Industrial Court of New South Wales CITATION: Inspector Dubois v Masters Civil Pty Ltd and Anor [2006] NSWIRComm 180 Prosecutor: Inspector Rodney Dubois PARTIES: First defendant: Masters Civil Pty Ltd (ACN 101 601 897) Second defendant: Dani Geagea FILE NUMBER(S): IRC 1115, 1116, 1130, 1131 of 2005 CORAM: Backman J Occupational health and safety - sentencing of corporate defendant and individual defendant under s 8(1) and s 8(1) by operation of s 26(1) of the Occupational Health and Safety Act 2000 - pleas of guilty entered - worker is injured when falls 2.5 metres from a roof to first storey while undertaking demolition work - worker is qualified mechanic and welder with no qualifications in demolition work - worker's first day at work - no system of work, procedure, supervision, instruction, training or information developed or given to injured worker as to how to perform the work - worker had no fall protection device - dangers of working in the demolition and construction industries highlighted - risk to safety was risk of falling from heights - risk was obvious and reasonably foreseeable - importance of general and specific deterrence - availability of simple measures to obviate risks - likely consequences of failures and impact on penalty - respective culpabilities considered - circumstance of aggravation involving delay in attending to injured worker's injuries and non-provision of first aid - no prior convictions - early pleas of guilty - strong prosecution case and impact on guilty plea in terms of contrition - impressive post-accident measures considered - personal factors considered - penalty - totality - orders CATCHWORDS: Occupational health and safety - sentencing of corporate defendant and individual defendant under s 86(1)(b) and ss86(1)(b) and 26(1) of the Occupational Health and Safety Act 2000 - pleas of guilty - objective seriousness considered - personal factors considered - penalty - totality - orders. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 Gotico Industries Pty Ltd v Benbow (2001) 103 IR 78 Inspector Guillarte v Trustees of De La Salle Brothers [2004] NSWIRComm 49 Inspector Ritchie Green v Camilleri Properties Pty Limited & Anor [2006] NSWIRComm 90 CASES CITED: Maddaford v CSR Limited and Mulgoa Quarries [2004] NSWIRComm 337 Robert William Larsen (1989) 44 ACrimR 121 R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104 WorkCover Authority of New South Wales (Inspector Kelsey) v The University of Sydney [1997] NSWIRComm 44 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) 99 IR 163 HEARING DATES: 13/10/2005 DATE OF JUDGMENT: 05/25/2006 Prosecutor: Ms P. Lowson, of counsel Solicitors: Phillips Fox LEGAL REPRESENTATIVES: First and second defendants: Mr S. Stanton, of counsel Solicitors: Cadmus Lawyers JUDGMENT: - 16 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Backman J Matter No IRC 1115 of 2005 Inspector Rodney Dubois v Masters Civil Pty Ltd (ACN 101 601 897) Prosecution pursuant to s 8 (1) of the Occupational Health and Safety Act 2000 Matter No IRC 1116 of 2005 Inspector Rodney Dubois v Masters Civil Pty Ltd (ACN 101 601 897) Prosecution pursuant to s 86 (1) (b) of the Occupational Health and Safety Act 2000 Matter No IRC 1130 of 2005 Inspector Rodney Dubois v Dani Geagea Prosecution pursuant to s 8 (1) of the Occupational Health and Safety Act 2000 by operation of s 26 (1) of the Act. Matter No IRC 1131 of 2005 Inspector Rodney Dubois v Dani Geagea Prosecution pursuant to s 86 (1) (b) of the Occupational Health and Safety Act by operation of s 26 (1) of the Act. JUDGMENT [2006] NSWIRComm 180 1 Masters Civil Pty Ltd (the first defendant) has pleaded guilty to an application for order which alleges that an offence was committed under s 8(1) of the Occupational Health and Safety Act 2000 (the 2000 Act). The offence is particularised in the application for order in the following way: On 7 March 2003 the defendant Masters Civil Pty Ltd contravened s 8 (1) of the Occupational Health and Safety Act 2000 in that on 7 March 2003 at 7 - 9 Cross Street at the corner of Cross and Stanley Streets Bankstown in the State of New South Wales the defendant being an employer failed to ensure the health, safety and welfare at work of all its employees in particular Lautoa Johnson. Particulars of the defendant's contravention are as follows: 1. Failure to provide and maintain a system of work for the task of removing roof sheeting from the building under demolition at the premises that was safe and without risks to health; 2. Failure to provide adequate fall protection or prevention measures to ensure against the risk of fall from heights at the premises; 3. Failure to provide adequate instruction, training and supervision so as to ensure the safety of persons removing roof sheeting at the premises; 4. Failure to provide any or any adequate first aid assistance to Lautoa Johnson following his fall from heights at the premises. 