Industrial Court of New South Wales CITATION: Inspector Chaston v Moussalli & Ors [2008] NSWIRComm 58 Matter Number 627 of 2006 -------------------------------------------------- PROSECUTOR: Inspector Melissa Chaston (WorkCover Authority of NSW) DEFENDANT: Mohammed Moussalli Matter Number 628 of 2006 -------------------------------------------------- PROSECUTOR: PARTIES: Inspector Melissa Chaston (WorkCover Authority of NSW) DEFENDANT: Infinity Constructions Pty Limited (ACN 056 206 172) Matter Number 629 of 2006 -------------------------------------------------- PROSECUTOR: Inspector Melissa Chaston (WorkCover Authority of NSW) DEFENDANT: Alan Yazbek FILE NUMBER(S): IRC 627, 628 and 629 of 2006 CORAM: Schmidt J CATCHWORDS: Occupational Health and Safety - prosecutions under section 8(2) and 10(1) of the Occupational Health and Safety Act 2000 - prosecutions under section 8(2) of the Occupational Health and Safety Act 2000 by operation of section 26(1) of that Act - construction industry - collapse of masonry wall on construction site - sentences - serious first offences - specific deterrence - application under section 10 of the Crimes (Sentencing Procedure) Act - unable to exercise discretion - penalties imposed - moiety to prosecutor - costs as agreed or assessed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Inspector Chaston v M&H Bricklaying Services Pty Limited (In liquidation) and Ors [2007] NSWIRComm 153 CASES CITED: Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 WorkCover Authority of New South Wales (Inspector Mulder) v United Admin Pty Limited, Daniel Nicolas and Dasco Construction Pty Limited [2007] NSWIRComm 195 HEARING DATES: 7 March 2008 DATE OF JUDGMENT: 28 March 2008 PROSECUTOR: Ms PM McDonald of counsel SOLICITORS: Shaw McDonald Pty Ltd LEGAL REPRESENTATIVES: DEFENDANT IN IRC 627 OF 2006 Mr M Moussalli (unrepresented) DEFENDANTS IN IRC 628 AND 629 OF 2006 Mr C Bolger of counsel SOLICITORS: McCabe Terrill Lawyers JUDGMENT: - 34 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 28 March 2008 Matter No IRC 627 of 2006 INSPECTOR MELISSA CHASTON v MOHAMMED MOUSSALLI Prosecution under section 10(1) of the Occupational Health and Safety Act 2000 Matter No IRC 628 of 2006 INSPECTOR MELISSA CHASTON v INFINITY CONSTRUCTIONS PTY LIMITED Prosecution under section 10(1) of the Occupational Health and Safety Act 2000 Matter No IRC 629 of 2006 INSPECTOR MELISSA CHASTON v ALAN YAZBEK Prosecution under section 10(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2008] NSWIRComm 58 1 Judgment was given in these matters on 22 June 2007 in Inspector Chaston v M&H Bricklaying Services Pty Limited (In liquidation) and Ors [2007] NSWIRComm 153. The three defendants were each found guilty of the charges brought against them under the Occupational Health and Safety Act 2000 ('the Act'), as the result of the collapse of a wall being constructed on a building site at Randwick, on 12 February 2004. This judgment deals with the penalty to be imposed for those offences. 2 The offences charged in each case were: MATTER NUMBER IRC 627 OF 2006 ... allege that MOHAMMED MOUSSALLI of 129A The Avenue, Condell Park in the State of New South Wales (the defendant) is a director of M&H Bricklaying Services Pty Limited [ACN 100 397 948] a corporation which contravened section 10(1) of the Occupational Health and Safety Act 2000 and by virtue of section 26(1) of the Act the defendant is taken to have contravened section 10(1) of the Act in that the corporation, on or about 12 February 2004 had control in the course of its business, of premises at the Department of Defence Community Facility, Avoca Street, Randwick, in the State of New South Wales, namely a single storey community centre (the building) which included a partly constructed wall (the premises) which were used by people not in its employment as a place of work and not being occupied as a private dwelling, and the corporation 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 in that: 1. At all material times the Defendant was a director of M&H Building Services Pty Limited (the corporation). 2. The corporation operated a bricklaying business. 3. By contract dated 6 January 2004, the corporation was engaged by Infinity Constructions Pty Ltd (Infinity Constructions) to erect the masonry walls of a single storey community centre building being constructed at the Department of Defence Community Facility, Avoca Street, Randwick (the site) 4. The corporation commenced work at the site at the end of January 2004. 5. The corporation at all material times engaged contractors to perform the masonry work at the site, and in particular Omer Taric, Michael Baxter, Darren Huber and Akram Kamaledine (the injured workers). 6. The corporation, at all material times, had control of the premises. 7. On 12 February 2004, whilst constructing the outer brick skin of a wall of the building, the injured workers sustained injuries when the wall unexpectedly collapsed 8. It is alleged that the corporation, having control of the construction activities at the site, being premises used by persons as a place of work, failed to ensure that the premises were safe and without risk to health in that:- a. The corporation failed to undertake an adequate risk assessment in relation to the risk of the masonry wall collapsing during construction; b. The corporation failed to ensure that the masonry wall had adequate lateral support or adequate bracing or was otherwise adequately supported to ensure that it was not at risk of collapse; c. The corporation failed to apply and monitor an adequate safe work method in relation to the construction of the masonry wall, including the rate of construction and the risk of the wall collapsing during construction; d. The corporation failed to ensure that the masonry wall was constructed in accordance with Australian Standard 3700 – 2001 Masonry Structures; e. The corporation failed to provide adequate information, instruction and training to the workers in relation to the risk of the wall collapsing during construction. 9. As a result of the said failure Omer Taric, Michael Baxter, Darren Huber and Akram Kamaledine were placed at risk of injury and in fact suffered injuries. 10. The defendant being a director of the corporation is deemed to have contravened section 10(1) of the Act pursuant to section 26(1) of the Occupational Health and Safety Act 2000. MATTER NUMBER IRC 628 OF 2006 INFINITY CONSTRUCTIONS PTY LIMITED [ACN: 056 206 172] a corporation whose registered office is situated at Level 1, 67 Fitzroy Street, Surry Hills in the State of New South Wales (the defendant), being an employer, on or about 12 February 2004 failed to ensure that persons other than its employees namely Omer Huber, Michael Baxter, Darren Huber and Akram Kamaledine, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking whilst they were at the defendant's place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000 in that: 1. At all material times the defendant's undertaking was to act as project managers for the construction of a community centre at the Department of Defence Community Facility, Avoca Street, Randwick in the State of New South Wales (the site). 2. By contract dated 2 October 2003, the defendant was appointed as the principal contractor by the Australian Government Department of Defence, Corporate Services & Infrastructure Group in relation to construction work being undertaken at the site. 3. By contract dated 6 January 2004, the defendant subcontracted to M&H Bricklaying Services Pty Limited (M&H Bricklaying) the construction of masonry walls of a single storey community centre (the building) being constructed at the site. 4. M&H Bricklaying commenced work at the site at the end of January 2004. 5. M&H Bricklaying at all material times engaged contractors to perform the masonry work at the site, and in particular Omer Taric, Michael Baxter, Darren Huber and Akram Kamaledine (the injured workers). 