Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Henson) v Chadraoui & Sons Pty Limited and Mounir Chadraoui [2004] NSWIRComm 356 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Henson) PARTIES : DEFENDANTS: Chadraoui & Sons Pty Limited Mounir Chadraoui FILE NUMBER: IRC 7264 and 7265 of 2003 CORAM: Staunton J CATCHWORDS : Occupational health and safety - plea of guilty - no prior convictions - objective seriousness of the offence - readily and easily available remediation steps which could have been undertaken by the defendant to prevent the injury occurring - general and specific deterrence - financial circumstances of the defendants - plea entered at the earliest opportunity - subjective features relevant to determination of penalty - defendants convicted - penalties imposed - costs to the prosecutor regarding the offence involving the corporate defendant - no order as to costs regarding the offence involving the personal defendant. LEGISLATION CITED : Fines Act 1996 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 Department of Mineral Resources (Chief Inspector Terrey) v A M Hoipo & Sons Pty Limited (1999) 99 IR 137 CASES CITED : Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (1999) 90 IR 464 Manpac Industries Pty Ltd v WorkCover Authority of NSW (Inspector Glass) (2001) 106 IR 435 R v Thomson, R v Houlton (2000) 49 NSWLR 383 HEARING DATES: 11/22/2004 DATE OF JUDGMENT: 11/22/2004 PROSECUTION: Mr D Chin of counsel SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANTS: Mr M Spartalis of counsel SOLICITOR: Leslie E Abboud JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staunton J DATE: 22/11/2004 Matter No IRC 7265 of 2003 WorkCover Authority of New South Wales (Inspector Henson) v Chadraoui & Sons Pty Limited Prosecution arising under s8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 7264 of 2003 WorkCover Authority of New South Wales (Inspector Henson) v Mounir Chadraoui Prosecution arising under s26(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2004] NSWIRComm 356 1 Chadraoui & Sons Pty Limited is a small company (the company) involved in the demolition business. Mr Chadraoui, is the Managing Director of the company and is employed by it in that business. From time to time, as the needs of the business demand, an additional person or persons are employed. 2 On 26 December 2001, Mr Younan Samaan was employed by the company as a demolition labourer. He and Mr Chadraoui were engaged in demolishing a two storey building at 558-560 Princes Highway, Rockdale. The company had contracted with Hua Chang Pty Limited to undertake demolition of the two storey building at that address. At the juncture of the ground and second floor of the building, a metal shop awning extended out over the footpath. 3 In the course of undertaking the demolition, the metal awning unexpectedly collapsed. At the time, Mr Samaan was standing near the awning. He fell with the awning from a height greater than 3.6 metres. In doing so, he suffered a number of serious injuries. I understand he has recovered from those injuries but no longer works for the Company. 4 As a result of the accident, the company and Mr Chadraoui were charged with offences arising under ss8(1) and 26(1) of the Occupational Health and Safety Act 2000 (the Act) respectively. Taken together, the offences charged were that: Chadraoui & Sons Pty Limited did fail, contrary to Section 8(1) of the 2000 Act to ensure the health, safety and welfare at work of all of the employees of the employer, and in particular, Mr Younan Samaan ('Samaan'). And , Mr Chadraoui being a Director of the said corporation which contravened Section 8(1) of the 2000 Act, is taken to have contravened the same section pursuant to Section 26(1) of the 2000 Act. 5 The offences with respect to the two defendants were pleaded as follows: [1] Chadraoui & Sons Pty Limited contrary to s8(1) of the 2000 Act failed to ensure that systems of work and the working environment of its employees and in particular Samaan, was safe and without risk to health in relation to the performance of demolition duties at the site in that Chadraoui & Sons Pty Limited failed to: (i) Ensure that Samaan did not stand on or near the metal awning or access the area of the metal awning whilst demolition activities were being undertaken given the risk that the awning would collapse under the weight of workers (such as Samaan) and debris from the demolition (including bricks and pieces of the building). (ii) Ensure that Samaan was wearing a safety harness or had employed other means of fall protection, such as the erection of a barrier or hand rail so as to ensure that Samaan could not access the awning or the area of the awning. [2] The Defendant being a Director of Chadraoui & Sons Pty Limited on 26 December 2001 is taken to have contravened the same section of the 2000 Act (s8(1)) pursuant to Section 26(1) of the 2000 Act. 6 Both defendants have entered a plea of guilty to the respective offences charged. 