Industrial Court of New South Wales CITATION: Inspector Yeung v Christopher Ogden and Ors [2009] NSWIRComm 47 Prosecutor: Inspector Yeung PARTIES: Defendants: Christopher Ogden Fady Rizk Astute Constructions Pty Ltd FILE NUMBER(S): IRC1065,1067,1068 of 2008 CORAM: Kavanagh J Occupational Health and Safety Act 2000 - s 8(1) prosecution of employer - plea of guilty - untrained employee - fall from height - failure to properly supervise - employer out of work - serious offence - penalty CATCHWORDS: Occupational Health and Safety Act 2000 s8(2) - pleas of guilty - offence by corporation and its manager - construction site - failure to ensure safe system of work - failure to ensure safe scaffold - fall from height by sub-contractor - foreseeable risk - serious risk - small business - penalties LEGISLATION CITED: Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Department of Mineral Resources of New South Wales (Insp. McKensey) v Kembla Coal and Coke (1999) 92 IR 8 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Insp James Swee Ch'ng) (1999) 90 IR 46 Markarian v R (2005) 215 ALR 213 CASES CITED: Morrison v Powercoal Pty Limited (2003) 130 IR 364 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of NSW (Inspector Ankucic) v McDonalds Australia Limited and Anor (2000) 95 IR 383 HEARING DATES: 04/02/09 DATE OF JUDGMENT: 20 April 2009 Prosecutor: R.C. Pontello of counsel Solicitors: Ms A. Wong WorkCover Authority of NSW LEGAL REPRESENTATIVES: Defendant: Christopher Ogden in person Mr A.J. Tudehope of counsel for Fady Rizk & Astute Constructions Pty Ltd Solicitors: Mr D. Tudehope O'Hara & Co JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Monday 20 April 2009 IRC1065 of 2008 INSPECTOR THOMAS YEUNG v CHRISTOPHER GEORGE OGDEN Prosecution under s 9 of the Occupational Health and Safety Act 2000 and in the alternative s 8(1) of the Occupational Health and Safety Act 2000 IRC1067 of 2008 INSPECTOR THOMAS YEUNG v FADY RIZK Prosecution under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 and in the alternative pursuant to s 10(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 IRC1068 of 2008 INSPECTOR THOMAS YEUNG v ASTUTE CONSTRUCTIONS PTY LIMITED Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 and in the alternative s 10(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2009] NSWIRComm 47 1 Two prosecutions are brought by Inspector Thomas Yeung of the WorkCover Authority of New South Wales, the first against Astute Constructions Pty Ltd (a corporate defendant) and the other against Fady Rizk (an individual defendant and director of Astute Constructions Pty Ltd). A third prosecution is brought against Christopher George Ogden (an individual defendant) who was a roofing contractor on an Astute Constructions Pty Ltd building site. It was Mr Ogden's employee who suffered injury. Each charge is brought under the Occupational Health and Safety Act 2000 (the Act), by way of Applications for Order. 2 The following facts outline the circumstance in which the breaches of the Occupational Health and Safety Act occurred: · Astute Constructions Pty Ltd ("Astute") was a corporation which undertook the business of construction works. · Astute was the builder/principal contractor at a construction site located at 4 Waugh Avenue, North Parramatta ("the site"). Astute were building seven townhouses at the site. · Astute had two directors, Fady Rizk and Dany Abounader. Mr Rizk commenced the company in 1999 and was the company secretary. Mr Abounader was appointed as a director in April 2006. Mr Rizk was responsible for the overall running of the company and for the contracting of sub contractors to undertake work at the site. · Astute employed Andrew Ared as site foreman for the site and Tarek Stelio as a labourer. Astute engaged three other workers to undertake work at the site. Mr Ared had been employed as a foreman for approximately seven months as at 8 July 2006 and had been employed by Astute since 2001. He commenced work at the site in December 2005 and his role was the day to day running of the site. Mr Stelio had been working for Astute for approximately two to three months as at 8 July 2006 and had worked in the building industry for approximately two years. · Astute then contracted with Mr Ogden to undertake metal roofing at the site. The contract between Astute and Mr Ogden was verbal. A written quotation was provided for the job by Mr Ogden. Mr Ogden employed Wayne Calford who was working at the site on the relevant date. · Astute contracted with Easy Go Scaffolding Pty Ltd ("Easy Go") to supply and install scaffolding on the site. The contract with the scaffolder was made by Mr Rizk. The scaffold was built in rows with boards over the gaps between the units. The boards were not tied down. 3 It is alleged the defendant corporation, Astute Constructions Pty Ltd, on 4 July 2006 contravened s8(2) of the Act in that it failed to: ensure that persons other than its employees, and in particular, Wayne