2 The first defendant has also pleaded guilty to an application for order which alleges that an offence was committed under s 86(1)(b) of the 2000 Act. The breach is alleged to have arisen in the context of a failure by the first defendant to give notice of the incident which occurred on 7 March 2003 at the premises at Cross Street Bankstown which resulted in Lautoa Johnson becoming unfit for a continuous period of at least seven days and being unable to attend his usual place of work, to perform his usual duties, or in the alternative, to carry out his usual duties. 3 Dani Geagea (the second defendant) has pleaded guilty to an offence under s 8(1) by operation of s 26(1) of the 2000 Act. The offence arises out of the same facts and circumstances alleged against the first defendant under s 8(1). The second defendant's plea proceeds upon the basis that under s 26(1) of the Act he was at the time of the offence a director of the first defendant. The second defendant has also pleaded guilty to an offence under s 86(1)(b) by operation of s 26(1) of the 2000 Act. The offence arises out the same facts and circumstances alleged against the first defendant under s 86(1)(b). 4 I should clarify for the sake of completeness that the s 8(1) offence brought against the first defendant by way of the application for order was expressed to be in the alternative to an offence under s 8(2) of the 2000 Act. In opening submissions during the proceedings however Ms Lowson of counsel, instructed by the WorkCover Authority of New South Wales for the prosecutor, indicated that the prosecutor had elected to proceed in relation to the s 8(1) offence only, against both defendants. 5 An Agreed Statement of Facts tendered by the prosecutor during the sentence proceedings reveals that at the time of the offences the first defendant was engaged in the business of demolition and excavation; and, the hire of bobcats, mini excavators and tipper trucks. The first defendant had been contracted by Cinta Constructions Pty Limited to perform demolition work at the premises. Mr Johnson and his son, Neemia Johnson, were employed by the first defendant to perform labouring work at the premises. On the day of the offence, father and son arrived at the premises at about 9.30am. It was Mr Johnson's first day of work at the premises. Neither he, nor his son, were given a site induction, nor provided with any safe work method statement or any written instruction as to how to perform the particular task they had been employed to undertake. 6 The task that the Johnsons were expected to perform that day involved working on a roof extracting nails with a pick and pulling off panel roof sheeting by hand. Access to the roof was via a ladder. The roof was on top of a two-storey building. Mr Johnson had no qualifications to perform demolition work, although he apparently had some prior experience. He was a mechanic and welder by trade. Fred Khalil, the site supervisor at the premises working under the direction of the second defendant, instructed Mr Johnson and two other labourers to get up on the roof and commence extracting the nails and pulling off the panel roof. Neemia Johnson assisted on the ground piling the roof sheets against a wall. While on the roof, Mr Johnson wore a safety helmet, although he did not have a safety harness. While lifting sheets off the roof, Mr Johnson lost his balance and fell approximately ten feet or 2.5 metres, through a penetration to the floor of the first storey of the building. He lost consciousness and was left lying on the ground for some fifteen minutes. He was not provided with first aid. Mr Khalil drove him home and Mr Johnson's daughter-in-law drove him to a doctor's surgery. Upon arrival at the surgery, however, he was not able to get out of the vehicle, and had to wait for an ambulance to take him to hospital. He remained in hospital for some seven days. As a result of the fall, Mr Johnson lost a tooth and broke another. He also fractured his right leg and sustained cuts and bruises. 