7 The prosecution have tendered an agreed statement of facts which relevantly discloses: [1] At all material times, the First Defendant was an employer. At all material times, the First Defendant employed Mr Younan Samaan ("Samaan"). Samaan usually worked for the First Defendant as a truck driver, however on 26 December 2001 ("the accident date") Samaan was working as a demolition labourer for the First Defendant. [2] At all material times, the First Defendant employed the Second Defendant, Mr Mounir Chadraoui. At all material times, the Second Defendant was responsible for the day to day management of the First Defendant's business. The Second Defendant was the managing director of the First Defendant. [3] At all material times, the First Defendant, by contract with Hua Chang Pty Ltd, was engaged to perform the demolition of the two (2) storey building at 558-560 Princes Highway, Rockdale in the State of New South Wales ("the premises"). [4] On the accident date, the Second Defendant and Samaan attended the premises and commenced the undertaking of demolition activities. Samaan was being directly supervised by the Second Defendant. [5] Attached to the building under demolition at the premises was a metal shop awning which extended out over the footpath. The metal awning was affixed to the building at the point where the ground floor joined with the second storey of the building. The awning was fitted to the wall of the building by means of a number of stays. [6] Located in the second storey brick wall above the awning were three windows, and above each of these windows was a concrete header weighing approximately 150kgs. [7] On the morning of the accident date, the Second Defendant instructed Samaan to manually dismantle the brickwork which made up the supporting brick wall above the shop awning. The Second Defendant also assisted with this task. [8] On the accident date, but prior to the accident, Samaan and the Second Defendant had removed the two (2) centre metal awning stays, fishplates and associated brickwork down to the parapet. The removal of the brickwork and the centre awning stays increased the load imposed by the awning on the two (2) outer metal stays and associated brickwork [9] Prior to the accident, two (2) outer concrete headers from the windows had also been removed. [10] During the demolition process on the accident date, Samaan and the Second Defendant had been stacking the removed bricks on the parapet of the front wall of the building, with the intention of later dropping the bricks down one of the holes in the floor inside the building. [11] At the time of the accident, the metal awning collapsed. Samaan was standing near the awning when it collapsed and Samaan fell with the awning falling to the ground a distance of in excess of 3.6 metres. Approximately 100 – 150 bricks, and a concrete header weighing approximately 150kg fell with the awning to the ground below. [12] In the said accident, Samaan sustained a two point loss of vision, a broken nose, a loss of the sense of smell and taste, the loss of four lower front teeth and stitches to his forehead. Samaan also suffered a fractured left eye socket, fractures to the right knee patella and right foot, reduced mobility in the right elbow and back injuries particularly to the third, fourth and sixth vertebrae of his cervical spine. [13] At the time of the collapse of the awning, the Second Defendant was at the rear of the galvanised steel roof of the building, retrieving tools and a ladder. With the tools and the ladder, the Second Defendant intended to remove the brackets of the awning and to begin removing the roof sheeting of the awning. Neither the First Defendant or the Second Defendant had anticipated that the awning would collapse at the time it did. [14] On the accident date, there was no scaffolding in place outside the outer wall of the building. During the morning of the accident date but prior to the accident, Samaan had stood on the metal awning to retrieve a sledgehammer that had fallen. However, the metal awning did not collapse at that time. [15] The Second Defendant planned to remove the awning before erecting scaffolding along the face of the building. While upper storey brick wall was being removed, the awning was used as a means of protection of catching any loose bricks which might fall on any person walking underneath. [16] On the accident date, Samaan was not provided with any fall prevention gear, including any safety harness or lanyard. As at the date of the accident, the First Defendant did not own or possess any harnesses or lanyards. On the accident date, there were no barriers or handrails along the wall above the awning. [17] As at the accident date, the First Defendant did not have in place a formal, written occupational health and safety policy. [18] On 26 December 2001, the First Defendant did fail, contrary to Section 8(1) of the Occupational Health & Safety Act 2000 (NSW) ("the Act") to ensure the health, safety and welfare at work of all of its employees, and in particular, Mr Younan Samaan. The defendant failed to ensure that systems of work and the working environment of its employees and in particular, Younan Samaan, was safe and without risk to health in relation to the performance of demolition duties at the site in that the Defendant failed to:- (i) ensure that Samaan did not stand near the metal awning or access the area of the metal awning whilst demolition activities were being undertaken given the risk that the awning would collapse under the weight of workers (such as Samaan) and debris from the demolition (including bricks and pieces of the building); (ii) ensure that Samaan was wearing a safety harness or had employed other means of fall protection, such as the erection of a barrier or hand rail so as to ensure that Samaan could not access the awning or the area of the awning. The Second Defendant, being a director of the First Defendant on 26 December 2001, is taken to have contravened section 8(1) of the Act pursuant to section 26(1) of the Act. 8 By way of overview, the facts disclose that on the morning of the accident, Mr Samaan was instructed by Mr Chadraoui to dismantle the supporting brickwall above the shop awning. It seems this task was being done manually. 