Industrial Court of New South Wales CITATION: Inspector Spence v William Bevan Thompson [2009] NSWIRComm 205 PARTIES: Inspector Ronald John Spence (Prosecutor) William Bevan Thompson (Defendant) FILE NUMBER(S): IRC1787; IRC1788 of 2008 CORAM: Kavanagh J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - penalty - foreseeability - prosecutions under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - s10 Crimes (Sentencing Procedure) Act - unsafe safety mesh under roofing - unsafe work methods - no protective equipment - employees/contractors/sub-contractors - lack of appropriate training by sub-contractor - failure to ensure contractors safe work method was amended - no recognition of risk on assessment - gravity of offence - general and specific deterrence - early plea - co-operation with Work Cover - victim impact statement - parity - totality - penalties Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Procedure Act 1986 Fines Act 1996 Industrial Relations Act 1996 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Dept of Education and Training v Keenan (2001)105 IR 181 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182 Inspector Simpson v Tomago Aluminium Co Pty Ltd (Haylen J, IRC 5351 of 2003, 27 April 2004, unreported) Inspector Spence v Michael Carter and Black Cat Roofing Pty Limited [2009] NSWIRComm 161 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED: Markarian v R (2005) 228 CLR 357 Morrison v Powercoal Pty Limited (2003) 130 IR 364 Pearce v R (1998) 194 CLR 610 Postiglione v R (1997) 189 CLR 295 R v Gallagher (1991) 23 NSWLR 220 R v Mansour (1999) NSWCCA 180 R v Previtera (1997) 94 ACrimR 76 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited (Schmidt J, CT93/1025, 25 February 1994, unreported) HEARING DATES: 18 November 2009 EXTEMPORE JUDGMENT DATE: 18 November 2009 Ms P E McDonald of counsel (Prosecutor) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Mr R Lewin, Solicitor (Defendant) Kells The Lawyers JUDGMENT: - 22 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Wednesday 18 November 2009 Matter No IRC1787 of 2008 INSPECTOR RONALD JOHN SPENCE v WILLIAM BEVAN THOMPSON Prosecution under s8(2) of the Occupational Health and Safety Act 2000 Matter No IRC1788 of 2008 INSPECTOR RONALD JOHN SPENCE v WILLIAM BEVAN THOMPSON Prosecution under s8(1) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2009] NSWIRComm 205 1 HER HONOUR: Two prosecutions are brought by Inspector Ronald Spence of the WorkCover Authority of New South Wales against William Bevan Thompson, one under s 8(1) and the other under s 8(2) of the Occupational Health and Safety Act 2000 by way of an Application for Order in each matter. 2 It is alleged on 21 September 2008, contrary to s 8(1) of the Act, Mr Thompson failed: to ensure the safety and welfare at work of all his employees and in particular Anton Frank Simic. and it is alleged under s 8(2) of the Act he failed: to ensure that people other than his employees, in particular James Newbery, Ramon Bit-David, Andrew Gavelan, Shane Toomey, Garu Nauman, Edo Nauman, Jarred Symonds and Karl Daly were not exposed to risks to their health arising from the conduct of the defendant's undertaking while at the defendant's place of work. 3 The particulars are similar in each matter and are as follows: a) The defendant failed to provide a safe system of work with respect to work at heights in that the defendant failed to ensure that employees working at the premises were provided with and/or were using an adequate fall prevention system whilst working at heights; b) The defendant failed to ensure that the systems of work for working on non-residential roofs were carried out in accordance with an adequate Safe Work Method Statement (SWMS); c) The defendant failed to carry out any risk assessment or any adequate risk assessment in relation to work undertaken by his employees on non-residential roofs; d) The defendant failed to ensure that employees received proper training, instruction and information on the risks and hazards associated with working on non-residential roofs; e) The defendant failed to supervise or adequately supervise employees working at the premises; f) The defendant failed to ensure that employees, and in particular Anton Frank Simic were adequately experienced or qualified to carry out work on the roof of the premises; g) The defendant failed to ensure that employees were provided with adequate personal protective equipment; h) As a result of the defendant's failures employees, and in particular Anton Frank Simic, were placed at risk of injury and in fact suffered serious injury whilst employed at the premises. 4 The defendant pleaded guilty to each charge. Ms P.E. McDonald of counsel appeared for the prosecution and Mr R. Lewin, solicitor, appeared for the defendant. The prosecution relied upon a Factual Inspection Report of Inspector Ronald John Spence dated 29 November 2006; 1-35 photographs taken by Inspector Ronald John Spence on 22 September 2006, 25 September 2006, 13 October 2006 and 18 October 2006; Black Cat Roofing Quotation No. Q7656.2 dated 10 August 2006; Safe Work Method Statement prepared by Black Cat Roofing dated 24 August 2006; Black Cat Roofing "Contractors Occupational Health and Safety Policy" PR-BCCRC-11; "Safe Work on Roofs, Part 1 – Commercial and Industrial Buildings, Code of Practice 1993"; "Safe Work on Roofs, Part 2 – Residential Buildings, Code of Practice 2004"; and a Prior Conviction Certificate. 