Industrial Relations Commission of New South Wales in Court Session CITATION: Inspector Cooper v Angelucci & ors [2005] NSWIRComm 262 PROSECUTOR Inspector Stephen Cooper DEFENDANTS PARTIES: Giovanni Angelucci Andrew Pearce as Trustee of the Pearce Family Trust Jarret Street Developments Pty Limited A & G Formworkers (Australia) Pty Limited FILE NUMBER(S): IRC 6192, 6195, 6196, 6197, 6198 of 2004 CORAM: Boland J CATCHWORDS: Occupational Health and Safety Act - Prosecutions under sections 26(1), 10(1), 8(1) of the Occupational Health and Safety Act 2000 - Guilty plea - Building industry - Overhead crane - Employee injured when crane hit chimney and dislodged concrete sections - Offence proven - Penalty imposed Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 2000 Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Haynes and Callaghan v C I & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 Inspector Gregory Maddaford v Graham Gerard Coleman & Anor (2004) 138 IR 21 Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 333 CASES CITED: Inspector Simpson v Tomago Aluminium Company Pty Limited [2005] NSWIRComm 117 Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Inspector Ankucic v McDonalds Australia Ltd (2000) 95 IR 383 Pearce v R (1998) 194 CLR 610, (1998) 156 ALR 684 R v Thomson, R v Houlton (2000) 49 NSWLR 383 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364 HEARING DATES: 07/14/2005 DATE OF JUDGMENT: 07/28/2005 PROSECUTOR Mr P Skinner of counsel Solicitor: Ms S Rees Phillips Fox LEGAL REPRESENTATIVES: FIRST, SECOND AND THIRD DEFENDANT Solicitor: Mr B N Nesci Nescis Lawyers FOURTH DEFENDANT Ms F Hancock of counsel Solicitor: Mr C Romano Romano Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Boland J Thursday 28 July 2005 Matter Nos IRC 6192 of 2004 INSPECTOR STEPHEN COOPER v GIOVANNI ANGELUCCI Prosecution under s 26(1) of the Occupational Health and Safety Act 2000 Matter Nos IRC 6195 of 2004 INSPECTOR STEPHEN COOPER v GIOVANNI ANGELUCCI Prosecution under s 26(1) of the Occupational Health and Safety Act 2000 Matter Nos IRC 6196 of 2004 INSPECTOR STEPHEN COOPER v ANDREW PEARCE AS TRUSTEE OF THE PEARCE FAMILY TRUST Prosecution under s 10(1) of the Occupational Health and Safety Act 2000 Matter Nos IRC 6197 of 2004 INSPECTOR STEPHEN COOPER v JARRET STREET DEVELOPMENTS PTY LTD Prosecution under s 10(1) of the Occupational Health and Safety Act 2000 Matter Nos IRC 6198 of 2004 INSPECTOR STEPHEN COOPER v A&G FORMWORKERS (AUSTRALIA) PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2005] NSWIRComm 262 1 These matters involve five prosecutions for offences under the Occupational Health and Safety Act 2000 involving the operation of a crane on a building site. There are four defendants, namely, Giovanni Angelucci ("first defendant"), a licensed builder, who was the sole director and shareholder of Jarret Street Developments Pty Limited ("second defendant") and joint director and shareholder of A&G Formworkers (Australia) Pty Limited ("third defendant"). The fourth defendant was Andrew Pearce as a trustee of the Pearce Family Trust trading as Pearce Building Consultants. Mr Angelucci was prosecuted under s 26(1) of the Act, once because of his role as director of the second defendant and once because of his role as a director of the third defendant. 2 The incident that gave rise to the prosecutions occurred on 21 October 2002 at premises owned by the first defendant at 4-16 Jarret Street, Leichhardt in the State. Mr Angelucci was developing the Jarret Street site through his company, the second defendant, as a retail and residential development. The second defendant had contracted the third defendant, another of Mr Angelucci's companies, to provide formwork and labour hire services at the premises. The second defendant had also contracted with the fourth defendant to provide project management services for the development and, in particular, to provide the services of Andrew Pearce as the Project Manager for the development. 3 An overhead crane had been delivered to the site and was erected and commissioned in April 2002. Mr Harry Koulas, an employee of the third defendant commenced training that same month as a crane operator under the supervision of certified crane operators. Mr Koulas obtained his operator's certification approximately two weeks prior to the incident that occurred on 21 October 2002. On that day Mr Koulas was operating the crane and performing other work. 4 At about 1.30 pm, Mr Koulas was asked by one of the contractors to lift a 1200 kilogram bag of sand from the Jarret Street side of the construction site over to the Parramatta Road side of the premises. This involved moving the load over the top of the unit building under construction at the premises. Mr Koulas attached the load of sand to the crane and commenced the lift. The load was raised and then transported out along the boom of the crane over the roof top area of the building. 5 As Mr Koulas was unable to maintain visual contact with the load throughout the lift, he planned to follow his usual practice of watching the load for as far as he could see it, then walking through the building to complete the lift from the other side. When the load was approximately half way out, Mr Koulas walked around the building to the Parramatta Road side of the building. He continued to extend the load out along the boom when one of the crane's load indicator alarms activated. The alarm indicated the load was too heavy to complete the lift. 6 Mr Koulas started to retract the load away from the Parramatta Road side of the premises and back to the Jarret Street side. Mr Koulas had a limited view of the load and in the process of retracting it the load collided with a precast concrete chimney on the Jarret Street side of the roof of the building. The top two sections of the chimney were dislodged and fell onto the roof of the building and landed in a courtyard area below. 