Industrial Relations Commission of New South Wales in Court Session CITATION: Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97 Matter Number IRC 2997 of 2005 ____________________________ PROSECUTOR: Inspector David Waterhouse DEFENDANT: Innovative Property Developments Pty Ltd Matter Number IRC 2998 of 2005 ____________________________ PARTIES: PROSECUTOR: Inspector David Waterhouse DEFENDANT: Eduard Rosenbaum Matter Number IRC 3001 of 2005 ____________________________ PROSECUTOR: Inspector David Waterhouse DEFENDANT: Jacob Baidarman FILE NUMBER(S): IRC 2997, 2998 and 3001 of 2006 CORAM: Schmidt J CATCHWORDS: Occupational Health and Safety - prosecutions under section 10(1) and section 26(1) of the Occupational Health and Safety - corporate defendant owner of property and principal contractor - collapse of a free standing brick wall - plea of guilty entered - question of penalty - fatality - first offence - parity - culpability - general deterrence - mitigating factors - each defendant found guilty - penalties imposed - costs Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Fernandes Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Steven Jones) [2002] NSWIRComm 364 Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312 CASES CITED: Markarian v R (2005) 215 ALR 213 Postiglione v The Queen (1997) 189 CLR 295 R v Olbrich (1999) 73 ALJR 1550 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 WorkCover Authority of NSW (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales v Walco Hoist Rentals Pty Limited and Anor (No 2) (2000) 99 IR 163 HEARING DATES: 01/03/06 DATE OF JUDGMENT: 03/30/2006 PROSECUTOR: Ms PE McDonald of counsel SOLICITORS: Criminal Law Practice Legal Group LEGAL REPRESENTATIVES: WorkCover Authority of New South Wales DEFENDANTS: Mr A Henskens of counsel SOLICITORS: Gillis Delaney Lawyers JUDGMENT: - 35 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 30 March 2006 Matter No IRC 2997 of 2005 INSPECTOR DAVID WATERHOUSE v INNOVATIVE PROPERTY DEVELOPMENTS PTY LTD Prosecution under section 10(1) of the Occupational Health and Safety Act 2000 Matter No IRC 2998 of 2005 INSPECTOR DAVID WATERHOUSE v EDUARD ROSENBAUM Prosecution under section 26(1) and section 10(1) of the Occupational Health and Safety Act 2000 Matter No IRC 3001 of 2005 INSPECTOR DAVID WATERHOUSE v JACOB BAIDARMAN Prosecution under section 26(1) and section 10(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 97 1 These prosecutions all arose out of the collapse of a free standing brick wall constructed at a building site in June 2003. Mr David Hands, a bricklayer working at the site, died as a result of the collapse. Innovative Property Developments Pty Ltd was the owner of the property and the principal contractor on the building project. Mr Eduard Rosenbaum and Mr Jacob Baidarman were directors of the company and each directly involved in the project. Each defendant entered a plea of guilty to the charges laid. 2 This judgment deals with the question of penalty. The three charges provided relevantly: Matter Number IRC 2997 of 2005 FAILED TO ensure that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: 1. The trade, business or other undertaking of the defendant was the development of the premises including the construction of a residential flat building. 2. The people who were not in the employment of the defendant but who used the premises as a place of work were Wayne Moore, Martin Nolan, Rick Didio, and David Hands. 3. The defendant failed to ensure that an internal brick wall constructed in the kitchen of Apartment 1 of Lot 6 as depicted in part plan 1697 was left standing with adequate lateral support or adequate bracing or otherwise was adequately supported to ensure it was not at risk of collapse. 4. The defendant failed to adequately monitor the work being undertaken at the premises. 5. The defendant failed to ensure adequate compliance with the "Bricklayers Safety Plan". 6. As a result of the said failures Wayne Moore, Martin Nolan, Rick Didio, and David Hands were placed at risk to their health and safety and David Hands was fatally injured. Matter Number IRC 2998 of 2005 FAILED TO failed to ensure that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000. Particulars of the charge: (a) At all material times the defendant was a director of the corporation. (b) At all material times the trade, business or other undertaking of the corporation was the development of the premises including the construction of a residential flat building. (c) The people who were not in the employment of the corporation but who used the premises as a place of work were, Wayne Moore, Martin Nolan, Rick Didio, and David Hands. (d) The corporation failed to ensure that the premises were safe and without risks to health in that: (i) The trade, business or other undertaking of the defendant was the development of the premises including the construction of a residential flat building. (ii) The people who were not in the employment of the defendant but who used the premises as a place of work were Wayne Moore, Martin Nolan, Rick Didio, and David Hands. (iii) The corporation failed to ensure that an internal brick wall construction in the kitchen of Apartment 1 of Lot 6 ("internal wall") as depicted in part plan 1697 was left standing with adequate lateral support , adequate bracing or otherwise was adequately supported to ensure it was not at risk of collapse. (iv) The corporation failed to adequately monitor the work being undertaken at the premises. (v) The corporation failed to ensure adequate compliance with the "Bricklayers Safety Plan". (vi) As a result of the said failures Wayne Moore, Martin Nolan, Rick Didio, and David Hands were placed at risk to their health and safety and David Hands was fatally injured. (e) The defendant, being a director of the corporation, is taken to have contravened section 10(1) of the Act by virtue of section 26(1) of the Act. Matter Number IRC 3001 of 2005 FAILED TO failed to ensure that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000. Particulars of the charge: (a) At all material times the defendant was a director of the corporation. (b) At all material times the trade, business or other undertaking of the corporation was the development of the premises including the construction of a residential flat building. (c) The people who were not in the employment of the corporation but who used the premises as a place of work were, Wayne Moore, Martin Nolan, Rick Didio, and David Hands. (d) The corporation failed to ensure that the premises were safe and without risks to health in that: (i) The trade, business or other undertaking of the corporation was the development of the premises including construction of a residential flat building. (ii) The people who were not in the employment of the corporation but who used the premises as a place of work were Wayne Moore, Martin Nolan, Rick Didio, and David Hands. (iii) The corporation failed to ensure that an internal brick wall constructed in the kitchen of Apartment 1 of Lot 6 ("internal wall") as depicted in part plan 1697 was left standing with adequate lateral support or adequate bracing or otherwise was adequately supported to ensure it was not at risk of collapse. (iv) The corporation failed to adequately monitor the work being undertaken at the premises. (v) The corporation failed to ensure adequate compliance with the "Bricklayers Safety Plan". (vi) As a result of the said failures Wayne Moore, Martin Nolan, Rick Didio, and David Hands were placed at risk to their health and safety and David Hands was fatally injured. (e) The defendant, being a director of the corporation, is taken to have contravened section 10(1) of the Act by virtue of section 26(1) of the Act. 3 This was each defendant's first offence. The maximum penalty for the offence with which the company was charged was accordingly $550,000 and those with which Mr Rosenbaum and Mr Baidarman were charged, $55,000 in each case. 4 Sections 10(1) and 26(1) of the Occupational Health and Safety Act 2000 ('the Act') provide: 10 Duties of controllers of work premises, plant or substances (1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health. 