Industrial Relations Commission of New South Wales in Court Session CITATION : Insp Plowright v Capitol Apartments Pty Limited [2001] NSWIRComm 270 PROSECUTION: PARTIES : Insp Plowright DEFENDANT: Capitol Apartments Pty Limited FILE NUMBER: IRC563 of 2001 CORAM: Kavanagh J CATCHWORDS : Plea of guilty to charge under s16(1) of the Occupational Health and Safety Act 1983 - the Defendant, the Principal on site, failed to ensure contractor bricklayers left work site without risk to health - Defendant company failed to audit or supervise work of brick layer contractor - Wall was left freestanding and not laterally supported - In mitigation reputation of holding company relied upon as is personal reputation of common director - Character evidence from director who is the controlling mind of the company allowed in assessing admissions and credibility of commitment to safety offered by the director - evidence can also be relevant to assess the corporate/character reputation of the defendant company however it cannot be given excessive weight - Industrial record of holding company given consideration when assessing reputation/character evidence of the company - Industrial record of defendant company relevant to question of penalty LEGISLATION CITED : Occupational Health and Safety Act 1983 s16(1) Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Insp James Swee Ch'ng) (1999) 90 IR 464 Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 CASES CITED : Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported decision, Maidment J, CT93/1062, 26 November 1993) Haynes v James Glass and Aluminium Pty Limited (unreported, Fisher CJ, CT91/772-775, 20 May 1994) WorkCover Authority of New South Wales v Kellogg (Australia) Pty Limited 101 IR 239 HEARING DATES: 09/12/2001 DATE OF JUDGMENT: 11/02/2001 PROSECUTOR: Ms P.E. McDonald of counsel Solicitors: Ms M. Lagana WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT: Mr J Davidson of counsel Solicitors: Mr G.E. Schrader Schrader & Associates JUDGMENT: - 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Fri 2 November 2001 IRC563 of 2001 INSPECTOR COLIN PLOWRIGHT v CAPITOL APARTMENTS PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2001] NSWIRComm270 1 This is a prosecution brought by the WorkCover Authority of New South Wales through Inspector Colin Plowright under the provisions of s16(1) of the Occupational Health and Safety Act 1983. The defendant is charged that: On 11 February 1999 at the construction site of the Metro Apartments at the corner of Scott and Watt Streets, Newcastle in the State of New South Wales it failed to ensure that persons not in its employment, and particularly Gary Ward were not exposed to risks to their health, safety and welfare arising from the conduct of its undertaking while they were at its place of work, namely, the construction of the Metro Apartments at the corner of Scott and Watt Streets, Newcastle. 2 Relevantly the particulars of the charge were as follows: 1. The Defendant failed to ensure that the brickwall constructed in room 901 on the ninth level at the construction site at the corner of Scott and Watts Street Newcastle (" the brickwall") was laterally supported. 2. The Defendant failed to ensure that the construction of the brickwall complied with Regulation 77 of the Construction Safety Regulations 1950, and Australian Standards. 3. The Defendant failed to conduct audits of the work undertaken by its subcontractor Peter J Davis (Newcastle) Pty Limited in constructing the brickwall to ensure that the brickwall was laterally supported and that it complied with Regulation 77 of the Construction Safety Regulations 1950. 4. The Defendant failed to assess the structural integrity of the brickwall. 5. The Defendant failed to adequately supervise its subcontractor, Peter J Davis (Newcastle) Pty Limited, to ensure that the brickwall was laterally supported and complied with Regulation 77 of the Construction Safety Regulations 1950. 6. The Defendant failed to prevent other workers on the site from performing work in the vicinity of the brickwall, without assessing its lateral stability. 3 The defendant entered a plea of guilty to the charge. 4 An Agreed Statement of Facts relevant to the charge reads: 3. At all material times the Defendant was the principal contractor and project manager for the construction of a multistorey apartment building known as the "Metro Site" at the corner of Scott and Watts Street, Newcastle ("the site") 4. The Defendant employed Mr Kim Gritten as the site manager and Mr Jeff Malone as the site foreman. They were responsible for the supervision and co-ordination of work on the site and to ensure compliance with statutory obligations. 5. On 4 June 1998 the Defendant entered into a subcontract agreement with Peter J Davis (Newcastle) Pty Limited ("Peter Davis") to provide bricklaying and other associated work at the site. 6. The contract provided at Page 3 " Preliminary –A 11- Safety: The sub-contractor will observe the site safety instructions of Capitol Apartments Pty. Ltd." 7. The contract provided on Page 3 Section G " brickwork - extent of works: during windy conditions or until mortar has set or until cross walls are built, adequate bracing and scaffolding shall be provided to prevent collapse or movement of brick work. Further conditions under WorkCover and Occupational Health & Safety are to be treated as minimum requirements." 