6. On 12 February 2004, whilst constructing the outer brick skin of a wall of the building, the injured workers sustained injuries when the wall unexpectedly collapsed. 7. The failings of the defendant included:- a. The defendant failed to ensure that the safe work method devised by M&H Bricklaying for the masonry construction of the building was adequate; b. The defendant failed to ensure that the masonry wall had adequate lateral support, or adequate bracing or was otherwise adequately supported to ensure that it was not at risk of collapse. c. The defendant failed to monitor adequately the work of the construction of the masonry wall being undertaken by M&H Bricklaying; d. The defendant failed to ensure that the masonry wall was constructed in accordance with Australian Standard 3700 – 2001 Masonry Structures; e. The defendant failed to provide adequate information, instruction and training to M&H Bricklaying and the injured workers in relation to the risk of the wall collapsing during construction; f. The defendant failed to inform and instruct M&H Bricklaying and the injured workers in relation to the engineer's specifications for the construction activities of the building on the site. As a result of the said failure Omer Taric, Michael Baxter, Darren Huber and Akram Kamaledine were placed at risk of injury and in fact suffered injuries. MATTER NUMBER IRC 629 OF 2006 ALAN YAZBEK of 38 Waratah Street, Kyle Bay in the State of New South Wales (the defendant), being a director of Infinity Constructions Pty Limited [ACN 056 206 172], a corporation which contravened section 8(2) of the Occupational Health and Safety Act 2000 and that by virtue of section 26(1) of the Act the defendant is taken to have contravened section 8(2) of the Act in that the corporation, being an employer, on or about 12 February 2004, failed to ensure that persons other than its employees namely Omer Taric, Michael Baxter, Darren Huber and Akram Kamaledine were not exposed to risks to their health and safety arising from the conduct of the corporation's undertaking whilst they were at the corporation's place of work in that: 1. At all material times the defendant was a director of Infinity Constructions Pty Limited (the corporation). 2. At all material times the corporation's undertaking was to act as project managers for the construction of a community centre at the Department of Defence Community Facility, Avoca Street, Randwick in the State of New South Wales (the site). 3. By contract dated 2 October 2003, the corporation was appointed as the principal contractor by the Australian Government Department of Defence, Corporate Services & Infrastructure Group in relation to construction work being undertaken at the site. 4. By contract dated 6 January 2004, the corporation subcontracted to M&H Bricklaying Services Pty Limited (M&H Bricklaying) the construction of masonry walls of a single storey community centre (the building) being constructed at the site. 5. M&H Bricklaying commenced work at the site at the end of January 2004. 6. M&H Bricklaying at all material times engaged contractors to perform the masonry work at the site, and in particular Omer Taric, Michael Baxter, Darren Huber and Akram Kamaledine (the injured workers). 7. On 12 February 2004, whilst constructing the outer brick skin of a wall of the building, the injured workers sustained injuries when the wall unexpectedly collapsed. 8. The failings of the corporation included: a. The corporation failed to ensure that the safe work method devised by M&H Bricklaying for the masonry construction of the building was adequate; b. The corporation failed to ensure that the masonry wall had adequate lateral support, or adequate bracing or was otherwise adequately supported to ensure that it was not at risk of collapse. c. The corporation failed to monitor adequately the work of the construction of the masonry wall being undertaken by M&H Bricklaying; d. The corporation failed to ensure that the masonry wall was constructed in accordance with Australian Standard 3700 – 2001 Masonry Structures; e. The corporation failed to provide adequate information, instruction and training to M&H Bricklaying and the injured workers in relation to the risk of the wall collapsing during construction; f. The corporation failed to inform and instruct M&H Bricklaying and the injured workers in relation to the engineer's specifications for the construction activities of the building on the site. 9. As a result of the said failure Omer Taric, Michael Baxter, Darren Huber and Akram Kamaledine were placed at risk of injury and in fact suffered injuries. 10. The defendant being a director of the corporation is taken to have contravened section 8(2) of the Act pursuant to section 26(1) of the Occupational Health and Safety Act 2000. 3 The offences were found proven as charged except for particular 7(f) and 8(f) in the charges brought against Infinity Constructions Pty Limited ('Infinity') and Mr Alan Yazbek (see June judgment at [133]). 4 Evidence was called from Mr Alan Yazbek, a director of the corporate defendant Infinity, and a number of documents were tendered. That evidence was received in relation to the offences of which Mr Yazbek and Infinity had been found guilty. Mr Moussalli, a director of M&H Bricklaying Services Pty Limited ('M&H Bricklaying'), which had gone into liquidation and against whom the offence charged was thereafter not pressed, continued to represent himself at the hearing on penalty. He did not lead any evidence, despite the hearing of the matter having been adjourned on an earlier occasion, in order that he could seek legal advice and avail himself of the opportunity to lead evidence on penalty, if he wished. The prosecutor's case 5 It was the prosecutor's case that each offence was a serious first offence. In the case of the corporate defendant, the maximum penalty was $550,000 and in the case of the individual defendants, it was $55,000. 6 It was submitted that the offences were broad or multifaceted, with the relevant acts or omissions falling into two broad categories, concerning failures in the applicable safety systems and work systems, during the construction of the particular wall which collapsed in February 2004. The risk which arose was the risk of the wall collapsing, with resulting serious injuries, or even fatalities. This risk was obvious and clearly foreseeable. The risk of wall instability was a risk of which the defendants were aware, being identified in contractual documentation, as well as in the applicable Australian Standard, which was referred to in the relevant plans. Those plans and the contract required that the Standard be adhered to, but it was not. 7 The failures arose from non-compliance with Infinity's occupational health and safety system and the instability of the wall constructed that day by M&H Bricklaying. The deficiencies which led to the collapse arose from the work method adopted. The original safe work method statement supplied by M&H Bricklaying to Infinity identified stability as a risk during construction. It was rejected by Infinity, which required another safe work method statement to be prepared, by reference to a WorkCover publication 'An Identification Tool for Bricklaying Hazard Profile 2001'. The result was that M&H Bricklaying prepared and Infinity accepted, a revised work method statement which did not deal with the safe construction of walls such as that which collapsed. 8 The evidence showed that the Infinity paper safety system was not complied with in practice, in significant and substantial ways. These deficiencies and Infinity's primary reliance on subcontractors such as M&H Bricklaying, having the necessary experience and knowledge to undertake the works they were contracted to perform, in a competent and safe manner, led to the manifestations of the risk of the wall collapse. 