Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Christopher Chadwick v Rail Infrastructure Corporation (formerly known as Rail Services Australia) [2003] NSWIRComm 391 Prosecutor: PARTIES : Inspector Christopher Chadwick Defendant: Rail Infrastructure Corporation (formerly known as Rail Services Australia) FILE NUMBER: 2527 of 2002 CORAM: Staunton J CATCHWORDS : Occupational health and safety - plea of guilty - considerations of parity in sentencing - issue of relative culpability - prior convictions - objective seriousness of the offence - extent of remediation post the accident - general and specific deterrence - penalty imposed Occupational Health and Safety Act 1983 LEGISLATION CITED : Transport Administration Act 1988 Occupational Health & Safety (Hazardous Substances) Regulation 1996 Postiglione v R (1997) 189 CLR 295 CASES CITED : WorkCover Authority of New South Wales (Inspector Ch'ng) v Lawrenson Diecasting Pty Limited (1999) 90 IR 464 WorkCover Authority of New South Wales v Capral Aluminium (2000) 1999 IR 29 HEARING DATES: 10/17/2003 EXTEMPORE JUDGMENT DATE : 10/17/2003 Prosecution: Mr M Cahill of counsel Solicitors: Moray & Agnew, Solicitors LEGAL REPRESENTATIVES: Defendant: Mr B Hodgkinson SC Mr M Shume of counsel Solicitors: Sparke Helmore JUDGMENT: - 18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 17/10/03 Inspector Christopher Chadwick v Rail Infrastructure Corporation (formerly known as Rail Services Australia) IRC Matter No. 2527/2002 Prosecution pursuant to s16(1) of the Occupational Health and Safety Act 1983 EXTEMPORE JUDGMENT NSWIRComm 391 1 By way of amended summons filed in court on 9 December 2002 the defendant has entered a plea of guilty to an offence under s 16(1) of the Occupational Health and Safety Act 1983. 2 The offence as expressed states that: On 17 May 2000 the defendant, then an employer, failed to ensure that persons not in its employment, being John William Paul Schremmer and Lloyd Anthony Nesire were exposed to risks to their health and safety being the risk of burns resulting from contact with hazardous substance SK5000 in that: (1) The defendant or the project manager of the contract between Olinder Facilities Management Pty Limited and the State Rail Authority of New South Wales at Junee railway station. (2) The contract between the State Rail Authority and Olinder Facilities Management required Olinder to strip and repaint Junee railway station and surrounding buildings. (3) The defendant was contracted by the State Rail Authority to supply site supervision in respect of that contract. (4) On 17 May 2000 Mr Nesire was exposed to SK5000. (5) On 19 May 2000 Mr Schremmer was exposed to SK5000. (6) Such exposure led to Mr Schremmer and Mr Nesire receiving burns. (7) Olinder failed to: (i) provide adequate personal protective equipment to Mr Schremmer and Mr Nesire; (ii) failed to provide adequate training to Mr Schremmer and Mr Nesire in relation to the use of SK5000 and failed to prepare the work method statement prior to the commencement of work at the site. (8) The defendant failed to comply with its objections under s 16(1) of the Act in that it failed to adequately supervise Olinder Facilities Management to ensure that Olinder did not perform any work in breach of the contract and as a result of Olinder performing work in breach of the contract Mr Schremmer and Mr Nesire were put at risk. 3 In the proceedings before me the prosecution tendered an agreed statement of facts as follows: [1] The Informant is and was at all material times an Inspector duly appointed under Division 1 Part 5 of the Occupational Health & Safety Act , 2000 and empowered under section 106 of the said Act to institute proceedings in this matter. [2] At all material times the Defendant, Rail Infrastructure Corporation (formerly known as Rail Services Australia) (the Defendant) was a statutory State Owned Corporation whose address is Level 15, 55 Market Street, Sydney in the state of New South Wales. [3] At all material times the Defendant was an employer. [4] By tender dated 17 January 2000 Olinder Facilities Management Pty Limited [ACN 090 597 872] (OFM) tendered for Job Specification No 99/1805 issued by the State Rail Authority (SRA) in respect of the repainting of the Junee Railway Station, Junee in the state of New South Wales (the site). [5] By letter dated 13 March 2000 OFM was notified by the SRA that its tender in respect of the contract for the works at the site had been successful. [6] Between February and April 2000 the SRA appointed Rail Services Australia (RSA) to project manage and supervise the works in respect of the contract between the SRA and OFM in carrying out the repainting work at the site. [7] At all material times RSA was constituted as a statutory State Owned Corporation pursuant to section 191A of the Transport Administration Act 1988 . On and from 1 January 2001 the Defendant was constituted by an amalgamation of RSA and another statutory State Owned Corporation, Rail Access Corporation (RAC), following upon which date both RSA and RAC were dissolved as separate entities. The Defendant was determined to be the continuing legal entity in