8. Peter Davis employed Mr. Graeme Osmond as a bricklayer on the site and Malcolm Page as its foreman on the site. 9. In addition, present on the site was Tru Flow Contracting Pty Limited ("Tru Flow") a company providing plumbing services to the site. Tru Flow had contracted with Hunter Group Training Australia Limited to provide workers for the site. 10. During approximately February 1999, Graeme Osmond constructed a brick wall on the ninth floor of the site in an area known as room 901. The brick wall was a single skin wall approximately 1.750 metres wide x 2.610 metres high and 90 mm thick (" the brickwall"). The brickwall was constructed with Austral Maxi bricks which were jointed and bedded with cement mortar onto a steel float finished floor. 11. Although the brickwall, during its construction was originally supported by scaffolding the bricklayers from Peter Davis removed the scaffolding from the brickwall. The brickwall was not supported by any lateral support and it had not been extended up to the roof cavity and tied into the structural steel of the building. This was in breach of Regulation 77 of the Construction Safety Regulations 1950 , which provides: "No wall or portion of a wall shall, during its construction be built to a greater height than 1.5m or six times its thickness, whichever is the greater, unless it is supported by temporary shores, proper scaffolding or buttresses at intervals of length not greater than thirty times its thickness until such time as roof or floor ties or cross walls are in position." 12. Malcolm Page, Peter Davis' foreman on the site, knew that the brickwall was not braced after the scaffolding was removed. 13. On 11 February 1999, Gary Ward and Paul Allibon were employees of Hunter Group Training Australia Limited and working for Tru Flow at the site. 14. On 11 February 1999, Gary Ward was working on the gas and hot and cold water services in part of the site known as room 901. He was sitting in a cross-legged position on the floor cutting a 25 mm gas services pipe. 15. Paul Allibon was working near room 901. He was walking along a hallway situated behind the brickwall; a box gutter had been placed on the floor of the hallway. As Paul Allibon stepped over the box gutter he placed his hand on the brickwall to steady himself and the brickwall gave way and began to topple over. 16. The brickwall fell onto Gary Ward. Gary Ward was struck on the head with a brick and then bricks fell onto his back. Gary Ward received serious spinal injuries as a result of the accident and is now a paraplegic. At the time of the accident Mr Ward was a 3 rd year apprenticed plumber. Mr Ward had been working on the site for approximately a month and a half. 17. The brickwall did not comply with Regulation 77 of the Construction Safety Regulations 1950 as it had been constructed without lateral support to a height higher than allowed by the Regulations. This caused the brickwall to be unstable and to topple over when leant against by Mr. Allibon. 18. Jeff Malone and Kim Gritten, who were in control on behalf of the defendant with the running of the site, did not know that the brickwall was not laterally supported. 19. At 11 February 1999 the Prosecutor in company with Inspector Farrell conducted an inspection of the said site. Photographs were taken and a factual inspection report compiled. Annexed hereto and marked "A" is a copy of that report and the photographs. 5 Ms P.E. McDonald, of counsel, appeared as Prosecutor for the WorkCover Authority and Mr J. Davidson, of counsel, appeared for the Defendant. 6 The maximum penalty at the time of this breach was $550,000. 7 An assessment of the objective seriousness of this offence requires a determination of a number of factors viewed objectively. As was held in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Insp James Swee Ch'ng) (1999) 90 IR 464 (at 474): . . . in our view, it 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 the 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". The Full Bench further commented (at 476): . . . the proper approach is first to consider the gravity of the offence viewed objectively. 8 The defendant company was the principal contractor and project manager for the construction of a nine-storey apartment building. The defendant oversaw all the subcontracting work involved on the building site, including the subcontracting work of bricklaying as performed by employees of P J Davis (Newcastle) Pty Limited. The defendant company contracted with Peter J Davis (Newcastle) Pty Ltd to do the bricklaying work at the Metro Apartments site. Much of the work up to the 9th level of construction was completed. On each level were six apartments. Work had begun on the 9th level. In Apartment 901, Mr Davis's employees had erected a kitchen wall some 1.750m wide times 2.610m high and 90mm thick. The bricklaying work, it is alleged, was then completed. The bricklayers cleaned up the site of apartment 901 and moved to other work. The brick wall was left free-standing without support laterally or horizontally. 