9 The evidence demonstrated serious breaches, evidenced by the nature of the injuries which resulted for those struck by the collapsing wall. The seriousness of these offences was further revealed by the simple, straightforward steps which the defendants could have taken, in order to preclude the risk manifesting. This was evidenced by the system devised by Ashby Doble after the incident, which was implemented. No defendant turned their mind to the obvious safety risk which manifested on 12 February, before the wall collapsed that day. Mr Moussalli disregarded the obvious safety risks of the approach adopted; the contractual obligation to comply with the Australian Standard and the warning signs that the wall would be unstable, as it was constructed. On the evidence, M&H Bricklaying effectively had no occupational health and safety systems in place. 10 It followed that the penalties to be imposed required both general and specific deterrence to feature as elements of penalty. The construction industry was notoriously dangerous and wall collapses frequently came before the Court in prosecutions brought under the Act. While Infinity's operation in the industry had reduced, as the result of a corporate re-organisation, both individual defendants still worked in the industry. It was accepted, in those circumstances, that diminished weight would be given to specific deterrence in the case of Infinity, but not in the case of the other two defendants. 11 As to subjective factors, as all defendants pleaded not guilty, no discounts for a plea arose. As to Infinity, it was submitted that actions taken after the collapse were delayed, taking some 2-3 years after the accident to implement. It was noted that it was difficult to determine the respective culpability of the three defendants; there were distinct obligations imposed on Infinity and Mr Yazbek, as opposed to Mr Moussalli. As to parity, the positions of Mr Yazbek and Infinity, were submitted to be the same. The case for Infinity and Mr Yazbek 12 It was argued that when assessing the objective seriousness of these offences, the Court would take into consideration, factors such as that there was a safety system in place, although the application of the system to the construction of the wall was deficient. Infinity did not simply receive documentation from M&H Bricklaying, it reviewed and found the information deficient and required a new safe work method statement to be developed, having regard to a WorkCover hazard identification tool. It was however, accepted that the new statement was deficient in not dealing with the risk of masonry walls collapsing. Infinity required adherence to the Australian Standard as a contractual term, as well as requiring propping of lintels and bracing of walls above 2.7 metres, and all other walls at the site were constructed without incident. 13 It was also relevant that while this wall was not braced, there was evidence that other walls had been constructed on this site, where bracing had been used. One of Infinity's senior site supervisors had identified concerns with the approach of M&H Bricklaying, which he had raised with Mr Moussalli, but not with those Infinity had given responsibility for site safety. Infinity had necessary resources available, to have braced this wall and propped its lintels, although it was accepted that the necessity for this work was not discussed, or planned, prior to construction commencing. 14 It was a contractual requirement that the work be supervised at all times by a qualified bricklayer. Mr Moussalli was responsible for that supervision at the time of the collapse, when the site supervisor Mr Richardson was participating in a site safety meeting. Mr Yazbek was not on site. It was relevant that the risk of the wall collapsing did not precipitate until after Mr Richardson had left. 15 It followed that this was not a case of complete ignorance of Infinity's obligations under the Act, but rather insufficient attention to detail, together with circumstances where the site supervisor had left to attend to other duties. It followed that, objectively, this was not the most serious of offences, although it was accepted that 'it may have been avoided.' 16 General deterrence was accepted as forming an element of penalty, but it was argued that in the case of Infinity, specific deterrence would have a significantly reduced role to play, given that it no longer performed work in the industry. It was submitted that Infinity's response to the accident would also be taken into account. As to Mr Yazbek, it was also argued that the likelihood of his re-offending, was diminished. Detailed submissions were advanced in relation to the steps taken by the new corporate vehicle of which he is a director, to ensure that its obligations are met, when work in the construction industry is undertaken. 17 It was also submitted to be relevant that Infinity had operated in the industry for almost 12 years, without breach of its safety obligations and that Mr Yazbek should receive the benefit of that record. Account would also be taken of the extensive evidence attesting to his good character and commitment to ensuring safety on building sites where Infinity worked. 18 It was argued that there was also evidence of remorse, shown by co-operation with WorkCover and emergency services; steps taken after the accident, to revisit safety obligations and Mr Carney visiting injured workers in hospital. Mr Yazbek had also expressed his sorrow and regret that the incident had caused injuries to various workers and had extended his apologies to them, in his evidence. 19 As to parity, it was accepted that there was an extensive difference between the size and operation of Infinity and M&H Bricklaying. It was argued however, that Mr Moussalli and M&H Bricklaying had greater culpability for what had occurred. Mr Moussalli was supervising the work directly. He was licensed and experienced; had been provided with plans which identified the maximum 2.7m height and had agreed to a contractual requirement to adhere to the Australian Standard. It was accepted that Infinity had failed to identify the risks associated with wall construction; the need for temporary bracing and the method of construction to be adopted; to discuss the method of construction with Mr Moussalli, or to remind him of the need for propping and bracing the wall, or the height to which it was to be built. It, however, did not leave the work unsupervised, Mr Moussalli was providing the supervision. It was also relevant that the risk did not materialise until after Mr Richardson had left. It was also relevant that neither Infinity or M&H Bricklaying had identified the need to induct workers in the risk of wall collapse. It was argued that it followed that Mr Moussalli had the greater culpability, in all of the circumstances. 20 An application was made under s 10 of the Crimes (Sentencing Procedure) Act 1999 in relation to Mr Yazbek. It was submitted that the evidence showed that Infinity had employees on site with responsibility for supervision; Mr Richardson and Mr Faulkner, were aware that masonry walls were not to be built higher than 2.7m. The Safety Officer, Mr Carney, had reviewed and amended the M&H Bricklaying safe work method statement. None of these employees raised any safety issues with Mr Yazbek, in relation to M&H Bricklaying. It followed that he was entitled to assume that there were no problems with the manner in which it was performing its work. Mr Yazbek was also entitled to assume that M&H Bricklaying's construction was progressing in a proper and safe manner, given its awareness of the contractual requirement to comply with the Standard. 