respect of both RSA and RAC in respect of their assets, rights and liabilities pursuant to Schedule 7, Division 3 of clause 89 to the Transport Administration Act 1998 (as amended). . [8] RSA appointed Patrick James Hickey, (the Supervisor), a project supervisor employed by it, to the position of site supervisor in respect of the works at the site. [9] A meeting took place on 21 March 2000 at the offices of RSA at which OFM's Project Manager, Len Joyce, and two representatives of RSA, Louis Cross and Roberta Chahoud, were present. At this meeting OFM was reminded of its obligations pursuant to the contract with SRA which included, but was not limited to the following: (i) that neither safety nor the environment were to be compromised; (ii) that the contractor was to provide a Work Method Statement and a Safety Plan. [10] OFM commenced works pursuant to the contract at the site on or about 10 April 2000. [11] The works undertaken by OFM in accordance with the contract involved removal of old lead based paint from the buildings at the site back to the existing brickwork and repainting in accordance with contract requirements to ensure the historical appearance of the buildings. [12] SRA, in issuing the tender in respect of the works, was at all material times required to comply with the New South Wales Governments Code of Tendering and Code of Practice for the Construction Industry. [13] At all material times SRA, under the Code of Practice for Construction Industry, determined that the lodgement of a tender would be evidence of OFM's agreement to comply with the codes for the duration of any contract that may be awarded. [14] The New South Wales Government's Code of Tendering and Code of Practice required OFM, in respect of the works at the site, to have an occupational health and safety and rehabilitation management system in place. [15] It was also a New South Wales Government requirement that once a contract was awarded, a mandatory condition be placed on the contractor, in this case OFM, to provide an acceptable Site Safety Management Plan or Safe Work Method Statement in accordance with the Government Occupational Occupational Health and Safety and Rehabilitation Management System Guidelines, Third Edition. [16] At all material times on and prior to commencement of the works on or about 10 April 2000 OFM did not submit a Safe Work Method Statement in respect of the work on site to the SRA or to RSA. [17] Following the commencement of the works, the Supervisor attended the site approximately twice weekly during the course of the works. [18] During the course of the works, OFM utilised SK2000 paint stripper and SK5000 paint stripper at the site for the purpose of stripping paint. Both substances were hazardous substances within the meaning of the Occupational Health & Safety (Hazardous Substances) Regulation 1996 . [19] In performing work under its contract with SRA, OFM did not comply with the following conditions, copies of which are attached: Clause 26 of the General Conditions; D5.1 paragraphs (a), (f) and (g) of the Special Conditions; D5.2 first, second and third paragraphs of the Special Conditions; E5.4 of the Special Conditions; E4.4, relating to Standards, of the Special Conditions; E4.4.5, relating to Substrate preparation, of the Special Conditions; E4.4.6, relating to Preparation Schedule, of the Special Conditions. [20] On and prior to 20 May 2000 the supervisor did not seek to obtain from OFM an Occupational Health and Safety and Rehabilitation Management System Plan or Site Specific Safety Management Plan or Safe Work Method Statement . [21] OFM contracted with Ripakote Pty Limited, Toxic Paint and Graffiti Removal (Ripakote), to provide specialist equipment and knowledge in relation to the removal of lead based paint from the buildings at the site. [22] The Supervisor made enquiries of the representatives of Ripakote at the site regarding the paint removal process and this process was explained to him. [23] At all material times on and prior to 20 May 2000 OFM did not retain at the site any Material Safety Data Sheet register for use by persons at the site. [24] The supervisor did not, on or prior to 20 May 2000, seek to inspect any Material Safety Data Sheet register held at the site by OFM on or prior to 20 May 2000 . [25] On 17 May 2000 Lloyd Anthony Nesire commenced work at the site in the employ of OFM. On 18 May 2000 John William Schremmer commenced work at the site in the employ of OFM. [26] The said Nesire worked at the site on 17, 18 and 19 May. The said Schremmer worked at the site on 18, 19 and 20 May 2000. [27] At no time on or during or prior to this period did the said Nesire or Schremmer undertake any induction training or training with respect to the hazards associated with SK5000. [28] OFM did not disclose to the Defendant that it was altering its method of work by ceasing to use SK2000 and commencing to use SK5000 which alteration took place on or about 17 May 2000. [29] On and prior to 17 May 2000 Nesire was not skilled and experienced in work involving lead based paint removal or use of SK5000 being used at the site. On and prior to 18 May 2000 Schremmer was not