26 Offences by corporations—liability of directors and managers (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 5 Evidence was given by Mr Rosenbaum and Mr Baidarman. Neither was required for cross examination. A number of documents were tendered, including an expert's report provided by John Carrick of Unisearch. The agreed statement of facts provided: 1. Inspector David Waterhouse, of the Work Cover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales is an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter. 2. Innovative Property Developments Pty Ltd ( IPD ) ACN 077 642 285, is a corporation whose registered office is situated at 62 Croydon Street, Cronulla, New South Wales. 3. Mr Eduard Rosenbaum ( Mr Rosenbaum ) of 4/357 Bronte Road, Bronte in the State of New South Wales was a director of IPD. 4. At all material times Mr Jacob Baidarman ( Mr Baidarman ) of 4/357 Bronte Road, Bronte in the State of New South Wales was a director of IPD. 5. IPD has pleaded guilty to an offence under s10 of the Occupational Health and Safety Act 2000 (the Act ) and Mr Rosenbaum and Mr Baidarman have pleaded guilty to offences under s10 and s26 of the Act. 6. The offences arose from an incident which occurred on 16 June 2003 at a construction site at 6 Military Road North Bondi in which a free standing internal wall which had been constructed over the period 11-13 June collapsed onto a bricklayer Mr David Hands. 7. On or about 21 September 2001 IPD entered into a contract with David Ritchie of 12 Dalton Road, Mosman for the purchase of premises being a single dwelling house at 6 Military Road North Bondi for $1,400 000. 8. On or about 22 November 2001 IPD lodged a Development Application (DA) at Waverly Council for the premises pursuant to section 78A of the Environmental Planning and Assessment Act 1979 to construct a residential flat building consisting of six 2 bedroom residential apartments. 9. On or about 6 June 2002 Waverly Council approved the DA. 10. On or about November or December 2002 IPD commenced the building of a residential flat building at the premises. 11. At all material times IPD: (i) owned the premises; (ii) controlled the premises; and (iii) was the principal contractor at the premises. 12. Mr Eduard Rosenbaum acted as a project manager at the site. His day to day tasks included establishing and implementing the Occupational Health and Safety system, overlooking the construction process, maintaining progress and giving various instructions regarding construction and occupational health and safety issues. Theses duties other than specific technical issues were shared with the other director Jacob Baidarman 13. Mr Jacob Baidarman's role at the site included making sure that the project was run safely and in accordance with rules and regulations. 14. Specifications for the laying of masonry were included in the Architectural Plans for the building project. In plan marked M2123-100 Revision C, item B1 of the specification provided that all workmanship and material shall be in accordance with Australian Standard AS3700 Masonry Structures Code. In the section dealing with Masonry under Construction in the Standard and under clause 11.9.1 - Temporary Bracing it is provided that: "Masonry under construction shall be braced or otherwise stabilized as necessary to resist wind or lateral forces in such a manner that the structural integrity of the member is not impaired." Tab A of the tender bundle is a copy of an extract from Australian Standard AS3700 Masonry Structures Code. 15. The construction of the internal wall did not adhere to Clause 11.9.1 of Australian Standards Masonry AS 3700-2000 Masonry Structures Code in that it was not braced or otherwise stabilised. 16. The defendants obtained from the Housing Industry Association (HIA) a number of generic documents including the Principal Contractors Occupational Health and Safety Plan and the Bricklayers Safety Plan. 17. On about 15 November 2002 the IPD issued a Principal Contractors OHS Management Plan and Site Induction. 2 people were nominated as responsible for occupational health and safety namely: Jacob Baidarman and Robert Lumb. Tab B of the tender bundle is a copy of the Principal Contractors OHS Management Plan and Site Induction. 18. Robert Lumb was the acting site foreman at the site for the period 13 February to 3 May 2003. 19. No site specific hazard assessment was carried out in conjunction with the setting up of the plan. Subcontractors 20. On or about 29 March 2003 IPD entered into a contract with KLA Bricklaying Pty Ltd (KLA). KLA was to supply all necessary equipment, materials and labour to undertake bricklaying at the premises. 21. At all relevant times KLA employed: a) Mr Wayne Moore ( Mr Moore ) as a working director; b) David Hands (Mr Hands), the deceased, as a bricklayer; and c) Martin Nolan (Mr Nolan) as a labourer. 22. The defendants issued to Wayne Moore of KLA Bricklaying a copy of the Bricklayers Safety plan which he signed on 15 April 2003. Tab C of the tender bundle is a copy of the Bricklayers Safety Plan. 23. On page two of the Bricklayers Safety Plan , under the heading "Stability" it states, " As we build the structure we will make sure that it remains stable and secure from a collapse which may be caused by weather, wind, subsidence, construction loads, live loads, and the premature removal of temporary bracing or temporary propping". 24. There was no inclusion in this document of any site specific hazards associated with the site. 25. At all material times, KLA, through its employees was carrying out bricklaying work at the premises. 26. The defendants did not ensure that the Bricklayers Safety Plan was adequately adhered to by KLA. 27. On or about 29 April 2003 IPD entered into a contract with Superbuilt Pty Ltd ( Superbuilt ) for the provision of supervision and project management services at the premises. 28. Superbuilt's duties under its written contract with IPD included: 1. General * supervise day labour, provide day labour journal for the superintent 8. Health and Safety * establish health and safety management plan. Discuss it with the superintent. * promote and maintain safe work methods. * discuss and establish health and safety issues with every tradesman before the trade contract starts 29. Mr Rick Didio ( Mr Didio ) was the sole director and employee of Superbuilt. His qualifications as a site supervisor were that he was a carpenter and joiner by trade. He had performed the same role as site supervisor on about 5 previous blocks of units (including a big project in Redfern) and before that on houses and extensions. 30. Mr Didio commenced work performing supervision duties at the premises on or about 5 May 2003. By that time KLA had already commenced work at the premises. The Incident 31. On 11 June 2003 Mr Hands commenced building a free standing internal brick wall ( internal wall ) in the kitchen of Apartment 1 of Lot 6 as depicted in part plan 1697. Tab D of the tender bundle is a copy of an extract from part plan 1697 with the internal wall highlighted. 32. The internal wall was an internal kitchen wall to which a kitchen bench would be attached. The dimensions of the internal wall were 1030mm long, 110mm thick and approximately 3 metres high and it was to be built aligned in an east west direction. 33. Mr Hands laid the bottom level of bricks. He put down the damp-proof course, which was material made up of plastic and was the width of the brick being laid. As the kitchen in which the internal wall was being built was a wet area, the damp-proof course was to act as a barrier against moisture movement at the bottom of the wall. 34. On 12 June 2003 Mr Hands alone laid the bricks for the internal wall up to a height of approximately 1.5 metres. The wall was not braced or stabilised in any way. 35. On 13 June 2003 Mr Hands continued the bricklaying work on the internal wall and completed it to a height of 3 metres. The internal wall was not secured, fixed or supported by any other structure and was free standing. 36. Neither Mr Rosenbaum nor Mr Baidarman expressed concerns about the stability of the wall prior to its collapse. 