5 The defendant relied upon an affidavit from Mr Thompson, some financial records, tax returns and retraining certificates. A number of documents were attached to his affidavit. Mr Thompson was called to give evidence and was cross-examined. 6 The Agreed Statement of Facts relevantly reads: Black Cat Roofing . . . 3. At all material times Black Cat Roofing carried on the business of a roofing contractor. 4. At all material times Michael John Carter ("Carter") and Jeanine Cornelia Carter were the directors of Black Cat Roofing. 5. On or about 10 August 2006 Black Cat Roofing was engaged by Barjema Pty Ltd ("Barjema") to inter alia remove and replace roof sheeting from a warehouse roof that it owned at 54-60 Belmore Road, Punchbowl in the State of New South Wales ("the premises"). 6. At all material times, the premises were Black Cat Roofing's place of work. 7. At all material times Black Cat Roofing was an employer and employed Jay Morrison Fox as its Production Manager at the premises. William Bevan Thompson 8. At all material times William Bevan Thompson ("Thompson") carried on the business of a roofing contractor and traded under the business name "H C Roofing". 9. On or about 18 September 2006 Black Cat Roofing engaged Thompson as a roofing subcontractor to inter alia remove and replace roof sheeting from the premises. 10. At all material times Thompson was an employer and employed Anton Frank Simic ("Simic"). 11. At all material times, the premises were also Thompson's place of work. The Undertaking 12. On or about 10 August 2006 Barjema engaged the services of Black Cat Roofing to inter alia remove asbestos roof sheeting from its warehouse roof at the premises and replace it with new metal roof sheeting. There was approximately 8,695 sqm of roof and wall cladding work to be carried out by Black Cat Roofing. 13. The warehouse had a saw-toothed profile roof and was approximately 120 metres long and 55 metres wide with asbestos roof sheeting, asbestos wall cladding and some alsynite sheets used in the vertical walls of the saw-tooths and as skylights in the roof. Skillion-roofed asbestos sheeted offices were located on the western side of the warehouse. A skillion-roofed metal-sheeted office was located on the southern side of the warehouse. 14. Internally the lowest point of the roof was approximately 4 metres from the warehouse floor and the highest point of the roof internally was approximately 7.5 metres from the warehouse floor. The warehouse floor was concrete. There was wire mesh beneath the asbestos roof sheeting. 15. As part of its undertaking Black Cat Roofing carried out inter alia the following: (a) It inspected the premises for the purpose of measuring and quoting. (b) It ordered new metal roof sheeting. (c) It arranged for the delivery of the new metal roof sheeting to the premises. (d) It engaged Brolrik Pty Ltd trading as Botany Cranes & Forklift Services ("Botany Cranes") to lift the new metal roofing sheets onto the warehouse roof. (e) It prepared a Safe Work Method Statement (SWMS) for the undertaking. (f) It provided the license for the removal of the asbestos. (g) It engaged Thompson, to inter alia remove asbestos roof sheeting from the warehouse roof and replace it with new metal roof sheeting. 16. On or about 15 September 2006 Botany Cranes lifted and positioned the new metal roofing sheets onto the warehouse roof. The crane was positioned in a way that prevented the metal roofing sheets being positioned on each of the roof's saw tooth as intended. As a result Thompson as part of his undertaking was required to reposition the new metal roofing sheets from one location on the warehouse roof to another in preparation for their installation. 17. On 21 September 2006 Thompson employed Simic as a roofer's labourer for the purpose of repositioning the metal roofing sheets. Simic answered an advertisement placed in the newspapers by Thompson. Thompson interviewed Simic over the telephone on 20 September 2006. 18. Simic was 43 years of age and had minimal experience as a roofer's labourer. He had minimal experience in working on roofs including asbestos roofs. 19. Thompson also engaged Andrew Gavelan, James Newbury, Ramon Bit-David, Shane Toomey, Garu Nauman, Edo Nauman, Jared Symonds and Karl Daly ("labourers") to assist him with his undertaking of repositioning the new metal roofing sheets from one location to another on the roof on the warehouse. Incident on 21 September 2006 20. On 21 September 2006, Simic commenced employment with Thompson between 6.00 am and 6.30 am. It was his first day of employment with Thompson. At approximately 7.45 am Simic, whilst working on the warehouse roof, fell through an asbestos roof sheet and the wire mesh beneath it, falling approximately 7.5 metres onto the concrete floor below. 21. At the time there were no anchor points or safety lines on the warehouse roof and Simic was not provided with a safety harness. No personal protective equipment was provided to Simic. 22. At the time of the incident all of the roof labourers engaged by Thompson were on the warehouse roof. 23. The site of the incident (measured internally) was approximately 70 metres from the western side of the warehouse and approximately 27 metres from the northern side of the warehouse. The wire mesh in this area was corroded. 