21 It was also relevant that Infinity had a safety management plan in operation at the site and that Mr Yazbek attended the site, from time to time, to consider safety issues. Mr Yazbek's good industrial record and his character and commitment to safety, should lead to the exercise of the discretion. Prosecutor's opposition to the section 10 application 22 The prosecutor opposed the application, submitting that it would be noted that Mr Yazbek had pleaded not guilty, to a strong prosecution case, involving an obvious breach of the obligations imposed by the Act. 23 The authorities were clear, it was argued, that the s 10 discretion should only be exercised in extraordinary and exceptional circumstances. That high standard was not reached in this case, where Mr Yazbek sought to argue that others did not comply with their obligations under the Act; those failures were not known to him and therefore, grounds for the exercise of the discretion in his favour arose. 24 The evidence of non-compliance with Infinity's safety system, it was submitted, showed that such non-compliance had not been an isolated event. Nor was it an aberration, it was far reaching. Further, on the evidence, the reasons for the wall collapse here in question, were multifaceted. Those factors must also take the circumstances of this case, well away from those required by s 10, as permitting the exercise of the discretion sought. Mr Moussalli 25 Mr Moussalli had but relatively little to submit. Despite the difficulty of he making submissions about matters which he declined to give evidence about, being explained to him, Mr Moussalli persisted in his refusal to give any evidence. His submissions were short and may be conveniently quoted: MOUSSALLI: Your Honour, it was said that was the last building that was built. It wasn't the last one, it was the second. He was supposed to have scaffolding all around the job. I did inform Mr Faulkner but he didn't do it, so after the wall collapsed and we fixed it, or we done the last building, they decided to put scaffolding all around. Plus, brick layers do not raise walls. Builders raise walls. We don't carry braces on our trucks. We only carry barriers, mixes, and scaffolding. I did talk to Mr Faulkner, you know, "We're getting too high". He goes, "No, no. There's only a few more portions". He knew the wall was going too high. He could have stopped it. It's all his work, not mine. HER HONOUR: Well, one of the difficulties with what you're doing now, Mr Moussalli, is that you can't give evidence from the bar table. MOUSSALLI: I'm just giving my submission, your Honour, because I can see it's all a blame game. HER HONOUR: Just a moment. You chose not to give any evidence in the proceedings and you've chosen not to give any evidence on the hearing of penalty. If you stand at the bar table and make statements like, "I told Mr Faulkner something and he told me something else" that can't be accepted as evidence of what happened. If you want to give evidence of that kind and have it considered as evidence by the court what has to happen, in the ordinary way, is that you have to step into the witness box and take an oath or an affirmation, give your evidence and be cross examined by the other parties. Now, that's been raised with you before. We adjourned the hearing on the last occasion so that, at my urging, you could take some advice and make some decisions as to what you wanted to do and, as I understand it, you've chosen not to take that course. I'm raising this with you now in the event that you want to reconsider the approach that you've taken because of the difficulty that I'm now raising with you. MOUSSALLI: I just want to get it over and done with. I can take some blame and I do blame other people but at the end of the day to me it's an accident that happened. There's nothing else I can say, your Honour. I am not a barrister or a solicitor. I can't just sit and just go on and on and on, tell stories and, you know, it's. HER HONOUR: Well, what's happening at this stage of the proceedings, Mr Moussalli, is that I'm receiving submissions as to what penalty I should impose on the various defendants, including you, having regard to the evidence and the conclusions which I've already reached in the case and, as Ms McDonald has indicated, in your case the maximum penalty which might be imposed is $55,000, and what that penalty should be depends on the conclusions which the court reaches as to the nature and seriousness of the offence and any other relevant matters, and the relevant matters go to the circumstances in which the offence occurred. It's a little bit difficult in your case because there's no evidence, or limited evidence, but if you persist in the view that you don't want to give any evidence that's a matter for you, but you should at this point say anything that you wish to say about the penalty which the court should impose in this case. MOUSSALLI: Okay. Well, what do you mean? Just do the, just do what you have to do, what you think is right. That's all I can say, your Honour. HER HONOUR: Is there anything you want to add? MOUSSALLI: That's it. It's just an accident to me. It happened, and just as to the fine: I really can't afford it these days and I'm unemployed and I lost my homes and if I can afford it I would have paid somebody to help me out but, unfortunately, I can't so, I'm not a good talker in a court. I don't think I should be getting full blame for everything because I had tradesmen working for me, and they're all much older than me and they're all qualified. I wasn't up there on the scaffolding with them. If I was up there on the scaffolding I would have taken the blame but they were up there on their own and they seen the wall moving. They should have just stopped. I mean, they've got brains. If anyone should get the blame it should be the bricklayers on the wall, not me, because I was far way. And they know they should stop at 2.7, back up the wall, but they didn't, so they just put the blame on me because I'm the boss. There's nothing I can do. HER HONOUR: Did you wish to add anything? MOUSSALLI: That's it, and they say, brace the walls. We do not brace walls. No brick layer brace walls unless it's completely finished, because how can you brace something if it's not there? I mean, if you can just go and spend time one day on a building site where brick layers are if you can see any walls braced, you can say, "You've got to brace walls," but that never happens. We only brace free standing walls when it's a little bit windy, we just brace with the connecting walls on the outside. That's all I can say. Consideration 26 In accordance with the provisions of the Crimes (Sentencing Procedure) Act, the sentences to be imposed in relation to each of these offences, must be determined having regard to the nature and seriousness of the offence, considered together with relevant aggravating and mitigating factors. Section 21A of the Crimes (Sentencing Procedure) Act provides: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (d) the offender has a record of previous convictions, (e) the offence was committed in company, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity. The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) the offender was provoked by the victim, (d) the offender was acting under duress, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, (j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability, (k) a plea of guilty by the offender (as provided by section 22), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23). (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence. 27 In the June 2007 judgment, I observed that: 127 Wall collapses at building sites come all too frequently before the Court in prosecutions under the Act. They have resulted in the injury of many workers and the death of others. They are usually not the product of deliberate action, but rather an unforseen conjunction of events, which could have been avoided, had the necessary thought been given to the risks in question beforehand. There can be no doubt on the evidence that a risk of wall collapse is an obvious and foreseeable one, which entities such as Infinity and M&H, must attend to at building sites such as this, if the safety obligations imposed upon them by the Act, are to be met. An unsupported, unstable wall will collapse if sufficient force is applied to it. The cause of a particular collapse need not be established in proceedings such as this. It is the risk of such a wall collapsing, which must be dealt with, if safety is to be ensured, and offences are not to be committed. 