skilled and experienced in work involving lead based paint removal or use of SK5000 being used at the site. This was not disclosed by OFM to the Defendant. [30] During 17, 18 and 19 May 2000 the said Nesire carried out work at the site involving the use of and exposure to SK5000 paint stripper. During 18, 19 and 20 May 2000 the said Schremmer carried out work at the site involving the use of and exposure to SK5000 paint stripper. [31] At all material times during the course of the works involving the use of SK5000 the said Nesire and Schremmer were not provided with any appropriate personal protective equipment to wear during the course of such work. [32] The said Nesire and Schremmer sustained injury involving severe burns as a consequence of the work involving the use of SK5000. [33] The injuries sustained by the said Nesire and Schremmer were serious injuries within the meaning of the Occupational Health & Safety Act , 1983 in that they prevented the said persons from resuming their normal work for a period of in excess of seven days following their occurrence. 4 A number of photos have also been tendered. They were taken on 29 August 2000 some months after the events relevant to this matter. The photos are predominantly photos of the Junee railway station from different locations and directions and do not particularly assist me in determining this matter. 5 There is also a factual report by Inspector Chadwick. It is brief and I do not propose to read it. It does not throw any light on the relevant matters I have to determine. Relevant background facts and considerations 6 The employees of Olinder were initially using an appropriate paint stripper known as SK2000. That product was supplied by Ripakote. It was a pre-mixed paste that did not contain any caustic soda (sodium hydroxide) chlorinated hydrocarbons or any hydrochloric acid. In other words, SK2000 was an environmentally friendly product that was relatively safe to use. 7 At or about 17 May 2000, Olinder commenced using SK5000, a totally different proprietary paint stripper, also manufactured and supplied by Ripakote. 8 SK5000 is a highly corrosive alkaline product containing substantial quantities of caustic soda (sodium hydroxide). It was and is a particularly hazardous substance requiring the use of personal protective equipment including respiratory protection, impenetrable protective gloves, protective eyewear, proper overalls and safety boots. Neither Mr Nesire nor Mr Schremmer were provided with personal protective equipment appropriate to the handling and use of, or accidental exposure to, SK5000. 9 Given the absence of any proper induction in the proper use of SK5000 and the failure by Olinder to provide proper personal protective equipment to Mr Nesire and Mr Schremmer, both employees sustained severe burns to their hands and arms as a consequence of their use of SK5000. 10 On behalf of the defendant, affidavits with annexures were tendered from Mr Kelman, the General Safety Manager for the defendant, and Mr Patrick Hickey, the Project Supervisor with the defendant. It was Mr Hickey who supervised the work on behalf of the defendant undertaken by Olinder in relation to the painting of Junee railway station. 11 On behalf of the defendant, there was also an affidavit with annexures from Mr McCarthy, Managing Director at the relevant time of Ripakote Pty Limited. Ripakote was requested by Olinder to provide paint, equipment and advice in relation to the products provided by Ripakote to Olinder to facilitate the paint removal. 12 The defendant is but one of three parties that have had some involvement in this matter. The others are Olinder Facilities Management Pty Limited and Mr Joyce who was the Director and Project Manager for Olinder Facilities Management. Those two parties have already been dealt with for offences arising in relation to the same facts and circumstances before me. Olinder Facilities Management Pty Limited was charged with six offences arising under s15(1) of the Occupational Health and Safety Act 1983. A plea of guilty to all six offences was entered and they were dealt with by the Chief Industrial Magistrate on 16 April 2002. In relation to each offence, his Worship imposed a penalty of $4000 with a total penalty for all six offences of $24,000. 13 As a director of Olinder, Mr Joyce entered a plea of guilty before the Chief Industrial Magistrate on 10 July 2000 in relation to two offences under s50(1) of the Occupational Health and Safety Act A combined penalty of $800 was imposed. 