9 In removing the bricks they were then stacked on the parapet of the front wall of the building. As well, Mr Samaan and Mr Chadraoui had removed the two (2) centre metal awning stays, fishplates and associated brickwork down to the parapet. That in turn increased the load created by the awning on the remaining outer metal stays and brickwork. 10 It would appear that load became too great. Unexpectedly and at a time when Mr Samaan was standing near it, the awning collapsed, taking Mr Samaan with it. As the agreed statement of facts disclose, his injuries were significant. 11 In addition to the agreed facts, the prosecution have, without objection, tendered a Factual Inspection Report prepared by Senior Inspector Reynolds of WorkCover dated 2 January 2001 as well as six photographs taken on the day of the accident by Inspector Reynolds. The photographs depict relevant aspects of the accident site, particularly the location of the collapsed metal awning on the pedestrian footpath. I have considered all of that material. 12 On behalf of the defendants, an affidavit with annexures was tendered without objection from Mr Mounir Chadraoui, the second defendant in these proceedings. In that affidavit, Mr Chadraoui confirms that as the Managing Director of the company he has the day to day management of its business. 13 The annexures to Mr Chadraoui's affidavit go to the financial circumstances of the two defendants as well as personal testimonials relevant to Mr Chadraoui. The financial information consists of the taxation returns and financial statements of the company for the financial years 2002, 2003 and 2004 as well as the personal tax returns for Mr Chadraoui for the same period. I will comment further on those matters in due course. 14 Mr Chadraoui's affidavit details the steps taken by him prior to commencing the demolition. As he stated: Prior to the demolition it was agreed by me and the owner that he would supply scaffolding prior to any major demolition. The Princes Highway at the said premises is very busy with traffic and is a clear way during the morning and afternoon peak hour. It would have been impossible to obtain a permit to erect a scaffolding on the roadway as the awning extended to the roadway. To avoid blocking the roadway, it was agreed with the owner that prior to the erection of the scaffolding, I would remove the awning at the front to enable the scaffolding to be erected on the footpath adjacent to the boundary of the land. This will not affect the traffic on the roadway and will still allow pedestrians to use the footpath. However, to demolish the awning it was agreed with the owner that the awning will be removed on the 26 December 2001 ("The accident date"). Being a public holiday, Boxing Day, I knew there would be little traffic on the roadway and even fewer pedestrians. 15 According to Mr Chadraoui, all he intended to do on the day of the accident was remove the awning. It was a procedure he had done many times before quite safely and without incident. As well, Mr Younan had worked with Mr Chadraoui for many years on numerous demolition jobs. As Mr Chadraoui explained: [5] ...The work would be done by hand and carefully. First to remove the awning you need to remove part of the roof and then remove part of the wall which sits on the awning, to reduce the weight on the awning, by the wall sitting on top of the awning. [6] First, I cut a whole in the inside of the first floor to allow us to pass bricks through the hole to the ground floor. The instruction to Younan were as follows, I said, "Younan, use this small sledgehammer to knock away the bricks on the wall starting from the top and then throw them through the hole ". I then showed him how to do it by knocking bricks myself and throwing them through the cut hole in the floor. The idea was to remove the wall brick by brick thus avoiding dropping any bricks onto the awning or causing large parts of the wall to come away. The awning was securely attached to the wall and no stage did I believe the awning would collapse. I recall that Younan whilst I was there working side by side with him dropped his sledgehammer onto the awning, and I saw him retrieve it by climbing onto the awning. The awning did not move or shake when he stood on it close to the wall. This reassured me that the awning was sound and well wedged into the wall. At no time did I allow Younan to allow bricks to fall onto the awning and at no time whilst I was working with him did I see any bricks fall onto the awning. [7] This work was done by me and Younan without incident and very safely. The wall was not too high, and to reach the top of the wall initially we used a step ladder each, and provided the work was done slowly there was no chance of any problems. 16 After undertaking the work as described above, Mr Chadraoui went off to get a ladder from his truck to assist in the next stage of the work. It was while he was doing that that the awning suddenly collapsed and Mr Younan fell with it. According to Mr Chadraoui: It would seem that the timbers forming part of the frame of the awning, in particular the ones perpendicular to the footpath, were rotten, and this was not evident from visual inspection, and I believe this caused the awning to collapse. If the frame was sound then I believe the awning would not of collapsed as it did. Considerations 17 Neither of the defendants have any prior convictions. It is agreed that in the case of the company the maximum penalty is $50,000 and for Mr Chadraoui it is $55,000. 