24. Simic suffered multiple fractures of the pelvis (requiring surgery and insertion of screws), a fracture of the right forearm, multiple fractured ribs on the left side, fractures to the L3 and L5 vertebra and extensive damage to 6 anterior maxillary teeth, including both front teeth (requiring extensive orthodontic procedures). He was admitted to Liverpool Hospital on the day of the incident and discharged on 27 October 2006 (36 days later) to the Metropolitan Rehabilitation Hospital and discharged from their care on 7 December 2006 (41 days later). After discharge Simic underwent intensive physiotherapy and hydrotherapy treatment to increase his physical capacity. Simic passed away on 6 May 2008. The system of work prior to the incident 25. At the time of the incident Black Cat Roofing had four employees including its two directors. Jay Morrison Fox ("Fox") was employed as a Production Manager and Jenny Sinafea was employed as a receptionist. Black Cat Roofing provided roofing expertise in the form of its director Carter and its production manager Fox. 26. Prior to the incident Black Cat Roofing, through Carter and Fox, inspected and assessed the site. During those inspections the hazard of brittle roof was identified. 27. Michael Hugh Dempsey ("Dempsey") was subcontracted by Black Cat Roofing to assist Carter in measuring and quoting the job. He also identified the roof as being brittle. 28. The hazard of the brittle roof was not documented and does not appear in Black Cat Roofing's SWMS. 29. Thompson informed Newbery and Gavelan on the day of the incident that the roof was brittle. The remaining labourers were not told about the brittle roof. Thompson inducted each of the labourers, including Simic as to the manner by which they should walk on the roof. Thompson advised all of the labourers to only walk on the "screw lines" which attached the roofing to the purlins. Thompson warned the workers that if they did not, the roof may not support their weight and they may fall through. Thompson advised all of the labourers not to walk on the alsynite as this could not support their weight. 30. Simic was not told about the express hazard of the brittle roof. 31. A brief assessment was carried out by Black Cat Roofing on the wire mesh beneath the asbestos roof sheeting as part of its quotation process. Carter and Dempsey inspected the wire mesh from the ground at the lowest point of the roof, being 4 metres high. The maximum height of the roof was approximately 7.5 metres from the concrete floor. Some sections of the wire mesh were inspected. 32. Parts of the wire mesh from the site of the incident showed corrosion. An adequate inspection of the condition of the wire mesh beneath the roof sheeting was not carried out by Black Cat Roofing and Thompson to ensure the structural integrity of the wire mesh throughout the warehouse roof. 33. Fox on behalf of Black Cat Roofing prepared a SWMS on 24 August 2006 without any input by, or consultation with Thompson. The SWMS was labelled "Replacement of the Asbestos Roofing and Box Guttering". It was not amended to address the repositioning of the new metal roof sheets positioned on the warehouse roof by Botany Cranes. 34. Black Cat Roofing and Thompson did not formally assess the risk to safety presented by the presence of the brittle roof. The SWMS was inadequate in that it failed to identify the hazard of the brittle roof. The SWMS failed to provide adequate control measures for personnel required to work at heights for the repositioning of the sheets. 35. Black Cat Roofing did not inform Thompson through its SWMS of the hazard of the brittle roof. There was no transfer of information between Black Cat Roofing and Thompson to ensure that all hazards, (including the brittle roof) had been documented. 36. Black Cat Roofing failed to review its SWMS to ensure that all relevant information was available with regards to all hazards being identified and appropriate control measures established. 37. Thompson had no training in the preparation of a SWMS. 38. Black Cat Roofing failed to ensure that Thompson had sufficient training and knowledge to review and implement the requirements of an SWMS. 39. Black Cat Roofing and Thompson failed to ensure that a SWMS was prepared for the repositioning of the new metal roof sheets. 40. Thompson did not provide the existing SWMS to Simic. 41. Thompson failed to provide the SWMS to Bit-David or Gavelan until after the incident. 42. Black Cat Roofing and Thompson did not conduct a formal risk assessment prior to the commencement of the work and did not adequately inspect the wire mesh beneath the sheets. 43. Thompson failed to ensure that Simic or Ramon Bit-David had previous experience working as roof labourers. In respect of Simic, Thompson relied upon Mr Simic's representation that he had previously worked on roofs. 44. Black Cat Roofing failed to ensure that its subcontractor Thompson hired sufficiently trained and experienced personnel to work as roof labourers. 45. Thompson failed to ensure that Simic had a current OHS Induction card and failed to provide a site induction to Simic and the other roof labourers he engaged. 46. Thompson and Black Cat Roofing failed to provide adequate instruction and information on the hazard of the brittle roof to Simic other than the instructions provided by Thompson once the roof labourers were already on the roof. 47. Black Cat Roofing and Thompson failed to ensure that adequate controls for fall prevention were in place in the form of anchor points and safety lines. Thompson was not trained in the installation of anchor points and Black Cat Roofing failed to ensure that Thompson was sufficiently trained to install anchor points and safety lines. 