Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Kalanithy v The Waterways Authority [2002] NSWIRComm 344 Prosecution: PARTIES : Inspector Kalanithy Defendant: The Waterways Authority FILE NUMBER: IRC8431 of 2001 CORAM: Kavanagh J CATCHWORDS : Prosecution under s17(1) of the Occupational Health and Safety Act 1983 - maintenance of the Authority's navigational aids contracted out by defendant - defendant found in control of workplace when maintenance work performed by sub-contractor on navigational aids - duty to ensure its place of work, a navigation light on timber pole, safe and without risk - consideration of programme for upgrading navigational aids and need for research as part of specific deterrence - penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Ports Corporatisation and Waterways Management Act 1995 McMillan, Britton & Kell Pty Ltd v WorkCover Authority (Insp Blake) (2000) 89 IR 464 WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 Inspector Clarke v W C Meinhardt and Partners Pty Limited (unreported, Fisher CJ, No 1212&3 of 1990, 30 June 1992) Inspector Page v Woolworths Ltd (unreported decision of Peterson J, CT93/1044, 9 September 1994 Inspector Hart v P J Lee & Associates Pty Ltd (unreported, Miller CIM, No 92/809, 27 November 1992 Ferguson v Nelmac (1999) 92 IR 188 CASES CITED : Tyler v Sydney Electricity (1993) 47 IR 1 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported, Maidment J, CT93/1062, 26.11.93) Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo Ramsay) 49 NSWLR 610, (1999-2000) 99 IR 29 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 R v Thomson, R v Houlton (1999-2000) 49 NSWLR 383, (2000) 115 A Crim R 104 R v Sharma [2002] NSWCCA 142 Warman Ltd v WorkCover Authority (1998) 80 IR 326 HEARING DATES: 11/28/2002 DATE OF JUDGMENT: 12/20/2002 Prosecutor: Mr P. Nematalla of counsel Solicitors: Ms R. Panagoda WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Mr M.L. Shume of counsel Solicitors: Mr J.J.Hurley Ebsworth & Ebsworth JUDGMENT: - 15 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Fri 20 December 2002 IRC8431 of 2001 INSPECTOR KALANITHY v THE WATERWAYS AUTHORITY Prosecution under s17(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2001] NSWIRComm344 1 This prosecution is brought by the WorkCover Authority of New South Wales through Inspector Kalanithy under the provisions of s17(1) of the Occupational Health and Safety Act 1983. Relevantly, this section of the Act states: 17. Persons in control of workplaces, plants and substances used by non-employees to ensure health and safety (1) Each person who has, to any extent, control of: (a) non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, or the means of access thereto or egress therefrom, or (b) any plant or substance in any non-domestic premises which has been provided for the use or operation of persons at work (not being the person's employees), shall ensure that the premises, the means of access thereto or egress therefrom or the plant or substance, as the case may be, are or is safe and without risks to health. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. (2) Where a person has, by virtue of any contract or lease, an obligation of any extent in relation to: (a) the maintenance or repair of any premises referred to in subsection (1) (a) or any means of access thereto or egress therefrom, or (b) the safety of, or the absence of risks to health arising from, any plant or substance referred to in subsection (1) (b), that person shall be treated, for the purposes of subsection (1), as being a person who has control of the thing to which the person's obligation extends. (3) A reference in this section to a person having control of any thing is a reference to a person having control of the thing in connection with the carrying on by the person of a trade, business or other undertaking (whether for profit or not). 2 It is alleged the defendant, a body corporate constituted under section 35 of the Ports Corporatisation and Waterways Management Act 1995 (NSW) on 18 January 2000, at Navigational Pole 822, Hawkesbury River, Gunderman, near Wisemans Ferry failed to: ensure that non domestic premises, of which it had control, which had been made available for the use or operation at work by non employees, in particular Stuart James Ellsmore and Fredrick James Eckford, was safe and without risks to health contrary to Section 17(1) of the Occupational Health and Safety Act 1983 3 A plea of guilty was entered by the defendant. 4 An agreed statement of facts was tendered: 3. At all material times the defendant was the owner of Navigation aid number 822, Gunderman, near Wisemans Ferry. 4. At all material times the defendant was in a contractual arrangement with Solar Technology Australia Pty Ltd. Solar Technology Australia Pty Ltd was contracted to service, repair and maintain the navigation aids or "navaids" owned by the defendant including those located in the Hawkesbury River, New South Wales. 5. At all material times Solar Technology Australia Pty Ltd employed Stuart James Ellsmore to carry out maintenance and service of the navaids, in accordance with its contractual obligations to the defendant. 6. At the material times Mr Ellsmore was a qualified electrician who had been working in this field for approximately 10 years and was highly trained and experienced. 