7 Two other employees of the third defendant, David Marton and Michael Pereira, were erecting scaffolding platforms in the courtyard area. Mr Marton dived into a section of scaffold bay to avoid being struck by the falling concrete sections. He hit his head, although he was wearing a helmet, he sustained minor injuries to his lower back and legs. Mr Pereira who was standing on one of the scaffold platforms had to run away to avoid being struck by the falling material. Mr Pereira was not injured. Mr Marton attended a nearby medical centre for treatment to his injuries. He was absent from work for two weeks. 8 The third defendant was prosecuted under s 8(1) for an alleged failure to ensure the safety of its employees, Messrs Marton and Pereira. The failures alleged in the particulars of the charge were that the defendant: (1) Failed to ensure that a safe work method statement was provided and maintained for crane operations at the premises; (2) Failed to ensure that its employees performing dogman work at the premises held a dogging certificate of competency; (3) Failed to ensure that a certified dogman was used for all lifting operations where the load moved beyond the crane operator's view; (4) Failed to ensure the provision of such instruction, training and supervision as may be necessary to ensure the safety of its employees at the premises. 9 The second defendant was charged under s 10(1) of the Act for failing to ensure that the premises it controlled in Jarret Street and used by people as a place of work were safe and without risks to health. The particularised failures were similar to those for the third defendant except that it was also alleged the defendant: Failed to provide and maintain systems of work that were safe and without risks to health for crane operations at the premises. 10 The first defendant was charged pursuant to the provisions of s 26(1) in relation to the offences committed by the second and third defendants on the basis of his directorship of those two defendants. The failures particularised in the charges were the same as those for the second and third defendants respectively. 11 The fourth defendant was charged under s 10(1) of the Act for failing to ensure that the premises it controlled in Jarret Street and used by people as a place of work were safe and without risks to health. The particularised failures were the same as those for the second defendant. 12 Each of the defendants pleaded guilty to the charges laid against them. 13 The evidence in the sentencing proceedings included the following: (1) An agreed statement of facts. (2) An organisation chart showing the relationships between the various defendants. (3) A bundle of documents tendered by the prosecutor that included: (a) thirty three colour photographs of the incident scene; (b) A statement by the prosecutor relating to the incident dated 25 November 2003; (c) Statements regarding prior convictions. Only the third defendant had prior convictions of which there were four. (4) An affidavit of the first defendant. He was not required for cross-examination. (5) An affidavit of Andrew Pearce. Mr Pearce was not required for cross-examination. 14 Inspector Cooper gave short oral evidence describing how the incident occurred. He agreed in cross-examination that if there had been a qualified dogman directing the load it was less likely the incident would have occurred. Consideration 15 As I observed in Inspector Simpson v Tomago Aluminium Company Pty Limited [2005] NSWIRComm 117, in considering the objective seriousness of the offence the Court will have regard to the nature and quality of the offence and in so doing, will usually consider, amongst other relevant matters peculiar to the facts of the particular offence, three questions: (1) Whether the risk to health and safety that has been proven against the defendant was known to the defendant or was obvious or reasonably foreseeable and, if so, whether the defendant took steps to either eliminate the risk, prevent persons being exposed to the risk or mitigate the risk. If the risk was known, obvious or foreseeable and no steps were taken to eliminate, prevent exposure to or mitigate the risk, the offence may be considered to be more serious than otherwise might be the case: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [81]-[82]; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor (2004) 138 AILR 21 at [87]. (2) Whether there were feasible measures available to eliminate, prevent exposure or mitigate the risk and, if so, whether the defendant implemented such measures. Failure to implement available measures may, again, support a conclusion that the offence is to be judged more serious than it otherwise might have been: Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 333 at 9; Lawrenson Diecasting at 476, ( Inspector Ankucic) v McDonalds Australia Ltd (2000) 95 IR 383 at 450 (3) Whilst the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty, whether the occurrence of death or serious injury manifests the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [31]-[33] and the cases referred to therein. 