48. Thompson and Black Cat Roofing failed to verify and determine if Simic or the other roof labourers were experienced in the use of safety harnesses or fall arrest systems. No verification was made by Thompson or Black Cat Roofing to determine if Simic or the other labourers had any rescue training from the safety harness. 49. Thompson or Black Cat Roofing provided no training to Simic or the other labourers in rescue procedures from a safety harness. Thompson and Black Cat Roofing failed to provide Simic and the other roof labourers with adequate personnel protective equipment and failed to provide adequate supervision to Simic and the other roof labourers whilst they were working on the warehouse roof. 50. Black Cat Roofing failed to ensure its documented procedures contained in its Occupational Health and Safety Management System were followed and implemented especially in relation to "Risk Management Procedure" PR-BCCR-02. Under this procedure contractors are obliged to complete "Hazard Inspections" which include a "Risk Assessment – Check list" and a "Work Place Check List". 51. Carter was unable to provide a copy of the contractor's agreement and contractor induction program referred to in the OH & S Management System. Carter only made one inspection of the site in order to measure it up and quote on it. He failed to provide adequate supervision of Fox and Thompson. Carter was not on the premises at the time of the incident. 52. Thompson failed to complete Black Cat Roofing's "Work Place Check List" as required under their OH & S Management System. Black Cat Roofing failed to provide Thompson with a copy of its OH & S Safety Management System nor any of the forms from it. Thompson therefore did not complete the Risk Assessment Check List, the Hazard Inspection or the Work Place Check List. The system of work after the incident 53. After the incident Thompson requested that all personnel sign the existing SWMS prepared by Black Cat Roofing on 26 August 2006. 54. Prohibition notices 7-116667 and 7-11685 were issued to Thompson and Barjema respectively to prohibit further work on the warehouse roof until an appropriate safety system was provided for access to the working area and for a safe system for working at heights. These prohibition notices were complied with on 20 October 2006 and 22 November 2006 respectively. 55. SWMS were amended to address the issue of anchor points. An engineer's report was obtained identifying suitable locations for anchor points and the method to install them. The amended SWMS also addressed safe access to the warehouse roof and working areas. 56. A crane was hired from Botany Cranes to re-position the metal roof sheets. Black Cat Roofing supervised the re-positioning of the metal roof sheets by Botany Cranes. 57. Carter supervised the completion of the removal of the asbestos roof sheeting and the replacement with metal roof sheeting. All personnel were inducted into the amended SWMS. Safety harnesses were provided and all personnel were instructed to wear them for the re-positioning and removal of the roof sheets. Relevant Principles 7 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 228 CLR 357 and their Honours' view the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23 and 34 of the Crimes (Sentencing Procedure) Act 1999). The Court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 8 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 9 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]: [57] The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 10 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. Of relevance particularly is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Consideration 11 In a consideration as to penalty, the Court first assesses the objective seriousness of the offence as charged: see Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474) which states: In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... And in Morrison v Powercoal Pty Limited (2003) 130 IR 364 at [32]: [32] In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected... 12 The work being undertaken by the defendant with regard to both his employees and the sub-contractors he hired was work at heights. The distance from the warehouse floor to the roof ranged from four metres to seven and a half metres. This was inherently dangerous work. Mr Thompson knew the roof was brittle but he relied upon the fact there was safety wire mesh under the roof to meet the known risk of working from heights. Other parts of the wire mesh showed corrosion and no adequate inspection had been carried out to ensure the structural integrity of the wire mesh. The defendant had, however, given instruction to employees to walk across the screw lines because he was aware of the brittleness of the asbestos roofing. 