7. On 18 January, 2000, Mr Ellsmore was to perform routine navigation light maintenance on Navaid number 822 and located in the Hawkesbury River, Gunderman, near Wisemans Ferry, approximately four (4) nautical miles up river from the Wisemans Ferry Wharf. 8. As was usual practice, Fredrick Eckford, a certified Coxswain and labourer and contractor to Solar Technology, navigated a vessel through the Hawkesbury River to take Mr Ellsmore to Navaid number 822. 9. Mr Ellsmore climbed from the roof of the vessel and ascended the pole of Navaid 822 in order to access and service the solar navigation light at the top of the pole. 10. At the conclusion of this service, Mr Ellsmore began to climb down the pole. Whilst climbing down, the pole snapped near the water level and both Mr Ellsmore and the broken portion of the pole fell onto the deck of the vessel. 11. Mr Ellsmore sustained serious injuries to the head and was airlifted to Westmead Hospital. 12. Mr Ellsmore died on 19 January 2000 as a result of those head injuries. 13(i) Mr Brett Moore, General Manager Operations, Waterways Authority of New South Wales, provided an interview to inspector Kalanithy on the 10th March 2000 on behalf of the defendant. (ii) During the course of the interview, Mr Moore provided a letter (a copy of which is attached to this statement of facts and relied upon as forming part of this document) under the hand of Peter Maunder, Assets Services Manager, Waterways Authority, dated 10th March, 2000, addressed to the Inspector (iii) In that letter Mr Maunder's expressed the view that the navaids sites were not considered to be a work place for which the Defendant had responsibility as the Contractor was aware of the safety implications and that the Defendant believes that in tendering for the contract, the contractor would have considered the risks and built those risks into the contract price. (iv) In the same letter, Mr Maunder states that the inspection process of the poles at the relevant time involved a process of visual inspections. In addition, at times weight is applied to the poles using a vessel to determine whether the pole was loose in the seabed. (v) Mr Maunder stated that the Defendant engaged the contractor (Solar Technology Australia Pty Ltd) on the basis that it had the appropriate knowledge and expertise to undertake navigation aid services including the assessment of the condition of navigational aid structures, especially those that require climbing to service lights. 14. At the time of the accident the Defendant did not have a system of maintenance and servicing of navaids sufficient to identify all timber poles made hazardous by reason of infestation by the teredo worm. 15. The method of examination of the poles employed by Solar Technology Australia Pty Limited before the accident included:- (i) a visual inspection of the wear of the poles around the tidal area; (ii) a check to see whether the pole was leaning or not; (iii) a check on the condition of the climbing steps and platform of the poles; (iv) a check for any excessive wobble when given a nudge using the servicing vessel 16. On 1 February, 2000, Senior Constable Fancey conducted an examination of the remainder of pole number 822 once it had been brought onto dry land. He took a number of photographs of a cut made in the pole and noted that borers had commenced to eat away at that section of the pole. He described the end section of the pole in terms of it appearing like a honey comb texture and was very brittle. 17. Mark Fancey, Senior Constable of Police, Wisemans Ferry Patrol, carried out an investigation of the matter and prepared a report and a brief for the coronial proceedings. In a statement prepared by him dated 27 February 2000, he notes that the pole number 822 was installed in 1992. He notes that whilst Mr Phillip Sale in July 1999 provided an inspection report and quotations on behalf of Solar Technology Australia to the defendant for the replacement of various poles in the relevant area, pole number 822 was not identified as requiring replacement. 5 The court must assess the nature and quality of this offence, that is the gravity of the offence viewed objectively (see Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales, (Inspector James Swee Ch'ng) (1999) 90 IR 464 at 474 and Haynes v James Glass & Aluminium Pty Limited (unreported) CT772-775/91 20 May 1994). 6 Mr P. Nematalla, of counsel, appeared for the prosecution and Mr M.L. Shume of counsel appeared for the defendant. The prosecution tendered an agreed statement of facts, Factual Inspection Report, a letter from the Waterways Authority to WorkCover Authority, some photographs of the navigational pole which broke and the river area, and the industrial record of the company. The defendant relied upon an affidavit of Mr Brett Moore, General Manager, Operations, Waterway Authority. The Act 7 The charge brought under s17(1) of the Act imposes an absolute duty upon persons who have, to any extent, control of non-domestic premises used as a place of work, or any plant provided for use of persons at work not being employees. The section defines the duty owed to persons not employees who use the premises or plant at work. It places upon a defendant an obligation to maintain or repair any non-domestic premises or any plant made available to non-employees at work. There must be a causal nexus found between any breach of this section of the Act and the detriment occasioned to the employee, that is, the risk to his/her safety. 