16 Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 provides that particular aggravating factors that may be taken into account include: that the offender has a record of previous convictions (s 21A(2)(d)); and, the offence was committed without regard for public safety (s 21A(2)(i)). 17 In addition to the factors relating to the offence the Court is required, in fixing penalty, to consider the need to deter others from committing the same crime and to deter the offender from re-offending. In Capral Aluminium at [71]-[80] the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant. The propensity to re-offend must be considered when determining the weight, if any, to be attached to specific deterrence. 18 Relevant subjective factors prescribed by s 21A(3) of the Crimes (Sentencing Procedure) Act may include: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial; (e) the offender does not have any record (or any significant record) of previous convictions; (f) the offender was a person of good character (see also McDonalds at 454); (h) the offender has good prospects of rehabilitation; (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner (see also McDonalds at 429); (k) a plea of guilty by the offender (see also R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 418); and, (n) assistance by the offender to law enforcement authorities (see also McDonalds at 429). 19 In addition, the Court may consider the means of the defendant and the nature of the corporate defendant (e.g., whether it is a large corporation operating in an inherently dangerous industry or a small "one man" company: see, for example, Capral Aluminium at [77]; Haynes & Callaghan v C I & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 at 457. 20 A fundamental consideration in assessing penalty will be the maximum penalty for the relevant 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. In the present case the first defendant is facing two maximum penalties of $55,000, the second defendant is facing a maximum penalty of $550,000, the third defendant, because of prior convictions is facing a maximum penalty of $825,000 and the maximum penalty for the fourth defendant is $55,000. 21 There was a collective failure on the part of all of the defendants to ensure the safety of workers on the Jarret Street site on 21 October 2002. The second defendant was the builder for the development and had control of the premises. This was also the case with the fourth defendant in that he was the project manager. Neither defendant had in place a safe system of work in relation to crane operations. The second defendant essentially left the management of occupational health and safety to the fourth defendant as project manager and did not take adequate steps to evaluate the performance of that defendant in respect of occupational health and safety issues, or to ensure that safe work systems were in place, or to assess or monitor the sufficiency of occupational health and safety measures at the premises. 22 The third defendant left the responsibility of ensuring the health and safety of the labour hire employees to the fourth defendant who was the project manager. 23 The company that erected and commissioned the crane, MCR, had a generic safe work method statement for crane operations, which required a workplace operations plan to be developed which took into account job requirements, other workers, priorities, workplace rules and other procedures, identified hazards and hazard control measures. When MCR left the site and handed the operation of the crane to the second defendant, Mr Angelucci requested Mr Pearce to prepare and implement a work method statement for the site. Mr Angelucci discovered subsequent to the incident that Mr Pearce had started preparing the statement but had not completed it or implemented it within the two weeks or so from the time that MCR had left the site. 24 In this respect, Mr Pearce said in his affidavit: In retrospect, the Work Method Statement should have been compiled and implemented immediately that MCR left the site and the operation of the crane was taken [over] by JSD. I had assumed, obviously, wrongly, that the same procedure that had been adopted by MCR could continue until I implemented a new Work Method Statement. In other words, as Harry Koulas had worked with the operator of MCR, I assumed that he had intimate knowledge of the project and the operation of the crane and there would be no break in the continuity notwithstanding that he then took over on his own the operation of the crane. 25 Both the second and fourth defendants knew of the need to have a work method statement completed and Mr Pearce was in the process of completing it. However, the second defendant, through Mr Angelucci, failed to follow up to ensure the statement had been completed and was in place by the time MCR left the site. Mr Pearce simply failed to complete the statement in time. 26 It was submitted that completion of the statement may not have avoided the risk. In the present case, I note that both Mr Koulas and Mr Pereira were told that Mr Pereira was to act as a dogman whenever he was needed by Mr Koulas. Mr Koulas was, in fact, told by Mr Pearce there was to be no lifting without a dogman. It was on this basis it appeared to have been contended that a work method statement would not have made any difference. The second and fourth defendants, however, pleaded guilty to the charge including to the particular that they had failed to provide and maintain a safe work method statement and that really is the end of the matter. 