14 The penalty imposed on the above two defendants and the role of those defendants in the context of the overall facts and circumstances of the matter giving rise to the offence before me are factors relevant to considerations of penalty for the defendant before me. 15 I also have regard to the principle of parity. Considerations of parity in sentencing requires consideration of culpability. In Postiglione v R (1997) 189 CLR 295 the High Court considered the relationship between the principle of parity and totality. In relation to the principle of parity Dawson and Gaudron JJ said at 303, dealing as they were with natural person defendants facing custodial sentences: Before turning to consider what ought to have been taken into account in this case, it is convenient to observe, once again, that, as between co-offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender's criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence (16) or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody. 16 It must be accepted, and I do so, that there is a danger in taking the principle that co-offenders should receive the same sentence too far. It applies if all other things are equal. There is no obligation to follow the principles of parity where the differences between the two offenders justify a different result. 17 Having said that, as matter of practice, it is in the highest degree desirable that co-offenders should be sentenced by one Judge. As was said by Kirby J in Postiglione at para [338]: The risks of disparity in the sentencing of co-offenders may be reduced by the adoption wherever possible of arrangements within a court which ensure that co-offenders or those with relative connecting factors appear for sentence before the same judicial officer. 18 It is correct to say the defendant before me is not strictly a co-offender. That is, the defendant before me has been charged with an offence under s16(1) of the Act whereas Olinder was charged under s15(1) of the Act and Mr Joyce under the deeming principles of s50. Notwithstanding that, the offences charged in relation to all three defendants arise from the same facts and circumstances and are inextricably intertwined in such a way that, on any view, a proper approach would have been to have one judicial officer deal with all three defendants. Only then can issues such as relative culpability be properly weighed and considered in the context of parity. 19 In coming to a decision on penalty in the matter before me and, acknowledging the principle of parity as part of that process, I have read the affidavit material filed on behalf of the defendant, particularly that of Mr McCarthy and Mr Hickey. Having read that material and in terms of overall culpability in relation to the facts and circumstances before me, the role of Olinder and that of Mr Joyce represents, in my view, a greater level of culpability than that of the defendant before me. 20 In saying that I do not purport to suggest that the defendant before me can or should be excused in terms of its failure to properly project manage and supervise the work being conducted by Olinder and its employees on site. As the agreed affidavits disclose, the defendant did not obtain or request from Olinder, as it should have, an occupational health and safety rehabilitation management system plan or site specific safety management plan or safe work method statement. 21 According to Mr Hickey's affidavit which, in its amended form, is unchallenged before me, not only did he not observe anything untoward in the work practices on site, he was unaware at the relevant time that the decision had been taken by Mr Joyce on behalf of Olinder to switch to the caustic based SK5000. As Mr Hickey stated in para [27] of his affidavit: Some time after the attendance by Inspector Ian Hannah of WorkCover on 2 June 2000 at the Junee site I was informed by one of the Ripakote consultants that Joyce had complained that the paint removal was taking too long. I was informed that the mixture was strengthened to facilitate the removal of the lead paint. I was not made aware that SK2000 was being replaced by another product. 22 That much is clearly agreed between the parties by reference to para [28] of the agreed statement of facts before me. 23 Mr Hickey's actions in relation to satisfying himself as to the paint stripping process being undertaken by Olinder is to be found in paras [23] to [26] of his affidavit as follows:. [23] Joyce introduced me to a consultant from Ripakote, I cannot recall his name but he was a director of the company. Ripakote were experts contracted by OFM for the stripping of paint. They not only supplied paint stripper but also owned a process and a removal system that was to be used in removing paint. I understood that Ripakote were contracted by OFM to instruct their workers in how to undertake the stripping works. [24] As I am not an expert in the field of paint removal I discussed the process and removal system with the consultant from Ripakote, and he explained the following to me: · they used an environmentally friendly solvent paste, known as SK2000, as their paint stripping product; · there was a particular work method used in relation to the paste - this involved applying the past by spraying it on with an airless gun (there was no overspray caused by this method), once the paste was sprayed on a covering shield was applied, effectively sealing the solvent in order that it did not evaporate. · removal of the paint/paste involved the use of a 'captive head' water blasting system (developed by Ripakote) - this system comprised a rotating head that vacuumed off the solvent into a 44 gallon drum - the removal process involved having two 44 gallon drums so that when the first was full, the contents were then removed into a 1,000 litre tank and the process could be continued by alternating between the two 44 gallon drums. · OFM had not provided a 1,000 litre tank, so the paint being removed was being stored and sealed in 44 gallon drums which were then being transported to Canberra for disposal. [25] I was also taken around the site by Joyce and shown the stripping process, the materials being used to strip the paint, the safety equipment available and the ground and drain protection being used. [26] Having viewed and discussed the paint stripping system to be used by OFM I was confident that it was safe and that OFM had engaged appropriate assistance from Ripakote. 