8 The term "person" is not defined in the Act. However, s21 of the Interpretation Act 1987 (NSW) defines "person" to include an individual, corporation, or a body corporate or politic. The Waterways Authority is such a person. 9 In McMillan, Britton & Kell Pty Ltd v WorkCover Authority (NSW) (Insp Blake) (1999) 89 IR 464, the Full Bench of the Industrial Relations Commission of NSW in Court Session (Wright J, President, Hungerford and Marks JJ) held (at 480-481): The importance of the decision in WorkCover Authority of New South Wales (Inspector Callaghan) v Malcolm Gulvin Rowson (unreported, CT93/1156, 30 June 1994) was that it emphasised the high standard of care required by s.17(1) by its use of the words "shall ensure" so as to qualify the nature of the "control" to which the section was directed. The decision has significance also in illustrating the shifting of "control" in a total sense, and thus shifting the liability to ensure safety, from one person to another where control arises under s.17(2) from a contractual obligation. It is worth repeating, we think, that the obligation cast on relevant persons to "ensure" the safety of others is indeed strict and necessarily of a high standard. . . . . . . The obligation imposed by s.17(1)(b) on the appellant to ensure the plant was safe and without risks to health is to be so viewed and as assisting in the determination of whether it had at the relevant time the requisite degree of control over the subject plant as would make it liable. In other words, the proper operation of the section requires, in our view, the degree of control which a defendant has over plant or substances or non-domestic premises, as the case may be, to be to the extent to which that person is able to ensure safety by guaranteeing, securing or making certain. For that reason, the applicable meaning of "control" in the context of s.17, by reference to its ordinary meaning as earlier outlined, must, it seems to us, have about it the sense of not mere "sway", "checking" or "restraint" but rather controlling in the sense of "directing action" or "command" - the ability of a person to compel corrective action to secure safety, having in mind the context and purpose of the statute, clearly seems to be necessary in order to enable safety to be ensured. If it were otherwise then the alleged controller would be simply unable to assume the strict duty cast by the section. We are satisfied that this approach to the meaning of "control" is consistent with that expressed in Rowson and Growth Securities by adopting the contextual approach stated in Australia and New Zealand Bank. It may be thought that the words "to any extent" qualify the word "control" so as to reduce or diminish the degree otherwise than as we have stated; however, and conformably with the context of the section, the phrase "to any extent, control" means no more than that the person liable being able to compel (or direct or command) to any extent. (emphasis added) 10 The scope of the duty under s17 of the Act is therefore very broad and extends to any person who can to any extent compel, direct or command activities at premises or plant used as a place of work (see also WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383). 11 In Inspector Clarke v W C Meinhardt and Partners Pty Limited (unreported, Fisher CJ, No 1212&3 of 1990, 30 June 1992) it was held that the "place of work includes every area which may be affected by the work being 'done'". Place of work includes the immediate environs that may have been affected by the conduct of the business: (see Inspector Page v Woolworths Ltd (unreported decision of Peterson J, CT93/1044, 9 September 1994). In Inspector Hart v P J Lee & Associates Pty Ltd (unreported, Miller CIM, No 92/809, 27 November 1992) it was held that a construction site was a WorkCover inspector's place of work during the time that an inspection of the site was being conducted and therefore fell within the scope of s17 of the 1983 Act. 12 I adopt the view as was held by Walton J, Vice-President in McDonalds (at 442) having regard to the reasoning in McMillan, Britton & Kell these conclusions are equally applicable to the provision of s17(1)(a) in relation to the exercise of control by the defendant over non-domestic premises made available to persons not employees of the defendant. Control in this case had not shifted from the Waterways Authority. The Facts 13 The Waterways Authority has approximately 292 employees and 35 offices and customer service centres throughout New South Wales. The Authority is the successor organisation to the Maritime Services Board Waterways Authority ("MSBWA") and was established by the Ports Corporatisation and Waterways Management Act 1995 (the 1995 Act) for the purposes of exercising the waterways management and marine safety functions of the Minister for Transport. The MSBWA was itself the successor organisation to the Maritime Services Board (the MSB). 14 Until 1993, lit and unlit Navaid maintenance and servicing functions were carried out by the MSBWA's Navaid Services Branch with some inspection and notification input by the MSBWA's Boating Service Officers (BSO's). In 1993 the MSBWA decided to outsource its non-core Navaid maintenance and servicing business and this included the functions performed by the Navaid Services Branch. 