Calford, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work, contrary to s8(2) of the Occupational Health and Safety Act 2000. In particular: (a) The defendant failed to ensure that scaffolding used by persons at the site was safe; (b) The defendant failed to ensure that persons working on or egressing or accessing scaffolding at the site were not exposed to the risk of falling through or from the scaffolding; (c) The defendant failed to provide a safe system of work with respect to work at heights in that the defendant failed to ensure that persons working at the site were provided with and/or were using an adequate fall prevention system whilst working at heights; (d) The defendant failed to provide adequate information, instruction and training to persons undertaking work at the site in relation to the performance of work at heights; (e) The defendant failed to provide adequate supervision to persons undertaking work at the site in relation to the performance of work at heights. As a result of these failures non-employees, in particular Wayne Calford, were placed at risk of injury. 4 It is alleged the individual defendant, Fady Rizk, on 4 July 2006 contravened s8(2) of the Act in that he failed to: ensure that persons other than its employees, and in particular, Wayne Calford, were not exposed to risks to their health or safety arising from the conduct of the corporation's undertaking while they were at the corporation's place of work, contrary to s8(2) of the Occupational Health and Safety Act 2000. In particular, the individual defendant: (a) At all material times ... was director of the corporation; (b) The corporation failed to ensure that scaffolding used by persons at the site was safe; (c) The corporation failed to ensure that persons working on or egressing or accessing scaffolding at the site were not exposed to the risk of falling through or from the scaffolding; (d) The corporation failed to provide a safe system of work with respect to work at heights in that the defendant failed to ensure that persons working at the site were provided with and/or were using an adequate fall prevention system whilst working at heights; (e) The corporation failed to provide adequate information, instruction and training to persons undertaking work at the site in relation to the performance of work at heights; (f) The corporation failed to provide adequate supervision to persons undertaking work at the site in relation to the performance of work at heights. As a result of these failures non-employees, in particular Wayne Calford, were placed at risk of injury. 5 The third prosecution, arising from the same incident, is brought against an individual defendant, Christopher Ogden. It is alleged on 4 July 2006 he contravened s8(1) of the Act in that he failed to: ensure that persons other than the defendant's employees, and in particular, Wayne Calford, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work, contrary to s9 of the Occupational Health and Safety Act 2000. In particular, the defendant, Mr Ogden: (a) failed to ensure that scaffolding used by persons at the site was safe; (b) failed to ensure that persons working on or egressing or accessing scaffolding at the site were not exposed to the risk of falling through or from the scaffolding; (c) failed to provide a safe system of work with respect to work at heights in that the defendant failed to ensure that persons working at the site were provided with and/or were using an adequate fall prevention system whilst working at heights; (d) failed to provide adequate information, instruction and training to persons undertaking work at the site in relation to the performance of work at heights; (e) failed to provide adequate supervision to persons undertaking work at the site in relation to the performance of work at heights. As a result of the defendant's failures, employees, in particular, Wayne Calford, were placed at risk of injury. 6 The corporate defendant and its director, Mr Rizk, both pleaded guilty to the charges. The other individual defendant, Mr Ogden, also pleaded guilty to the charge. 7 Mr R.C. Pontello of Counsel appeared for the prosecution. Mr A.J. Tudehope, of Counsel, appeared for the two defendants, Astute Constructions Pty Ltd and its director, Mr Rizk. Mr Christopher Ogden was self-represented. 