Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Charles v Rawson Homes Pty Limited [2003] NSWIRComm 350 PROSECUTOR Inspector Charles PARTIES : DEFENDANT Rawson Homes Pty Limited FILE NUMBER: IRC 5178 & 5179 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under sections 16(1) and 17(1) of the Occupational Health and Safety Act - No evidence offered in relation to charge under s 17(1) - Charge under s 17(1) dismissed - Plea of guilty to charge under s 16(1) - Second offence - Building industry - Contractor's son injured when he accompanied his father on site - Son fell through a stairway void - No handrails or barriers erected - Foreseeability - Offence proven - Penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 Department of Mineral Resources v Berrima Coal (2001) 105 IR 348 Department of Mineral Resources v Kembla Coal & Coke Pty Limited (1999) 92 IR 8 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Inspector Hannah v Albury City Council (1999) 90 IR 397 Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, Matter No 1214 of 1990, 30 June 1992) Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 CASES CITED : R v Thompson, R v Houlton (2000) 49 NSWLR 383 State Rail Authority of NSW v WorkCover Authority (NSW) (2000) 102 IR 218 Tyler v Sydney Electricity (1993) 47 IR 1 Warman v WorkCover Authority (1998) 80 IR 326 Wong v Melinda Group Pty Ltd (1998) 82 IR 118 WorkCover Authority (NSW) v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 WorkCover Authority v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover v Capral Aluminium Pty Limited (1998) 82 IR 468 HEARING DATES: 08/21/2003 DATE OF JUDGMENT: 10/24/2003 PROSECUTOR Ms L McManus of counsel Solicitor: Mr J O'Connell WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr A Moses of counsel Solicitor: Mr J Doyle Doyles Construction Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Boland J Friday 24 October 2003 Matter No IRC 5178 of 2002 INSPECTOR CHARLES v RAWSON HOMES PTY LIMITED Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 Matter No IRC 5179 of 2002 INSPECTOR CHARLES v RAWSON HOMES PTY LIMITED Prosecution under section 17(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 350 1 Rawson Homes Pty Limited ("the defendant") was the principal contractor for the construction of a two-storey brick veneer house being built at Lot 23 Foreshaw Avenue, Griffith, Murrumbidgee Estate, in the State of New South Wales ("the site"). In about September 2000 the defendant awarded a contract to Robert McDonald for the work of gyprocking the walls and ceilings at the site. Mr McDonald has a son, Daniel, who in September 2000 was nine years old. 2 On Sunday, 17 September 2000 Mr McDonald attended the site to perform some work. His son accompanied him. Mr McDonald was working on the first floor of the site. There was no staircase from the ground floor to the first floor in place at the site and no barrier or handrails in place around the staircase void on the first floor. At some stage Mr McDonald noticed that his son had disappeared. He found him lying on the concrete floor on the ground level. Daniel McDonald suffered injuries including a fractured skull, permanent hearing loss to his left ear, facial nerve palsy on the left side and mild brain damage. He has an enlarged eye. 3 Inspector Stephen Charles of the WorkCover Authority of New South Wales ("the prosecutor") prosecuted the defendant under s 16(1) of the Occupational Health and Safety Act 1983. Section 16(1) provides: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 4 The charge alleged that the defendant being an employer failed to: [E]nsure that persons not in its employment, and in particular Daniel McDonald and Robert McDonald were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work contrary to section 16(1) of the Occupational Health and Safety Act 1983. 5 The Particulars of the charge were that the defendant: (a) Failed to provide handrails, safety fences or other forms of physical barriers capable of preventing the fall of persons in the vicinity of the stairway void on the first floor at the Site. (b) Failed to ensure that unauthorised persons, namely children, did not enter the Site and in particular the first floor. (c) As a result of the said failures Daniel McDonald and Robert McDonald were placed at risk of injury. 6 The defendant was also charged under s 17(1) of the Act but given no evidence was offered by the prosecution in relation to that charge it is dismissed. In relation to the charge under s 16(1) the defendant pleaded guilty. 7 A statement of agreed facts was tendered. The statement described what occurred on 17 September 2000 and provided other relevant information as follows: 8. At all material times Steve McGirr was employed by the defendant as construction manager. Mr McGirr was employed in the defendant's Dubbo office. 