7 In an affidavit sworn 30 September 2005, prepared for these sentence proceedings, the second defendant describes himself as the managing director of the first defendant and authorised to make the affidavit on behalf of the first defendant. The second defendant concedes that he did not see any proof of Mr Johnson's qualifications and he did not supervise or organise any supervision of Mr Johnson. He also says that there was a safety harness on site, but that Mr Johnson was not wearing it. Scaffolding was apparently also in place, but Mr Johnson had not been told to stand on it or otherwise use it for his safety. There was also on the site a first aid kit, but no officer had received first aid training at the time. 8 The second defendant, in his affidavit, also asserts that at the time of the offence, the first defendant had been incorporated for some three weeks only and that he was neither familiar, nor sufficiently trained in relation to his obligations as a company director. A little later in his affidavit, the second defendant describes himself as, "... both inexperienced and a novice in the construction and demolition industry in a managerial capacity". I take this description to mean that the second defendant had limited experience in corporate management-type matters, but was not necessarily inexperienced or unfamiliar with the demolition industry. This latter aspect seems to be confirmed in the affidavit when the second defendant states that he has a Demolition Licence and other qualifications which are described as "Demolition 1 Licence Supervision 1 and 2". Copies of those qualifications have been annexed to the second defendant's affidavit. 9 In relation to the offences under s 86(1)(b) of the 2000 Act the Agreed Statement of Facts reveals that WorkCover was not notified of the accident until contacted by solicitors representing Mr Johnson on or about 15 July 2003. Consideration Section 8(1) offences 10 The circumstances giving rise to the offences under s 8(1) before the Court compel the conclusion that those offences are serious. The second defendant frankly concedes that he had little or no understanding of the obligations as a manager of employees under the occupational health and safety legislation. Mr Johnson was directed to perform highly dangerous work which he was unqualified to do; and, in relation to which he had received no safety instruction, information or training. Although Mr Johnson was directed to work at a height of at least 2.5 metres, he had not been told to wear a safety harness (although apparently one was available at the site) and was not instructed to use the scaffolding that was also, according to the second defendant, in place at the site and available for workers to stand on. Mr Johnson had barely been working at the site for three hours before he fell and injured himself. The complete absence of supervision is perhaps starkly demonstrated by the unfortunate fact that Mr Johnson lay injured on the ground for fifteen minutes before receiving any attention. 11 There have been many cases decided in this jurisdiction which have sought to highlight the dangers of working in the demolition and construction industries. The object of this, of course, has been to emphasise the importance of instituting appropriate safety measures for the protection of workers and others at the work site. In Inspector Ritchie Green v Camilleri Properties Pty Limited & Anor [2006] NSWIRComm 90, the Full Court delivered the following observations in relation to demolition work (at [12] and [13]): [12] Demolition work is a highly specialised and dangerous undertaking. This is reflected in the Regulation and in the Australian Standard, all of which set out comprehensive planning and implementation of a regime for the carrying out of demolition work so that risks are minimised. Both the Standard and the Regulation shed light on what measures and procedures should have been implemented by the respondents and the obvious importance of ensuring safety. Clause 247 of the Regulation requires that an employer must ensure that demolition work is carried out in accordance with the Standard. The Standard contains a definition of demolition in the following terms: "... the complete or partial dismantling of a building or structure by pre-planned and controlled methods or procedures." [13] This definition would appear to fit the activity performed by the two employees, although without the added aspects of pre-planning and controlled methods or procedures. The detailed and comprehensive requirements set out in the Standard underscore the importance and necessity of ensuring the safety of workers performing demolition work. The failure of the respondents to have in place any substantial systems of work created an obvious risk to safety. 12 The definition of demolition contained in the Standard also fits the activities being performed by Mr Johnson on the day of the s 8(1) offences, namely the removal of panel roof sheeting by hand, but, without the all important components of pre-planning and controlled methods or procedures. I have already observed in relation to the present circumstances that no procedures of any kind were devised or developed by the first defendant in order that the task assigned to Mr Johnson and others would and could be performed safely. This failure created an obvious and serious risk to safety. 