37. Mr Didio in an interview with Inspector Waterhouse recalled a conversation with Wayne Moore when he built the wall, in which Mr Didio was asked whether a lentil bar should be going across the wall so it ties in with the kitchen and Wayne Moore said no that he had done hundreds of these and it will be right. 38. On 16 June 2003 Mr Hands, Mr Nolan and Mr Moore arrived at the premises at 6.45am and commenced work. Mr Hands and Mr Moore were working on an external wall approximately 3 metres to the north east of the internal wall. Mr Hands moved to get some nails from his toolbox which was located immediately to the north of the internal wall. At about 10.00am the internal wall collapsed on Mr Hands as he was bending over retrieving items from his tool box. 39. On 12 September 2003 Inspector Waterhouse undertook a record of interview with Mr Didio. In the record of interview Mr Didio said: "..I was up in the high deck of where I marked it on "D" [as marked on part plan 1697 provided to Mr Didio] and I just happened to, to sort of I was standing there watching the bricklayers, what they were doing, you know, their progress and what was our next task and you know, what I normally do, I was just watching. And then Martin [Mr Nolan], the labourer he was where I marked on "B" [as marked on part plan 1697provided to Mr Didio], he was on the other side of that wall and I, he had the wheelbarrow there and I know he as leaning down because I, I just happened to be there and watching the whole thing, and he was, kneeling down and he was cleaning something." Tab E of the tender bundle is a copy of the part plan 1697 marked by Mr Didio. 40. In the same record of interview Inspector Waterhouse asked Mr Didio, "Facing which direction?" Mr Didio answered," Well he (Mr Nolan) was facing, he had his back towards the wall. Okay? And all I remember is his, once he got up, the wall, the wall, fell." 41. Inspector Waterhouse asked Mr Didio, "Did the wall fall in one piece or did it break up?" Mr Didio answered, "No, it fell in one, fell in one piece. But the top, the whole just like went over in this, the bottom part sort of just hit him and I, I quickly ran down and his boss was there." 42. Mr Didio said, " …When the wall fell, it went, it went right over him and it was just at the bottom, because his tool box was right, right beside, right beside the wall." 43. Mr Hands was taken by ambulance to hospital where he died from the injuries he had received. Investigation After the Incident: 44. On 16 June at approximately 12.45 p.m Inspector Waterhouse attended the premises and performed a factual inspection and took 16 photographs. Tab F of the tender bundle is a copy of the photographs. Inspector Waterhouse observed the following: (i) Brickwork that had been partially completed to a height of between approximately 3050 mm and 1560 mm. (ii) In the centre of the rear area was a single course of brickwork aligned to an east west direction approximately 1095 mm long, which Inspector Waterhouse was informed by the Site manager, Mr Didio, to be the base of collapsed wall. This was located 2200 mm north of the external wall on the south of the new structure and approximately 3000mm from the western external wall. The bricks are of a type called "jumbo" bricks and measure approximately 226 mm long x 120mm and are pink in colour. (iii) The external wall to the south is of a two-skin construction each skin being constructed from 110 mm wide bricks. The overall thickness of the wall was 230mm and it was approximately 1560mm high. Part of the mortar in the wall was still wet and appeared to have been recently laid. In the east end of this wall there was a steel column set within the internal brick skin. (iv) On the ground immediately to the north of the base of the collapsed wall Inspector Waterhouse observed, lying on their side, three courses of brickwork 1095mm long still cemented together with dry mortar. (v) Approximately 1000mm north of the base of the wall was a wheelbarrow containing a number of bricks that appeared to come from the collapsed wall. On a brick that was in this wheelbarrow Inspector Waterhouse observed some fibres, which had the appearance of human hair. The barrow was yellow in colour and covered in dried mortar. (vi) The area surrounding the barrow was wet with what appeared to be water. (vii) Immediately to the south of the base of the collapsed wall were a number of bricks that appeared to have come from the collapsed wall. Contained within these bricks was a length of PVC flashing approximately 1050mm long. (viii) Approximately 2000mm to the south of the base of the collapsed wall two stacks of unlaid bricks were observed. Between these brick stacks was a red metallic tool box. 45. On 16 June 2003, Inspector Waterhouse took from the collapsed internal wall at the premises, two bricks that were partially coated with mortar. Inspector Waterhouse also took another new brick from the brick stack south of the collapsed wall referred to in paragraph 44 (viii) above. 46. On 20 June 2003 Inspector Waterhouse attended the Testsafe facility at 919 Londonderry Road Londonderry. Inspector Waterhouse deposited the three bricks at the facility for specification testing. 47. Mr Anthony Martin of Testsafe Australia measured and weighed the three bricks. 48. From this information Mr Anthony Martin provided a report dated 8 August 2003. Tab G of the tender bundle is a copy of Mr Martin's report. 49. In his report dated 8 August 2003 Mr Martin stated that, "Using the extremes of the values in the table, the actual weight of the wall, based on the limited number of bricks available for measurement could range from 470kg to 602 kg". 50. On 22 July 2004 Mr John Carrick of Unisearch provided a report on the collapse of the internal wall. Tab H of the tender bundle is a copy of Mr Carrick's report. 51. In his report, Mr Carrick described that the wall before it collapsed as a straight and isolated blade of masonry and observed that it had no returns to provide support to its vertical edges. Mr Carrick stated: (i) "At the time of its collapse, the suspended slab above the wall had not been built. The top edge of the wall did not at that time, receive the restraint that it would have felt in the finished structure. When built into that structure, the wall's slenderness ratio of 27 does not violate the constraints of Section 4.6.02 of the Australian Masonry Standards, AS 3700-2001. Until the first floor is placed above however, the wall would be considered a very unstable free-standing element." (ii) "A PVC damp-proof course interrupts the tensile bond at the base of a wall and provides a line of relative weakness against out or plane bending." (iii) "In the period after the wall has been laid and before the overhead slab was placed, the damp-proof course would contribute slightly to the un-braced wall's already large propensity to overturn." (iv) "Before receiving support from the floor above the wall as it stood on the day of the collapse was in a very unstable equilibrium - its geometry and the presence of the damp-proof course meant that the wall was teetering on the verge of collapse." 52. On 12 September 2003 Inspector Waterhouse undertook a record of interview with Mr Didio. In the record of interview Inspector Waterhouse asked Mr Didio, "So in, in essence what, can you describe the relationship between Superbuilt Constructions Pty Ltd and Innovative Property Developments on that site?" Mr Didio answered, "Oh I run the day to day duties on the job. They make all the, Innovative make all the decisions, I mean at the end of the day." 53. At the time of the incident Mr Didio was on site performing supervisory duties. Mr Baidarman had been on site earlier that day but had left the site at about 8:30-9:00am. Mr Rosenbaum who generally visited the site once but mostly twice a week had not been on the site on 16 June before the incident occurred. Post Incident Measures. 