Industrial Court of New South Wales CITATION: Inspector Alan Jeffrey Broomham v Radenko Maletic [2007] NSWIRComm 108 PROSECUTOR: Inspector Alan Jeffrey Broomham PARTIES: DEFENDANT: Radenko Maletic FILE NUMBER(S): IRC 3354 of 2005 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - s 20(1) - project manager on building site - participated in dismantling of a new type of self-erecting tower crane at direction of builder - neither builder nor project manager qualified to dismantle crane - project manager arranges for specialist to dismantle crane - arrangements cancelled at direction of builder - crane crashes during dismantling - plea of guilty entered - numerous steps taken to address operation of new type of crane and its dismantling - long history in building industry without prior convictions - breach accepted as being serious - strong subjective and mitigating factors - proper case for exercise of discretion under s 10 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Inspector Allan Broomham v Sebastian Builders and Developers Pty Ltd; Francisco Sebastian; Franco Crane Hire Pty Ltd [2007] NSWIRComm 107 CASES CITED: Inspector Cooper v Kwik-Seal Pty Ltd & anor [2006] NSWIRComm 48 at [39] et seq Thorneloe v Filipowski (2001) 52 NSWLR 60 HEARING DATES: 26/04/07 DATE OF JUDGMENT: 14 May 2007 PROSECUTOR: Mr P Skinner of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr C Fegan of counsel SOLICITORS: Dribbus Kovacevic JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 14 May 2007 Matter No IRC 3354 of 2005 INSPECTOR ALAN JEFFREY BROOMHAM v RADENKO MALETIC Prosecution under s 20(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 108 BACKGROUND 1 During 2003, town houses were being constructed on a site at 71-83 Smith Street, Wollongong. Sebastian Builders & Developers Pty Ltd ("SB&D") was the principal contractor in relation to this project and employed Radenko Maletic as the project manager for the site. During this project, Francisco Sebastian was a director of SB&D and was also a director and shareholder in Franco Crane Hire Pty Ltd ("Franco Crane"). Franco Crane owned a self-erector tower crane and that crane was hired by SB&D for use at the site from early February 2003. 2 In August 2003, certain components required to be fitted to the crane in order to meet safety standards led to arrangements being made for the crane to be dismantled. The dismantling of the crane for this purpose was undertaken primarily by Mr Sebastian and Mr Maletic. Also involved in this task was George Dugandzija who was a labourer/truck driver employed by SB&D. Mr Dugandzija was to place detour signs in the area and was to act as an observer and keep the area clear during the dismantling task. Also involved was a casual crane driver employed by Franco Crane, Harry Ackerman, who was to use a mobile crane to remove the light counterweights from the self-erector crane during the dismantling task. 3 Mr Ackerman removed between 8 - 10 of the light counterweights from the crane and left the site. A small number of permanent counterweights remained on the base of the crane. At approximately 2.20 pm, Mr Sebastian and Mr Maletic were sitting near the crane considering the User's Instruction manual. Mr Maletic operated the controller to move the trolley on the crane jib to place it in an appropriate location for the jib to be folded. As the trolley moved to the centre of the extended jib, the mast of the crane began to move, the crane overbalanced and fell to the ground. The jib of the crane and the mast came to rest on the ground between the buildings on the construction site and the extended jib travelled some 11 metres laterally under overhead power lines, over a footpath and a public road and came to rest in a public carpark outside the construction site. While an employee's car parked in the carpark was damaged by the crane jib, no injuries were sustained by any person. At the time, there were at least three or four workers on the site. AN INVESTIGATION AND CHARGES LAID 4 Following an investigation by Inspector Broomham of the WorkCover Authority of New South Wales, a number of proceedings were commenced in this Court alleging breaches of the Occupational Health and Safety Act 2000 (the Act). Mr Maletic was charged with a breach of s 20(1) of the Act; SB&D were charged with breaches of ss 8(1), 8(2); Mr Sebastian was charged with breaches of ss 8(1) and 8(2) and 10(2) by virtue of the operation of s 26(1) of the Act; and Franco Crane was charged with a breach of s 10(2) of the Act. All defendants entered pleas of guilty although some of the original charges were varied. This judgment deals with the evidence and submissions relating to Mr Maletic's participation in this incident. The related proceedings are reported as Inspector Alan Jeffrey Broomham v Sebastian Builders and Developers Pty Ltd; Francisco Sebastian; Franco Crane Hire Pty Ltd [2007] NSWIRComm 107. 5 The charge against Mr Maletic was that, on 1 August 2003, he failed, contrary to s 20(1) of the Act, to take reasonable care for the health and safety of people who were at the site being the defendants' place of work and who might be affected by his acts or omissions at work. The immediately relevant particulars of that charge were: ... 6. At all material times the defendant held no qualification with regard to the erecting or dismantling of cranes and in particular self-erecting tower cranes of the kind which was erected at the site. ... 12. At all material times on 1 August 2003 while the work of dismantling the crane was being conducted windy conditions prevailed at the site and the conduct of work of dismantling the crane during windy conditions was contrary to the crane manufacturer's 'User's Instructions Manual'. ... 13. The conduct of dismantling the crane by commencing with removal of the light counterweights before the jib of the crane was folded was also contrary to the manufacturer's 'User's Instructions Manual'. ... 14. At all material times on 1 August 2003 between approximately 10 am and 2.20 pm there were people present at the defendants' place of work namely the site who may be affected by his acts or omissions and such people included employees and sub-contractors of the company and members of the public who were using the public street known as Keira Lane and the carpark situated there. ... 