15 The tender from Solar Technology was the successful bid for the Navaid maintenance business and the contract was awarded to Solar Technology in 1993 (the 1993 Contract). 16 In 1995, a new contract was due and the Authority advertised the tender for the Navaid Maintenance Contract. Solar Technology again submitted its tender in November 1995 which included material in relation to its experience in carrying out the type of work the subject of the tender. Solar Technology provided the following as examples of similar work it had performed: (a) the provision of Beacon Services to the MSBWA for the period August 1993 to August 1995; (b) the supply, installation and servicing of solar navigation lights in Cockle Bay Sydney for the Darling Harbour Authority; and (c) the supply, installation and servicing of solar navigation lights in Sydney Harbour for the Royal Australian Navy. 17 The Authority had been impressed by Solar Technology's performance of the 1993 contract. Their experience, knowledge and expertise in the area of navaid maintenance gave the authority a high degree of confidence in the ability of the organisation to deliver Navaid maintenance services effectively and professionally. This resulted in Solar Technology being awarded the Contract for inspection and maintenance of navaids by the Authority in December 1995 (the 1995 Contract). 18 Mr Brett Moore, the General Manager, Operations of the Waterways Authority in his affidavit remarked: 40. The general manner in which the 1995 Contract between the Authority and Solar Technology operated was as follows: (a) Solar Technology would carry out programmed routine inspections of navaids and notify the Authority by way of reports on the condition of the inspected navaids and the Authority would rely and act on those reports; (b) any significant navaid maintenance issues, such as light outages, required attention by Solar Technology within 24 hours of notification to the Authority; (c) missing or significantly damaged navaids notified to the Authority resulted in the relevant Regional Manager either preparing a capital submission for replacement or requesting Solar Technology to provide an emergency navaid or assist in the preparation of the capital submission; (d) minor maintenance and unlit navaid issues were noted by the relevant Regional Manager who would then arrange to meet with Solar Technology to discuss the quantum of the repair works within budgetary constraints; (e) Solar Technology would then prepare a program of minor maintenance and unlit navaid works based on their assessment of the condition of each regions' navaids and incorporating any issues which the relevant Regional Manager may have discussed or raised; (f) the program of maintenance works would then be discussed between the parties prior to the commencement of the new financial year to obtain agreement on the priority and quantum of work for the coming year; (g) Solar Technology would prepare and maintain a register of lit navaids and the structures that support them. The register would, in most cases, contain a photograph of each lit navaid clearly showing whether it comprised of a pylon or buoy, as well as details of its service history; (h) the program of maintenance works would then result in a submission being prepared by the relevant Regional Manager and forwarded to the relevant Authority Officer with appropriate delegation for approval; amounts above $5,000.00 required approval by the General Manager Operations; and (i) when the submission was approved it would then be allocated a financial capital order number and returned to the originator of the submission for organising an appropriate purchase order or a letter of approval to commence the required work. 19 The defendant therefore has the degree of control over the navigational aid to the extent to which it is able to ensure safety by its directive action as required under s17(1) of the Act. 20 On 18 January 2000, Stuart James Ellsmore was employed by Solar Technology Pty Limited. Mr Ellsmore was an electrician. Also employed by Solar Technology was Frederick James Eckford, who was a coxswain and labourer. The Waterways Authority, the defendant, owned navigational pole 822 which was located up the Hawkesbury River, Gunderman, Wiseman's Ferry. The pole was five metres from the north side bank of the Hawkesbury River. The pole was made of timber. It was only ever checked for maintenance and servicing once every eight months. Painting occurred once every two years. The pole was not treated for climate or other conditions and the timber used had a propensity to rot or be de-stabilised by a wood worm called the Teredo worm. 21 Mr Ellsmore was required to carry out light maintenance and servicing on this pole. Mr Eckford took him there as the coxswain. They tied their boat to the pole and placed an aluminium ladder from the roof of the vessel against the pole. Mr Ellsmore climbed the pole to carry out his maintenance of and servicing of the solar navigation light. He climbed the pole using the foot pegs on the pole. He stood on the work platform on the pole and serviced the light. After completing the maintenance, Mr Ellsmore commenced to descend the pole via the steps to return to the vessel. While descending, the navigational pole snapped near the water level of the pole. Mr Ellsmore fell on to the bow deck of vessel. Mr Ellsmore suffered severe head injuries and died at Westmead Hospital the day after, on 19 January 2000. 