13 In the absence of a system or procedure to facilitate the safe undertaking of the work, the non-provision of fall protection and, in the absence of any other form of instruction, training, information or supervision, the risk to safety, that is, the risk of falling from heights, was also reasonably foreseeable. This is even more apparent in the context of the nature of the work being undertaken by Mr Johnson at the time which involved working from a height in excess of 2.5 metres removing roofing sheets. It is also relevant that Mr Johnson had no qualifications in the type of work he was performing. Nor can I accord much weight to the fact that Mr Johnson supposedly had some experience in the demolition industry since the Agreed Statement of Facts merely asserts that fact without further expansion and there was no other evidence adduced before me on the point. 14 The fact that the risk to safety was reasonably foreseeable renders the offence more serious: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [81], [82]. 15 Deterrence is also an important factor in the sentencing process particularly as here where the factual background involves risks to safety existing within the demolition industry. As already noted the industry is considered highly specialised and potentially dangerous. Detailed and comprehensive Codes and Standards have therefore been formulated in order to ensure that the risks inherent in the industry are obviated. Any exposure of such risks to workers or other personnel should be avoided and employers must be made aware of the literature and other information designed to ensure worker safety within the industry and the importance of implementing the appropriate measures to ensure workers can complete their work safely without fear of injuries. 16 Specific deterrence is also important. The first and second defendants continue to operate in their particular field of industry with part of the undertaking of the first defendant involving demolition work. Notwithstanding the safety measures implemented by the defendants (an issue which I will discuss shortly) after 7 March 2003, specific deterrence remains in the circumstances, an important consideration: see Capral Aluminium at [77]. 17 Another factor which heightens the objective seriousness of the offences is the availability of relatively simple measures in order to obviate the risk. The most obvious of these measures would have been to provide Mr Johnson with a safety harness when he was working on the roof. According to the evidence such a fall protection device was available for use at the worksite. Alternatively, scaffolding was apparently available for the use of the workers but Mr Johnson was not instructed to use it. 18 The potential or likely consequences of the defendant's failures I find could have been worse than the actual consequences which nevertheless resulted in quite serious injuries requiring hospitalisation for seven days. Mr Johnson fell from the second storey roof to the floor of the first storey, a distance of some 2.5 metres. The seriousness of the likely consequences which results from a breach of s 8(1) of the 2000 Act is also relevant to the Court's assessment of the seriousness of the risk. Given my finding concerning the potential consequences the risk to safety was a very serous one: see WorkCover Authority of New South Wales (Inspector Kelsey) v The University of Sydney [1997] NSWIRComm 44; Maddaford v CSR Limited and Mulgoa Quarries [2004] NSWIRComm 337 at [23]. 19 The defendants' legal representative, Mr Stanton of counsel, relied on a written submission that the first defendant did have in place a safety system at the time of the offences. This system included the use of a helmet by Mr Johnson while working on the roof and the availability at the worksite of a safety harness. In my view however such matters do little to mitigate the otherwise seriousness of the offences. First, the absence of a safe system of work was one of the particulars of the offences under s 8(1) to which the defendants have pleaded guilty. Secondly, measures in existence at the time of the offences which included the availability of a safety harness and the use of scaffolding were never implemented. This is the crucial step which transforms a system of work with little or no utility (because it exists on paper only) to a system that is developed and then specifically brought to the attention of workers who then receive appropriate direction so that the work is performed safely. The first defendant's system, such as it was, was clearly deficient and existed only on paper with no attempt at all (except for providing Mr Johnson with a helmet which I will take into account in the defendants' favour) to take the crucial next step which was to bring it to the attention of the workers. 