13 The safe work method which existed at the time was prepared by the contractor, Black Cat Roofing, to whom Mr Thompson sub-contracted his own services, that of an employee and that of other sub-contractors. Therefore, on site were the owner, the head contractor - Black Cat Roofing, the sub-contractor - the defendant who also brought a team including one employee and other sub-contractors. This workplace reflects modern industrial trends which have allowed the burden of the obligation for safe working, which obligation under the Act all the above carry, is often in reality borne by the sub-contractor on site. What is revealed is an industrial circumstance where the sub-contractor, once on site, takes responsibility for all employees. In the particular circumstance, prosecutions have been brought only against Black Cat Roofing and the sub-contractor, Mr Thompson, and not the owner of the site. 14 Mr Thompson failed to ensure there were adequate controls in place for the safe working at heights; that is, he failed to ensure the mesh was not corroded (safe) or there were anchor points for harnessing on the site. As the sub-contractor, he presumed the safe work method provided by the contractor was safe. Mr Thompson was directed under the work method to review the documents and add anything that he assessed was necessary. This he did not do. 15 Mr Thompson, in truth, relied upon the paperwork provided by the contractor without making any amendments to it. The safe work method was not adequate in that it failed to identify the hazard of the brittle roof. Notwithstanding the hazard, Mr Thompson recognised the roof was brittle but he failed to deal with the change in the work method. It was originally planned for a crane to perform the task of moving the metal sheets to their intended position on the roof. The crane on the day was unavailable. Mr Thompson's employees had to undertake the task manually and it was in that circumstance that the incident occurred. 16 Mr Simic, the injured employee, was employed after answering an advertisement placed in a newspaper by Mr Thompson. He was employed over the telephone. The other sub-contractors in Mr Thompson's team were generally experienced roofers known to Mr Thompson. 17 The defendant submitted, as to the objective seriousness of the offence, the WorkCover Code of Practice For Safe Work on Roofs, Part 1, Commercial and Industrial Buildings - Clause 3.11 gives him some protection. It reads: Brittle and fragile roofs a. If a roof or part of a roof covering comprises fragile or brittle material, the owner or occupier of the building must maintain a warning site at any place where persons can gain access to the roof. The sign should be not less than 375mm by 330mm and made of a strong and rigid material. It should be securely fixed in an upright position where it can be seen clearly by persons wanting to gain access to the roof. The warning notice should incorporate the symbol shown in Figure 9 and display the following words: Danger - Keep Off Brittle and Fragile Roof (Figure 9) b. Before carrying out maintenance on a roof containing brittle or fragile materials, the employer or person in control of the roofing work should: (i) Inspect the under-side of the roof to determine the extent of fragile roof material, existence of any safety mesh and the structural soundness of the roof and safety mesh. (ii) Provide temporary walkways where any person is required to walk on or use as a means of access any part of the roof sheathed with brittle material and where permanent walkways are not provided. The walkways should be at least 450mm in width for persons and hand tools only, and 675mm in width for persons and material, and should incorporate a guardrail. If the slope of the roof exceeds one vertical to six horizontals, timber cleats of not less than 50mm by 12mm should be fixed to the topside of the walkway planks and spaced no more than 350mm apart, centre to centre. The walkway should be adequately secured. (iii) Provide temporary roof ladders of sufficient strength if any person is required to carry out work on or near to any part of a sloping roof sheathed in brittle material. (iv) Provide individual fall arrest systems including anchorages for any person working on or near any brittle roof sheathing or from roof ladders, where the safety mesh, safety nets or similar fall protection has not been provided. c. If the work involves removal of all or a major part of a roof sheathed with fragile material, safety harnesses should be worn by all personnel engaged in the work if: (i) The pitch of the roof is greater than 15 degrees, or (ii) The roof is not provided with permanently installed safety mesh or at its perimeter: · a solid balustrade, or · scaffolding, or · a guardrail, which extends at least 900mm to 1 metre, above the roof level at the perimeter and includes a mid rail and toe board. The safety harnesses should be attached by an individual fall arrest device to a static line positioned above the ridge line. While engaged in the work, persons should only walk or stand over the purlin line. 18 It was submitted it was optional for an employer in the circumstance not to require the attachment of safety harnesses. However, the principle behind the Code of Practice is: if a roof or part of a roof covering contains fragile or brittle material the occupier must maintain warning signs and safe work procedures and unfortunately, notwithstanding the defendant's submission as to harness attachments (which were missing), there were no safe working conditions on this site. 19 It is true the safe work method statement upon which Mr Thompson relied did not expressly alert him to the risk posed by the safety wire being corroded. However, there was an obligation on him as the employer on site and the occupier on site, to actually check the safety mesh. 20 The principle of foreseeability is a factor in determining the objective seriousness of an offence. This was considered and affirmed in the Full Bench decision of Capral Aluminum Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. On the issue of foreseeability, the Full Bench in Capral stated at [82]: 82 The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: "… reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. 