9 The defendant company had two employees on site to oversee the construction. They were Mr Kim Gritten, the site manager, and Mr Jeff Malone, the site foreman. Evidence revealed one of them usually checked the site of construction on a daily basis. The other organised the works including deliveries, timetables of jobs, etc. 10 After the bricklayers had completed their work erecting the internal walls in the apartment the carpenters were to enter and erect a kitchen servery which would act as lateral support for one of the kitchen walls. The plumbing trades were then expected to come into the apartment to install pipes. A number of days after the bricklayers left the apartment, the plumbers went into the apartment. The kitchen servery had not been built. There was no support for the wall when the plumbers entered the worksite. The wall was therefore freestanding. A young plumber going about his business was walking down a corridor beside the brick wall when he placed his hand on the wall to steady himself. The brick wall gave way. It fell backwards into the kitchen area striking another apprentice plumber. The apprentice, Mr Gary Ward, was working in the kitchen area on pipes. He suffered serious spinal injuries as he was struck by the falling bricks. He is now a paraplegic. 11 There was an obvious risk involved in leaving the kitchen wall unsupported. The defendant company had in place a system requiring regular inspection of the site. However, on the ninth floor construction, the top floor, there had been some structural problems with the design of the roof. This design problem caused interruption to the flow of work on the site. Wind and inclement weather had also caused a halt to work. As a result, the regular inspections went by the wayside. 12 The defendant company pleads guilty to failing to ensure the brickwall was laterally supported; failing to conduct audits of the work done by the bricklayer; failing to assess the structure of the wall; and failing to prevent other workers from exposure to a risk to their safety. Neither of the supervisors, Mr Gritten nor Mr Malone knew the brick wall had not been laterally supported by the kitchen servery. The plumbing trades were allowed to enter into an area on a construction site that was a risk to safety with a long and high wall, freestanding and unsupported. 13 An element for the court's consideration in establishing the objective seriousness of an offence is to determine whether there was an obvious and foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible. This breach reflects an element of "reasonable foreseeability". As Walton J, Vice President, in Department of Mineral Resources of New South Wales (Chief Inspector B R McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at (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/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng , Matter No IRC 3064 of 1997, 12 August 1999 at 39), 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: see Camilleri's Stock Feeds (at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at p17) and WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Matter No. CT 1280 of 1995, 2 April 1997, at 16). While the supervisors, Mr Gritten and Mr Malone did not know the brick wall was not laterally supported they had both failed to check the work of the bricklayers and the site had been left with a risk to the safety of any person entering the site. 14 The defendant failed to ensure there was any stabilising influence on the free-standing kitchen wall. It admits it failed to conduct audits of the work undertaken by the bricklayer. The evidence suggests one of its supervisors was ill in the relevant period and the other busy solving issues associated with a problem they had with the redesign of the steel components to the roof over the ninth floor level. They did not perform their full duties as supervisors. As a result of the failure to check, the risk to safety stayed for a significant number of days. This defendant had an obligation to oversee the quality of the work performed by contractors working on its undertaking, at its place of work, and it failed to do so. 15 While the gravity of injury arising from the breach does not of itself dictate the level of penalty, the occurrence of death or serious injury can manifest a degree of seriousness to the relevant detriment to safety. As Wright J, President said in Ferguson v Nelmac (1992) 92 IR 188 (at 204): Where a fatal injury has occurred, that is a factor to be taken into account and is often of itself reflective of an offence the nature and quality of which is serious. Wright J, President endorsed the well acknowledged words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5): The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risks flowing from the breach and its foreseeability are clearly relevant. 