8 In Matter Nos IRC 1067 and IRC 1068 of 2008, the charges brought against Astute Constructions Pty Ltd and Mr Rizk, as defendants, the prosecution relied upon an Agreed Statement of Facts and the following supporting documentation: 11 colour photographs taken by Inspector Derek Pryor on 8 July 2006; Factual Inspection Report of Inspector Derek Pryor dated 12 July 2007; Prohibition Notice 144301 issued to Astute Constructions dated 8 July 2006; Improvement Notice 257266 issued to Astute Constructions dated 11 July 2006 and a WorkCover Prior Convictions Report relating to Astute Constructions, as well as a second report in relation to Fady Rizk. 9 Mr Tudehope, appearing for Astute Constructions and Mr Rizk, tendered an affidavit of Fady Rizk sworn 3 February 2009. A number of relevant documents were attached to the affidavit including Astute Constructions Site Safety Management Plan and Site Safety Rules; Induction Register; OH&S Induction Training Register; Minutes of Tool Box, Site Safety Meeting; Safe Work Method Statement Register; Accident/Incident/Dangerous Occurrences Report; copies of Plant and Other Maintenance Records; Electrical Testing Register; Hazardous Substances/MSDS Registers; SWMS Checklist; Australian Taxation Office - Notice of Assessment; Financial Statements for the year ended 30 June 2007 and Profit & Loss [Cash] Statement of 2007/2008. 10 In Matter No. IRC 1065 of 2008, the charge against Mr Ogden, the prosecution tendered 11 colour photographs taken by Inspector Derek Pryor on 8 July 2006; Factual Inspection Report of Inspector Derek Pryor dated 12 July 2007; Prohibition Notice 144301 issued to Astute Constructions dated 8 July 2006; Improvement Notice 257266 issued to Astute Constructions dated 11 July 2006 and a WorkCover Prior Convictions Report relating to Christopher George Ogden. Mr Ogden, self-represented, produced no documentation, but made submissions. 11 An Agreed Statement of Facts was tendered in the charges brought against Astute Constructions Pty Ltd and Mr Rizk as follows: 4. The corporate defendant was the builder/principal contractor at the site. The corporate defendant was building seven townhouses at the site. PERSONAL DEFENDANT 5. At all material times the corporate defendant had two directors Fady Rizk ("the personal defendant") and Dany Abounader. Mr Rizk commenced the company in 1999 and was the company secretary. Mr Abounader was appointed as a director in April 2006. Mr Rizk was responsible for the overall running of the company and for the contracting of sub contractors to undertake work at the site. 6. The corporate defendant employed Andrew Ared as site foreman for the site and Tarek Stelio as a labourer. The corporate defendant engaged three other workers to undertake work at the site. Mr Ared had been employed as a foreman for approximately seven months as at 8 July 2006 and had been employed by the corporate defendant since 2001. He commenced work at the site in December 2005 and his role was the day to day running of the site. Mr Stelio had been working for the corporate defendant for approximately two to three months as at 8 July 2006 and had worked in the building industry for approximately two years. 7. The corporate defendant contracted Christopher George Ogden trading as Confined Space Cleaning Pty Ltd ("Mr Ogden") to undertake metal roofing at the site. Mr Ogden operated his business as a sole trader. Whilst Mr Ogden traded under the business name Confined Space Cleaning Pty Ltd ("CSC") it was not a registered company at the time of the incident. CSC was originally operated as a corporation and was registered by ASIC on 28 April 1997. Mr Ogden was a director of the corporation whilst it was registered. CSC was deregistered by ASIC on 21 December 2003. 8. The contract between the corporate defendant and Mr Ogden was verbal. A written quotation was provided for the job by Mr Ogden. 9. Mr Ogden engaged a number of workers including, Wayne Calford, Luke Dorahy, Matthew Knobs and Jason James. Mr Calford commenced work with Mr Ogden in November 2005. Mr Calford had not undertaken any metal roofing work prior to his work with Mr Ogden, he had previously worked as a greenkeeper and fencer. Mr Calford carried out work for Mr Ogden on a full time basis during the time he worked at the site. He submitted invoices for work undertaken and was paid directly into his bank account by Mr Ogden. Mr Dorahy was employed by Mr Ogden on a casual basis undertaking weekend work only, on and off from late 2004. Mr Dorahy had 14 years experience in roofing work. 10. Mr Ogden's business commenced work at the site in mid June 2006. Mr Calford worked at the site nearly everyday after the job commenced and was the supervisor for the metal roofing work. Mr Dorahy had only undertaken three days work at the site as at 8 July 2006. Mr Ogden usually had two to four workers undertaking work at the site. Mr Ogden attended the site approximately three times a week to check the progress of the job. Mr Ogden had last attended the site on the Monday prior to the incident on Saturday, 8 July 2006. 11. The corporate defendant contracted Easy Go Scaffolding Pty Ltd ("Easy Go") to supply and install scaffold at the site. The contract was verbal but a written quotation was provided on 14 May 2006 for the supply and erect and dismantle of scaffold for the roof tiler. Mr Giuseppe Iurlo, director of Easy Go advised that he was requested by the personal defendant to supply and install scaffold at the site suitable for the bricklayer and later for the fascia and gutter. 