27 I would add this observation, however: The proposition that a work method statement may not have avoided the risk may understate the importance of such a statement and may portray it as merely a chore that has to be completed for its own sake. The value of making a work method statement lies in the investigation, consultation and consideration involved in compiling such a statement that assists in identifying the risks and putting in place procedures to avoid the risks. The preparation and promulgation of work method statements are to be taken seriously. It should not be a matter of taking a statement relevant to a past job, for example, and doing a cut and paste and posting the result on the site notice board. All workers on the site should be left in no doubt about the necessity for strict adherence to work method statements and frequent inspections need to be undertaken by those with a responsibility for health and safety to ensure the work method statement is being adhered to. 28 If a work method statement had been provided and maintained at the Jarret Street site and adequately policed, no worker could have been in any doubt about the need to use a dogman when the crane was to perform a lift and the defendants would have fulfilled an important part of their obligation towards ensuring against risk. It may well have been the case that the unknown contractor who asked Mr Koulas to perform the lift would not have done so without first ensuring a dogman was present. 29 Of course, the fact that both Mr Koulas and Mr Pereira were told that Mr Pereira was to act as dogman and Mr Koulas was told not to perform a lift without a dogman is a significant mitigating factor in the two defendants' favour. It also raises the question as to why Mr Koulas was not prosecuted for such a foolish act that endangered the lives of two co-workers. It is not only employers who have a responsibility for health and safety. So to do workers, and they may also be prosecuted: see, for example, s 20 of the Act. 30 As to the third defendant's failure to provide and maintain a safe work method statement in relation to crane operations, the significance of the failure was that it provided its employees to perform work for the second defendant at the Jarret Street site without first ensuring that the safe work method statement was in place. 31 In this respect the third defendant's failure to provide a safe work method statement may be regarded as more serious that the failures of the second and fourth defendants. But I would note Mr Angelucci's request for a statement to be provided may be taken as a request by both the second and third defendants. 32 In relation to the provision of a dogman it was an agreed fact that: No steps were taken by JSD [second defendant], A&G [third defendant] or the Trustees [fourth defendant] to prevent Koulas from working as a dogman even though both Pearce and Pereira were aware that Koulas was working as a dogman without certification. 33 A week prior to the incident an official of the Construction Forestry, Mining and Energy Union raised the issue of using the crane without a dogman. Subsequently, Mr Pearce told Mr Koulas not to carry out a lift without a qualified dogman and to request Mr Pereira to assist in that regard. It would appear that Mr Koulas ignored that instruction, a matter I will come to shortly. It is apparent though, that whilst the necessary instruction was given, a factor mitigating the seriousness of the breach, it was not sufficiently impressed on either Mr Koulas or Mr Pereira by the second, third or fourth defendants that the crane was not to be used without a qualified dogman. 34 A further particular of the charges was that the defendants failed to ensure the provision of such instruction, training and supervision as may be necessary to ensure the safety of its employees at the premises. 35 As to the failure to provide instruction, the agreed facts were that: There was a failure on the part of JSD, A&G and the Trustees to provide the labour hire employees with instructions necessary to ensure their health and safety on the day of the incident. According to Koulas, on the day of the incident, Pearce told him that if he needed a dogman he was to use Pereira. There were general instructions to Koulas not just on the day of the incident but since the CFMEU visit, that if there were any lifting operations, Pereira was to be the dogman. According to Pearce, he instructed Pereira, who was a certified dogman, to act as dogman for Koulas on an as needed basis, as opposed to a dedicated position. Koulas avoided using Pereira as a dogman because he was aware of Pereira's other responsibilities as a foreman. Koulas had operated the crane on a number of occasions without a dogman present. Pearce denied that he knew this had taken place since the CFMEU visit. Koulas felt that he was under pressure, and obligated, to carry out crane operations without a dogman. Pearce believed that there was no pressure or obligation imposed upon Koulas, and does not understand how Koulas had that impression. Pereira did not provide any instruction to Koulas in relation to crane operations on the day of the incident. Pereira considered that it was up to Pearce to provide any necessary instruction to Koulas. Marton and Pereira did not receive instruction in relation to safe work practices whilst working underneath crane loads at the premises. 