16 The seriousness of the offence is also demonstrated by the simple and straightforward steps the defendant corporation had available to meet its obligations under the Act. As evidenced by the photograph of the re-built wall after the incident, the wall was easily built up and tied to a ceiling cross beam and a stabilising element was added with the inclusion of a vertical line of bricks attaching the free-standing wall to a corner wall forming a doorway entrance. 17 The court must assess the level of culpability of this defendant. The defendant submits the contract bound the bricklayers to comply with the safety regulations and the defendant's site safety instructions and to comply with the conditions for site safety on a construction site under WorkCover and Occupational Health and Safety as minimal requirements. Given the statutory obligation on P J Davis and the particular contractual obligations on the bricklayer, the defendant submits, while it has acknowledged its culpability under the Act by its plea of guilty, the court would determine its level of culpability, as the Principal contractor, was not great. 18 The court, in its assessment of the level of culpability of the defendant, is guided by the view expressed in WorkCover Authority of NSW (Insp Ankucic) v McDonald's Australia Limited & Anor 95 IR 383 (at 437): The culpability of the defendants should be assessed in light of the systems which were in place and the reliance which was placed upon third parties to provide various services . . . Walton J, Vice-President referred to a possible unfairness (at 437): . . . that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of the contribution to an accident is not undertaken. 19 As was discussed in Inspector Paul Mansell v Anytime Industrial Services Pty Limited [2001] NSWIRComm237 (12 October 2001) there is a modern industrial trend for Principal's to contract-out work. This is an evolutionary change in established industrial practice. This defendant has expended monies and had in place a site safety plan. However, it has admitted it failed to assess the structural integrity of the wall and failed to ensure the brickwall was laterally supported. These failures are the failures of the Principal who was responsible for the plans of the construction. 20 The Principal, once it had contracted out its work and bound the bricklayer contractor to its site safety plan, cannot then submit the contractor carries the greater onus. In this circumstance, the Principal defined the task and in not assuring itself of the structural integrity of the wall, its definition of that task exposed persons to risk to safety. Because the wall was on the 9th floor, the usual procedure for fixing it was not available. An alternative procedure to secure the structural integrity of the wall was a matter overlooked by the Principal. 21 Pursuant to the contract, there was an obligation on the bricklayer to ensure the wall had been adequately braced. The defendant relies on the contractual obligation on the bricklayer as evidence that there was a procedure in place which, if complied with, would have prevented the risk to safety arising on the site. However, evidence revealed, while the bricklayer did brace the wall with appropriate scaffold during its construction stage, they removed the scaffold and cleaned up the site on completion. The instruction was given by the Principal, the defendant, that each trade had to clean up the site once the work of their trade was completed before leaving the area. The bricklayers took this literally and removed the scaffolding around the wall. 22 Part of the admitted breach by the defendant was a failure to properly supervise. Further, as Maidment J said in WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported decision, CT93/1062, 26 November 1993) (at 7): . . . . it needs to be remembered that the legislation is not directed to ex post facto measures, it requires positive preventative steps being taken to ensure that workers are afforded safe working environments . . . There were preventative steps available to this defendant. There was the option of requiring the brick layer to leave in place the scaffold around the wall until the servery was built or to adopt a design that enabled the wall to be secured to the roof steel. The latter procedure was that adopted after the wall was rebuilt following this tragic incident. 23 Taking into account the level of the objective seriousness of this offence, this defendant's culpability for its failure to assess the structural integrity of the wall and its failure to supervise I find places the breach in the middle range. 24 Mr Davidson for the defendant made a number of submissions as to subjective elements of the offence in consideration as to penalty. In Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Insp James Swee Ch'ng) (1999) 90 IR 464 the Full Bench said (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpates the accused must be secondary to consideration of the nature and quality of the offence. The Full Bench cited (at 474) with approval, the passage in the judgment of Fisher CJ in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies 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. 