9. George Papallo was the defendant's Construction Supervisor for the Site up until about a month before the accident, when he went on holidays. Kevin Morris then took over as the acting Construction Supervisor. Mr Morris was employed up to 15 September 2000. Mr Papallo returned to the position on Monday 18 September 2000, after the accident. 10. Steve McGirr spoke by telephone with Robert McDonald, a subcontractor, trading as Area Plastering, about a quotation for plaster work/gyprocking. After receiving Mr McDonald's quotation, it was agreed verbally that Mr McDonald was awarded the subcontract for the work of gyprocking the walls and ceilings at the Site. 11. Mr McDonald first visited the Site on or around 14 September 2000. He was there for about half an hour to plan and measure up battens and to put the battens off the truck. 12. Working on the Site that day were two carpenters. 13. There was no staircase from the ground floor to the first floor in place at the Site and no barrier, or handrails in place around the staircase void on the first floor. 14. Mr McDonald stated that on 15 September 2000 he spoke to the carpenters who were on the Site about why a dummy staircase had not been installed. Prior to the accident Mr McDonald was aware that there was no staircase or ramp in place on the Site. Mr McDonald stated that he definitely recognised the risk of falling through the penetration on the upper level where Daniel fell. 15. Mr McDonald spoke to the defendant's Construction Supervisor, Mr Morris, and received plans for the Site. 16. The carpenters completed their work on Site on Friday 15 September 2000. 17. On Sunday, 17 September 2000, Robert McDonald attended the Site at about 9.30 am or 10 am and did about an hour's work putting battens up. He then went home and collected his son, Daniel McDonald, a nine-year-old boy. Both Mr McDonald and Daniel then attended the Site. 18. Mr McDonald did not advise Rawson Homes that he was bringing his son on site on the date of the accident. This was the first occasion Mr McDonald had brought his son onto this Site, however, he had taken him on jobs for other companies before. He states that he had not made a habit of it but sometimes it was unavoidable. 19. Mr McDonald was a single parent. On that day Mr McDonald's mother, Daniel's grandmother, was unavailable for babysitting and Mr McDonald did not want to leave Daniel at home alone. 20. Mr McDonald had approximately 2 hours work to do, installing battens to the first floor ceiling of the house. Daniel was given the job of picking up broken bricks, tiles and metal off-cuts on the ground floor whilst his father was working upstairs on the first floor. 21. There was no staircase from the ground floor to the first floor and no barrier, or handrails in place around the staircase void on the first floor. Mr McDonald used an untied and unsecured metal stepladder to access the first floor. It is not known who owned the metal stepladder or how it came to be on the Site. 22. When Mr McDonald was finished this job he climbed down a metal stepladder to the ground floor and then followed Daniel back up to the first floor using the metal stepladder. 23. On the first floor Mr McDonald spoke to Daniel was about the stairwell and stated that there was nothing to stop him from falling off the edge. Mr McDonald showed his son how to walk along the timber so his shoulder brushed against the stud. 24. They worked together on one side of the house. After about half an hour Daniel was getting bored so they left the Site to have lunch. 25. When they returned to the Site they climbed up to the first floor. Daniel was asked to pick up any screws dropped by Mr McDonald. Daniel was getting bored so Mr McDonald let him get on the two step ladder and let him screw a couple of the battens on. Then Daniel went back to picking up screws. Mr McDonald felt that by letting him pick up screws he would be able to keep an eye on him. Mr McDonald and Daniel went to the other side of the house, walking past the stairwell to reach the other side. They were then working back towards the stairwell. 26. At one stage Mr McDonald had his back turned to Daniel. Mr McDonald noticed that his son had disappeared. He found him lying on the concrete floor on the ground level. 27. Daniel McDonald suffered injuries including a fractured skull, permanent hearing loss to his left ear, facial nerve palsy on the left side and mild brain damage. He has an enlarged eye. The most current medical report on Daniel's condition is dated 18 April 2001. The report from the Children's Hospital at Westmead states that Daniel is making reasonably good progress and awaits a neuropsychological report and feedback from Daniel's school. The Prosecutor does not have a more recent medical report. Mr. McDonald has recently stated that Daniel has had some improvement in his condition but has ongoing problems associated with the injuries he sustained on 17 September 2000. 28. The height from the first floor to the concrete ground floor was approximately 2.4 metres to 2.5m. The stairway void measured 3310mm by 1450mm. 29. The defendant failed to comply with Regulation 73(3) of the Construction Safety Regulations which requires the provision of a means by fencing or otherwise for the safety of any person working at a place from which the person would be liable to fall a distance of more than 1.8 metres. 