24 On the issue of relative culpability it is instructive to also have regard to the affidavit of Mr McCarthy, the then Managing Director of Ripakote, the company that provided both SK2000 and SK5000 to Olinder. In particular paras [20] and [26] of that affidavit as follows:. [20] After our first couple of weeks on the job I recall a comment by Joyce to the effect that he was paying a lot for scaffolding and he asked me if there was any way in which we could speed up the job. ......... [26] On the occasion that I first arrived at Junee after OFM commenced using the caustic paste (SK5000) I could see that nobody was wearing what I considered to be the correct protective equipment. I approached Joyce in this regard and told him that I was not happy with the work proceeding. Joyce told me that he had 'ordered it' but that the equipment had not arrived. 25 Not only was Mr Hickey not told of the switch from the use of SK2000 to SK5000 at the relevant time, on any reasonable consideration of Mr McCarthy's affidavit, which is unchallenged before me, it is perfectly possible that Mr Hickey did not notice the switch. Mr McCarthy's statement at paras [22] and [23] discloses: [22] SK2000 was a fawn coloured paste, whereas the caustic paste was white. The difference between the two products may not be obvious to someone not using the pastes regularly. [23] Both products, SK2000 and SK5000, came in the same type of tub, however, the labels were different. Andrew and I were mixing SK5000 ourselves. SK2000 was made professionally as it is very difficult to make but SK 5000 was mixed by us in the old relabelled SK2000 tubs. 26 I only say it is possible that Mr Hickey did not notice the difference. Certainly the above paragraphs, when read in conjunction with para [27] of Mr Hickey's affidavit detailed above, would infer that. 27 Mr Hickey's statement says he made visual inspections on the site and when he did, the clothing that was being worn by the employees seemed to him to accord with the requisite personal protective equipment. On one view it may well have been acceptable for the use of SK2000 but it was clearly not for SK5000. 28 The defendant's failure involved a failure by Mr Hickey to follow through his supervision of Olinder by requesting the relevant material and safety data sheets from Olinder as to the use of SK2000 and SK5000. Mr Joyce on behalf of Olinder had been given such a sheet by Mr McCarthy of Ripakote in relation to SK2000. Whether Mr Joyce would have produced a subsequent safety data sheet in relation to SK5000 is a matter that can only be speculated on. Any inference able to be gleaned on that is from Mr McCarthy's affidavit, paras [26] to [29] which suggest that he may not have: [26] On the occasion that I first arrived at Junee after OFM commenced using the caustic paste (SK5000) I could see that nobody was wearing what I considered to be the correct protective equipment. I approached Joyce in this regard and told him that I was not happy with the work proceeding. Joyce told me that he had 'ordered it' but that the equipment had not arrived. [27] While I definitely recall providing the MSDS to Joyce for SK2000, I cannot be sure that I did the same for SK5000. However, to the best of my recollection I think I gave Joyce the MSDS for that product as well. [28] After starting work at Junee it became clear to me that Joyce knew very little about paint removal. [29] Andrew and I raised our concerns with Joyce at about this time in relation to the PPE for his employees using SK5000 to which he replied 'tell them to get their hands out of my pockets and start using their heads.' 29 The defendant has prior convictions and therefore the maximum penalty in this matter is $825,000. 30 In considering offences under the Act for the purposes of penalty, one must start by considering the objective seriousness of the offence. 31 That principle is well settled and was expressed by a Full Bench of this court in WorkCover Authority of New South Wales (Inspector Ch'ng) v Lawrenson Diecasting Pty Limited (1999) 90 IR 464 and more specifically at 476 where the court said: In the case of an offence under s 15(1) of the 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 when there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible. 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. 32 The test is no different in relation to offences under s 16(1). In relation to this matter the risk to safety in using caustic based paints if proper precautions were not taken would, on any reasonable view, be known and foreseeable. 