12. Nathan Rivera and Saher Yousif, employees of Easy Go, installed a two storey scaffold at the site on 16 June 2006. Mr Yousif held a certificate of competency as a scaffolder. Mr Yousif advised his employer instructed him to go to the site and build what the foreman wanted. Mr Yousif advised that they erected a 30 metre long scaffold which was approximately five metres high. He advised they built the scaffold for the façade and gutter work to be undertaken. The scaffold was installed in one day. The scaffold was built in bays. Mr Yousif stated that they put scaffold on either side of dividing walls so that the scaffold would not block the brick walls to be built. They put lapboards over the gaps between the units. 13. No scaffolding handover certificate was completed following the installation of the scaffold. The scaffold was used by various workers at the site from its installation. 14. Easy Go also installed other scaffolding in other areas of the site during the construction works. 15. On 4 July 2006 Mr Calford was walking across the scaffold at the back of Unit 5 with a handful of tools. He walked over some metal planks on hop-ups. The planks were not tied down. When Mr Calford walked to one end of those planks the planks gave way. He threw the tools he was carrying and fell, he landed with his elbows on the scaffold which stopped him falling through. There was a balcony below the hop-ups. Mr Calford suffered a cut to his right elbow as a result of the incident. 16. Mr Calford told the builder's labourer at the site of the fall after the incident and advised him to get the scaffolder to attend the site and fix the scaffold, however the labourer tied up the scaffold himself. 17. Mr Calford informed Mr Ogden of the incident after work was completed that day. Mr Ogden advised him to be careful. 18. On Saturday, 8 July 2006 Mr Calford commenced work at the site at 7am. He got his tools out and went up the scaffold to work on the box gutter. Mr Calford was working with Mr Dorahy on this day. Mr Ared and Mr Stelio, the corporate defendant's site foreman and labourer were both working at the site on this day. Rendering sub contractors were also undertaking work at the site. 19. At approximately 10:00am Mr Calford was at the top of the scaffold in front of Unit 4 at the site, he was walking across the scaffold to access the ladder to descend the scaffold which was in front of Unit 2. As he walked across from Unit 4 to Unit 3 of the scaffold there was a gap and step down between the platforms. He stepped down over the gap onto a metal tube, used as a handrail, on the side of the lower level platform of the scaffold. The handrail gave way and he fell through the gap to the concrete ground below, a fall of approximately six to seven metres. 20. Mr Ared, Mr Dorahy and Mr Stelio came to Mr Calford's assistance. An ambulance was called and Mr Ared provided first aid whilst they waited for the ambulance to arrive. Mr Calford was taken to Westmead Hospital following the incident. As a result of the fall he suffered a broken collarbone, deep laceration to his chin which required seven stitches, chipped teeth and bruising to his body. Mr Calford was unable to work for approximately six weeks before being certified fit for light duties. 21. Immediately following the incident, a timber ramp was placed over the gap through which Mr Calford fell by Mr Stelio, to enable other workers still on the scaffold to cross the gap on the upper level of the scaffold between units 3 and 4 without falling through. Mr Stelio did not hold a certificate of competency as a scaffolder when he modified the scaffold after the incident at the site. 22. At the time of the incident on 8 July 2006 the scaffold from which Mr Calford fell was inadequate. The external perimeter of the residential unit complex under construction at the site was enclosed by scaffold. The scaffold at the front of the unit complex was divided into four freestanding sections. Each section had separate and non-attached scaffold bays. The upper level of the scaffold in front of unit 4 was approximately 1 metre higher than the corresponding level in front of unit 3. Additionally, the divided sections of the scaffold created two gaps, approximately 950mm long and 1100mm wide, between units 3 and 4 (being the gap through which Mr Calford fell), and between units 5 and 6, at the upper level of the scaffold. The step up or down between each of those divided scaffold sections was approximately 1100mm in height. Access to the upper level of the scaffold was via an unsecured ladder at the eastern end of unit 2 at the site. There was no scaffold behind the ladder preventing a fall. There was no landing on the top section of the ladder upon which a worker could stand before or after climbing the ladder. There was no other access to the upper level scaffold platform at any other scaffold section. The scaffold was also missing handrails and was not properly secured or tied at various places. 23. Mr Calford observed that on 8 July 2006, there were gaps in the scaffold, step ups everywhere, the platforms were not high enough to the gutter line, there were planks missing, planks not tied up and inadequate hand railing. 