15. At all material times on 1 August 2003 there was a risk to the health and safety of people who were at the site or near it within a radius into which the crane could fall, arising as a consequence of the risk of the crane collapsing and the actual collapse of the crane even though no injury was occasioned to any persons who were at risk. THE EVIDENCE 6 The evidence for the prosecutor comprised an Agreed Statement of Facts; coloured photographs taken on 1 August 2003; a User's Instruction Manual: self-erecting tower crane H/32; a risk assessment and job safety analysis dated 2 August 2003; a position paper entitled "Position to be adopted with respect to indicating devices on self-erecting tower cranes" prepared by Daniel Leavy, State Co-ordinator, Plant, WorkCover Authority dated 2 August 2002 and a "Background to the position paper" prepared by Daniel Leavy (undated); a WorkCover Training Log Book re Radenko Maletic; Improvement notices issued by Inspector Fraser dated 27 February 2003 and 3 March 2003; Australian Standards AS 2550.1-2002 - Cranes, hoists and winches - safe use, Part 1; general requirements, AS 2250.4 - 1994 - Cranes - safe use. Part IV: Tower cranes and AS 1418.4 - 2001 - Cranes (including hoist and winches). Part IV - Tower cranes; and; a record of convictions showing that Mr Maletic had no prior convictions. 7 Having regard to the number of parties involved in these various prosecutions and the overlapping facts relevant to each case, it is appropriate to set out the Agreed Statement of Facts in the present matter. That document, omitting formal parts, stated as follows: ... 2. At all material times Radenko Maletic ('the defendant') was employed by Sebastian Builders and Developers Pty Ltd ('the builders') as the project manager for the project being undertaken at various sites including the site at which the builders were the principal contractor a construction site at 71-83 Smith Street, Wollongong in the State of New South Wales where a block of townhouses were being constructed ('the site'). 3. The site was the defendant's place of work. 4. As project manager the defendant was responsible for matters including (i) the management of workers on the site, including employees and contractors of the builders; (ii) the health and safety aspects of the operations on the site. Hire of Crane by the Builders 5. In or about February 2003 the builders arranged for the hire of a self-erector tower crane identified as GFS SAEZ H-32, serial no. VO223 ('the crane') from Franco Crane Hire Pty Limited [ACN 099 928 542] ('Franco Crane'). 6. The arrangement between the builders and Franco was for the supply of the crane together with a driver and ... 7. The commencement date for the arrangement between the builders and Franco was 3 February 2003. Purchase of the Crane 8. At all material times Sebastian was a director and employee of the builders, and also a director and shareholder of Franco Crane. 9. The crane had been purchased by Franco Crane from its manufacturer in Spain in late 2002. 10. The crane was imported into Australia directly by Franco Crane arriving in early 2003. The crane was taken directly from Bond Store in Sydney to the site for erection and use there in the course of the building works, which were taking place. 11. Sebastian had travelled to Spain in order to purchase the crane directly from the manufacturer and at around Christmas 2002/New Year 2003 had undertaken a short introduction training course for assembling and dismantling the crane. He also undertook a further course in Spain on 20 May 2003 and was provided with a certificate indicating that he had satisfactorily completed 'the course for the mounting and dismantling of' the crane. Use of the Crane 12. At the time the erection of the crane took place at the site the only available 'Users Instruction Manual' was written in Spanish. Sebastian was able to read the instructions in Spanish and provide direction to the defendant who assisted with the work of erecting the crane. 13. At no time on or prior to 1 August 2003 did Sebastian or the defendant hold certificates of competency for tower crane operation or rigging. 14. On or about 13 February 2003 the defendant obtain a training log book for the crane entitling him to use the crane under supervision of a qualified operator. 15. At all material times the crane as purchased from Spain and delivered and erected at the site did not comply with WorkCover requirements for self-erecting tower cranes, and in particular did not have a load indicator. 16. Self-erecting tower cranes have become more common in New South Wales during the last five to eight years. A self-erecting crane differs from an ordinary crane in that: (i) it does not have a cabin; (ii) it is operated from a pendant controller, and the operator is able to move around as the crane is operated; (iii) it can open itself out, and fold itself back up, by automatic operation. 17. In 2003 Australian Standard 1418.1 and 1418.4, and 2055.1 and 2055.4 applied to all cranes including self-erecting cranes. Load Indicator 18. On 26 February 2002 an improvement notice was issued in relation to competency of dogmen working for Franco Crane. 19. On 3 March 2003 two improvement notices numbered 7-18425 and 7-18423 were issued by WorkCover to Franco Crane notifying it that the crane did not have a load indicator which the driver could observe in order to ensure the safe operation of the crane. The improvement notices drew to Franco Crane's attention, Australian Standard 1418.4, which required that indicating devices on self-erecting tower cranes be easily and simultaneously readable and should be located within the operator's field of vision. 