30. At the time of the accident there was no system of fall protection or prevention in place at the Site. 31. At the time of the accident the Site was not secured and there was no perimeter fence around the Site. 32. It was the defendant's usual practice to have signs on the building site, either nailed to the frame or brickwork or taped to a window, which stated that only WorkCover approved persons could enter the site. These signs were not on the Site on 17 September 2000. 33. There were no warning signs in the vicinity of the stairway void warning about the stairway void, the risks of falling or the absence of handrails safety fences or other forms of physical barriers capable of preventing the fall of persons from the first floor of the Site. 34. In the four weeks while Mr Papallo was away Mr Morris visited the Site approximately eight times. Mr Morris was last on the Site in the week prior to the accident. During this time Mr Morris was supervising in excess of 27 houses, being 13 to 14 houses of his own as well as 13 to 14 houses for Mr Papallo while he was on leave. 35. The defendant had an OH&S subcontractor management system in place at the time of the accident namely Occupational Health and Safety Sub-Contractor Induction Checklist, Occupation Health and Safety Policy and Code of Safety Practice, none of which was provided to Mr McDonald as he had not received a written official order to start work. The foreman would give the official orders that contained the safety induction information. 36. Mr McDonald commenced work on Sunday, 17 September 2000 without submitting a detailed safe work method statement. 37. Immediately after the accident the defendant contacted the carpenters and arranged for handrails to be built around the stairwell on the first floor and a ladder to be secured in the stairwell. The carpenters working on the Site had not been contracted to build handrails for the stairway void prior to Sunday 17 September 2000. 38. On 19 September 2000 Mr Lawrence Rawson, Director of the defendant and Manager for Country NSW, arranged for Ms Sally Reed, Contract Human Resources Manager, to investigate the accident. 8 Other evidence in the proceedings included a bundle of colour photographs of the site and a report indicating a prior conviction under s 16(1) of the Act. an affidavit of Mr Lawrie Rawson, a director of the defendant. Mr Rawson was not required for cross-examination. His affidavit addressed the following matters: (a) Mr Rawson's background. He has been in the construction industry for 20 years and his trade is carpentry and joinery. (b) The defendant's background. It was first established in 1979 and now employs 36 full time employees and appoints numerous subcontractors on various projects. The defendant currently constructs approximately 15 houses per month. (c) The incident on 17 September 2000 and the subsequent investigation. It is noted that prior to a contractor starting work on a site a written official work order and a "Rawson Homes Occupational Health and Safety policy is issued. For reasons unknown to the defendant Mr McDonald had not been issued with a written work order and policy before he commenced work. It is also noted that Mr McDonald was not instructed to work on Sunday 17 September 2000 but he was also not instructed not to work. Mr Rawson said it was normal practice to erect stair guards in two-storey constructions and for occupational health and safety signs to be displayed. Mr Rawson did not know why this had not been done on the site. Mr Rawson described the defendant's subsequent investigation of the incident and its cooperation with the WorkCover Authority. (d) The defendant's concern at what had occurred. (e) The defendant's commitment to occupational health and safety. Mr Rawson said that risk assessment training had been provided to employees prior to 17 September 200 and the defendant had in place a comprehensive occupational health and safety policy and practices. (f) The measures taken by the defendant to prevent a recurrence of the incident. These included: re-wording of the occupational health and safety policy to prohibit children under 16 years of age entering the defendant's workplaces; requiring all workers to have completed an occupational health and safety induction course accredited by the WorkCover Authority and to possess a certificate to that effect; fencing of all two-storey homes; erection of pedestrian barricades where required; conduct of risk assessments on all homes built by the defendant; implementation of a policy whereby no work is permitted on weekends without a supervisor's approval; halving of supervisor's workloads to ensure better supervision and maintenance of occupational health and safety systems; maintenance of a site-specific induction register. Mr