24. Mr Dorahy observed that on 8 July 2006 there was a gap in the scaffold between units 3 and 4. On 8 July 2006, when using the scaffold Mr Dorahy got across the gap between the scaffold platforms by climbing up across the gap onto the other scaffold platform which was a metre higher then the lower one. 25. Mr Ared was aware that there were gaps in the scaffold prior to 8 July 2006. He advised that the scaffolders had not supplied ramps for the scaffold bays which were one metre difference in height, which resulted in open void areas. He advised the scaffolder of the gaps when it was being erected and stated they advised that they can't do much about it because the building stepped one metre and the scaffold had to do the same. Following this discussion, at some later time, any gaps between the scaffold bays and in particular the gap between units 3 & 4, were covered by metal ramps. 26. The railings and metal ramps connecting the scaffold bays were in place until 3 July 2006. On 4 July 2006, following the incident when Mr Calford fell upon the scaffolding at the back of unit 5, the scaffolders were requested to raise and fix that southern (rear) scaffold. On 5 July 2006, in response to a request from Mr Ared, scaffolders attended the site and raised and fixed the southern (rear) scaffold. Some time between 3 July and 8 July 2006 the northern (front) scaffold was modified and metal ramps connecting the scaffold were removed. 27. Mr Iurlo, Mr Yousif, Mr Riveria and Mr Ogden advised that the scaffold in place at the site at the time of the incident had been modified since its initial installation. Mr Ogden advised that there were metal ramps connecting the scaffolds when he attended the site on 3 July 2006 and that after the incident on 8 July 2006 he observed that the scaffold had been modified and the metal planks and handrails removed. The scaffolders were on site on 5 July 2006. Mr Yousif advised that ledges, planks, ties, lapboards and kickboards had all been changed. It appears that the scaffold was modified by persons unknown sometime after 3 July 2006. The precise reason for the modifications remains unclear. 28. Mr Iurlo advised that he had verbally advised the corporate defendant that if they wanted the scaffold adjusted they should contact him and he would arrange it. 29. Mr Calford was not provided with a safe work method statement by Mr Ogden prior to commencing work at the site. When he commenced employment with Mr Ogden he was shown a general work method statement for the jobs undertaken by Mr Ogden's business. Mr Dorahy was not provided with or shown any safety documentation. 30. Mr Calford received some verbal safety advice from Mr Ogden in relation to work at heights at the site. He was instructed to use the access ladder to get onto the scaffold. He was told there was no need to wear safety harnesses at the site as there was scaffold in place. Mr Dorahy was advised by Mr Ogden to be careful on the scaffold and roof. 31. The corporate defendant did not have any written job safety procedures for roof work at the site. The corporate defendant did not request or receive any safe work method statements from the contractors undertaking roof work and scaffolding at the site. 32. Mr Ared provided no instructions to Mr Ogden regarding the roofing work to be undertaken at the site prior to 8 July 2006. Mr Ared provided some verbal instruction to the scaffolders who installed the scaffold as to how he wanted the scaffold bays erected. 33. Neither the corporate defendant nor Mr Ogden conducted any documented risk assessments in relation to the work to be undertaken at the site. 34. The corporate defendant had no documented induction process in place for workers at the site. Mr Ared advised that he had conducted verbal inductions. 35. The corporate defendant did not have an OHS Management Plan in place at the site. 36. Prior to 8 July 2006 no tool box talks or safety talks were conducted at the site in relation to the scaffold installed by Easy Go at the site. 37. Following the incident the corporate defendant arranged for Easy Go to attend the site and repair the scaffolding prior to work being recommenced. 38. Following the incident the corporate defendant implemented a safety management plan which incorporated procedures for site inductions, licence checks, safe work method statements and safety inspections. 39. Following the incident Mr Ogden had a tool box talk with his workers in respect of working at heights and reporting workplace dangers. 12 In Matter No. IRC 1065 of 2008, the charge against Christopher Ogden, a Statement of Agreed Facts was tendered which statement was similar to the above statement except [17] which reads: Mr Calford informed the defendant of the incident after work was completed that day. The defendant advised him to be careful, and immediately contacted Mr Ared and asked him to get the scaffold fixed. (emphasis added) Relevant Principles 13 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8(1) and s8(2) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 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). 