20 Turning to the issue of respective culpabilities between the two defendants the evidence appears to be that the second defendant is one of two directors of the first defendant. The other director is Mr Khalil who was also on the day of the offences, the site supervisor. The second defendant was at that time the managing director of the first defendant and was also at the site on the day of the offences. The second defendant has conceded through his counsel in written submissions that he had a significant role in the decision making and general running of the business activities of the first defendant. Nevertheless, the second defendant was one of two working directors and it cannot be assumed that the second defendant made all the crucial decisions, relevantly here in relation to safety matters, to the exclusion of others, notably Mr Khalil, the other director. Based on this material I find that the level of responsibility and control of the day to day operations of the first defendant by the second defendant was of a high degree, although he was not the sole director and obviously not the only director involved in operational matters at the worksite. Mr Khalil also had a substantial role to play as site supervisor. Taking all these matters into consideration I assess the second defendant's culpability as somewhat less than that of the first defendant: see WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 at [38]. 21 A further feature which is relied upon by the prosecutor as a circumstance of aggravation concerns the events after Mr Johnson's fall from the roof. In the applications for order this circumstance is particularised as a failure to provide first aid to Mr Johnson after his accident. Ms Lowson in oral submissions described the significance of this particular in terms of providing evidence of delay in the rendering of assistance and in attending to Mr Johnson's injuries as well as revealing a failure to have in place a system for the provision of first aid. All these matters in my view provide evidence of the seriousness of the offences and demonstrate Mr Johnson's exposure to further injuries by reason of the delay. Mr Johnson was left unattended for some fifteen minutes after he fell from the roof. In addition to starkly demonstrating the complete absence of any supervision, as I earlier noted, the incident also suggests that in the absence of attention and because of the delay, Mr Johnson's injuries could have been exacerbated. It is this latter factor which operates as a factor of aggravation and accordingly it will be taken into account in determining the appropriate penalty. 22 The Court has been informed that neither defendant has any prior convictions. The maximum penalty therefore for the offence under s8(1) alleged against the first defendant is $550,000, and against the second defendant (by operation of s 26(1)) is $55,000. 23 I take into account on sentence the fact that neither defendant has any prior convictions. This entitles them to leniency normally extended to an offender who is not otherwise adversely recorded. 24 Both defendants have also entered pleas of guilty to the charges under s 8(1) and ss 8(1) and 26(1) of the 2000 Act. I do not understand the prosecutor to dispute that the pleas were entered at an early stage. Both defendants are therefore entitled to a discount of their sentences in accordance with the principles outlined in R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 ACrimR 104. 25 I consider an appropriate discount for the utilitarian value of the pleas is 25 percent. 26 The prosecutor does contend in relation to the pleas of guilty that they were entered in circumstances where the prosecution case was strong. This means that the extent of leniency otherwise available in recognition of contrition shown by the defendants by pleading guilty may have less weight and the discount on sentence may be correspondingly reduced. The defendants concede through their counsel in written submissions that findings of guilt "would have been most likely". I take this as a concession that the prosecution cases were strong. It follows that the prosecutor's contention is made good and the discount on sentence will be reduced accordingly. 