Rawson indicated no further incidents had occurred since 17 September 2000. He said he was currently undertaking the role of occupational health and safety manager. (g) The defendant's community involvement including a wide range of sponsorships in the central western district of the State. (h) A prior conviction under s 16(1) of the Act relating to an incident in 2000 in respect of which the defendant was fined $42,000. Submissions of the parties 9 Ms L McManus of counsel appeared for the prosecutor. Ms McManus addressed the principles relating to sentencing. She submitted that given the prior conviction the maximum penalty in this case was $825,000. It was submitted that in fixing the penalty there was a need for both general and specific deterrence. In relation to specific deterrence Ms McManus referred to the nature of the defendant's business as involving inherent risks to safety. 10 It was submitted for the prosecution that the risk of falling from the first floor to the ground floor was readily foreseeable given: (a) The defendant was the principal contractor for the construction of a two-storey house; (b) There was a staircase void on the first floor measuring 3310mm by 1450mm; (c) There was no fixed staircase in place between the first floor and ground floor; (d) The height from the ground floor to the first floor was approximately 2.4m – 2.5m; (e) There were no handrails, safety fences, or other forms of physical barriers in place in the relevant area to prevent persons from falling from the first floor to the concrete ground floor below. 11 It was also submitted that the risk of children entering the site was foreseeable given: (a) The Site was accessible as it was not fenced; (b) There were no signs prohibiting access; (c) The defendant was not advised that Mr McDonald was bringing Daniel onto the Site but the defendant had not prevented Mr McDonald from doing so either by specific instruction, providing information, or through supervision. 12 Ms McManus submitted that appropriate measures were not taken to ensure safety even though such measures were available and feasible. These included ensuring that: (a) Handrails, safety fences or other forms of physical barriers capable of preventing persons falling were provided; (b) Subcontractors were provided with adequate information, instruction and supervision to prevent children being brought onto the Site; (c) Adequate fencing and signs were in place to prevent children accessing the Site. 13 It was submitted that after the accident the defendant took the following steps thereby demonstrating that simple measures were available to avoid a risk to safety: (a) Arranging for handrails to be built around the stairwell on the first floor and secured a ladder in the stairwell; (b) Rewording its Occupational Health and Safety Policy to state that children under 16 are not permitted onto its workplaces; (c) Requiring all workers entering job sites to have completed an OHS induction course and possess an OHS certificate and maintaining a register for Site Specific Inductions; (d) Fencing all two storey homes and ensuring pedestrian barricades are ordered for sites if required; (e) Halving supervisors' workloads. 14 Ms McManus referred to the relevant subjective factors as being: a plea of guilty; the one prior conviction; and, the defendant's cooperation with authorities. 15 Mr A R Moses of counsel appeared for the defendant. Mr Moses also canvassed the principles relating to sentencing. With reference to authority he submitted that the relevant issues to be taken into account in determining the objective seriousness (nature and quality) of the offence were: (a) The extent to which the risk to health and safety was foreseeable and might have been remedied by simple measures: see Workcover Authority (NSW) v McDonalds (2000) 95 IR 383 at 450. (b) The extent to which the Defendant had control over the primary causal factors of the risk: Workcover Authority (NSW) v Atco Controls Pty Limited (1998) 82 IR 80 at 84-85. (c) The extent of the Defendant's contribution to the relevant detriment to safety (or the contribution to that detriment made by others): McDonalds at 437. (d) The existence of a settled system of work which would have prevented the accident if it had been adhered to by the relevant others: Warman v Workcover Authority (1998) 80 IR 326 at 342 and Department of Mineral Resources v Kembla Coal & Coke Pty Limited (1999) 92 IR 8. (e) General and specific deterrence: Fisher v Samaras Industrial Pty Limited (1996) 82 IR 384 at 388 and Capral Aluminium Limited v Workcover Authority (2000) 99 IR 29 at 57-62. 