14 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]). 15 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]: 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. 16 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 s21A of the Crimes (Sentencing Procedure) Act 1999. Consideration 17 In a consideration as to penalty, the Court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474): . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. 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 " . . . Further, as was said in Morrison v Powercoal Pty Limited (2003) 130 IR 364 at [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... 18 The unit complex at the site was divided into four freestanding sections; each scaffold section was separate and non-attached on the day of the incident; the upper level of the scaffold in front of units three and four was at a different level and higher than the corresponding level; there were large gaps between the separate scaffolds. Planks had been placed between the gaps. 19 It appears sometime there was interference with the scaffold as originally erected and then as adjusted. Some planks were missing on inspection after the relevant incident. Planks were not tied down. There were no harnesses provided for working at height. There was also only one unsecured ladder which was able to be used to access the upper level therefore employees had to traverse across large gaps. The scaffolders had been recalled once, but the scaffolding continued to be unsafe. 20 The injured employee, Mr Calford, in attempting to walk along the scaffold across from unit four to unit three, on the relevant date, fell and as he fell he grabbed towards a hand rail, which rail was not properly secured and gave way. Mr Calford fell approximately seven metres to the concrete ground and suffered injury. He had been in the employ of Mr Ogden some eight months. Mr Ogden was a qualified roofer but the injured employee was not and had not undertaken this type of metal roofing work prior to the task on the relevant date. 21 Mr Calford had, prior to this fall, once before, slipped through the scaffolding but had saved himself. Mr Ared, the site foreman, knew of this incident and had more work done to the scaffold but it was, on the date of the incident, still unsafe. Four days later, Mr Calford again fell (the subject incident). 22 Although the consequences of an incident will not of itself dictate the seriousness of the offence or the amount of penalty, the occurrence of injury in this case manifests the degree of seriousness of the relevant detriment to safety. The injuries suffered by Mr Calford were not fatal or even substantial but were indicative of the seriousness of the risk (Tyler v Sydney Electricity (1993) 47 IR 1 (at 5)). The employer does not get a benefit from the fact that no serious injury was suffered. The degree of seriousness of the risk in exposing an employee working at height without known safety measures, namely, safe scaffolding being in place, makes this a serious offence. 23 While Mr Calford had received some verbal safety warning from Mr Ogden in relation to working at heights and, on site, had been instructed to use the access ladder to get onto the scaffolding, he had also been told there was no need to wear a safety harness because the scaffolding was in place. He was not provided with a safe work procedure prior to commencing work at the site. The only advice he received, after injury, when resuming work after six weeks on sick leave, was to be advised by Mr Ogden to "be careful". Mr Ogden, however, then requested Astute Constructions, through its foreman Mr Ared, to have the scaffolding repaired. 24 Neither the corporate defendant nor either of the individual defendants conducted nor documented a risk assessment in relation to the safe access required to perform the roofing work. The corporate defendant had no documentary induction process in place for any employees at the site nor did it have any occupational health and safety management plans in place. No defendant had a written safe working description to ensure safe procedures for roof work at the site. The roof work was conducted without any supervision. The defendant, Mr Ogden, attended the site periodically, approximately three times per week, to check the progress of the job. Mr Ared, the site foreman, an employee of the corporate defendant, did not supervise or instruct Mr Calford. Further, given the original faulty construction of the scaffold, there should have been daily inspections of it. It appears even after the scaffolders were called back there was further interference affecting its safety. 