21 The defendant submits it was not reasonably foreseeable that in the event a roof sheet broke the safety wire would not support Mr Simic's weight and, having regard to his past experience, it was not reasonably foreseeable that such wire would break or fall. The defendant, therefore, submits, while the offence remains serious, the offence is not aggravated by reason of the offence being reasonably foreseeable in the circumstances. 22 I find, however, the risk was foreseeable. Mr Thompson's culpability is aggravated by his knowledge the roof was brittle. While he did inform his employees about safe working and he did inform them about the brittleness and how it was only safe to walk on the studs, he did not inform them as to the state of the mesh and that was the risk protection required. The Occupational Health and Safety Act requires all employers to be diligent and proactive to ensure all are safe at their work site. 23 The gravity of the injury actually resulting from the breach does not, of itself, dictate the amount of penalty but the occurrence of death or serious injury manifests a degree of seriousness of the relevant detriment to safety. It is important to note that, although the facts reveal Mr Simic has since died, his death was not a consequence of this incident. The evidence, however, does reveal he suffered serious injury. Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 provides an aggravating factor may be taken into account in determining the appropriate sentence for an offence is: (g) The injury, emotional harm, loss or damage caused by the offence was substantial. 24 This was a serious breach which included the serious injury of an employee as I found in Inspector Spence v Michael Carter and Black Cat Roofing Pty Limited [2009] NSWIRComm 161. The potential risk of significant injury was not a remote possibility. There was a high risk to safety of any employee or sub-contractor having access to this roof, which roof was not in good order and not safely protected by properly structured safety mesh and where the employees and sub-contractors were not properly protected with the provision of safety harnesses with the necessary roof attachments. 25 The availability of simple and straight-forward steps to remedy the deficiencies in the system is relevant (WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited, Schmidt J, CT93/1025, 25 February 1994, unreported). There were obvious steps that could have been taken which, either singly or in combination, would have eliminated or reduced the risk. These include devising an adequate safe work method to address the risk and control measures, such as the suitable location for anchor points and for methods to install them, induction into the amended safe work method system and the appropriate training of the unskilled employees. The latter point is relevant because Mr Simic was on this site and injured himself on the first day and there is no evidence he was trained and there is a suggestion at least one other sub-contractor was not properly trained. These steps were immediately implemented after the incident. Such activity after the incident is indicative of the fact each amendment to the system of work was readily available and practical. 26 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71]-[77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 27 The element of specific deterrence, the defendant submitted, should be reduced or disregarded where the Court is satisfied the risk of re-offending is low or non-existent. While the defendant continues to work in the construction industry the method and manner in which he now conducts his work is such that there is minimal risk of him re-offending. Following the incident, the defendant ceased undertaking the removal and replacement of asbestos roofing and worked either alone or with a small pool of experienced roofing contractors with whom he had previously worked. 28 In December 2008, Mr Thompson ceased working as a contractor and so is now not employing roofing labourers and has subsequently commenced work with an employer in a supervisory role. 29 Arising from this latter working arrangement, he now works in a corporate and structured occupational health and safety environment. He no longer employs workers nor hires sub-contractors. The defendant, therefore, submits any consideration with respect to specific deterrence should be marginal or zero. 30 I have seen and heard the applicant in the witness box. He is an immigrant from New Zealand. I find he is an honest young man who has always had a capacity to earn a living. He provided employment over the years to many sub-contractors. He has met with financial difficulties, both because of his own limited financial management skills, as well as because of a possible fraud. He faces debts related to his business activities which he carried personally and a debt to the Department of Taxation. 31 He appears to have been psychologically affected as well as financially affected by this incident. I accept he has tried recently to put his financial affairs in better order. He has retrained himself as to safe working procedures. He has taken a permanent supervisory position with a good and reliable income. 