36 It would appear that Mr Koulas had been operating the crane without a qualified dogman and had continued to do so after being instructed not to. In so far as the fourth defendant is concerned, it cannot be said that the failure to provide adequate instructions was a significant failure because Mr Pearce had made it clear to Mr Koulas he should not operate the crane without a qualified dogman. However, neither the second defendant nor the third defendant took steps to issue instructions to the labour hire employees, including Mr Koulas, that ensured the crane operations were undertaken safely. Mr Angelucci did say to Mr Pereira that he was to act as dogman to Koulas as Koulas needed him. However, Mr Pereira was not to know when he was needed unless Mr Koulas advised him. Mr Angelucci's instruction on behalf of either the second or third defendants or both, was inadequate in this regard. 37 The agreed facts regarding supervision were that: There was a failure on the part of JSD, A&G and the Trustees to provide the labour hire employees with supervision necessary to ensure their health and safety on the day of the incident. On the day of the incident, Koulas received general instructions on his work activities for the day from Pearce, who worked mainly from an office on the premises. Pereira was the foreman, but considered that Pearce was responsible for supervising the labour-hire employees, including Koulas. There was no continued supervision provided to Koulas directed at ensuring that he used a certified dogman when lifting loads beyond his view. 38 Inadequate supervision was one of the defendants' principal failures. The fact that it was not clear to Mr Pereira he had a responsibility as foreman and qualified dogman to supervise Mr Koulas underscores the inadequate supervision on the site. 39 It was an agreed fact that the labour hire employees received on-site induction from Mr Pereira (except in the case of Mr Pereira himself, who received on-site induction from Mr Pearce). However, the induction training was not specific to crane operations. This was another significant failure on the part of the defendants. Whilst the main responsibility for induction training would usually lie with the project manager it did not relieve the second and third defendants from their responsibility to ensure the training relating to crane operations was provided. 40 It may be seen from the consideration of the particularised failures that what was lacking on the Jarret Street site was a coordinated and coherent approach to safety, in particular to the operation of the crane, which was a central feature on the site and which demanded special attention. This lack of coordination and coherency was exacerbated by inadequate supervision and, on the part of the second and third defendants, a careless assumption that occupational health and safety would be managed by the fourth defendant, thereby relieving them of much of the responsibility. 41 The seriousness of the offence would have been much greater if it were not for the fact that specific instructions had been given to Mr Koulas about not operating the crane without a qualified dogman, instructions that were not complied with. But I should stress that Mr Koulas' foolishness does not relieve the defendants of their responsibility to ensure safety: Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at [15]. 42 The risks of operating the crane without a qualified dogman were either known to the defendants or were obvious. There is an obvious risk in a crane operator transporting a lift across a multi-storey building when the load is not visible to the operator. The crane was capable of transporting loads from one side of the building to the other side. The site was bordered by Jarret Street and Parramatta Road. The risks associated with transporting loads above or adjacent to public thoroughfares should have alerted the defendants to the very high risks of operating the crane without a dogman and should have impressed upon them the need to implement measures that ensured that persons were not exposed to risks to their health and safety. The process of putting together a safe work method statement would have highlighted these risks. 43 The measures that were available to overcome the risks were simple and straightforward. At a basic level it was a matter of advising all workers on the site that the crane was not to be operated without a dogman and providing the supervision that ensured that instruction was complied with. At another level it was a matter of instilling a safety culture or ensuring that such a culture was instilled at the site through induction training and ongoing instruction and supervision that not only did the crane operator even consider the possibility of operating the crane without a dogman but that any contractor or worker on the site did not seek to make use of the crane if a dogman was not present. 44 There was no death or serious injury arising from the defendants' failures but it is apparent that the consequences for life and limb of the crane being operated without a qualified dogman could have been much more serious than was the case. 45 As for general deterrence, cranes are a common feature on construction sites and their operation presents significant risks. It is appropriate to draw attention to the need for employers operating cranes or having workers working in proximity to cranes to be pro-active and constantly vigilant of the need to ensure that workers are not exposed to risks to their health and safety. I have, therefore, included an element in each of the penalties for general deterrence. 