25 The corporate character/reputation of the company is relevant to a consideration as to mitigation of penalty. The corporate character and reputation of the holding company, Huxley Homes, has been placed before the court. It can be given consideration in mitigation as to penalty because of the evidence of the incorporation of the defendant company into the community activities of the holding company (see full discussion of the nature of character and reputation evidence in Melbourne v The Queen 198 CLR 1; WorkCover Authority of NSW (Insp Dubois) v Transfield Pty Limited (unreported, IRC6985 of 1999, 8 November 2000, WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited & Anor (2000) 95 IR 383; WorkCover Authority of New South Wales (Inspector Mauger) v Ridge Consolidated Pty Ltd [2000] NSWIRComm15 (published 8 March 2001); WorkCover Authority of New South Wales (Inspector Farrell) v Forgacs Shipyard Pty Ltd [2000] NSWIRComm227 (published 12 October 2001); see also discussion referred to in WorkCover Authority of NSW (Insp Hopkins) v Profab Industries Pty Ltd (No. 2) (2000) 101 IR 92). 26 The court takes into account in its assessment of the holding company's reputation/character, which is relied upon by the defendant company, the holding company's industrial record. In consideration of penalty for the breach, however, the court takes into account the industrial record of the defendant company. 27 Huxley Homes and its subsidiaries have employed a number of people on construction sites throughout Australia for over 20 years. It conducts a large enterprise which involves work on construction sites of various sizes. It is closely associated with a number of companies, such as the defendant company, with which it has some common directors. It conducts other associated business enterprises. 28 Huxley Homes has operated since 1969. The defendant company, Capitol Apartments, an associated enterprise, was formed in 1990. It ceased trading after the completion of the Metro Apartments. For the 32 year period, Huxley Homes has been in existence, it has specialised in residential building throughout Sydney, Newcastle, Wollongong and the Central Coast. It has entered into a series of franchises with local builders, some 36 in all, throughout New South Wales. It now exports to both Japan and China. It exports and sells both the plan and the structural material for buildings designed for various specific purpose. It has won about 100 prizes for quality in the building industry. 29 The holding company has no convictions for breaches of the Occupational Health and Safety Act 1983. 30 It is, as a corporate entity, very active in the community. Huxley's companies, through the endeavours of Graham Charles Huxley, its Managing Director, has made significant contributions to the growing awareness of the need for safety in the construction industry. The company has made a major contribution in New South Wales to encourage a safety awareness culture in what was acknowledged as a lazier faire attitude to safety found in the construction industry. Mr Huxley gave evidence on behalf of the defendant corporation. He acknowledged the close relationship of the defendant company with Huxley Homes. Reliance was placed upon the corporate reputation of Huxley Homes, as well as the industrial record of Huxley Homes, in mitigation of penalty against the defendant corporation. 31 Although this was a large operation, the evidence reveals Mr Huxley is, in effect, the corporation. I am persuaded the company's drive and control is directly related to the endeavours of Mr Huxley. Evidence of the good character of a director, being a director who is the controlling mind of the corporation, is admissible as relevant to the likelihood that the company, through the director, made proper admissions and in assessing the credibility of the commitment to safety offered by the director. It can also be relevant to an assessment of the corporate character of the defendant company (see WorkCover Authority of NSW v CT Plumbing Pty Ltd (unreported decision of Fisher P, 16.12.91, CT522 of 1991)). However, excessive weight cannot be given to the character of such a witness "whose circumstances appear to have been adopted as co-extensive with the circumstances of the defendant company" (see Insp Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992). 32 Mr Huxley is an honorary life member of the Spastic Centre of New South Wales. Mr Huxley has personally been active on the Grevillea Trust which assists a community of the disabled suffering from cerebral palsy. The companies under his control have contributed over $1.4 million to the Spastic Centre. Mr Huxley is a governing director of Abbotsleigh School and the Odyssey Foundation. He has also served on organisations such as the Australian Japan Housing Co-operative, the Commonwealth Buildings Code Board and the TAFE New South Wales Curriculum Committee in relation to the establishment of the Bachelor of Building degree also now adopted by Western Sydney University. The corporations under his control have made significant financial donations to the various causes so named. 