54. Since the incident IPD has become a member of the MBA and has implemented a safety plan which involves regular inspections and ensuring all workers are inducted and have green cards. IPD and its directors began to review continuously the safety measures and the assessment of risks and the control of those risks. They ensure that all trades provide safe work method statements prior to commencing work. 6 Both Mr Rosenbaum and Mr Baidarman gave evidence as to the steps they had taken in the aftermath of the accident and the serious personal consequences of what occurred for each of them. Both Mr Rosenbaum and Mr Baidarman expressed their remorse for what had occurred. While the company completed the project, it has not carried out any construction work since. There is no intention that it will do so in future. 7 The evidence showed that the safety procedures implemented at the site had been recommended to the defendants by the Housing Industry Association. 8 After the accident further advice was obtained from the Master Builder's Association of NSW and a management consultant was engaged to develop a comprehensive safety management system for the company, as well as a site specific system for this project, which the company completed. Mr Rosenbaum and Mr Baidarman also attended various seminars and safety courses. 9 A number of other charges have been laid under the Act against other persons and entities, involved in this accident. Those matters have not yet been heard. Mr Didio and Mr Moore have been charged with manslaughter. The parties' respective cases 10 The case advanced by Ms McDonald of counsel for the prosecutor was that the offences here in question were serious. They each involved an obvious and foreseeable risk of injury, so serious that it could result in death. There were also simple remedial steps which could have been taken to control or avoid the risk. In fixing penalty the death of Mr Hands was an aggravating factor necessary to be taken into account, consistently with s 21A of the Crimes (Sentencing Procedure) Act 1999. 11 It followed that in this case, there was a particular need to pay attention to the element of general deterrence in the sentences imposed. It was relevant that in other cases, offences where other walls had collapsed at construction sites had come before the court. This also demonstrated how obvious a risk such as this was. 12 It was accepted that specific deterrence had a lesser, but somewhat different role to play in the case of the company and the two directors. 13 The evidence showed that the safety systems that the corporate defendant had put in place were not site specific, although referring to the need to ensure the stability of structures of the kind that here collapsed. The systems put in place after the accident, by way of comparison, were site specific and focussed on analysing, identifying and controlling risks at the site. 14 As to questions of parity and culpability, it was submitted that these three defendants were equally culpable. Others had also been charged with offences under the Act, in circumstances where it was this corporate defendant which was the principal contractor on the site. The wall which collapsed was constructed over a number of days by others, who it was argued were equally culpable for the failure to control the obvious risk created by the failure to brace the wall. That bracing could have been provided by easily available means. This circumstance, it was submitted, in terms of parity, would not necessarily result in similar sentences for all defendants, given that sentencing depended on evidence led in each case, both as to objective matters and subjective matters, relevant to each individual defendant, as well as the maximum penalty applicable to the offence in question in each case. 15 The evidence in this case showed that various people and entities had different responsibilities at the site and had made different contributions to the risks which had materialised, as reflected in the offences with which they were each charged. It was submitted that it followed that while there was equal culpability between all of those who had contributed to the risk in one sense, similar sentences would not necessarily result. That would depend on the evidence led in each case as to a range of matters. In any event, what sentences might be imposed on other defendants could not be known at this stage, as those other prosecutions had not yet been heard. As for the manslaughter charges which two people faced as the result of the death of Mr Hands, it was argued that they were irrelevant to the sentences here to be imposed. 16 As to the position of Mr Didio, the supervisor engaged by the corporate defendant, it was noted that he had not been charged with any offence under the Act. This was the result of a decision made by the prosecutor. Under the scheme of the Act, that decision was a matter for the prosecutor to make. It was argued, however, that it would be concluded, on the evidence, that Mr Didio was less culpable than these defendants for what had occurred, or those who faced other charges under the Act. 17 The prosecutor also acknowledged the early pleas entered and the steps taken by the defendants to address the safety concerns which had been identified, after the accident. 18 The case advanced by Mr Henskens of counsel for the defendants was that the prosecutor's submissions on comparative culpability and parity could not be accepted, having in mind the applicable Full Court authority. What was required was an assessment of the objective seriousness of each offence, here before the Court. That task had to be undertaken in circumstances where a number of defendants were at the site in different capacities, each having contributed to the relevant risk in different ways. It followed that the objective seriousness of each offence, in those circumstances, might differ. In these three cases, that was argued to be an important factor to be considered in the assessment of the penalty to be imposed. 19 Penalty depended on the objective seriousness of the offences. That would be assessed, it was submitted, not from the consequences which had flown from the breach, but from a consideration of all the circumstances, including all those persons who had contributed to the risk, thereby giving rise to differing levels of culpability for the risk. 20 While the prosecutor acknowledged that here various defendants had different responsibilities on the site and had contributed in different ways to the risk which had materialised, the result must be an acceptance that their culpability for what had occurred was also different. It could not be equal. In this case, on the evidence it would be concluded that the culpability of Mr Moore and Mr Didio for the risk in question, for example, was higher than that of these defendants. This was a matter which had to be reflected in an assessment of the objective seriousness of these offences. 21 Mr Rosenbaum and Mr Baidarman were charged with having committed offences by reason of their offices as directors of the company in charges brought under s 10(1) of the Act. This section was concerned with those controlling premises used as a place of work. Consideration would also be taken of the fact that, in reality, they had intermittent control of the premises, in the sense that true control at the time of the accident was being exercised by Mr Didio, the corporate defendant's supervisor on the job and Mr Moore, the bricklaying contractor, who each also had responsibility for ensuring safety. 22 In assessing the objective seriousness of these offences, it was also relevant that on the evidence, the corporate defendant engaged an appropriately experienced supervisor, to provide day to day supervision of the building activities on the premises, with specific responsibilities in relation to safety. It had also implemented systems which had recognised the risk in question. Even the applicable Australian Standard which required the wall which fell to be braced, had been identified. This was also relevant to an assessment of the seriousness of the defendants' breaches of their obligations. While it was accepted that they could not delegate those obligations, the evidence showed that they had been proactive in attending to them, albeit not proactive enough. 23 The evidence showed that the steps which were taken, were in fact sufficient to have the result that the risk in question was recognised by Mr Didio, who raised the need to brace the wall with Mr Moore. There was no suggestion that this risk, or the way that Mr Didio and Mr Moore decided to deal with it, was ever drawn to the attention of the defendants. 