46 The second and fourth defendants remain in the businesses in which they were engaged at the time of the incident in October 2002. The industry in which the defendants operate is notorious for the risks it presents to workplace safety. I should, therefore, include an element in the penalty for specific deterrence although it would only be small given that I consider the incident was a salutary lesson for each of the defendants and it is unlikely they will re-offend. 47 The third defendant, however, does have a number of prior convictions. The prosecutor was unable to assist as to the nature of those offences, although the solicitor for the third defendant indicated that the latest prior conviction (15 December 2003) related to an incident where an employee commenced to cut up a 44-gallon drum with a grinder. The drum contained a flammable substance and exploded. The third defendant is also a reasonably substantial company and continues to operate, supplying and erecting formwork. I consider there is a proper basis for including an element for specific deterrence that is greater than that for the second and fourth defendants. 48 There are a number of relevant subjective considerations. In relation to the first defendant in matter No IRC 6195 of 2004 and in relation to the third and fourth defendants, pleas of guilty were entered at an early stage and a discount of 25 per cent is warranted. The second defendant and the first defendant in Matter No 6192 of 2004 did not enter a plea until relatively late. I have had regard to the circumstances of the late plea. I propose to discount any penalty by 15 per cent. 49 I accept that all defendants cooperated with the investigating authority, WorkCover. I note that apart from the third defendant none of the other defendants have any prior convictions. The defendants also took steps to avoid a re-occurrence of the incident that occurred on 21 October 2002. 50 In relation to the first defendant, he has pleaded guilty to two charges. In addition, he is the sole director and shareholder of the second defendant and joint director and shareholder (with his wife) of the third defendant. Mr Angelucci took an active interest in safety at the Jarret Street site, even to the extent of telling Mr Pereira he was to act as dogman when required. He had also engaged a competent project manager to manage the project. 51 Given that the two offences in Matter Nos IRC 6192 and 6195 of 2004 have common elements it is necessary to apply the principle of totality. The approach to the application of the principle of totality is found in the decision of the Full Bench in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181, which considered the High Court's ruling in Pearce v R (1998) 194 CLR 610; (1998) 156 ALR 684. The Full Bench held that: [23] The effect of Pearce is that, in sentencing a defendant for more than one offence, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflected the totality of the criminality involved. … [29] In an appropriate case, however, it may still be appropriate to impose a single penalty for multiple offences under the Act, but only as the result of the operation of the principle of totality after separate penalties have been assessed for each offence. However, we consider that the preferable course is that separate penalties should be imposed after the principle of totality is applied. … [51] In view of our conclusion that the two offences contained very substantial common elements, it could not be considered that the deduction made by her Honour was appropriate and sufficient. In a case such as this, the totality principle must be applied to ensure that the defendant is not punished more than once for the common elements of the offences and that the resultant penalty is appropriate to the overall criminality of the offences for which the defendant is being sentenced. 52 In determining the penalty to be applied to Mr Angelucci I consider the appropriate penalties to be: (1) In Matter No IRC 6192 of 2004 - $7,000 (2) In Matter No IRC 6195 of 2004 - $9,000 53 Having regard to the common elements of the two offences by applying the totality principle and having regard to the overall criminality, I consider the total fine should be reduced to $8,000 Accordingly, the fines to be imposed in relation to each offence are: (1) In Matter No IRC 6192 of 2004 - $3,500 (2) In Matter No IRC 6195 of 2004 - $4,500. 54 In determining the penalty to be applied to the second defendant, I consider the appropriate penalty is $40,000. 55 In determining the penalty to be applied to the third defendant, I consider the appropriate penalty is $50,000. 56 In determining the penalty to be applied to the fourth defendant, and having regard to the principle of parity, I consider the appropriate penalty is $8,000. Orders 57 The Court makes the following orders: Matter No IRC 6192 of 2004 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 $3,500 with a moiety 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. Matter No IRC 6195 of 2004 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 $4,500 with a moiety 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. Matter No IRC 6196 of 2004 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 $8,000 with a moiety 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. Matter No IRC 6197 of 2004 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 $40,000 with a moiety 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. Matter No IRC 6198 of 2004 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 $50,000 with a moiety 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. ________________________________ 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.