32 However, given his financial circumstances, I am of the view he may well choose again at some time to become a contractor, notwithstanding the assurance that he has given the Court that at present he is satisfied in his present circumstances. 33 I will allow only a small element of specific deterrence on penalty and I do so with the knowledge he has retrained himself to be aware of safe work practices within this industry. 34 As to general deterrence, I adopt the view I adopted in Inspector Spence v Michael Carter and Black Cat Roofing Pty Limited [2009] NSWIRComm 161 at [27]: ... there are within the building and construction industry special protections required for the work of asbestos removal and also special safety procedures to be followed for work at heights. The court must once again remind this inherently dangerous industry of the need for the rigorous application of the basic and well known safety practices that are necessary for safe working at heights and around asbestos. There shall be an element of general deterrence in the consideration of penalty. 35 It is also necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendant. As was said in R v Way (2004) 60 NSWLR 168 at [56]: [56] ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 (at 228)). 36 A plea of guilty was entered at the earliest stage of the proceedings by the defendant. The defendant is, therefore, entitled to a discount of 25 per cent for the utilitarian value of his early plea of guilty in both matters. 37 The defendant fully co-operated with the WorkCover Authority throughout the investigation of the incident. 38 I am satisfied, however, there was a significant contribution to the risk by Black Cat Roofing who drew up the system of work that was followed for an inherently dangerous task to be performed by a partly unskilled crew of which the injured employee was but one. They were required to work at heights when being exposed to asbestos material without proper safety practices for working at heights. There is mitigation of penalty for the contribution to the risk by the contractor Black Cat Roofing. 39 The defendant submits the Court exercise its discretion in the determination of penalty by considering his capacity to pay in accordance with the provisions of s 6 of the Fines Act 1996. 40 The approach to be taken by the Court in determining matters in the exercise of the consideration under s 6 of the Fines Act 1996 is relevant. However, notwithstanding the considerations under the Fines Act, the penalty imposed must ultimately reflect the objective seriousness of the offence. As was stated in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 by Wright J, President at (209): The financial position and more particularly the means of the defendant should be taken into account in relation to the question of penalty. Otherwise it is inappropriate to consider the fact or amount of legal costs, consulting and other fees. In any event, it was not submitted that I should. I should, as submitted by counsel for the informant, consider not only the financial information included in the correspondence from the accountants, but also the defendant's asset position. Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. . . . 41 As I have already said, significant financial material was placed before the Court from bank and tax records. The defendant also gave evidence and was cross-examined on this material. 42 I accept he has not managed his financial affairs well and I have accepted there is evidence he may have been a victim of financial fraud. His true income from his earnings for his labour in 2008/2009 financial year was $30,710. 43 I allow some consideration as to the defendant's limited financial circumstances but must note this was a most serious breach of the Act. 44 The prosecution raised the principles of parity in fairness to the defendant. In the Black Cat Roofing prosecution the contractor was fined $15,000 for an offence arising from the same incident. The contractor failed to identify in the system of work which he gave to the defendant the risk provided by the corroded mesh and the failure to identify there were no anchor points for harness attachments while requiring work at height. 45 Here the defendant also failed to recognise the risks and he failed to ensure there was, therefore, a safe work method. The defendant failed to carry out a proper risk assessment and he failed to ensure all his employees (not some) were properly trained and instructed. 46 I take guidance from the penalty awarded against the personal defendant in the Black Cat Roofing prosecution. The personal defendant in these prosecutions faces two charges. Each relates to the work force he brought on to the site on the day of the incident. The charge under s 8(1) relates to the failure to ensure his employees' safety and the charge under s 8(2), his failure to ensure his sub-contractors worked in a safe environment. Further, in these prosecutions, notwithstanding the seriousness of the offence in the balancing exercise, I have determined to allow for mitigation under s 6 of the Fines Act. 47 The defendant is guilty of the charges and I accept the plea of guilty is appropriate in the circumstances. 