18 I have considered the submissions made by both parties in this matter. 19 In considering offences under the Act for the purposes of penalty, one must start by considering the objective seriousness of the offence. The principle is well settled and was expressed by a Full Bench of this Court in Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (1999) 90 IR 464, more specifically at 476, where the Court had this to stay: In the case of an offence under s 15(1) of the OH&S Act there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Limited (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9. The gravity of the consequence of an accident does not, of itself, dictate the seriousness of the offence. However the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant. 20 Having regard to the relevant principles and the factual circumstances of the matter, it is clear that a proactive approach to occupational health and safety would have ensured that Mr Samaan was instructed not to stand on or near the metal awning during the demolition process. More importantly, given the height Mr Samaan was working from, appropriate fall protection or a safety harness should have been utilised and a barrier in place to prevent Mr Samaan accessing the awning. Mr Chadraoui acknowledges that as follows: I now believe I should of provided Younan with a harness. This could of prevented him falling, but he should have been standing inside the wall on the first floor timber floor. Even if somehow the wall collapsed, which I had no inkling it would, he would be inside. He must have been standing on the wall when it collapsed for him to be dragged down with the wall and awning. 21 Reference to the photographs in particular highlights two aspects to this accident. The first is that it was incredibly fortunate there were no pedestrians walking on the footpath immediately below or adjacent to the awning when it fell. Next, while Mr Samaan's injuries were serious, he was lucky he was not killed. 22 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent the injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. Mr Chadraoui has acknowledged the steps he could easily have taken to prevent the injuries occurring to Mr Samaan. 23 Considering the nature of the industry and the clear and foreseeable risk to safety Mr Samaan's activities posed on the day of the accident and the absence of any safety harness or fall protection, I consider the offence a serious one. 24 In imposing a penalty in this matter regard must be had to general and specific deterrence. That much is evident from the decisions given by the Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29, particularly at paras [74] and [77]. In para [74] the Full Court said in relation to general and specific deterrence, that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 25 The defendants continue to work in the demolition business although Mr Chadraoui says 'I now refuse to do jobs involving heights and on main roads'. 26 Mr Chadraoui raises his financial circumstances relevant to his capacity and that of the company to pay a large fine. As he deposes: [12] I live at my own residence at 27 Salvia Avenue, Bankstown. And I am the sole bread winner. My son Roy works part time with me and his income barely supports him. My other son is at school still studying. [13] I have, since coming to Australia, worked 6 days a week and sometimes holidays when very few people are about and work can be done without disrupting highways, as the case here. [14] Annexed hereto and marked with the letter "A" is a letter from my accountant together with my statement of Assets and liabilities and my tax returns and companies returns for the last two years. The Assets I have I share equally with my wife and although, my accountant lists them as mine, one half belongs to my wife. I have mortgage payments on my house of some $380.00 per week and the balance of my net income of $370.00 is used on living expenses, rates and other household expenses. All the profits of the company are taken as wages by me. I do not have the capability of meeting a large fine and urge the Court to consider my financial circumstances and in reality the effects on my wife and children. [15] I have meagre means and would suffer greatly if a large fine is imposed on me and my company. In reality the Company is the same person as I. Its total equity is about $4,000.00 and it is my only livelihood. I understand I have done the wrong thing and must be punished, but I urge the Court to give me an opportunity to redeem myself and to able to continue to work and provide for my family. 27 Reference to Annexure A discloses the financial statements and tax returns for the company and Mr Chadraoui earlier identified. A perusal of those documents discloses a corporate defendant that is a small company whose main and only employee is Mr Chadraoui. As Mr Chadraoui says 'In reality, the Company is the same person as I'. The Statement of Assets and Liabilities of Mr Chadraoui is set out in a statement prepared by his accountant Vincent M Aboud and Associates as follows: Statement of Assets & Liabilities 18th October, 2004 Mounier Chadraoui Assets 27 Salvia Avenue, Bankstown $750,000 Motor Vehicle - Sanyong Musso 2000 25,000 Furniture 26,000 $801,000 Liabilities Mortgage - 27 Salvia Avenue, Bankstown $180,000 $180,000 Net Assets $621,000 28 I accept that while Mr Chadraoui has an identifiable asset base it is largely comprised of the family home. The unappropriated profit of the company for the year ending 30 June 2004 is $59,126.00 with an operating profit for that year of $29,580.00. 