22 It is relevant to note, as to the gravity of the offence, Mr Ellsmore died in this incident. While the gravity of injury arising from the breach does not of itself dictate the level of penalty, the occurrence of death or serious injury can manifest a degree of seriousness to the relevant detriment to safety. As Wright J, President said in Ferguson v Nelmac (1999) 92 IR 188 (at 204): . . . where a fatal injury has occurred, that is a factor to be taken into account and is often, of itself, reflective of an offence the nature and quality of which is serious. Wright J, President endorsed the well acknowledged words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5): The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risks flowing from breach and its foreseeability are clearly relevant . . . 23 Investigations revealed the area where the pole broke away had been eroded totally by water and/or the actions of sea animals eating the timber. The Authority owned a Navigational Aid No. 822 and had control over it. Evidence reveals it is possible to treat such poles for climate and other conditions by a coating of copper chrome arsenic. This had not been done. It was also known that borers in the river attacked such timber poles. Clearly a visual type inspection was unsatisfactory. Even the level of the tide would affect such a visual inspection of navigational poles. Water filtration also undermined poles which had been tapped to check for worm infestation. Further, the testing required a boat to nudge the pole to identify excessive movement - this was also not an ideal test. 24 Photographs of the broken pole (navigational aid) showed it was in a dangerous and unstable condition, eaten away at its lower level by worms - its circumference at water level was greatly reduced. It appeared brittle and honeycombed on examination. The contractor, Solar Technologies, in its inspection report in July 1999 to the Waterways Authority did not identify Pole 822 as in need of repair or replacement. 25 Notwithstanding the fact that its contractor had not warned it of the state of this navigational aid, I find this was a serious breach of the Act by the Waterways Authority who owned the pole and who by directive action oversaw all maintenance. 26 A number of subjective features are taken into account in consideration of penalty. However, such consideration is secondary to the consideration of the nature and quality of the offence (see Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474)). 27 Upon hearing of the incident the Authority: (a) placed an immediate moratorium on the maintenance and servicing of navaids (b) sought expert assistance from the University of Technology Sydney and engineering consultants in developing a testing procedure for timber navaids; and (c) implemented a newly developed navaid testing procedure in the Contract by way of variation to the scope of works with a pricing mechanism to accommodate that procedure. 28 The evidence reveals the defendant had in place a management system for the repair, upkeep and maintenance of these poles. However, that system was not satisfactory. The review and professional assessment of the need for amended procedures has resulted in the defendant authority identifying some dilemmas in their endeavours to ensure safe working at workplaces under their control especially related to these navigational aids placed in waterways. 29 Consideration must be given in an assessment of penalty to elements of specific and general deterrence to compel attention to safe working. 30 There was a significant re-assessment of the capital expenditure to replace some poles after this tragic incidence. In the year 2000/2001 capital expenditure doubled from $479,000 to $828,000 to reflect this review and replacement of equipment. 31 I accept that the Waterways Authority has specifically not only hired a consultancy to recommend changes, but has experimented with alternative compounds to timber for the poles. However, no compound or composite mix has been identified as providing a complete engineering solution to the needs. The poles must be able to stand alone, take weight and not shift with tidal or wave force. Timber is still the product which best meets the requirements notwithstanding its high maintenance demand. 32 A computer system now monitors the management of its equipment and is used for tread monitoring. The testing of existing timber poles is now much more rigorous and involves increased load testing. There is still some difficulty identifying poles attacked by the worm but scientific help is continually being sought. 33 I am satisfied as to specific deterrence all endeavours have been, and continue to be, made to eliminate risk to safety. However, Maidment J's words in WorkCover Authority of NSW (Inspector Callaghan) v Saunders Constructions Pty Ltd (unreported, CT1062 of 1993, 26 November 1993) are apposite: Commendable though it is to introduce appropriate occupational health and safety measures after the event it needs to be remembered that the legislation is not directed at ex post facto measures, it requires positive preventative steps being taken to ensure that workers are afforded safe working environments. . . . 