27 I also take into account in the defendants' favour the impressive number of procedures and instructions which the first defendant has developed and implemented following the commission of the offences. Since the date of the offences, for example, all the first defendant's workers have completed their first aid certificates. The first defendant also has a first aid officer, Mr Succar who holds appropriate certification. In addition, all appropriate personnel now have Demolition Supervisor 1 Certificates. As confirmation of the first defendant's resolve to improve on matters of safety the second defendant's affidavit attaches copies of various work method statements for the demolition works at the worksite the subject of the offences as well as a Project Specific Safety and Injury Management Plan for another company under which the first defendant operated as the principal contractor. The first defendant also now utilises safety harnesses for workers working on erected scaffolds. 28 The defendants have also expressed sincere regret for the incident. The second defendant in particular relies on his inexperience in matters of management and in matters of safety specifically. Both defendants also cooperated fully with WorkCover in relation to all investigations and inquiries undertaken in relation to the offences. These personal factors will be taken into account in the defendants' favour in the assessment of penalty. Section 86(1)(b) offences 29 In relation to the s 86(1)(b) offences the defendants acknowledge them by virtue of their pleas of guilty and are resolved that the section will not be breached in the future. Although the defendants submit that the breaches were not wilful nor the result of "utter disregard" they nevertheless frankly concede that they have failed to abide by those provisions in the 2000 Act and acknowledge the importance of s 86(1)(b) in terms of the investigation of matters of industrial safety. 30 Section 86(1)(b), which requires an occupier of a place of work to notify WorkCover of an incident in accordance with Regulation 341 of the Occupational Health and Safety Regulation 2001, provides for a maximum penalty for a corporate offender with no prior convictions of $55,000, and a maximum penalty for an individual offender with no prior convictions of $27,500. Regulation 341(a) requires all injuries to persons which result in an incapacity for work for a period of at least seven days, to be notified to WorkCover. 31 Section 86(1)(b) also fulfils an important purpose in facilitating the ability of WorkCover to properly and promptly investigate workplace accidents. In Gotico Industries Pty Ltd v Benbow (2001) 103 IR 78 (at [6]) a Full Court commented on the function and importance of s 27 of the 1983 Act, a predecessor section to s 86(1)(b) which was expressed in similar terms: We wish to emphasise the significance of s 27 of the Occupational Health and Safety Act 1983 (NSW). The provision does not merely impose formal requirements for the notification of accidents in the nature of the registration of an incident, but rather requires a notification of accidents so that the WorkCover Authority of New South Wales may carry out necessary investigations to identify and remedy hazards to safety: see WorkCover Authority (NSW) (Inspector McMartin) v Broken Hill Proprietary Co Ltd (1999) 90 IR 277 at 290 and 295. The section is an important provision ensuring the proper investigation of breaches of the Occupational Health and Safety Act and the adoption of appropriate remedial measures to prevent further such occurrences. (See also Inspector Guillarte v Trustees of De La Salle Brothers [2004] NSWIRComm 49 at [29]). 32 Both defendants entered pleas of guilty to the s 86(1)(b) offences at the same time as they entered pleas of guilty to the s 8(1) offences. The defendants are therefore entitled to a reduction of the amounts of the fines imposed for the commission of the s 86(1)(b) offences in accordance with the principles set out in R v Thompson; R v Houlton. A discount which will adequately reflect the entering of the pleas in my view is 25 percent. 33 The maximum penalty for an offence under s 86(1)(b) committed by the first defendant, a corporation, is $55,000. The maximum penalty for the second defendant, an individual, is $27,500. 34 For the reasons set out in Gotico Industries general deterrence must be an important component in the assessment of the penalty. The first defendant at the time of the s 8(1) offences was a newly incorporated company. The failure to notify under s 86(1)(b) from the date of the s 8(1) offences (7 March 2003) continued until 15 July 2003 when solicitors for Mr Johnson notified WorkCover about the incident. This was a period in excess of four months. The need for general deterrence to feature in the sentencing process and on penalty arises from the need of the investigating body, that is WorkCover, to attend and investigate the workplace where a breach of the occupational health and safety legislation may have occurred. WorkCover must also be in a timely position to advise wherever necessary on relevant safety issues. In order for WorkCover to be able to pursue these important functions all occupiers of work places must be made aware of the importance of notifying that Authority of all incidents falling within the section. 