28 That the evidence demonstrated that the offences here in question, while first offences, were nevertheless, serious ones, cannot be doubted. The risk of a masonry wall collapsing during construction was not only obvious, it was foreseen and dealt with in various ways by the defendants, including by the contractual requirement that M&H Bricklaying comply with the applicable Australian Standard, while constructing the wall. The contract also specified that lintels be propped. Both Infinity and M&H Bricklaying had obligations in this regard, which they did not meet. 29 This was a very substantial brick wall of some 16 metres in length and 3.4 metres in height, when it collapsed. The collapse led to the serious injury of a number of those working on the scaffold, building the wall. On the evidence, it can only be concluded that it was only a matter of good fortune, not good management, that those working on the wall were only injured, rather than being killed, by the collapsing wall. 30 In the June 2007 judgment, I found that: 90 On the evidence there can be no doubt that the wall collapsed because it was unstable. There were numerous factors contributing to its instability, including the speed with which it was built; the height to which it was taken; the green state of the walls, when the heavy lintels were placed on the brickwork and the work continued; and the failure to either prop the lintels or to brace the walls. The risk of collapse of an unstable brick wall was an obvious and known safety risk, which is sought to be addressed by the applicable Australian Safety Standards. 31 The risks associated with building masonry walls at this site were supposed to have been addressed by Infinity's safety system, which required, amongst other things, that there be a safety plan and a safe work method statement provided by M&H Bricklaying. While the safe work method statement first provided, identified masonry construction as a safety issue, the statement was rejected. Mr Carney, the Infinity safety officer, himself a qualified bricklayer, required M&H Bricklaying to produce a new statement, prepared by reference to a WorkCover hazard identification tool. Undoubtedly, that tool was inadequate, because it did not deal with the obvious risks associated with the construction of masonry walls. That was entirely regrettable and, I understand, has been attended to by a republication of the tool. Nevertheless, given the statutory scheme here in question, that cannot excuse Infinity's requirement of M&H Bricklaying, that reference to risks associated with masonry construction in the safe work method statement be removed, or M&H Bricklaying's removal of the identification of that risk. Each had safety obligations under the Act, which reliance on an inadequate hazard identification tool, could not meet. The end result was that the safe work method statement failed to draw any attention to the obvious risks associated with masonry wall construction. 32 True it is, as was submitted for Infinity and Mr Yazbek, that the Act imposed differing obligations on Infinity and M&H Bricklaying. Additionally, on the evidence, Infinity certainly did have some appreciation that the Act imposed important safety obligations, which it sought to meet through the safety systems which it was operating, albeit deficiently. The evidence in relation to the approach of M&H Bricklaying, by way of contrast, suggested an entirely inadequate understanding of its safety obligations and no real operating safety systems at all. 33 Nevertheless, the evidence also showed very substantial deficiencies in Infinity's approach to its obligations. As I found in the June 2007 judgment: 121 The problem this approach produced was all too apparent. Undoubtedly, such contractors' work needed to be assessed before they were appointed by Infinity. Thereafter, the safety of the work they undertook, had still to be ensured by Infinity. The risks associated with wall construction were not identified in the M&H document and so was not a matter drawn to the attention of M&H workers, or to Infinity staff on site. On M&H's approach, walls were braced if conditions became windy, or if it was noticed that a wall was shaky, but Mr Moussalli depended on the bricklayers drawing such things to his attention. Despite the height to which the wall was being taken, wall stability was not a matter he kept under review that day. He had left the scaffold to attend to other matters. Infinity had no-one present to supervise the work after 9 am. On its approach, Infinity required M&H to attend to bracing. Timber, acroprops and an apprentice carpenter were available on site for that purpose. On Mr Richardson's evidence, such topics were not discussed by him with M&H, and even though he inspected the wall being constructed on the morning of 12 February, he could see nothing wrong with the method of construction being adopted. He plainly cannot have noticed the speed with which the wall was being built, or that the lintels had not been propped. He also cannot have known the height to which it was intended to take the wall, beyond the height specified in the plan and the Australian Standard. 34 The evidence showed a range of other deficiencies in Infinity's approach to its obligations, which included: - Apart from the evidence of the initial induction which introduced M&H workers to the site and the deficient M&H work method statement, the evidence of information, instruction and training provided by Infinity showed that it was in truth of a cursory kind, consistent with the reliance placed on M&H and its workers. Had real thought been given to the risk of a wall such as this collapsing, the deficiency in the M&H work method statement should have been uncovered and attended to, in the training Infinity provided. Indeed, that risk was not identified, even though M&H workers were re-inducted, after the problems identified with scaffolding. Infinity proceeded on the basis of assumptions which it had made about M&H and its understanding and capacity to safely undertake required brick work. On the evidence, those assumptions were ill founded. (June 2007 judgment at [132].) - While Infinity argued that it could not always supervise the bricklaying supervisor Mr Moussalli, and that there had been adequate supervision on the day, when Mr Richardson had supervised construction up until 9 am when he left to attend the site walk, I am unable to accept the argument, on the evidence. The supervision provided by Infinity failed to ensure that this wall was not constructed in such a way that it exceeded the height prescribed by the Australian Standard, in circumstances where it was at risk of collapse, not only from its height, but from the excessive speed with which it was raised and because of the absence of support which might have prevented a collapse. Infinity could not rely on M&H to meet its obligations under the Act in relation to these matters. On the evidence neither Mr Richardson or anyone else from Infinity attended to Infinity's obligations that day. (June 2007 judgment at [130].) - The deficient document provided by M&H was, in fact, one which Infinity required M&H to produce. It did not deal at all with wall