20. Arrangements were made for new components to be added to the crane in order to make it compliant with the WorkCover improvement notices and with the relevant Australian Standard. Arrangements were made to disassemble the crane on 1 August 2003 in order that the new components could be fitted to it. 21. For a load to be effective and to comply with relevant Standards it would be necessary to have in place procedures to ensure that the operator was in sight of the load cell at all times during a lift. This arises because the portable nature of the operation means that the operator could be somewhere on a work site able to operate the crane but where the load cell was not visible. Dismantling of Crane 22. Approximately two weeks prior to the incident Franco Crane had employed Graeme Donaldson as crane manager, however he was not informed of the proposed dismantling of the crane and visited the site for the first time after the crane collapsed. 23. On or about 1 August 2003 the components required for installing the load indicator had arrived, and Francisco Sebastian had determined to dismantle the crane to install the load indicator. 24. In preparation for the dismantling of the crane the defendant had prepared a job safety analysis for the work to be conducted ("the JSA"). The JSA although dated on its face, 2 August 2003, was purportedly prepared by the defendant on 1 August 2003 prior to the work of dismantling of the crane being conducted. 25. The JSA called for the folding of the first jib section and then for the removal of the counterweights before the remainder of the jib was folded. The JSA prepared by the defendant was not consistent with the sequence for dismantling as required by the manufacturer's 'User's Instruction Manual', which called for the jib and mast to be completely folded before the counterweights were removed. 26. The JSA nominated one of the builder's employees, George Dugandzija ('Dugandzija'), to place detour signs to Keira Lane and monitor the public thoroughfare for vehicles. The JSA also nominated Dugandzija to be an observer to keep the area clear at all times. 27. On 1 August 2003 Dugandzija, the nominated observer, arrived at the site at approximately 1.00pm. Removal of Counterweights 28. Franco Crane employed Harry Ackerman ('Ackerman") as a casual crane driver. Ackerman had commenced working for Franco Crane a few days prior to 1 August 2003. He was allocated work on an as needs basis. 29. At approximately 10.00am on 1 August 2003 Craig Mulholland, an employee of Franco Crane, telephoned Ackerman and asked him to perform some crane driving work. Ackerman went tot the Franco Crane site and collected a mobile crane that he drove to the builder's site shortly after 10 a.m. for the purposes of removing the light counterweights from the self-erector crane. Ackerman spoke to the defendant and the two men arranged for Ackerman to place and operate the mobile crane from a location on the other side of some townhouses, out of sight of the base of the self-erector crane and its counterweights. The defendant advised Ackerman that he would assist by slinging the counterweight loads to Ackerman's crane, and the defendant the proceeded to perform this work. 30. Ackerman operated the crane and removed between eight and ten counterweights, most of which were stacked in the basement of the building site. The removal of the light counterweights from the crane was completed by approximately midday. Ackerman left the site and returned to the Franco Crane crane yard. 31. When Ackerman had finished removing the light counterweights there remained a small number of counterweights on the base of the crane. 32. From the time of the removal of the light counterweights the crane was in an unstable state and was susceptible to forces including (i) wind, including wind gusts; (ii) any movement on the crane itself 33. On 1 August 2003 when the counterweights were being removed from the crane (i) Ackerman was under the defendant's direction;. (ii) Dugandzija was not present at the site; (iii) the defendant had no previous experience in dismantling cranes, including self-erecting tower cranes. Crane Collapse 34. Sebastian arrived at the site at around 1.00pm on 1 August 2003 in order to assist in the completion of the dismantling process. Both Sebastian and the defendant then referred to the manufacturer's 'User's Instruction Manual' in order to complete the dismantling process. 35. At all material times the manufacturer's 'User's Instruction Manual' stipulated inter alia the following: At page 36: ASSEMBLING AND DISMANTLING THE CRANE WHEN IT IS WINDY IS FORBIDDEN At page 46: The assembly and dismantling of the crane can be only carried out by a professional specialised in assembling and duly qualified with specific knowledge of the crane H-32. In the case that this is not fulfilled, the manufacturer will decline any responsibility. At page 152: WARNING! THE CRANE MUST ALWAYS BE ASSEMBLED AND DISMANTLED WITH THE JIB FOLDED . At page 153: ASSEMBLING OR DISMANTLING THE CRANE WITH THE JIB UNFOLDED IS FORBIDDEN. At page 154: WARNING! THE CRANE CANNOT BE UNFOLDED IF ONLY THE TWO ASSEMBLY COUNTERWEIGHT BLOCKS ARE PLACED 36. Neither the defendant nor Sebastian considered the strength of the wind on 1 August 2003, including any effect of the surrounding buildings on prevailing or forecast wind conditions. 37. The meteorological aviation report observations for Bellambi and Albion Park issued by the Bureau of Meteorology for 1 August 2003 indicates that during the period between 10.00am and 2.30pm on that day there were wind speeds between 15 and 31kph and wind gusts between 24 and 41kph. 38. Shortly prior to 2.20pm on 1 August 2003 Sebastian and the defendant were sitting together on the concrete step next to where the crane was positioned. They were both still referring to the User's Instruction Manual. The project manager was holding the pendant controller, and operated the controller to move the trolley on the crane jib to position it in its appropriate location in order for the jib to be folded. As the trolley was positioned in the centre of the extended jib the mast of the crane started to move and the crane over balanced and fell to the ground. 39. The jib of the crane and the mast came to rest on the ground between the buildings on the construction site. The extended jib travelled some 11 metres laterally underneath overhead powerlines, over a footpath and public road, Keira Lane and came to rest in the public car park outside the construction site. 40. An employee's car was damaged by the crane jib, however no injuries were sustained by any persons. 