine to consider the means of the defendant. In any event, this Court and its predecessors have consistently, as a matter of principle, taken into account the means of a defendant in assessing an appropriate penalty for the breach of occupational health and safety legislation. The approach was put this way by a Full Court of the former Industrial Court in Haynes v C I & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 at p 457 : In a number of cases decided under the OHS Act where the corporate structure of the defendant has been shown to be little more than the means of distribution of earnings arising from personal exertion, or where, as a matter of corporate structure, the burden of any fine levied would fall on one person or one family group ownership, the Court has seen it appropriate to impose a fine substantially less than if the corporation was functioning as a company with assets of a substantial kind. (See Gordon v MIJO (NSW) Pty Ltd; Ford v Warrah Ridge Pastoral Company Pty Ltd (unreported, Bauer J, 23 September 1994, Matter No CT1109 of 1993); Robins v C T Plumbing Pty Ltd (unreported, Fisher P, 16 December 1991, Matter No 522 of 1991) and Mauger v Krcmar Engineering Pty Ltd [1993] 47 IR 359). We consider that as precedent has been developed there are two strands to the consideration of fines under the OHS Act. The first comes into play when the defendant is an individual and there is no corporate structure. Where the defendant is a company with the structure as above considered, the principles and approach adopted in the cases above cited are to be applied. 17 In the present case, it is clear from the information provided in Mr Byrne's two affidavits sworn in May 2001 that although the defendant presently has no employees, no doubt managing its affairs through Mr Byrne as the director, it nevertheless continues trading at a not insignificant level in the industry and even though its paid-up capital is $2.00. On the evidence, it is open to conclude, as I do, that the respondent conducts a sizeable operation which, apart from Mr Byrne as the working director, regularly engages persons employed by labour hire companies to perform work for which it had contracted and where its equipment is utilised - that was certainly the case during the period in late-1997 to which the present offence related. In that situation, and having in mind the evidence as to the financial position, I do not see this as a case, as the Full Court observed in C I & D Manufacturing (No 2), "where the corporate structure of the defendant has been shown to be little more than the means of distribution of earnings arising from personal exertion, or where, as a matter of corporate structure, the burden of any fine levied would fall on one person or one family group ownership". In my view, it is appropriate in assessing penalty here to regard the defendant as a corporation but of a relatively small size and where any financial burden from a penalty would be met by one family. Even so, I necessarily must have in mind the comments of a Full Bench of the Court in Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 in par [82], as follows : [82] However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at pp 209-210, Wright J, President observed : "... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. ... ... When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ..." 18 In WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at pp 185-187 in pars [21]-[27], Wright J, President extensively reviewed the principles applicable to sentencing under the Occupational Health and Safety Act and in Benbow v Converquip Pty Ltd [2001] NSWIRComm 85 in par [42] his Honour stated that such principles were well settled. It is sufficient for present purposes to cite the following extracts from his Honour's judgment in Walco Hoist Rentals (99 IR at p 185) : [22] The primary factor to be considered in determining the appropriate sentence is the objective seriousness of the offence charged. This has been expressed in various ways. For example, by observing that "the true measure of penalty lies in the nature and quality of the offence" ... The proper approach involves initially considering the gravity of the offence viewed objectively with the Court ensuring that the allowance for subjective factors does not produce a sentence which fails to take account of the objective gravity of the offence ... 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 ... [23] The proper consideration of subjective matters such as "previous good industrial citizenship and the absence of prior convictions", rank in importance well behind "the two primary aspects of the matter namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce" ... The maximum penalty available for an offence reflects the "public expression" by parliament of the seriousness of the offence; a large penalty indicates the gravity of the offence as perceived by the community. The task of the Court is thus to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the penalty scale of penalty set by the legislature from zero to the maximum ... Although some cases have referred to the consideration that a penalty should not be "oppressively high", such dicta should not be considered as qualifying the approach to balancing subjective and objective factors ... 19 The approach so stated was affirmed by the Full Bench in Manpac Industries (in pars [69]-[71]). In summary, then, the proper approach in sentencing an offender is to consider the objective seriousness of the offence charged in terms of its nature and quality so as to compel attention to occupational health and safety risks but not so as to be oppressively high; matters subjective to the defendant, such as previous good industrial citizenship and the absence of prior convictions, whilst relevant rank in importance well behind the primary aspect of the nature and quality of the offence. Overall, a penalty is to be imposed so as to give effect to the clear policy of the Occupational Health and Safety Act, namely, the establishment of safe standards and the protection of the workforce. I will so approach the present matter. 