stability or the risk of wall collapse. Had those matters been dealt with M&H, the workers it engaged and Infinity's employees may well have paid proper attention to this risk. (June 2007 judgment at [128].) - Mr Richardson never gave any thought to any risks associated with the rate at which the wall was being built or the height to which it was being taken, even though the Australian Standard, which M&H was expressly required to be adhered to, required that attention be paid to this. Nor did he give thought to what was being done with the lintels. (June 2007 judgment at [123].) - Mr Richardson, Infinity's supervisor that day was not a bricklayer. He had only given a cursory consideration to the safe work method statement, when M&H first began work on site. This approach was consistent with that adopted by Infinity. In the answers given repeatedly to questions asked of him by the Inspector, Mr Yazbek said that Infinity: We don't assess the method of bricklaying. We review the identification of the potential 1 and 2 risks associated to the local work environment and assess the effects that may be imposed on the other workers in that proximity. We rely on subcontractors to have the experience and knowledge to undertake their works in a competent and compliant manner. New subcontractors are referenced to determine if they have the competence and experience to undertake the works that they are required to do by the company. With particular reference to M&H Bricklaying Services P/L I instructed Glenn Faulkner to undertake reference checks provided by M&H Bricklaying Services P/L. The project undertaken by M&H that were inspected were far more complex and of significantly larger magnitude than the works being requested for the job at Randwick. (June 2007 judgment at [120].) - Mr Richardson's approach appears to have been consistent with the evidence that Infinity had a well documented paper safety system, which was, however, departed from in practice in significant ways. The evidence showed that while the paper system may have ensured safety had it been properly adhered to, the way in which it operated did not. I have already mentioned the absence of a site specific safety plan. Mr Faulkner explained how in practice safety was assured through various documents and systems which Infinity developed, an approach which Mr Alan Yazbek, Mr Richardson and Mr Carney confirmed. Nevertheless, given a scheme which contractually obliged M&H to comply with Infinity's site specific plan, its absence led to an obvious gap in the safety arrangements in place on site. As did the other departures from that system. (June 2007 judgment at [116].) - The Company Safety Manual also imposed various safety obligations upon the project manager, in this case Mr Faulkner. On his evidence he did not attend to some of those responsibilities, but delegated them to Mr Carney, the Company Safety Officer, who also did not attend to them. The Manual also described the responsibilities of the site safety officer, as generally falling on the site foreman or sub-foreman. On this site, the responsibility was given to a 4th year apprentice carpenter. The Manual also required a site safety committee to be established. This was also not adhered to. (June 2007 judgment at [117].) - The scheme also required the provision of safe work method statements by contractors. The document provided by M&H did not identify obvious risks associated with bricklaying generally, with raising cavity walls, or in connection with lintels, which it was thought necessary to refer to specifically in the contract. They were obvious omissions, given the work M&H was engaged to perform at this site, as well as the express contractual requirement that all lintels in this building be propped. (June 2007 judgment at [118].) 35 In the June 2007 judgment, I concluded, contrary to the submissions of Infinity, that a causal connection had been established on the evidence between it and the risk here in question. I observed at [136] : Undoubtedly, Infinity relied upon the expertise of M&H. The evidence well demonstrated that M&H did not pay proper attention to its safety obligations. While Infinity could not have known this beforehand, the Act did not permit it to delegate its safety obligations in relation to the bricklaying work which M&H undertook. While Infinity's documentary safety system recognised this, the practical operation of the system did not as the evidence of Mr Carney, Mr Faulkner and Mr Richardson revealed. Mr Alan Yazbek's answers to the Inspector, where he repeatedly said 'We rely on the competence and experience of the subcontractors undertaking the works. We rely on the SWMS provided by the SWMS and the company safety Manual', put the inadequacy of Infinity's approach in practice beyond question. The approach of the Infinity employees on site to its safety obligations was consistent with Infinity's attitude - reliance on its subcontractors. Infinity had an obligation itself to ensure safety. This it failed to meet on the approach adopted by those who had responsibility for the operation of Infinity's safety system, in practice on site. The deficiencies in the approach adopted by Infinity established the necessary causal connection between Infinity and the risk of this wall collapsing, which so regrettable here materialised. Infinity plainly had the capacity to ensure that M&H attended to its obvious failures on the day that the risk materialised. This it failed to do. 36 These conclusions are relevant to an assessment of the nature and seriousness of Infinity's offence and that of Mr Yazbek. Infinity had a well established, substantial operation in the construction industry, which it had operated for some 12 years, without prosecution under the Act. That it had complied with its obligations under the Act throughout that time, is not a conclusion open on the evidence, given the evidence as to its approach to safety at this site, prior to the collapse of this wall, particularly in relation to the work being undertaken by M&H Bricklaying. Given Mr Yazbek's evidence as to Infinity's approach, either there was, in truth, not a proper appreciation of the obligations imposed upon Infinity by the Act, or a refusal to act in accordance with those obligations. The reliance he asserted Infinity was entitled to place upon subcontractors such as M&H Bricklaying, was not one available to head contractors such as Infinity, under this legislation. Infinity's obligations could not be so delegated. That approach was exacerbated by Infinity's departures from the paper safety system which it had devised. Had the system been properly adhered to, these risks ought not to have materialised. 37 As to Mr Moussalli, the evidence included statements he had given to WorkCover. As I observed in the June 2007 judgment: - There was no evidence from which it could be concluded that any thought or attention was given to the risk of this wall collapsing, given the way in which it was built on 12 February, including in relation to the rate of construction, or the height to which it was taken, giving rise to the risk that it was built out of plumb. On the evidence no one from M&H gave consideration to such matters. Not even in Mr Moussalli submissions, was it suggested that attention had been given to such matters. (June 2007 judgment at [143].) - There was no evidence that M&H provided its workers with any training in this respect. The evidence of various of the bricklayers, which I have outlined, showed that they had not received any information, instruction or training in relation to the risk of a wall collapsing during construction and that they had no real appreciation of what gave rise to such a risk, even after the wall had collapsed. There was no evidence that M&H provided its workers with any training in this respect. The evidence of various of the bricklayers, which I have outlined, showed that they had not received any information, instruction or training in relation to the risk of a wall collapsing during construction and that they had no real appreciation of what gave rise to such a risk, even after the wall had collapsed. (June 2007 judgment at [145].) 