41. At the time of the crane collapse there were numerous workers on-site including: (i) Dugandzija (ii) Craig Leggett, a sub-contractor engaged by the builders (iii) the defendant (iv) Sebastian Offences 42. The defendant in the conduct of his undertaking as project manager of the site failed to ensure the health and safety of people who were at the site being the defendant's place of work, contrary to s20(1) of the Occupational Health & Safety Act, 2000. Miscellaneous Matters 43. The defendant is no longer employed by the builders, but continues to be employed in the construction industry. 44. The defendant has no prior convictions under the occupational health and safety legislation. 8 It was accepted by the prosecutor that, at the time of this accident in August 2003, this type of crane was new and while current standards and codes dealt with older cranes and did not address the special problems or particular aspects of the new cranes. At the time of the incident, WorkCover was working towards a standard protocol. In August 2002, Mr Leavy, the State Co-ordinator - Plant with the WorkCover Authority, issued a Position Paper concerning self-erecting tower cranes. That paper stated that self-erecting tower cranes were required to comply with the requirements of the Occupational Health and Safety Regulation 2004 including being designed to the appropriate Australian Standard AS 1418.4. A problem arose because a number of these cranes were brought into New South Wales without load indicating devices required under the Standard. The newer cranes were frequently operated remotely via pendant or remote radio control. As a result of this difficulty, suppliers and users had been striving to retrofit load indicators, some of which were inadequate. WorkCover's position was that a load indicator that could be read at the point of operation, even when remote from the crane, was the most appropriate means to address the risks associated with this part of the operation of the crane and would fully comply with the intent of the Australian Standards. It was noted that Australian Standards were currently being developed for the design and safe use of self-erecting tower cranes. The background paper to the Position Paper discussed the difficulty of compliance with existing Australian Standards and the risks faced by owners and users of this new type of self-erecting tower crane if they did not have a load indicator fitted that could be read at the point of operation even when remote from the crane. 9 Inspector Leavy gave oral evidence and described his role as including developing statewide policies and giving general advice to the inspectorate and industry which included advice in relation to cranes. He noted that self-erecting cranes had gained popularity in New South Wales in the late 1990s and were very popular by early 2000. Mr Leavy accepted that the Australian Standard needed to be more precisely expressed to cover these types of self-erecting cranes and was written for older types of cranes operating with a cabin, a seated operator and readily available readouts. He accepted that the Position Paper was a stop gap until the Australian Standard was altered, which occurred in 2004. The crane involved in this incident required another crane in order to remove its counterweights. Mr Leavy described how the crane in this incident operated, with the whole base rotating with counterweights placed on the base most of which were able to be removed except for the bottom two counterweights which were permanent. Mr Leavy expressed the opinion that, when the non-permanent counterweights were removed, the crane was unstable. This was now addressed by specifications providing that the non-permanent counterweights were not to be removed until the crane was dismantled. 10 In cross-examination, Mr Leavy accepted that, while the Australian Standard was being developed these types of cranes were inspected and issued with compliance notices. These cranes were required to have a read out and load indicator and fitting these items to the crane were dealt with by way of compliance notice. In order to permanently fit these items to the crane, the tower crane had to be lowered to the travelling position with the jib arm folded back before the lower non-permanent counterweights were removed. If ideal conditions were present, the counterweights would not be removed. 11 Peter Maher gave a statement to Inspector Broomham and also gave oral evidence. He described how he entered the carpark area across the road from the building site on the date of the incident and had finally parked on an apron of the entrance to the carpark across the road from the building site. He did not see any barricades preventing access to the area nor did he see any signs or detour signs indicating that access to the area was denied or restricted. In cross-examination, Mr Maher said he believed that Keira Lane was a two-way street but had been told just before giving his evidence that it was a one-way street. He believed it was a two-way street and had not observed any one-way signs in the laneway. Documents from Wollongong Council initially indicated that no one-way signs or restrictions had ever been placed on Keira Lane although subsequent information showed that, in June 2002, a traffic management plan was lodged requesting that the laneway be temporarily signposted as one way to assist in traffic control past the work site. That request had been approved by Council on 28 June 2002 with the signage being current during the period of development and with the requirement that it be removed on the completion of construction. 