25 Mr Rizk had management of the corporate defendant since 1999 and was also the Secretary and a Director of the corporate defendant. He was responsible for the overall running of the company and for the contracting of sub-contractors to undertake work at the site. However, the day-to-day running of the site was entrusted to the corporate defendant's employee who was employed as site foreman, Mr Ared. There was no proper supervision of Mr Calford by Mr Ared, the foreman. Mr Rizk, as overall manager of the corporation, carries the burden of the failure to ensure safe scaffolding and the failure to properly supervise persons at his worksite. 26 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. On the issue of foreseeability, the Full Bench in Capral stated: [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. . . The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment and gravity of the offence ( Department of Mineral Resources of New South Wales (Insp. McKensey) v Kembla Coal and Coke (1999) 92 IR 8). The scaffold was not safely installed. This was known by the defendant corporation. There were no regular site inspections conducted by the company through Mr Ared. I am satisfied in such a circumstance there was a foreseeable element to the offences by the corporate defendant and its manager, Mr Rizk. 27 From the statement of facts, it is difficult to determine if Mr Ogden knew of the unsafe scaffold or if after Mr Calford's first fall, he knew of the fall and how unsafe was the scaffold. On the evidence before me I cannot find there was a foreseeable element to Mr Ogden's offence, although he clearly failed to ensure his employee had a safe access to his worksite. 28 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken by the Court was dealt with in some detail in Capral at [71] - [77]. The approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral as follows: [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. Elements of both general and specific deterrence must be given consideration. It is well known in the construction industry that there are serious risks to employees who are required to work at heights when not properly provided with the appropriate plant and equipment. This was a basic breach of safety on a construction site. Scaffolding is required to ensure all employees safety whilst working at heights. If the scaffolding is not safe, it is no aid to safe working, but an obstacle. This was a basic breach of the Act in the failure to provide a safe access to a place of work. There must be a significant element of general deterrence fashioned into penalty of each defendant to remind all employers in the construction industry there must be daily inspections conducted on site to ensure the maintenance of safe work equipment. This is especially so where sub-contractors come onto a site to perform tasks related to their individual skills and then leave the site. Both the sub-contractor and head contractor have individual obligations to ensure a worksite is always in such a condition as to ensure safe working for all tasks. Once more there must be a reiteration of the need for rigorous implementation of known safe working procedures on construction sites. 29 The company and Mr Rizk continue to operate in the construction industry. Mr Ogden suggests he is out of work. He also, however, revealed he is attempting to rejoin the workforce and has employees committed to working for him, including the injured employee, so an element of specific deterrence is relevant to the consideration of penalty on each charge. 30 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]: ... 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). 31 Mr Rizk, on behalf of the defendant company, Astute Constructions, and to meet his obligations as Company Manager, has now completed a review of all occupational health and safety procedures of Astute Constructions. He has completely re-evaluated how he, and the company, address safety at their construction sites. He has sought the advice of WorkCover Authority and independent experts to ensure that a complete and comprehensive site safety management programme has been designed for the corporation. I accept the company now has a commitment to site safety. Prior to work starting at any building site each sub-contractor is required to adopt the corporate defendant's safe work principles and to supply their own safe work method procedures for each particular task. They are required to contractually commit to adhering to all the documented, site-safety procedures of the corporate defendant. The court is satisfied there is now in place significant safe work procedures and it accepts the assurances of the defendant company and its manager that safe work practices will be implemented on the corporation's construction sites. 32 However, there were simple steps available to avoid this risk and to ensure the erection and maintenance of safe scaffolding. Inspections were not conducted. I am however, persuaded the company and its manager have reviewed all work practices and are unlikely to re-offend. I accept there is now a commitment by Mr Rizk on behalf of his company to workplace safety. 