24 The defendants relied on Mr Didio and Mr Moore to act in accordance with the safety system established, which required the wall to be braced. The risk created by the unbraced wall manifested, because Mr Didio accepted what Mr Moore told him and no bracing of the wall was put in place, despite the obvious and identified risks which flowed from this unstable structure remaining unbraced. 25 The evidence here led demonstrated the involvement of Mr Didio and Mr Moore in what occurred. That a prosecutor had decided not to charge Mr Didio with an offence under the Act, was submitted to be irrelevant to a consideration of his contribution to the risk, demonstrated on the evidence here before the Court. That he and Mr Moore had been charged with manslaughter was also submitted to be irrelevant to an assessment of the penalty here to be imposed. The culpability for the risk which had materialised had to be determined on the evidence and should in this case result in a finding that these defendants were less culpable than the others who had contributed to the risk to safety in question. 26 It was further argued that the practical consequence of that situation must be that these defendants must receive a 'lesser penalty than would be the case if this risk was wholly contributed to by them'. This was because the objective seriousness of their offence was less than the offences committed by others, a matter which must result in a lower penalty, compared to that which would be imposed on someone who had contributed entirely, or in a majority sense, to the risk. 27 It was also submitted that the question of parity did not strictly arise at this time, because no other sentences had yet been imposed. Nevertheless, because there was a need to ensure parity in sentencing, it would be important in this case to expose the Court's finding on relative culpability of the different parties involved, so that a later court could deal with the question of parity in the sentences which it had to impose. 28 It was also argued that specific deterrence would have no role to play in penalty for these defendants, given the evidence as to the consequences of this accident for each defendant. All defendants were of previous good character. The evidence that the company was unlikely to engage in further construction work was unchallenged. The same conclusion would be reached in relation to Mr Rosenbaum and Mr Baidarman, given their ages and their evidence as to the effects which these events had had on them, as well as the steps they had taken in the aftermath of the accidents. It followed that no need for specific deterrence arose. 29 As to subjective matters, it was submitted that the evidence revealed the defendants' genuine remorse and contrition for their breaches of the Act. Consistently with that position, they had entered early pleas and had fully co-operated with the Authority. This should be reflected by way of mitigation of the penalty, including in relation to utilitarian savings, which included efficiency in the administration of justice and saving witnesses the need to give evidence. Consideration 30 Consistently with the Crimes (Sentencing Procedure) Act 1999, the determination of sentence in cases such as this, must be approached from a consideration of the nature and seriousness of the offences in question, together with aggravating and mitigating factors. 31 The evidence well demonstrated why a plea was entered by each defendant. These offences were plainly very serious. The agreed facts revealed that the obvious and foreseeable risk that an unsupported free standing brick wall of the kind constructed at this site, over the course of some days, would collapse, was both foreseen and most regrettably, materialised. That the risk involved serious injury or death, if a person was struck by a falling, three metre high, brick wall, was also obvious and in fact resulted in Mr Hands' most unfortunate death. 32 Mr John Carrick provided an expert's report on the collapse, in which he reported that the wall was slender and unstable in its unsupported state; extremely vulnerable to being overturned by wind with a speed of as slow as 2 kilometres per hour; and capable of being tipped by the slightest inadvertent contact. The wall collapsed at a time when both Mr Hands and other workers were in close proximity. In Mr Carrick's opinion, the potential instability of such a structure would normally be recognised by people working at "all supervisory levels as 'the builder' ". 33 The parties each addressed questions of culpability of these defendants for the risk here in question, in the context of the charges laid against others who had also contributed to the risk. It was common ground that the approach to be here adopted is that discussed by the Full Court in Fernandes Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Steven Jones) [2002] NSWIRComm 364 at [47]-[48]: 47 Before his Honour, the appellant argued it was the responsibility of the Department of Public Works and Services to erect the perimeter scaffolding. That was a conclusion with which Boland J agreed (para [35]). Equally, his Honour was unequivocal in his view that the appellant could not evade its responsibilities in this area by simply pointing to the Department of Public Works and Services and pleading economic duress as a critical factor in persuading them to press on with the work despite the absence of perimeter scaffolding. On this point his Honour said: Although it is clear from the evidence that the responsibility for erecting the scaffolding lay with the Department, it is also clear that the defendant was acutely aware of the need for safety scaffolding. Mr Bullock agreed in his evidence that construction work should not have been proceeding without the perimeter scaffolding in place. 48 This finding of his Honour only confirms earlier decisions of this Court as to the responsibility for common risk on building sites where numerous contractors are engaged in various capacities. On this point, we reiterate what was stated in WorkCover Authority of NSW (Inspector Byer) v Cleary Brothers (Bombo) Pty Limited (2001) 110 IR 182 at [65] and cited with approval in WorkCover Authority of NSW (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 at para [54]: However, where an operator continues to operate in circumstances that present an obvious and known risk to persons working at the site and which constitutes an offence under the Act, the culpability of the operator will not be removed by the fact that other persons may also have responsibilities in relation to the safety of the site generally, or related responsibilities as to a particular operation at that workplace. And again in WorkCover v Schrader at para [61]: The duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject, of course, to a consideration of whether the risk emanated from the relevant 'undertaking' and 'place of work'. However, when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 (at 437) and WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 at [31]; Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 and Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99 34 The parties differed, however, as to the result of the application of that approach in this case, where other persons and entities apart from these defendants, including Mr Moore and KLA Constructions, have been charged with offences under the Act, (but not Mr Didio), and where Mr Didio and Mr Moore have been charged with manslaughter. None of those charges have yet been heard. 35 I am satisfied that in fixing penalty, consistently with the approach discussed in Schrader, attention must be paid to each defendant's respective contribution to the risk in question, having regard to the evidence here led. The corporate defendant was the owner of the property and the principal contractor on site. It has been charged with an offence under s 10(1) of the Act as a person who had control of the premises. The charges laid against Mr Rosenbaum and Mr Baidarman flow from the provisions of s 26(1), by virtue of their positions as directors of the corporate defendant, in circumstances where they each were also personally involved in the project. 