12 For the defendant, statements were tendered from Mr Maletic, Mr Hanlin (a director of Atlas Electrical), Mr George Dugandzija and two statements from Mr Matthew Winderbank (from Wollongong City Council). Mr Maletic was now working with another builder in the position of site manager on a project involving the construction of a 160-room hotel, commercial office space and mixed use retail development. He had been employed by SB&D between August 2001 and January 2004 initially as a foreman/supervisor and, later in early 2003, as project manager. In that position he was directly responsible to Mr Sebastian and reported to him daily. He described his responsibilities as the day-to-day determination of priorities of tasks to be undertaken. Mr Sebastian had the overall discretion to direct him and to change the job scheduling. When working at the Smith Street project, he held the trade qualification as a carpenter and joiner (obtained in 1990), a dogman's ticket, a forklift licence, an elevated platform and a bobcat licence: all of these were WorkCover accredited qualifications. Mr Maletic said he had no qualification, however, in dismantling the self-erecting tower crane used at the site. 13 Mr Maletic had reviewed his actions in relation to the dismantling of the crane in August 2003 and accepted completely that he was negligent in being involved in undertaking that task. He pointed out that he was at all times under the direction of Mr Sebastian but in no way sought to minimise his responsibility or his liability. He expressed his sincere regret for his negligence and that it had created a risk to the safety of the members of the public and his work colleagues. His realisation of what might have occurred in this incident caused him great stress and anxiety. 14 During the Smith Street project, Mr Maletic said it became apparent that the work required a tower crane of some description rather than a mobile crane: this was discussed with Mr Sebastian in approximately October 2002. Stage 1 of the development had then been completed and Mr Sebastian agreed that Stage 2 would require a tower crane. As co-director of Franco Crane, Mr Sebastian spoke with the other co-owner, Frank Vellar, and discussed purchasing a tower crane suitable for the job. In approximately December 2002, Mr Sebastian travelled to Spain and purchased the crane that was ultimately involved in the incident. The tower crane was imported into Australia in early February 2003, being delivered to a holding yard at Port Kembla. It was inspected by Mr Maletic, Mr Vellar and Franco Sebastian. The crane was delivered to the site, to be assembled there and Mr Maletic discussed that task with Mr Sebastian. Mr Sebastian stated that he had been shown how to assemble the crane when in Spain: it was easy and the two of them could perform the task. Mr Sebastian said he had the instruction book for the crane. 15 On 21 February 2003, Francisco Sebastian, with Mr Maletic's assistance, erected the crane. Mr Sebastian used the manual provided, which was written in Spanish, his native language. Mr Maletic understood that the manual also contained instructions for dismantling the crane. Mr Sebastian erected this crane with the assistance of a mobile crane from Franco Crane which was used to lift the light counterweights into position. Mr Maletic stated that at all times Mr Sebastian directed the total operation of the erection of the self-erecting tower crane. The task was concluded without mishap. 16 Once the new crane was on site, Mr Maletic said he was faced with the problem that he had not seen such a crane before, it was new to the industry, and he needed to know who was qualified to drive and operate it. He contacted WorkCover inspectors at Wollongong, Nowra and Gosford branches shortly after February 2003 in an attempt to ascertain the necessary qualifications and requirements. None of the inspectors could assist in answering his enquiries because the crane was new to the market. Mr Maletic said he knew each of the inspectors personally and held them in high esteem but, like the market, they were not informed about this new device. Mr Leavy's Position Paper dated August 2002 provided no information as to the qualifications required to dismantle the crane. Prior to the collapse of the crane, the only guidance available in relation to the operation of the crane was from Mr Sebastian along with the manual written in Spanish. The English version of that manual was only received by Mr Sebastian on the day that the crane collapsed. Mr Leavy's document dealing with the interim requirements for operating self-erecting tower cranes was written in December 2003, some four months after the incident. 17 It was noted by Mr Maletic that, before the crane was erected, there were negotiations between SB&D and Franco Crane for Franco Crane to provide a crane on site together with a qualified operator for the duration of the job. Mr Bond was engaged as the qualified operator and Mr Maletic believed he was qualified to undertake the task of dismantling the crane: he thought that there were other Franco Crane employees also qualified for that task. Shortly after the crane was erected, Mr Maletic contacted Mr Vellar to enquire as to the relevant WorkCover requirements for its operation. In those discussions, Mr Maletic requested Mr Vellar to provide safe work method statements, a job safety analysis and a risk assessment, but they were not provided. Franco Crane was to provide signage, which Mr Maletic purchased on behalf of SB&D, and Mr Vellar asked him to liaise with WorkCover in relation to the crane. Mr Maletic then contacted Mr Leavy of the Gosford office of WorkCover and arranged for the appropriate registration forms to be sent to Franco Hire. Prior to dismantling the crane, Mr Maletic said there were two incidents involving the crane which he believed required notification to WorkCover: he made these reports immediately in each case and also informed Mr Sebastian of those notifications. 18 In early March 2003, WorkCover inspectors visited the Smith Street site and issued improvement notices in relation to the crane, requiring it to be fitted with a load indicator. Mr Sebastian ordered the required parts from the Spanish manufacturers in May 2003 after he had sought quotes from local competent suppliers - those quotes were rejected by Mr Sebastian as being too expensive. In approximately mid-July 2003, Mr Sebastian told Mr Maletic that the components had arrived in Australia and would be stored at Customs before release, a period of approximately two weeks. 