16 It was submitted the relevant subjective features included: (a) A plea of guilty – in which respect the guideline judgment of the Court of Criminal Appeal in R v Thompson; R v Houlton (2000) 49 NSWLR 383 is relevant (see State Rail Authority of NSW v Workcover Authority (NSW) (2000) 102 IR 218 at 236). In that judgment it was stated that the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of a 10-25% discount on sentence. The primary consideration determining where in the range a particular case should fall is the timing of the plea. (b) Lack of prior convictions: Department of Mineral Resources v Berrima Coal (2001) 105 IR 348 at 392. (c) Co-operation of the accused with the Workcover Authority: McDonalds at 429. (d) Expressed contrition: McDonalds at 429. (e) Measures introduced by the Defendant to overcome deficiencies in safety which the accident highlighted: McDonalds at 429. (f) The industrial "good citizenship" of the company as particularly reflected by its safety consciousness and the nature and extent of its safety systems: McDonalds at 454. 17 Mr Moses submitted the presence of prior convictions may aggravate the punishment but it cannot result in a greater punishment than the principal offence itself would warrant (see Workcover v Capral Aluminium Pty Limited (1998) 82 IR 468) and that the presence of prior convictions may cause the court in its discretion to lessen the value that the subjective mitigating features may otherwise have had (see Capral Aluminium (1998) at 479). 18 In considering the circumstances in the present case it was submitted for the defendant that it was not readily foreseeable by the defendant that Mr McDonald would perform work at the site on a Sunday accompanied by his nine year old son. Further, it was not readily foreseeable by the defendant that Mr McDonald having recognised the danger of working on the first floor, would assist his son to gain access to the first floor. 19 Mr Moses submitted that it was far from clear that any of the matters referred to by the prosecutor relating to the foreseeability of children entering the site would have abated the risk. Further, it was submitted it was normal practice for the defendant to erect stair guards in two-storey construction sites. No stair guards appear to have been erected at the site prior to 17 September 2000 because it was not expected that any detailed work would be performed on the first storey. 20 Reference was made to the fact that the circumstances surrounding Mr McDonald commencing work at the site on 17 September 2000 without an official work order has not been the subject of any adequate or satisfactory explanation to the defendant. And further that there were no supervisors at the site on 17 September 2000 because of the fact that the defendant did not require its employees or contractors to work on Sundays. 21 The defendant submitted that the primary causative feature of the risk in this matter was beyond its control because Mr McDonald had brought his child on site without its knowledge on a non-work day. Once that proposition is accepted, then the mitigation applied by Hill J in Workcover Authority v Atco Controls Pty Ltd (1998) 82 IR 80 at 84-85 is appropriate to be applied to the defendant. 22 As to relevant subjective features, it was submitted: (a) The defendant entered a plea of guilty at the earliest opportunity. Accordingly, the defendant was entitled to the maximum discount permissible in respect of an early plea of guilt – 25 per cent. (b) The defendant cooperated with the WorkCover Authority in the course of its investigation of this matter. (c) The defendant expressed its contrition for the events that have occurred. (d) The defendant took prompt and effective steps to prevent a recurrence of the risk. (e) The defendant has extensive community involvement and is a good citizen. (f) The one conviction has to be seen in the context that the defendant has been operating since 1983 and has been engaged in extensive projects. Consideration 23 It was submitted for the defendant that the primary cause of the risk in this case was that Mr McDonald brought his child onto the site on a non-working day. This, it was submitted, was beyond the defendant's control and, therefore, the Court should take a similar approach to mitigation as that taken by Hill J in Atco Controls. In that case it had been submitted on behalf of the defendant that the primary causes of the accident were not the acts and/or failures of the defendant but those of the forklift driver and the van driver; the former had omitted to look behind him while reversing; the latter, who had attended at the premises for the last eight years on a daily basis, and had been verbally instructed as had all other interested persons who visited the premises, that they were not to park in the loading area, had so parked in breach of those directions (see 83-84). 24 Hill J agreed that the primary causal factors of the accident were the conduct of the forklift driver and the van driver over which the defendant had no control. His Honour considered this to be a mitigating factor. 