33 Mr Rizk and his company rely upon financial records to assert there are some financial constraints upon both the company and Mr Rizk as to the ability of each to pay a penalty. The financial records were not necessarily persuasive. The company in 2007 had a turnover of some $3.3 million. The company is now employed on another construction project. Mr Rizk's financial statement for 2007 suggests an income of some $35,000. This statement does not match up with the company's financial declarations. The inconsistencies were pointed out to Mr Tudehope representing the defendant. He was invited to put further material to the Court but that has not been forthcoming. In the circumstances, I am satisfied both parties can afford to pay an appropriate penalty. 34 The company, through the endeavors of Mr Rizk, however, provide work for a number of small contractors in the construction industry. His endeavors as an entrepreneur, providing employment as he conducts a medium size construction company is to be acknowledged but he must ensure safe working on his sites. He has expressed his concern by way of his early plea and has expressed remorse for the offence. 35 Mr Ogden was self-represented. He has not presented any amended documentation of safe working procedures but assures the Court as to their preparation and I accept his commitment in the future of workplace safety. He is a married man with four dependent children. His company had a turnover of $350,000 and he took out $25,000 for himself and his wife was paid $9,000. The balance went to expenses. His operation has no income at present. He does not have a mortgage but his father provides him with a house for which he pays rent. He is a qualified roof plumber but is at present unemployed and receiving welfare payments due to the financial downturn. Business, he said, has "dried up". This evidence was not given under oath but as evidence from the bar table but it was accepted by the prosecution. Mr Ogden made it clear to the Court he accepts full responsibility for the offence and is most contrite. He speaks with great respect as to the qualities and attributes of the injured employee and he expressed his concern for Mr Calford's welfare. 36 As the financial status of the defendant company and the personal financial status of Mr Rizk have not clearly been placed before the Court, there shall be no discount for their pecuniary status. I do allow a small element of discount to Mr Ogden due to his financial circumstances but still take into consideration the objective seriousness of the offence. 37 The maximum penalty faced by the corporate defendant is $550,000. The maximum penalty faced by each of the individual defendants is $55,000 as each has no prior recorded conviction under the Occupational Health and Safety Act. While Mr Ogden was self-represented and he entered an early plea, there was some dispute between him and the prosecution as to the Agreed Statement of Facts. However, that dispute did not interfere with the administration of justice. Therefore each defendant enjoys a benefit of a discount of 25 percent for each early plea to the charge given a utilitarian value to the plea (R v Thomson; R v Houlton (2000) 49 NSWLR 383). Each co-operated with the WorkCover Authority in its investigations. 38 Further, in such a circumstance, the Court must consider contribution to the risk, even the contribution of the scaffolder against whom there is no prosecution before the Court. On a consideration of the facts as outlined above, I accept the individual defendants and the corporation, together, carry equal liability. Mr Ogden was the employer who had responsibility for the safe working of his employee, Mr Calford. Mr Rizk and the defendant corporation were responsible for the safe erection and maintenance of scaffolding at their work site (WorkCover Authority of NSW (Inspector Ankucic) v McDonalds Australia Limited and Anor (2000) 95 IR 383). 39 Taking into account the above features of the offence, including the subjective features, but acknowledging the serious nature of the offence, I order as follows: Orders 1. In Matter No. IRC1068 of 2008, I find the defendant company guilty as charged. 2. The defendant company is fined in the sum of $80,000. There shall be a moiety to the WorkCover Authority of NSW. 3. In Matter No. IRC1067 of 2008, I find the individual defendant, Fady Rizk, guilty as charged. 4. The defendant is fined in the sum of $20,000. There shall be a moiety to the WorkCover Authority of NSW. 5. In Matter No. IRC 1065 of 2008, I find the individual defendant, Christopher George Ogden, guilty as charged. 6. The defendant is fined in the sum of $10,000. There shall be a moiety to the WorkCover Authority of NSW. 7. The defendants shall pay, in equal share, the costs of the prosecution as agreed or to be assessed. 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.