19 Mr Maletic discussed with Mr Vellar the task of retro fitting the components to the crane: Mr Vellar suggested, and he agreed, that the best course was to engage experts for the dismantling task, to fit the components and recommission the crane on completion. Mr Vellar asked him to make those arrangements. Mr Maletic contacted Atlas Electrical Pty Ltd (Atlas) and spoke to Mr Hanlin, a director, approximately one week before the collapse of the crane. Mr Hanlin was asked to undertake the complete task in relation to the crane and they discussed the rates and resources for that task to be undertaken on 2 August 2003. Mr Maletic informed Mr Vellar of those arrangements with Atlas and, shortly thereafter, Mr Vellar agreed with those arrangements. Mr Maletic then prepared a JSA dated 2 August 2003. The JSA bore that date because it was the date the work was to be performed by Atlas. The JSAs covered the complete task of dismantling the crane, retro fitting the parts and recommissioning the crane. 20 At approximately 7.00 am on 1 August 2003, Mr Maletic had received the required parts to be fitted to the crane when Francisco Sebastian arrived at the office. Mr Maletic informed him that Atlas was to perform the complete retro fit after the matter had been discussed with Mr Vellar, but Francisco Sebastian was not happy with those arrangements because of the cost of Atlas doing the job. Mr Maletic told him that he did not know how to do the task, that Mr Sebastian was too busy, while Atlas knew what it was doing and also told him that Mr Vellar had agreed and had asked Mr Maletic to arrange for Atlas to do the total job. Mr Sebastian then said that they would do the job themselves and told Mr Maletic to organise a crane to come to Smith Street to remove the light counterweights from the crane. Francisco Sebastian said he had to attend a meeting but that he would return at lunchtime when they would dismantle the crane themselves. Mr Maletic asked him to leave that task to Atlas because it was already booked and ready to dismantle it the following day, but Mr Sebastian said he did not want to pay penalty rates for Atlas to do a simple job they could do themselves. Mr Maletic responded that Mr Sebastian was the boss and it was up to him. He then made arrangements for a mobile crane from Franco Crane to attend the site to remove the light counterweights as Mr Sebastian had required. Mr Maletic spoke to Mr Mulholland, the crane co-ordinator for Franco Hire, who told him that a crane would be on site between 9.30 am and 10.00 am that morning. No other procedure was mentioned. Mr Maletic then spoke to Mr Hanlin at Atlas to inform him that Mr Sebastian had altered the arrangements for Atlas to dismantle the crane, that Mr Sebastian would now do that himself and Atlas was to complete only the retro fitting along with the recommissioning and testing on Saturday, 2 August 2003. At that point, the position was that the crane would be dismantled on Friday, 1 August 2003 when Mr Sebastian returned to the site, be left in a dismantled position for Atlas to retro fit and test the crane on Saturday, 2 August 2003. No transportation was ever contemplated. 21 At approximately 10.00 am on Friday, 1 August 2003 a mobile crane driven by Mr Ackerman arrived at the site from Franco Hire. Mr Ackerman did not provide a dismantling procedure. At approximately 9.30 am Mr Maletic telephoned Mr Dugandzija and asked him to bring detour signs and witches hats to the site to control traffic around the site. Mr Dugandzija was asked to be present at the site at approximately 12 noon when it was expected Mr Sebastian would return to the site. Mr Maletic then advised all site personnel that the crane was being dismantled that afternoon and they should all leave the site after lunch. Only three people remained on site: Mr Maletic, Mr Leggett and Mr Dugandzija who arrived at approximately 1.00 pm. Mr Maletic helped Mr Dugandzija unload the signage and witches hats and saw him place them at the southern side of Keira Lane, approximately 20 metres south of the entry gate to the site. There was a carpark opposite the site and the placement of the signage and witches hats permitted cars entering the lane to enter the carpark at the southern entry, travel through the carpark and exit via the northern entry thereby avoiding the site. At the northern exit of the lane, approximately two metres from the site entry, detour signs and witches hats were placed allowing north bound traffic to exit the carpark and the general parking area. 22 In relation to the tower crane, as directed by Mr Sebastian, Mr Maletic acted as a dogman for Mr Ackerman when removing the light counterweights from the tower crane: this task was completed by approximately 10.30 am. Mr Sebastian returned to the site at approximately 2.00 pm with a copy of the crane manual written in English. The English manual had arrived with the parts on 1 August 2003. Mr Sebastian read the manual and directed Mr Maletic in the task of dismantling the crane. Mr Sebastian told him to take the controls of the crane and that he would read the manual to him and would tell Mr Maletic what to do next. This process was followed and the crane collapsed. Mr Maletic rejected any suggestion that Mr Sebastian was not fluent in reading English but noted that the Spanish version of the manual was not on site that day. 23 Mr Maletic saw Mr Maher enter Keira Lane before the collapse of the crane and park next to a skip bin. Mr Maletic said that Mr Maher had driven contrary to a one-way sign - his understanding from a traffic management plan was that the lane was a one-way street. After the collapse of the crane, WorkCover attended the site and ultimately gave approval for the removal of the crane. Mr Maletic again stated "without reservation" that he acknowledged he did not have the qualifications to be involved in the dismantling process and that he had no experience with such crane operations. He stated that he was still "sick to his stomach" at the thought that someone might have been injured and, as a result of the accident, he was in a "daze" for a long period of time. He stated that it hurt him that somebody might have been injured, yet it could have been easily avoided and that he should have been more insistent that Atlas perform the work. He sincerely regretted that he was not