38 Mr Moussalli's submissions on penalty put these conclusions beyond any further doubt. They evidenced that even some four years after this incident, he still had no proper appreciation or acceptance of the obligations which the Act imposed on M&H Bricklaying, or that the company had breached them. Instead, Mr Moussalli submitted that he should not get 'full blame', if anyone should get blame it was the bricklayers working on the scaffold when the wall collapsed, who were working for him, because they were qualified tradesmen, who were older than him. 39 Mr Moussalli clearly did not accept that there was anything he could have done, because he was not on the scaffold. That, however, was the point. M&H Bricklaying had an obligation to ensure the safety of this work. That obligation was not met, because on Mr Moussalli's submissions, there was no supervision at all, of the bricklayers at work on the scaffold. 40 Having this in mind, it cannot be doubted that the nature and seriousness of the offence committed by M&H Bricklaying, and through it, by Mr Moussalli, was more serious than those of Infinity and Mr Yazbek. Mr Moussalli was the operating mind of M&H Bricklaying. He was present on the day, for the purpose of supervising the construction of the wall M&H Bricklaying was erecting. Despite this, he left the scaffold, effectively leaving the construction work unsupervised. 41 On any view, there ought to have been such supervision, if the obligations imposed by the Act were to be met. Nor was any supervision provided by Infinity, after Mr Richardson left. 42 It cannot be doubted that these were very serious breaches of the obligations imposed by the Act. In considering the question of penalty, I note that I have taken account of the fact that Mr Moussalli was unrepresented in the proceedings. The end result may well have been that he was less guarded in his submissions, than might have been the case, had he been legally represented. Nevertheless, the approach which he described to the obligations imposed by the Act, must be taken into account in assessing the nature and seriousness of his offence. 43 As to deterrence, given the nature of these offences and the industry in which, yet again, another wall collapse at a construction site, comes before the Court in a prosecution under this Act, there can be no doubt that general deterrence has an important role to play in the penalties to be imposed. I take note of the evidence in relation to the restructuring of Infinity, with the result that it no longer plays an active role in the construction industry. I accept that this has the effect, in its case, of diminishing the role of specific deterrence, although I take the view that it must still play some part in determining penalty. There was, after all, no evidence that the company no longer trades at all, or that it does not have the capacity, if it wishes, to take up business again. 44 Specific deterrence must have a role to play in the cases of the individual defendants, given their continuing operation in the construction industry. 45 As to subjective matters, I note that after the accident, Infinity engaged Ashby Doble to advise it on wall construction and that it then implemented the advice received. That advice demonstrated that the risks here in question could easily have been addressed before this incident, by relatively simple and readily available means. That evidence, in my view, demonstrates a proper approach by Infinity, to the rectification of an obvious failure to comply with the obligations imposed upon it by the Act. I do not accept the submission, however, that such belated compliance with its statutory obligations also evidences any remorse for the offences Infinity and Mr Yazbek had committed. To the contrary, they denied that any offences had occurred. By way of contrast, I take the view that the evidence that despite the changes to Infinity's involvement in the building industry, it had sufficient funds to meet any penalty imposed, should be accepted as some evidence of remorse. 46 Infinity's very obvious failures to adhere to the obligations imposed by the Act, were not accepted by Infinity and Mr Yazbek, who defended these charges. Undoubtedly, they were entitled to put the prosecution to proof of the offences charged. No increased penalty can result from Infinity and Mr Yazbek having elected to take that course. Nevertheless, that there was no entry of any plea, despite the very strong prosecution case, cannot be overlooked in assessing what was argued to be evidence of remorse on their part. 47 In assessing remorse, Mr Yazbek's repeated statements to the investigating Inspector as to the reliance Infinity placed on subcontractors, must also be considered. Those repeated comments also evidenced that there was no acceptance that any offences had been committed, in adopting that approach. When the commission of an offence is so repeatedly denied, that there was in truth remorse for its commission, at the time in question, cannot be accepted. 48 The apology proffered by Mr Yazbek in his evidence at the sentencing hearing, some four years after these events and after the judgment on liability was given, to those who were injured by this collapse, was understandable and no doubt genuinely given. Sorrow that injuries were suffered as the result of these offences, does not, however, of itself evidence remorse for the offences which were committed. 49 I turn then to the application under s 10 of the Crimes (Sentencing Procedure) Act. It provides: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence. 50 In considering whether the discretion granted by the section may properly be exercised in favour of Mr Yazbek, I have given consideration to the extensive evidence of Mr Yazbek's general good character and his widely known approach to safety obligations imposed by the Act on Infinity and others. This evidence was unchallenged. I have also had regard to the evidence of the significantly revised attention paid to safety by the new corporate vehicle, which has taken over Infinity's construction business. I have also noted that there have been no further charges laid against Infinity, Mr Yazbek or the new corporate vehicle, in the past four years, since this incident. 51 Having considered all of that very positive evidence, I find myself unable, nevertheless, to exercise the discretion given by the section in Mr Yazbek's favour. Her Honour Justice Staunton has extensively reviewed the authorities, in relation to the exercise of the s 10 discretion, in prosecutions brought under the Act. (See WorkCover Authority of New South Wales (Inspector Mulder) v United Admin Pty Limited, Daniel Nicolas and Dasco Construction Pty Limited [2007] NSWIRComm 195.) Her Honour observed: 83 In WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Limited (2000) 100 IR 64 the Full Bench of the Court said at [21]: The judgment of the Full Court (Fisher CJ, Bauer and Cullen JJ) of the former Industrial Court in WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 at 101, is clear authority for the proposition that the discretion under s556A would rarely be available in significant offences against the legislation and any application for the benefit of the provision should be rigorously tested. 