35 Specific deterrence is also relevant to both defendants. In a very short period of time, only three weeks, the first defendant was in breach of the 2000 Act, and then failed to notify WorkCover of a workplace accident associated with the breach. Notification of the incident eventually came from a third party after a period in excess of four months. The first defendant continues to operate in the demolition industry as does the second defendant as one of its directors. In matters of occupational health and safety it is relatively seldom that this principle will not be invoked: see Capral Aluminium at [77]. 36 The second defendant has expressed on his behalf and on behalf of the first defendant a commitment to honouring all or any obligations under s 86(1)(b) which may arise in the future. I accept the defendants' explanation that they were not aware of the requirements to notify under the sections. The matter will be taken into account in the defendants' favour when assessing penalty. Penalty 37 In determining penalties against both defendants I have taken into account the objective seriousness of the offences, the personal factors described above and the absence of prior convictions. All of these factors have been considered by reference to the Crimes (Sentencing Procedure) Act 1999 in particular s 21A. I have also taken into account the respective culpabilities of both defendants. Totality 38 In relation to the first defendant I consider that a fine in the sum of $120,000 should be imposed for the offence under s 8(1) and that a fine in the sum of $12,000 should be imposed for the offence under s 86(1). In relation to the second defendant I consider that a fine in the sum of $10,000 should be imposed for the offence under s 8(1) by operation of s 26(1) and that a fine of $5,000 should be imposed for the offence under s 86(1) by operation of s 26(1). 39 Although the parties did not make submissions on the relevance if any of the principle of totality in the sentencing process, I consider it is relevant on the basis that the offences under s 8(1) and s 86(1) although not sharing common elements nevertheless rely on the same factual background, relate directly to the same incident the subject of the offences and occurred, necessarily, closely in time: see for example the discussion of the principle by Badgery-Parker J in Robert William Larsen (1989) 44 ACrimR 121 at 125-127. 40 In order to properly reflect the criminality therefore of the first defendant, taking into account the principle of totality, I consider the total fine for the two offences under s 8(1) and s 86(1)(b) should be $126,000. 41 In order to properly reflect the criminality of the second defendant taking into account the principle of totality I consider the total fine for the two offences under s 8(1) by operation of s 26(1) and under s 86(1)(b) by operation of s 26(1) should be $12,500. Orders 42 In Matter No IRC 1115 of 2005 I make the following orders: 1. The defendant Masters Civil Pty Ltd (ACN 101 601 897) is convicted of the offence. 2. The defendant Masters Civil Pty Ltd (ACN 101 601 897) is fined $118,000 with a moiety to the prosecutor. 3. The defendant Masters Civil Pty Ltd (ACN 101 601 897) is to pay the costs of the prosecutor as agreed or, in the absence of agreement as assessed. 43 In Matter No IRC 1116 of 2005 I make the following orders: 1. The defendant Masters Civil Pty Ltd (ACN 101 601 897) is convicted of the offence. 2. The defendant Masters Civil Pty Ltd (ACN 101 601 897) is fined $8,000 with a moiety to the prosecutor. 3. The defendant Masters Civil Pty Ltd (ACN 101 601 897) is to pay the costs of the prosecutor as agreed or, in the absence of agreement as assessed. 44 In Matter No IRC 1130 of 2005 I make the following orders: 1. The defendant Dani Geagea is convicted of the offence. 2. The defendant Dani Geagea is fined $9,000 with a moiety to the prosecutor. 3. The defendant Dani Geagea is to pay the costs of the prosecutor as agreed or, in the absence of agreement as assessed. 45 In Matter No IRC 1131 of 2005 I make the following orders: 1. The defendant Dani Geagea is convicted of the offence. 2. The defendant Dani Geagea is fined $3,500 with a moiety to the prosecutor. 3. The defendant Dani Geagea is to pay the costs of the prosecutor as agreed or, in the absence of agreement as 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.