29 The obligation on the Court to have regard to the financial circumstances of a defendant is clear. To start with Section 6 of the Fines Act (1996) states: In the exercise by the court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration; and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 30 The financial circumstances of a defendant and the extent to which they must be considered in imposing a financial penalty has also been considered in a number of decisions of the Court at first instance and appellate level: see Department of Mineral Resources (Chief Inspector Terrey) v A M Hoipo & Sons Pty Limited (1999) 99 IR 137 at para [50] where Walton J Vice President said: It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 92 IR 188. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see Sgroi v The Queen (1989) 40 A Crim R 197 at 200-201. 31 That approach was subsequently adopted in Manpac Industries Pty Ltd v WorkCover Authority of NSW (Inspector Glass) (2001) 106 IR 435 at 467 where the Full Bench of this Court stated: ... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76). 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 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. 32 I have given consideration to the material filed. I accept that Mr Chadraoui is, for all practical purposes, the alter ego of the corporate defendant in that the assets of the company are in a real sense the assets of Mr Chadraoui and his wife and vice versa. 33 Overall, the picture is one of a small company with a limited financial base and very modest financial returns whose main asset backing is the family home of Mr Chadraoui. They are matters I consider relevant in the determination of penalty for both defendants. 34 The plea has been entered at the earliest opportunity and the prosecution acknowledges that the defendants are entitled to a discount on that basis in accordance with the principles in R v Thomson, R v Houlton (2000) 49 NSWLR 383. I assess that discount at twenty five percent with respect to each of the offences. 35 As to other subjective features relevant to determination of penalty that I am entitled to consider. I do accept that Mr Chadraoui has fully co-operated with WorkCover in its investigation into this matter and has done all that he possibly could to assist in that regard. 36 I also accept that the defendant has expressed genuine remorse for the injuries that have been sustained to Mr Samaan. As Mr Chadraoui stated: I still have flashbacks and fear when I have visions of Younan lying there injured. I now refuse to do jobs involving heights and on main roads... I have continued to work since the incident and have not breached any workcover laws or rules and in fact complemented me on the additional safety measures that I have been taking since this incident. I am very sorry for what occurred and can assure the Court it will never happen again. 37 As well, at the commencement of the sentencing proceedings, counsel for Mr Chadraoui tendered without objection additional material relevant to the issue of mitigation. That material consisted of diverse certificates of attendance and successful completion of training programmes in occupational health and safety in the construction industry undertaken by the defendant, Mr Mounir Chadraoui, Mr Roy Chadraoui and Mr George Chadraoui, the latter two people, as I understand it, being the defendant's son and brother. Mr Chadraoui's son works with him in the business on a part time basis, as presumably does his brother. 38 There is also a copy of an occupational health and safety policy document for the corporate defendant that has been developed by Mr Chadraoui since the accident. 39 All in all, I am more than satisfied that Mr Chadraoui had accepted his responsibility for the accident and has taken every proper step since then to acquaint himself with his occupational health and safety responsibilities on behalf of the corporate defendant and himself. 40 Taking these features into account, I determine a further discount on penalty of ten per cent. 41 Taking into account all the matters I have referred to in relation to the Company, I determine a notional penalty in this matter of $35,000. In applying the discounts I have assessed, I determine a final penalty of $22,750. 42 In relation to Mr Chadraoui, I determine a notional penalty of $4000. In applying the discounts I have determined, I assess a final penalty of $2,600. Orders 43 I make the following orders: (i) Matter No IRC 7265 of 2003: WorkCover Authority of New South Wales (Inspector Henson) v Chadraoui & Sons Pty Limited · The defendant is convicted of the offence as charged. · I impose a penalty in this matter of $22,750. · I allocate a moiety to the prosecution on the usual terms. (ii) Matter No IRC 7264 of 2003: WorkCover Authority of New South Wales (Inspector Henson) v Mounir Chadraoui · The defendant is convicted of the offence as charged. · I impose a penalty in this matter of $2,600. · I allocate a moiety to the prosecution on the usual terms. 44 I award costs to the prosecutor as agreed or assessed in accordance with the Rules of the Court in Matter No IRC 7265/2003, that being the offence involving the corporate defendant. 45 In relation to Matter No IRC 7264/2003, that being the offence involving Mr Chadraoui, I exercise the discretion available and make no order as to costs. 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.