33 The very outcome one would expect if proper precautions were not taken is the very burns which occurred. It is fortunate, on one view, that Mr Nesire and Mr Schremmer only suffered burns to their arms. 34 It is relevant to the objective seriousness of an offence to consider if there was readily and easily available remediation 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 the remediation or the extent of the remediation that is done post the accident as an indication of the extent to which foreseeability of the accident was readily identifiable. 35 Remediation in this matter was easy - observance of the proper safety procedures, proper wearing of personal protective equipment, instruction and training. 36 While many of those steps lie directly at the feet of Olinder and Mr Joyce, the role of the defendant in properly exercising its supervisory role cannot be overlooked as far as remediation is concerned. It is on that issue that the affidavit material of Mr Kelman is of assistance, particularly that dealt with in the body of the affidavit, dealing with the defendant's changed approach to project supervision since January 2001. That change is reflected in the development of a document entitled Station Project Process for Contractor Safety Management. That project process covers matters such as risk assessments, documentation, implementation, review, reporting and continuous improvement. 37 All of those aspects are to be completed. The affidavit material of Mr Kelman also highlights other initiatives which the defendant has put in place but are not necessarily resulting from the particular incident before me. They include matters such as principles of safety management by way of training. That process is ongoing. As well, in April 2002, the position of Manager, Safety Culture and Development was filled to assist in the promotion of a safe culture within the defendant's work sites. That can only be applauded. 38 Overall, I am of the view that the defendant has done much to bring its whole approach to occupational health and safety into line with a changed emphasis to one of proper risk assessment. 39 While such steps are laudatory they are, on the defendant's prior conviction history, long overdue. I have no doubt that it will take some time for significant improvements to flow into the defendant's workplaces but it is clear that the defendant has made a positive and extensive start. 40 In imposing a penalty in this matter regard must be had to general and specific deterrence. That much is evident from the decision of the Full Bench in WorkCover Authority of New South Wales v Capral Aluminium (2000) 1999 IR 29, particularly paras [74] to [77]. 41 I do not propose to read those paragraphs at this point. I would imagine they are well known to the parties before me. Para [74] makes it clear that if I am to exclude either general or specific deterrence I must state with precision the basis on which I exclude such considerations. I do not exclude such considerations in this matter before me for the reasons that Capral makes abundantly clear. 42 The defendant is a large corporate entity. It continues to operate in an industry that is fraught with risks to safety. It has a history of prior offences that can only be described as one of considerable concern covering the period of time that I am concerned with. Accordingly, it is only proper that I have regard to both general and specific deterrence in the penalty that I impose in this matter. 43 Following the filing of the amended summons in December last year the plea was immediately entered by the defendant. I am satisfied that the plea was entered at the earliest available opportunity and the defendant is entitled to a discount on the basis. I assess that discount at 25%. 44 I have regard to certain subjective features that I think can be properly applied to the defendant before me. There is no evidence that the defendant has not fully co-operated in the investigation of this matter. Further, I am satisfied that the defendant is making a genuine and very extensive attempt to address its occupational health and safety deficiencies. Taking those features into account I determine a further discount of 5%. 45 I have already commented on the issue of parity having regard to consideration of the culpability of this defendant vis-a-vis Olinder in particular, as well as Mr Joyce. 46 I have taken into account those factors relevant to this defendant, as well as its prior record in relation to occupational health and safety which brings the high penalty provisions into play. 47 Taking into account all the matters that I have referred to, I determine a notional penalty in this matter of $35,000. In applying the discounts I have assessed, I determine a final penalty of $24,500. 48 Accordingly I make the following orders: · The defendant is convicted of the offences charged. · I impose a penalty in this matter of $24,500. · I allocate a moiety to the prosecution on the usual terms. · Costs as agreed to the prosecution in the sum of $17,500. 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.