25 I do not agree with the defendant in this case that the situation in Atco Controls is analogous. Here there was a clear failure on the defendant's part to provide any type of protection against falling in the stairway void from the first floor either by workers or children and a failure to ensure that children did not enter the site either by means of signage or fencing or directions to persons who might be expected to enter the site. That Mr McDonald did work on a non-working day is of no consequence to any plea of mitigation. There was no direction to Mr McDonald not to commence work before being provided with an official work order and no direction that Mr McDonald should not work on the site on a Sunday. Moreover, there was no direction to the carpenters prior to 17 September 2000 that they should erect handrails around the stairway void on the first floor of the site. In other words, it was not as though on the next working day - Monday 18 September 2000 - the site would have been a safer place for Mr McDonald to work because handrails had been erected. 26 The site was one without any type of protection against risk to injury; it was sitting on a block of land without any surrounding fencing, without any signage warning against entry and the partially completed house was wide open to entry by anyone. It was readily foreseeable, in my opinion, that the failure to provide fall protection or take any other appropriate measure might give rise to a risk of falling from the first floor. Similarly, it was foreseeable that a failure to take appropriate steps to restrict access to the site might give rise to the risk of children entering the site. 27 Whilst it was most unwise of Mr McDonald to take his son onto the site and especially unwise to allow his son onto the first floor with a gaping hole in it, there is no doubt that the defendant was significantly at fault in failing to provide a safe environment in the first place. 28 The prosecution referred to the steps that could have been taken, and were taken, to avoid the risk. These steps were obvious and simple remedies. 29 The occurrence of death or serious injury may manifest the degree of seriousness of the risk to safety: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, Matter No 1214 of 1990, 30 June 1992); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 476; WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 428-428; WorkCover Authority of NSW (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 at 185. In this case Daniel McDonald suffered serious injuries. 30 In relation to the relevance of the maximum penalty for an offence, Wright J, President observed in Walco Hoist Rentals at 185-186: 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: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 - 699; Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 at 321; and Albury City Council at 407 - 408. 31 The maximum penalty in this matter is $825,000. 32 I consider that the offence was in the moderately serious range. 33 In relation to general deterrence, in accordance with the principles laid down in Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80], I intend to have regard to the need for general deterrence in fixing penalty. 34 As to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps to improve safety following an accident is relevant. I accept that the defendant has a proper perspective on the fundamental importance of a high standard of occupational health and safety in its workplaces. I note the steps taken by the defendant following the accident were extensive and most appropriate. They indicate the seriousness with which the defendant treats the matter. Accordingly, whilst I have had regard to the need for specific deterrence, it has not figured prominently in my consideration as to penalty. 35 The subjective factors in the defendant's favour that are relevant have already been identified and include a plea of guilty, cooperation with the authorities, contrition, the remedial steps taken by the defendant following the accident and the good citizenship of the defendant. 36 The defendant contended that it had entered an early plea of guilty and that, therefore, it was entitled to the maximum discount of 25 per cent. In R v Thomson; R v Houlton (2000) 49 NSWLR 383 Spigelman CJ (at par [160]) set out a number of sentencing guidelines applicable to offences against State laws. The Chief Justice also said at par [155]: 155 The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, e.g. on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 37 In the present case the prosecution conceded that the utilitarian value of the defendant's guilty plea would be at the higher end of the discount scale. I agree, but I do not consider this is such an exceptional case that it attracts the maximum discount. 38 Having regard to the objective seriousness of the offence committed by the defendant, I consider an appropriate penalty to be $150,000 with a discount for the early plea of 20 per cent and a further 10 per cent for other subjective factors. This results in a fine of $105,000. Orders Matter No IRC 5178 of 2002 39 The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $105,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. 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