84 The need for a rigorous approach and the proper application of the provisions of s 10 to the offences under the Act is reinforced in Profab as follows: [24] Accordingly, when an application is made to a judge of this Court in sentencing proceedings under the Occupational Health and Safety Act for the exercise of the discretion under s556A, that will invariably occur in relation to a serious breach of the Act. The purpose of the statute, which is well known and often referred to in judgments of this Court, may be referred to as one for the benefit of the public generally and particularly employees at work to prevent, deter and punish breaches of health and safety requirements. Although the discretion under s556A is wide, it is not unfettered; rather, it is limited initially to a series of defined circumstances and then extended to 'any other matter which the court considers it proper to consider.' [25] The extent of reasons for decision that a judge is required to give varies. For example as observed in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 464 at 478: The extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided ( see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-273 per Mahoney JA and at 280-281 per McHugh JA and Yates Property Corporation Pty Ltd (In liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA). In sentencing, the purpose of reasons is to make clear why the particular offence warrants the sentence imposed and it is not necessary to give detailed reasons as to all of the factors and circumstances which led to a particular conclusion: see J Robins & Sons Pty Ltd v WorkCover Authority (NSW) (1998) 83 IR 338 at 340. [26] Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s556A (cf s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission. 52 On the evidence, there can be no doubt that the offences here in question involved very serious breaches of the Act, which resulted in significant injuries to a number of people working on the wall which collapsed. Those people were fortunate indeed, that they were not even more seriously hurt, or killed. Mr Yazbek was the director of Infinity, who had direct responsibility for ensuring that Infinity's obligations under the Act were met at this particular site. Given his own evidence as to Infinity's approach, that Mr Yazbek had real responsibility for the failures which resulted in the manifestation of the risk of a wall collapsing at this site, could not be doubted. 53 Had the particular deficiencies which led to the manifestation of this risk, been drawn to Mr Yazbek's attention before the wall collapsed, this offence would have, undoubtedly, been even more serious, than it in fact was. 54 The evidence showed, however, that Infinity did not ensure that its paper safety system was operating in practice. Given this state of affairs and the obligations imposed by the Act, it was plainly not sufficient for Mr Yazbek to have simply assumed that the system was operating and that the various Infinity employees with responsibilities under the system, were attending to those responsibilities. In advancing the case for the exercise of the s 10 discretion, it was submitted that Mr Yazbek was entitled to proceed on the basis of such assumptions, including that M&H Bricklaying was meeting its statutory obligations. It was apparent on the evidence, of course, that M&H Bricklaying had no real understanding at all of what those obligations were, a matter which should have come to Infinity's attention, had its paper safety system been fully operating. 55 Given Mr Yazbek's evidence, it cannot be doubted that in truth, he was aware of the real state of affairs, in relation to the operation of Infinity's paper safety system and the way in which it had effectively delegated its obligations to subcontractors such as M&H Bricklaying. It follows that the submission that Mr Yazbek was entitled to proceed on the basis of the assumptions which he had made, simply cannot found a proper basis for the exercise of the s 10 discretion, particularly given the serious nature of the offences here proven. 56 As I observed in the June 2007 judgment: 124 There can be no doubt on all of the evidence, that the defendants failed to ensure safety at this site and that the necessary causal connection between the risk to safety and what Infinity did and failed to do, was thereby established. The Act imposes safety obligations widely. They do not just rest on subcontractors at worksites such as this. The legislation adopts a layered approach, seeking to ensure that if one person or entity upon whom these obligations are imposed fails to meet them, then the safety of those working on the site will, nevertheless, still be assured. There can be no doubt that in this instance, all those upon whom these obligations fell, failed to meet them. 57 Given the arrangements Infinity had implemented, Mr Yazbek was clearly responsible for Infinity's failure to meet its safety obligations. As discussed in Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97 at [45] by reference to the majority in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121, in this case it was Mr Yazbek who had the responsibility of ensuring that Infinity's managerial mind was directed to ensuring safety. Infinity's failures were consistent with the approach which Mr Yazbek adopted, on his own evidence. 58 The offences were of such a serious kind, that I am satisfied on the evidence, that the s 10 discretion is simply not available to be exercised, no matter that this was a first offence and that Mr Yazbek is understood in the community to be generally diligent in relation to the obligations which the Act imposes on he and Infinity. The departures demonstrated from those obligations in this case and the case advanced, that Mr Yazbek was, in the circumstances, entitled to proceed on the basis of the assumptions which he had made, cannot give the Court the necessary confidence as to the unlikelihood of any future re-offending under the Act. In my view, the offences and the attitudes which permitted them to occur, were simply too serious to permit the exercise of the s 10 discretion, consistently with the requirements of justice. 59 I turn then finally to the penalty to be imposed. Having considered all of the matters I have mentioned, I have come to the conclusion, on the evidence, that the penalty imposed on Mr Moussalli must be greater than that imposed on Mr Yazbek, whose culpability for the risks in question was similar to that of Infinity, although given its position and the resulting impact on the element of specific deterrence in its case, must lead to a somewhat lower penalty. 60 As to Mr Moussalli, I note that he made a submission that he could not afford a fine, he had lost his home and was unemployed. Despite the adjournment of the hearing however, so that he could take advice and reconsider his decision not to bring any evidence at the penalty hearing, Mr Moussalli persisted with that approach. As a result, there was simply no evidentiary foundation on which matters of the kind to which Mr Moussalli directed his submissions, could be considered in determining penalty. 61 I have concluded that a proper penalty in each case, is as follows: § Mr Moussalli - $27,500 § Mr Yazbek - $20,000 § Infinity Constructions Pty Ltd - $185,000 62 I am satisfied that the prosecutor must have a moiety of the penalty in each case and that the defendants must meet the prosecutor's costs. Orders 63 For the reasons given, I make the following orders: 1. I convict each defendant of the offence charged. 2. I impose the following penalties: § $27,500 in Matter IRC Number 627 of 2006, with a moiety to the prosecutor § $20,000 in Matter IRC Number 629 of 2006, with a moiety to the prosecutor § $185,000 in Matter IRC Number 628 of 2006, with a moiety to the prosecutor 3. The defendants are to pay the prosecutor's costs, as agreed or assessed. Failing agreement, these matters may be referred for assessment of costs. Such an application should be directed to the Registrar, in the first instance. ------------------------ 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.