36 These defendants each properly accepted their obligation under the Act to be proactive in relation to safety, accepting that they could not delegate to others such as Mr Didio and Mr Moore, their obligations under the Act. 37 In considering the nature and seriousness of those offences, it is relevant to take account of the fact that the need to ensure the stability of structures such as the wall which here collapsed, was a matter addressed in various parts of the paper safety system which the corporate defendant had in operation, even though site specific details had not been put into place, as those systems contemplated. The relevant Australian Standard was also identified. While these paper systems could have been improved, had the systems in place been absent, undoubtedly these offences would have been more serious than they were. 38 In any event, the expert evidence suggested that this structure was so unstable, that it did not require a safety system, for those involved in the supervision of this bricklaying project, to recognise the danger it posed. Indeed, the site supervisor Mr Didio in fact identified the risk and raised it with Mr Moore, the bricklaying subcontractor. Again, in assessing the objective seriousness of these offences, it is relevant that the corporate defendant did engage an experienced supervisor, who in fact, recognised that risk. Had there been no supervisor engaged, or had the risk been entirely unidentified by the supervisor, these offences would also have been more serious. 39 While neither Mr Rosenbaum and Mr Baidarman, themselves recognised the need to brace the wall before it collapsed, Mr Didio, the supervisor engaged by the corporate defendant to work at the site, did. Mr Baidarman's evidence was that he attended the site most days and had discussed safety issues which had arisen from time to time with Mr Didio and the relevant subcontractors. There was no suggestion that this risk was ever raised with him by Mr Didio or anyone else. Mr Rosenbaum had also attended the site about twice a week and he, too, had discussed safety matters with those working on the site, on such occasions. Again, there was no suggestion that this risk had been discussed with him. Mr Rosenbaum recollected a scaffolding erected adjacent to the wall which collapsed, a few days before the accident and deposed, after consideration that 'this could have acted as a barrier in the event of the fall of the wall.' 40 The possibility, that given their experience in the building industry, that Mr Rosenbaum and Mr Baidarman should themselves have recognised the risk, was not explored in the proceedings. Neither Mr Rosenbaum nor Mr Baidarman were required for cross examination, they having each accepted their responsibility for the offences with which they were charged and the problems which had flown from their reliance on the expertise of others. 41 On the evidence, the approach adopted by Mr Didio and Mr Moore to the obvious risk posed by this unbraced wall, appears entirely inexplicable, given the extreme instability of the structure and the fact that work was proceeding in close proximity to the wall. The defendants properly accepted their guilt for the offences charged. From the individual defendants' point of view, culpability flowed from the corporate defendant's obligations to ensure safety at these premises. The systems in place did not ensure either that a risk was not created by the erection of an unbraced wall. Nor did it ensure that once the risk had been created and recognised by Mr Didio, that he acted to ensure that it was removed, as he should have. Clearly, Mr Moore's assurances to Mr Didio, ought not to have been given, or accepted. The supervision provided to Mr Didio, also failed to ensure that he did not permit such an unsafe situation to persist. 42 This circumstance is not dissimilar to that considered by the Full Court in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121. There at issue was the defendant's responsibility for a risk to safety which had arisen at a construction site, in circumstances where the defendant's site manager had detected the risk which had there arisen, and had halted the work, more than once, so that it could be dealt with. The supervisor, also inexplicably, had later permitted the work to continue, without removal of the risk, which then materialised. While the Full Bench was divided on the question of whether the s 53 defence had been made out in the particular circumstances, there was no question that the defendant had committed the offence. Indeed the defendant accepted, as did the defendants in this case, that they could not delegate their responsibilities under the Act to ensure safety to others. 43 The offences in Fletcher Constructions had been brought under ss 15 and 16 of the Occupational Health and Safety Act 1983, not s 17, the predecessor to s 10(1). The charges there in question were concerned with an inadequate system of work and insufficient instructions. The view taken by the majority of the Full Court was that a managerial mind must be directed to ensuring that safety systems have been adequately established and were being complied with (see [40] - [43]). 44 Here, the defendants also accepted their failures under the Act, given the obligation imposed upon the corporate defendant by s 10(1). Relevant to an assessment of the seriousness of their offences however, is that these defendants had taken steps, through the activities of Mr Rosenbaum and Mr Baidarman, to themselves address safety issues on the site. Mr Baidarman was on site most days and Mr Rosenbaum twice a week. Each attended to safety matters while there. Still, neither became aware of the risk posed by this wall, or Mr Didio and Mr Moore's failure to address the risk which the unbraced wall posed, once Mr Didio had identified the risk. 45 The need to be proactive, so as to ensure a safe system of work was discussed by the majority in Fletcher Constructions and at [80], it was concluded that the risk there in question, resulted from the supervisor's adoption of a plainly unsafe method of work. Similarly, here the supervisor, having recognised the instability of the wall and the need to have it braced, failed to act to ensure that the wall was braced. At [81] and [82] of Fletcher Constructions, it was concluded by the majority that: 81 His Worship confined his attention in examining culpability (and ultimately the s53 defense) to the adoption of an unsafe work method by Mr Eckford. However, there was no examination of the failure of the respondent to specify at all , a work method for the carrying on of concrete pumping operations that was safe, and in particular, where the boom was of insufficient length to, of itself, permit pumping to safely occur. The system of work established by the respondent at this workplace was, in essence, whatever Mr Eckford directed. The corporate managerial mind of the respondent was at no stage, nor in any way, turned to what was actually occurring on site. As was clear on the evidence of Mr Taylor set out above, prior to the accident, he was not aware of what work methods were to be adopted at the site. The particular work method adopted was "a site taken decision". What is of greater concern and will require further reference shortly, is that Mr Taylor, as the CEO of the respondent corporation, was aware of a standard work method for the pouring of concrete pillars involving the use of scaffolding and that there was "not really" any time saving factor gained in the adoption of the work method involving the scissor lift. In the absence of some periodic checking, reporting or monitoring of what Mr Eckford was, in fact, requiring at the workplace, it is difficult to envisage how a corporate respondent could itself, as is required by the Act, have ensured there was adopted at the Macquarie site, safe work methods sufficient to provide the foundation for safe systems of work and meet the requirements of the Act. 82 In making those observations, however, I would not wish to be taken as establishing a requirement that all businesses must develop extensive written documents setting out, in detail, every aspect of a particular task. What is required is dependent upon the particular circumstances and will be heavily influenced by the nature of the work and the exigencies of the particular work environment. It is inappropriate to attempt to spell out what is required in any given situation. However, one thing is clear. The method of work, as one component of a safe system of work, is a foundational element on which other matters such as training, supervision and the selection of appropriate plant and equipment may often depend for their effective operation. It is the employer's obligation to "ensure" that the system is safe. The respondent's system of work did not ensure that the method of work adopted was safe. Indeed, it did not purport to turn its mind actively to the appropriate system to be adopted, although, on the evidence such, a system was available (and known). It is for this reason the respondent was guilty of the offence. It is against these assessments that questions of "reasonable practicability" under s53 of the Act must properly be tested. 