48 A Victim Impact Statement from a sister of the injured employee was tendered to the Court in accordance with s 28(1) of the Crimes (Sentencing Procedure) Act 1999, which states: If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. The Court of Criminal Appeal in R v Mansour [1999] NSWCCA 180 and Hunt CJ at CL in R v Previtera (1997) 94 ACrimR 76 (at [84]-[85]) stated the Court in sentencing may bear in mind a victim impact statement and have regard to the particular affect on members of the family. However, the Court should not give these considerations weight in determining the sentence imposed ( Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [43]; Inspector Simpson v Tomago Aluminium Co Pty Ltd (unreported) Haylen J 27 April 2004, Matter No IRC 5351 of 2003; Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182 at [138]). 49 I adopt, therefore, my comment in Inspector Spence v Michael Carter and Black Cat Roofing Pty Limited [2009] NSWIRComm 161 at [40]: The injuries suffered by Anton Simic were serious. He continued to suffer ongoing disability related to his shattered pelvis, broken rib, broken arm, broken leg and punctured lung. He had injuries to his entire body and several broken teeth. His mental health deteriorated. This impacted not only on his gainful employment, but on his lifestyle. The family in supporting the injured employee through his partial recovery, were greatly affected by this incident, as was the injured employee. In a circumstance where the defendant had suffered significant impairment that, in itself, affected the family. The court expressed its concern to Ms Gardikiotis for the effect this incident had on the family particularly in a circumstance where while still impaired from the incident the injured employee has since died (from an unrelated cause). 50 In consideration on penalty, the principle of totality is also applicable to the circumstances before me where two charges have been laid arising from the same incident. In Postiglione v R (1997) 189 CLR 295, McHugh J considered the principle of totality and said: The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences too ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. 51 In Pearce v R (1998) 194 CLR 610, the High Court said where a sentencing judge is sentencing an offender for more than one offence, the Court should fix an appropriate sentence for each offence and then consider questions of totality. This has been adopted as a procedure before this Court in Department of Education and Training v Keenan (2001)105 IR 181. 52 In the application of the above principle, in matter No IRC 1788 of 2008, the charge under s 8(1), I find the defendant guilty. The defendant is fined in the sum of $8,000. 53 In matter No IRC 1787 of 2008, the charge under s 8(2), I find the defendant guilty. The defendant is fined in the sum of $8,000. 54 In the application of the principle of totality, the defendant is fined the sum of $10,000. In matter No IRC1788 of 2008, therefore, the defendant is fined in the sum of $5,000. In matter No 1787 0f 2008, the defendant is fined in the sum of $5,000. 55 As to costs, the defendant asks for costs on the first listing of the matter on 31 August 2009. 56 The Black Cat Roofing prosecution and these prosecutions were listed together for hearing on that date. However, issues related to the Agreed Statement of Facts in the Black Cat Roofing prosecution arose. The Court determined in the circumstances it was only fair this defendant, who had pleaded guilty to the same Agreed Statement of Facts, not have his matters heard in a hearing where facts arising from the same incident were in dispute. The prosecution pressed, notwithstanding the dispute as to the facts in the Black Cat Roofing prosecution, for these prosecutions to proceed on that day. I determined it was not fair in the circumstances. The prosecution had been on notice of a dispute between Black Cat Roofing and itself as to the agreed facts and in this matter, in my view, the appropriate steps should have been taken to take this matter out of the list for hearing. 57 The relevant statutory provisions for costs in a criminal matter before the Court is s 168 of the Industrial Relations Act 1996 which applies to provisions of Pt 5 of Ch 4 of the Criminal Procedure Act 1986. Therefore, s 257F of the Criminal Procedure Act is relevant. Section 257F states: 257F Costs on adjournment (1) A court may in any proceedings under this Part, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned. (2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made. (3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings. (4) An order may be made whatever the result of the proceedings. 58 Given the prosecutor was on notice of the dispute with the other defendant as to the agreed facts it would have been desirable to have this matter removed from that hearing list. I, therefore, order the defendant be paid for the costs on 31 August 2009 on the basis of a mention but I intend to incorporate this view in my Orders. Orders 59 I make the following orders: 1. In matter No IRC1788 of 2008, I find the defendant guilty. The defendant is fined in the sum of $5,000 with a moiety to the prosecutor. 2. In matter No IRC 1787 of 2008, I find the defendant guilty. The defendant is fined in the sum of $5,000 with a moiety to the prosecutor. 3. The defendant shall pay the prosecutor's costs save costs of 31 August 2009, which costs of the defendant for the mention shall be deducted from the prosecutor's costs. 4. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. 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.