34 The Waterways Authority continues to grapple with difficulties in maintaining its assets in the waterways of New South Wales. It admits it has no full and complete answer. It must maintain rigorous inspection of its timber navigational aids and continue expenditure on research into alternative composition for its poles. While ever it relies on timber poles it must provide continuous treatment for worm eradication as well as search for better procedures to assist in worm identification in any timber placed in water. I am satisfied it is making such an endeavour. 35 In an assessment of the element of general deterrence, it is a fundamental duty of the court to ensure that the penalty for the breach compels attention to occupational health and safety issues and to ensure the punishment is proportionate to the offence (see Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo Ramsay) 200) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74] and Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 (at 388). This was a serious offence. 36 Mr Moore in evidence revealed he was personally affected by the death of Mr Ellsmore. He confirmed how all at the Authority were struck by the tragedy which caused grief and shock. I found Mr Moore a most credible witness. I accept unreservedly his true expression of that grief and contrition. He seemed personally affected, even now, by this tragedy. While Mr Ellsmore was a Solar Technology employee, he had previously been employed by the MSBWA and its predecessor, the MSB. Mr Moore expressed contrition on behalf of all. 37 It is agreed the Authority provided its full cooperation to the investigation by Inspector Kalanithy making any employees and documentation available as requested. As soon as the prosecutor filed an amended summons in relation to the offence under s17 of the Occupational Health and Safety Act 1983, Mr Moore instructed the solicitors for the Authority to enter a plea of guilty. I understand that this was done on 27 June 2002. In the circumstances it is agreed by the prosecution the early plea should attract a discount for its utilitarian value (see R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383, (2000) 115 A Crim R 104; and R v Sharma [2002] NSWCCA 142). I allow a discount of 20 per cent in the circumstances. 38 The industrial record of the company is also relevant in the determination of penalty. There is one prior recorded conviction against the Maritime Services Board in 1995. It was not disputed the maximum penalty for this breach under the Act is $825,000. 39 I take into account the gravity of the offence and the relative subjective features placed before the Commission sitting in Court Session and the discount allowed for the utilitarian value of the plea. 40 I find the defendant guilty. 41 Walton J, Vice-President has issued judgment ex tempore against Solar Technologies who was the sub-contractor involved in this incident. The application of the principle of parity therefore becomes relevant. The principle of parity was discussed by the Full Bench in Warman Ltd v WorkCover Authority (1998) 80 IR 326 (at 340-341): We also accept that the principle of parity in sentencing as discussed by the High Court in Postiglione -v- The Queen has application to sentences imposed under the O H & S Act. In that context it is appropriate to have some regard to the sentences imposed by Hungerford J on Drake Personnel Ltd, the direct employer of two of the injured workers. In Postiglione the High Court was concerned with an appeal against sentence which raised questions of comparison between the sentence imposed on a principal party in a conspiracy compared with that imposed on the appellant, who was subordinate in that conspiracy. Dawson and Gaudron JJ (at 411-412) said: `The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them [ Lowe -v- R (1984) 154 CLR 606 at 610-11 per Mason J]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [ Lowe at 617-18 per Brennan J]. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe -v- R , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to `a justifiable sense of grievance' [ Lowe especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.' That principle was referred to by Mason J in Lowe -v- The Queen (at 610) as follows: `Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.' 42 I find it is proper, in the circumstances, in my consideration as to penalty to reflect on the notion of equal justice. This Authority showed it had in place a safety procedure but it failed to recognise the endemic problem in, and the danger posed by, its use of timber navigational aids. The contractor did not identify the risk. While both defendants are culpable for the offence as charged and both have pleaded guilty, the companies differ as to some of the objective and subjective elements to the offence as charged. I find there are difference circumstances and different degrees of criminality applicable between the two defendants. This defendant has control of the maintenance expenditure and prioritises all tasks. It has a prior conviction under the Act and operates in a larger financial environment. The maximum penalty against it is $825,000 whereas Solar Technology faced a penalty of $550,000. Both companies contribute positively to the industrial and employment climate of New South Wales. 43 The defendant is fined in the sum of $170,000.00 with a moiety to the WorkCover Authority. 44 The defendant should meet the prosecutor's costs in a sum as might be agreed. I grant liberty to apply. 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.