46 AT [91] - [92], the reason why the defendant could not make out a s 53 defence was explained. 91 There is some merit in the submissions of senior counsel for the respondent. However, they ultimately fail to acknowledge the final link in the chain that would have been necessary to make out this argument. There was no evidence that the "system" of the respondent in these proceedings did, in fact, involve the respondent, in any way, checking on the actions of Mr Eckford - be it by way of reporting to the board or in some other way. That Mr Taylor only became aware of the work method utilised in pouring the concrete pillars after the accident, is consistent with there being a lack of this final fail safe checking mechanism. 92 As is clear from the evidence of Mr Eckford given in cross-examination, he was the one responsible for site safety, he was the one with full authority to make alterations to the work methods and he was the one who did in fact make alterations to the work methods following the accident. There was nothing in the evidence of Mr Eckford, Mr Taylor, or any of the other evidence on behalf of the respondent to indicate that the "system", for which Mr Hodgkinson contends, contained this final element - that is, the respondent satisfying itself that such safety steps were, in fact, being taken by its qualified, responsible site manager. How then could the respondent satisfy itself that the method of work being adopted was safe? 47 Again, while it appears that there was in this case, a 'managerial mind' directed to ensuring safety at the site, the attention paid was inadequate. Nevertheless, it must follow that, had neither Mr Rosenbaum or Mr Baidarman themselves paid such attention to safety matters at the site, these offences would have been even more serious than they were. 48 There was no cross examination of either Mr Rosenbaum or Mr Baidarman. On the evidence they had some experience in building work. Whether their experience in building work was such that they should, like Mr Didio, have recognised the risk which arose is difficult to judge. Given that these issues were not explored in the proceedings, any conclusions about such matters can not properly be reached and any matters of doubt must be resolved in the defendants' favour. (R v Olbrich (1999) 73 ALJR 1550 at 24-28; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698-9.) Had the evidence shown that they had, or ought to have detected this risk and like Mr Didio and Mr Moore, had failed to deal with it, again these offences would clearly have been more serious ones. 49 It follows in this case, that it must be accepted that the steps which Mr Didio and Mr Moore respectively took and failed to take in relation to the bracing of the wall, were the immediate cause of the risk materialising, in circumstances where they each had responsibilities themselves to ensure safety. These defendants, nevertheless, have properly accepted their own contribution to the risk. That was a proper acceptance, given their respective control of the site as principal contractor and owner of the premises in the case of the corporate defendant, and their involvement in the project itself, as directors, in the case of Mr Rosenbaum and Mr Baidarman. 50 It was common ground between the parties that in here assessing penalty, some regard must be paid to the culpability of others who had made a contribution to the relevant risk. On the evidence here led, I am satisfied that while culpability for the risk in question was equal, as between these three defendants, the overall culpability of these defendants for what here occurred, was less than that of others involved. 51 The principle of parity was also addressed by the parties. The principle is that discussed by the High Court in Postiglione v The Queen (1997) 189 CLR 295 (at 301 - 303): The parity principle on which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike and that if there are relevant differences, due allowances should be made for them .... In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated . . . The parity principle ... recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. .... notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined, having regard to the different circumstances of the co-offenders in question and their different degree of criminality . . . . . . And, of course, it is necessary when applying the parity principle that like be compared with like . . .. 52 While the responsibility of these defendants for the risk in question was accepted, the authorities demonstrate that in fixing penalty, some account must be taken of the fact that a potential defendant, Mr Didio, has not been charged under the Act, in relation to the role which he played for the events which have led to these defendants' convictions. (See Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312 at 322; WorkCover Authority of New South Wales v Walco Hoist Rentals Pty Limited and Anor (No2) (2000) 99 IR 163 at [31] to [34].) To fail to take that fact into account in determining penalty, might be to give rise to a justifiable sense of grievance, as to the penalty imposed. Accordingly, I have taken into account. 53 It was Mr Didio, after all, who raised with Mr Moore, the principal of the bricklaying subcontractor, KLA Bricklaying Pty Ltd, the need to brace the wall, while it was being constructed. Mr Moore advised that it was unnecessary to brace the wall. Mr Didio accepted the advice, notwithstanding its apparent instability on Mr Carrick's assessment, and despite the fact that the safety system in place clearly requiring that such a wall be braced. So it was that the wall remained unbraced, up to the point at which it collapsed onto Mr Hands. While it was a matter for the prosecutor to determine, whether or not to charge Mr Didio with any offence, I am unable to accept the submission on the evidence here led, that he was less culpable for the risk in question, than these defendants. 54 I turn to the question of the element of deterrence. Given the uncontested evidence that there was no intention that the company would again engage in construction work, the prosecutor accepted that there would be but a limited role for specific deterrence as an element of penalty, in this case. It was submitted that because the company had not been wound up, the possibility that a different course might be taken in future remained and would result in some element of specific deterrence. 55 A different submission was put in relation to Mr Rosenbaum and Mr Baidarman, in respect of whom the evidence was submitted to be to different effect. It was accepted, however, that specific deterrence would also have a lesser role to play in the penalty to be imposed upon them, than would be the case if they were still engaged in building work. Nevertheless, it was argued that some account of such deterrence must be taken. 