20 I should only add in terms of approach that I am very conscious the present charge under s 16(1), although a single offence, contains eight multiple failures or contraventions of the section and is, therefore, to be considered by application of the principle of totality. As was observed recently by a Full Bench of this Court in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at pp 196-197 in par [36] : [36] ... Where the multiple offences contain common elements, the principle of totality must, for that reason alone, be applied to ensure that the defendant is not punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if that occurred. ... That approach, although relating to common elements in multiple offences under s 15 and s 16, was adopted by the Full Bench in Manpac Industries (in par [75]) where their Honours said that the approach to the problem so stated was "conceptually of assistance in resolving the present issue of multiple contraventions being charged as a single offence because, after all, in both situations the aim must be to avoid excessive or double punishment for common elements". Accepting, as I do, that I am bound to follow the same approach, I would wish to state I am in respectful agreement with it as being sound in both logic and common sense as part of the sentencing process. 21 As I found in the judgment on liability, the essential element of the charge here was the failure by the defendant to make arrangements for ensuring safety and absence of risks to health in connection with the excavation work carried out adjacent to the free-standing brick wall. In a real sense, that element comprehends most, if not all, of the eight particulars referred to in the summons. However, it seems to me that the real measure of the culpability of the defendant was its failure in the first instance to properly identify a detriment to safety, namely, the presence of the unstable brick wall. That it did not do so represents, to me, the inherent nature of its failure because if it had so identified the risk created by the wall, it may reasonably be assumed, the taking of safety measures to obviate the foreseen risk would have occurred. In consequence of that view, the particulars of the offence contained in pars (a), (b) and (f) represent that essential failure as they were all concerned with an assessment or evaluation of the stability of the brick wall; the particulars in pars (c), (d), (e), (g) and (h), whilst important, all followed the initial failure to assess the stability of the wall. In terms, therefore, of the quality of the offence I view those last-mentioned particulars as secondary or subsidiary to the principal failure in pars (a), (b) and (f). In assessing the objective nature of the primary failure, I think it may be seen from what I concluded in the earlier judgment on liability (103 IR at p 113 in par [58]), as follows : [58] Particulars (a), (b) and (f) may be considered together as they all concerned an assessment or evaluation of the stability of the brick wall. I find them to have been established. It is undoubted on Mr Seamus Byrne's evidence, as set out in his record of interview of 19 December 1997, that the stability of the wall, including its footings and the saw cuts on the concrete driveway, was not examined, evaluated, checked or otherwise assessed by the defendant or by anyone on its behalf at any time prior to or during the performance of the excavation work contracted to be performed for Consolidated Constructions on the site. Mr Seamus Byrne thought he would have seen the wall during his visits to the site but other evidence by him conceded he was only ever about 60 metres to 100 metres from the wall at any particular time. His evidence was that he never examined in any way the excavations along the western boundary or the footings to the brick wall; and he was unaware prior to the incident on 15 December 1997 of the existence of the saw cuts in the concrete driveway on the property of The Blue Mountains Water Company. On the basis of that evidence, I do not accept his later evidence that he considered the wall to be safe and that from "visual examination there was nothing to raise any concern about it". Against these particulars, Mr Moore submitted that the observations of the wall by Mr Seamus Byrne and his conclusion, although perhaps erroneous, that it was safe meant the allegations in the particulars failed because indeed an "assessment" was made. I reject that submission. 22 On the basis of my finding that the offence here should properly be characterised as "most serious", but applying the principle of totality to the multiple contraventions and having in mind also the responsibility of other persons for the then existing risks to safety, I would assess the objective seriousness of the offence about the middle of the lower half of the available range. In that last-mentioned respect, I have had in mind too the parity principle in sentencing, as referred to by Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 at p 301, to the effect that the notion of equal justice is not violated in the case of co-offenders where "different sentences ... reflect different degrees of culpability or their different circumstances" - I have earlier today published judgment in WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263 in which the principal contractor on the Mascot site was fined an amount of $265,000 in relation to the subject incident; there, however, the maximum fine was $825,000, due to a prior conviction, and where the degree of culpability was found at a higher level than that of the present defendant but with a plea of guilty. I have taken into account also the financial circumstances of the defendant and its corporate structure, but with the need to cater for appropriate deterrence in a situation where the defendant neglected to address the adoption of measures to avoid safety risks in its future operations on construction sites. 23 In terms of subjective considerations in reduction of a penalty otherwise considered appropriate, the main factor in the defendant's favour was that this was its first offence. It vigorously defended the proceedings, as it was entitled to do, and persisted in its claim that the failures were the failures of others and not of it right up to the end of the sentencing process. I must say there was little in the evidence which favoured the defendant in terms of its contrition for what occurred or as to the steps it proposed to take to ensure workplace safety. Those were aspects which were of concern to me in hearing the submissions on penalty and must be reflected in minimising any discount allowed. I propose to allow a discount of five per cent. It follows, on my assessment, that an appropriate fine to impose upon the defendant for the subject offence is $125,000. 24 The prosecutor should have the benefit of a moiety of the fine and with his costs of the proceedings to be paid by the defendant on a party-party basis. 25 I order that a conviction be entered against the defendant for the subject offence and a penalty of $125,000 be imposed, with a moiety to the prosecutor. The defendant shall pay the prosecutor's costs; leave is granted to the parties to apply to the Court to fix the quantum of costs if agreement cannot be reached, provided that such leave is exercised within 21 days of today. __________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.