33 Mr Huxley has been the President of the Housing Industry Association. He was President of the New South Wales Division for two years. 34 Evidence revealed Mr Huxley of Huxley Homes Pty Limited has played a very active role in the development of the safety standards now being applied in New South Wales for occupational health and safety on building and construction sites. 35 With his broad general knowledge Mr Huxley expressed concern at the state of the building industry. He acknowledged the past lack of concern for safety in his industry and submits he has endeavoured to assist in developing safety awareness programmes appropriate for the industry in which he has spent so many working years. He was clearly committed to ensuring his own sites were safe and without risk to injury and was quite disturbed by this incident. 36 Mr Huxley presented significant site safety plans and an outline of general safety procedures he had ensured were adopted in the performance of Huxley's enterprises. He had expected them to be followed in these circumstances. He expressed a true contrition for the incident and concern for the injured worker. In his evidence he revealed a real knowledge of the procedures required for safe working and was clearly familiar with the appropriate terminology such as risk assessment and work methods. The defendant company's contract with the bricklayer revealed this awareness of safety standards. Clause G2.1 of the contract headed "Brickwork generally" states: During windy conditions, or until mortar has set, or until cross walls are built, adequate bracing and scaffolding shall be provided to prevent collapse or movement of brickwork. Further conditions under WorkCover and Occupational Health and Safety are to be treated as minimal requirements. 37 However, there was also evidence that Mr Huxley, as the driving force behind the company's activities, was often on the site and was always urging the construction towards completion. The problems met at the latter stage of the project were clearly costly and his activities to resolve the difficulties may well have put pressure on the two employees on site leading them to neglect their basic duties to oversee the bricklayers' work and to not recognise the lack of structural integrity of the wall. 38 As Walton J, Vice President in WorkCover Authority of New South Wales v Kellogg (Australia) Pty Limited 101 IR 239 (at 257), relying on the English High Court Case of Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at 44 of Redgrave's Health and Safety, 1998, (3rd ed)) said: . . . It was held not to have been sufficient for instructions of a health or safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out. 39 The level of penalty provides to the court some difficulty. The Occupational Health and Safety Act 1983 in intended to reflect the community's express demand for the delivery of circumstances which provide safe working. Deterrence both personal and general must be given weight in the sentence process (see John Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388; Capral Aluminium Ltd v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29). 40 While the defendant corporation is no longer trading since the completion of the Metro Apartments I find it is still in existence and the principles related to deterrence in consideration of penalty must be applied. The evidence reveals there is still much building activity associated with the director whose activities appear to be co-extensive with the circumstances of the defendant company. 41 I have weighed all the evidence of corporate reputation placed before me and find it has some probative force sufficient in my consideration to allow a measure of mitigation of penalty. 42 There were no submissions relied upon as to the defendant's capacity to pay a fine (see s6 of the Fines Act 1996; Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209; Aref Rahme (1989) 43 ACrimR 81 at 86-87). 43 The New South Wales Court of Criminal Appeal published a guideline judgment in R v Thompson; R v Houlton (1999-2000) 49 NSWLR 383; (2000) 115 ACrimR 104 directed to the consideration a court should give when a plea of guilty is entered by a defendant. The judgment [at 151-155] calls for a discount in consideration of the utilitarian value of a plea of guilty. A court can allow a discount of up to 25% on the utilitarian value of an early plea of guilty. The file reveals this charge was laid on 16 March 2001 and by 30 April 2001 a plea of guilty was entered. I consider such circumstance sufficient to attract the full discount allowed for the utilitarian value of a plea, namely, 25%. 44 I find the defendant guilty. 45 I take into account the objective seriousness of the offence and the above subjective features and include the discount allowed in my consideration as to penalty. The defendant is fined in the sum of $85,000 with a moiety to the WorkCover Authority. The defendant is to pay the prosecutor's costs to be agreed or assessed. 46 I make orders accordingly. 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.