more responsible in relation to that matter. He also noted that Franco Crane had a group of qualified operators who were capable of controlling the dismantling process and he should have insisted that Mr Sebastian engage one of the competent drivers from Franco Crane to perform the task. 24 Mr Maletic stated that he was determined to see that the accident was examined and procedures implemented to prevent it happening again under his supervision. He brought about the engagement of National Safety Management Pty Ltd to review and advise on the implementation and development of a safety plan for SB&D and published that plan to all the supervisors, employees and management of SB&D. He then reviewed the site plans on a monthly basis. Since the accident, he had undertaken a detailed course with the Department of Commerce relating to the writing and implementation of safe work method statements. He had also participated with his present employer in an accreditation process resulting in the company being one of the few fully accredited in Australia by the Office of the Federal Safety Commission. 25 An affidavit from Mr Hanlin stated that he was a director of Atlas and confirmed the arrangement made with Mr Maletic for a crew to attend the tower crane at the site on 2 August 2003. Mr Hanlin said that he had been engaged through Mr Maletic to be responsible for the decommissioning of the crane, changing the necessary components to enable installation of a digital load indicator, to recommission the crane and to recalibrate the unit. On the day before this task was to be undertaken, Mr Maletic informed him that Mr Sebastian did not want Atlas to decommission the crane and that would now occur prior to the arrival of Atlas on Saturday, 2 August 2003. Several hours later, he was informed by Mr Maletic that the 2 August 2003 plans were cancelled because the crane had collapsed. 26 At the time of the incident, Mr Dugandzija had been employed by SB&D for approximately two years as a labourer/truck driver holding a dogman's certificate. He was a mechanic by trade. He was on site at the time of the collapse of the crane but he was not aware of the work method statement describing the safety precautions to be taken to assemble, operate and dismantle the self-erecting tower crane. He said he was not involved in that part of the operation. Mr Maletic had asked him to make sure that no one was around the site, however, when he arrived at the site, there were very few employees present. He placed detour signs at both ends of the lane near the carpark and had "a look around". He noted that the carpark was not full. A few days prior to the incident, Mr Maletic had told him that there would not be anybody around because the crane was being decommissioned. At the time of the incident there was some wind, "like a breeze", which were the conditions at approximately the time that the crane collapsed. DELIBERATION 27 The objective seriousness of this breach was stressed by the prosecutor and accepted by counsel for the defendant. The dismantling of a large and heavy crane with an extended jib by people who were not qualified to perform that task presented a clear risk to safety not only of the small number of people on site but also for those members of the public who were using Keira Lane and the carpark. The steps taken to isolate these public areas by signage and witches hats may not have been as effective as it should have been. The Users Instruction Manual which accompanied the crane, present on site in its English version, prohibited the dismantling of the crane in windy conditions, warned that the crane must always be dismantled with the jib folded, prohibited the crane being dismantled with the jib unfolded and warned that the crane could not be unfolded with only the two permanent counterweight blocks in place. Here, the jib stretched 32 metres and fell outside the site into the public carpark. 28 The prosecutor accepted that this was a first offence in a 16 year working history in the building and construction industry. Mr Maletic had entered an early plea and had co-operated with the WorkCover Authority. 29 Counsel for Mr Maletic accepted that his conduct fell short of prudent operation but placed that conduct in the context of Mr Maletic's recognition of his shortcomings and lack of qualification to perform the dismantling task so he took the initiative in engaging Atlas to perform that task. The only reason he participated in this task without the assistance of qualified operators was because of his employer's direction and of Mr Sebastian's insistence. Mr Sebastian not only operated SB&D but co-owned Franco Crane and had travelled to Spain and had received some training in the erection and dismantling of this particular crane. Mr Sebastian had received a certificate of training in that regard and Mr Maletic was aware of that fact. He was aware that it was not appropriate to be involved with Mr Sebastian in the dismantling of the crane but he succumbed to the directions given by his employer and, in fact, had to cancel that part of the operation to be conducted by Atlas. Placed in this context it needed to be recognised that a criminal conviction was likely to have more effect on an individual, including affecting the ability to obtain further employment in this industry than a conviction might have for a corporation. While accepting that a strong case had to be made for such an approach, it was submitted that this was an appropriate case to apply s 10 of the Crimes (Sentencing Procedure) Act 1999. 30 I agree with the concession made on behalf of the defendant that this was a serious breach of the Act. Mr Maletic was in a position of some responsibility and authority within SB&D and appeared to have been acutely aware of his lack of qualifications to be involved in the decommissioning of this particular tower crane. In normal circumstances, the objective seriousness of the offence and considerations of general and specific deterrence would lead to a significant fine being imposed conditioned by a number of subjective considerations, including the fact that, in a long history in this inherently dangerous industry he had a clean record, had entered an early plea, had co-operated with the WorkCover Authority and had demonstrated contrition for his participation in this incident. Those factors, in this case, would lead to a substantial reduction in the penalty. 