56 For the defendants it was argued that the evidence showed that Mr Rosenbaum and Mr Baidarman were in a similar position to that of the corporate defendant and specific deterrence should play no role at all in penalty. They were respectively 56 and 60 years of age; had each been traumatically affected by Mr Hands' death, which they sincerely regretted; neither had engaged in building work since the completion of this project and in reality, were in a position that the likelihood that they would engage in further work of that kind, or would re-offend, was small. 57 As for general deterrence it was argued for the prosecutor that this must play a particular role in the circumstances of this case, given that the collapse of unsupported walls on building sites have resulted in other serious accidents and prosecutions before this Court. 58 I accept the submissions advanced in relation to the issue of general deterrence. The defendants did not argue against them and given the circumstances of this accident and other cases where unsupported walls have collapsed on building sites, leading to serious injury or death, I take the view that general deterrence has a real role to play in the penalty here imposed. As to specific deterrence, I am satisfied, on the evidence, that it has a relatively small role to play in all three cases. I do not exclude it completely, but accept that the prospect that these defendants will re-offend, or will engage in building work again, given their respective circumstances, is very small. 59 In assessing penalty, also to be weighed are other relevant matters, such as the defendants' early pleas of guilty, which together with the evidence led, demonstrated their real remorse and contrition for what had resulted from their failures. The fact that this was not a case where the defendants had paid no attention to safety at the site, is also relevant in assessing penalty. Various safety systems had been implemented, which identified the need for bracing structures such as this. While those systems did not deal with site specific safety issues, the risk to safety which materialised was, in fact, identified by Mr Didio, the supervisor engaged by the corporate defendant, with day to day responsibility to ensure safety at the site. As I have observed, rather surprisingly, in these circumstances, no steps were taken by Mr Didio or Mr Moore to address that risk. These defendants also gave prompt attention to improving safety at the site after the accident. Not only did they review the paper systems in place, and take advice from a consultant, Mr Rosenbaum and Mr Baidarman themselves undertook various safety training after the accident, so that they could ensure that the defendants' obligations under the Act were met. This must also be taken into account, by way of mitigation, as must the assistance which the defendants provided to the prosecutor. 60 Despite these mitigating factors, I am satisfied that a significant penalty must result in each of these cases. While this is a first offence for each defendant, the evidence as to the severe instability of this wall, the obvious risk that even a slight wind, or an inadvertent touch, would cause it to fall and the consequences of such a fall, if the wall struck a person, make that conclusion unavoidable. The defendants had an obligation to ensure safety at this site. On the evidence, I am unable to accept the submission that in practical reality, they did not always have control of these premises. The corporate defendant was not only the owner of the property, but also the principal contractor and Mr Rosenbaum and Mr Baidarman were on the site on a daily or bi-weekly basis, a matter I have taken into account in a way favourable to the defendants, in assessing the objective seriousness of the offence. I am satisfied that the defendants properly accepted that the steps they had taken in relation to safety on the site which they controlled, failed to satisfy the onerous obligations imposed upon them by the Act. 61 I have concluded that the penalties imposed for these serious offences must be significant - reflective of the circumstance where yet another unbraced wall on a construction site has collapsed. The defendants failed to ensure that obvious and available steps which would have precluded this risk materialising, were taken. Most regrettably, Mr Hands has suffered the consequence of what was entirely foreseeable and foreseen, from such an eventuality. 62 I have concluded that a penalty of $150,000 in the case of the company and $15,000 in the case of both Mr Rosenbaum and Mr Baidarman, must result. I note that in the absence of the defendants' early pleas, the penalties must have been significantly higher. 63 In arriving at these figures, I have had regard to the evidence and the various matters I have mentioned as necessary to weigh in the sentencing process. These figures also take account of the view which I reached, that the defendants were entitled to a significant discount for the mitigating matters I have discussed, including in relation to the undoubted utilitarian savings flowing from the entry of their early pleas. 64 As to this aspect, the prosecutor urged that I adopt the approach which I discussed in Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 at [29] - [31]: 29 Account must be taken of the High Court's approach in Markarian, although, as Boland J observed in Inspector Vosu v Ace-Semi Trailer Sales Pty Ltd [2005] NSWIRComm 222, the decision in R v Thomson, R v Houlton (2000) 49 NSWLR 383, is a guideline judgment of which account must be taken in accordance with s42A of the Crimes (Sentencing) Procedure Act 1999. (See State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 102 IR 218 at [45].) 30 In this case, I take the view that it is appropriate to indicate that in respect of the utilitarian savings achieved from the entry of the early plea, I approached the determination of penalty by applying a discount of 25% for that factor, to the penalty which I had otherwise determined appropriate having regard to all of the other matters I have dealt with, including matters of aggravation and mitigation. I am satisfied that justice is best served by making this approach clear, given the interests of victims, the parties, appeal courts and the public, in an understanding of how penalties in proceedings such as this are determined, when early pleas of guilty are entered. In my view, this is of significant public interest in the administration of justice in prosecutions brought under the Act. 31 I also observe that Boland J took a similar approach in Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266 and Kavanagh J in Inspector Seneviratne v Caltex Petroleum Distributors Pty Ltd [2005] NSWIRComm 192. 65 For the defendants it was formally submitted that this approach was wrong and ought not to be followed, given the approach of the High Court in Markarian v R (2005) 215 ALR 213. 66 I am unable to accept the submission. Similar views to those which I reached in Encore Tissue have been taken by other single members of the Court. As far as I am aware, the issue has not been considered by a Full Court, because there has been no challenge to the correctness of the approach which is being adopted by members of this Court. I have not been persuaded that in the context of the scheme of this Act, that those views are wrong and I adhere to them. 67 Accordingly, I indicate that I here concluded that a discount of 25% for utilitarian savings achieved by entry of the early pleas, was an appropriate discount on the penalties which I had otherwise determined were appropriate in all the circumstances of each case. The penalties I have imposed reflect that approach. Orders 68 For the reasons given, I find each defendant guilty of the charges to which the plea was entered and record a conviction accordingly. The defendants are ordered to pay the prosecutor's costs of these proceedings, as agreed or assessed by the Court and: 1. In IRC 2997 of 2005, Innovative Property Developments Pty Ltd is ordered to pay a penalty of $150,000, with a moiety to the prosecutor 2. In IRC 2998 of 2005, Mr Eduard Rosenbaum is ordered to pay a penalty of $15,000, with a moiety to the prosecutor 3. In IRC 3001 of 2005, Mr Jacob Baidarman is ordered to pay a penalty of $15,000, with a moiety to the prosecutor ------------------------ 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.