31 Having regard to the above matters, the Court has to consider whether or not this is an appropriate case for the application of s 10 of the Sentencing Act. Section 10(1) provides that, without proceeding to conviction, a court finding a person guilty of an offence may make an order directing that the relevant charge be dismissed or an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding two years. In deciding whether to make an order under sub-section 1, the court is to have regard to (a) the person's character, antecedents, age, health and mental condition; (b) the trivial nature of the offence; the extenuating circumstances in which the offence was committed; and any other matter that the court thinks proper to consider. This Court and its predecessors, in exercising the jurisdiction under the 1983 and 2000 Acts have frequently referred to the rarity of circumstances that would justify the exercise of the discretion under s 10. That approach has been acknowledged in other jurisdictions including prosecutions under environmental law as acknowledged by the Court of Criminal Appeal in Thorneloe v Filipowski (2001) 52 NSWLR 60. 32 The circumstances before the Court involve a difficult balancing of a number of relevant considerations. The offence is a serious breach and not a trivial offence but that alone does not prevent the application of s 10 (see the discussion in Inspector Cooper v Kwik-Seal Pty Ltd & anor [2006] NSWIRComm 48 at [39] et seq.). Mr Maletic was in a senior position and had authority to engage appropriately qualified people to undertake this dangerous decommissioning task. He was acutely aware of his own lack of qualification to perform that task. Balanced against those considerations is the fact that, in recognition of his own lack of qualifications and the need to have properly qualified people to perform the decommissioning task, he had taken steps to consult with Mr Vellar and urged the engagement of qualified operators from Atlas to undertake the entire task of decommissioning, installing the new safety components and recommissioning the crane. His natural instincts were that this was a task that should be performed by somebody else who was appropriately qualified to safely perform that task and I conclude that it was only the intervention of Mr Sebastian that led Mr Maletic to become involved in the decommissioning task and to cancel the use of Atlas for that purpose, although Atlas were then to install the components and recommission the crane. When Mr Maletic succumbed in those circumstances, he was aware that Mr Sebastian had a certificate evidencing his training in the erection and dismantling of this crane and that his task would be to assist Mr Sebastian. In all other respects, he took the type of action that would be expected to ensure the safety of those on the site: he had arranged for the site to be cleared except for a small number of people at the time when the decommissioning was to take place; he arranged for signage and other indicators to isolate the public traffic flow from the site during the decommissioning process, although not while the counterweights were being removed; prior to the decommissioning, he had been actively seeking assistance from the WorkCover Authority as to the appropriate qualifications for those driving and operating the crane, which was (in this form) relatively new to the industry and for which there had not yet been developed fully detailed guidelines. 33 The Court is to give consideration to the matters identified in s 10 of the Sentencing Act and has already determined that the offence is not trivial, but that fact does not conclude the matter. The evidence before the Court supports a finding that Mr Maletic is a conscientious project manager who normally would promote safe working arrangements at his site. He has no prior convictions and the circumstances of this offence may properly be regarded as extenuating: the action he took in dismantling the crane at the direction of Mr Sebastian seems to be something of an aberration - he is unlikely to offend in his way again. 34 It must be recognised that s 20 of the Act has an important role to play in making employees understand their responsibility for taking reasonable care for the health and safety of people at their place of work who may be affected by their acts or omissions at work. While the importance of that objective is accepted, this is one of those rare cases where the appropriate course is to find the offence proved but to order that the charge be dismissed pursuant to the provisions of s 10(1) of the Sentencing Act. I am in no doubt that the position in which Mr Maletic found himself when confronted by the directions of Mr Sebastian is not an uncommon event in the Australian workplace. It requires a particularly strong person to reject the directions of an employer even where considerations of safety are present. Not every such acquiescence will justify the exercise of the discretion under s 10(1) of the Sentencing Act but, in the present circumstances, Mr Maletic was able to be satisfied that he had taken a number of steps to ensure the safety of the area and that the task would be performed by assisting a person who had been trained to erect and dismantle this particular crane at a time when there was little industry assistance available by way of guidelines or codes. These factors combined bring this matter within that small number of cases where the exercise of the discretion under s 10(1) is appropriate to be exercised in favour of the defendant. 35 The order of the Court is: (a) the defendant is found guilty of a breach of s 20(1) of the Occupational Health and Safety Act 2000 as particularised in matter No IRC 3354 of 2005 to which the defendant has entered a plea of guilty; (b) without proceeding to conviction the Court orders that the charge be dismissed; (c) the parties are to bear their own costs of the proceedings. 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.