Industrial Court of New South Wales CITATION: Inspector Jones v James Denson and Anor [2006] NSWIRComm 234 PROSECUTOR Inspector Steven Jones PARTIES: FIRST DEFENDANT James Nicholas Denson SECOND DEFENDANT JB Metal Roofing Pty Limited FILE NUMBER(S): IRC 635 and 633 of 2005 CORAM: Boland J CATCHWORDS: Occupational Health and Safety - Prosecution under section 8(1) of the Occupational Health and Safety Act - Construction industry - Four employees working at height without harnesses being attached to anchorage points - Guilty plea - Penalty imposed Criminal Procedure Act 1986 LEGISLATION CITED: Industrial Relations Act 1996 Fines Act 1996 Occupational Health and Safety Act 2000 Inspector Steven Jones v Walker Group Constructions Pty Ltd [2006] NSWIRComm 11 Inspector Yeung v Donald Edward Wilson Trading as Wilson's Tree Service (2005) 143 IR 187 CASES CITED: Markarian v R (2005) 215 ALR 213 McColl v John Watson Building Services Pty Limited and Dowdon Contracting Pty Limited (2004) 137 IR 310 WorkCover Authority of New South Wales (Inspector Blake) v Walker Group Pty Ltd [1997] NSWIRComm 139 HEARING DATES: 02/06/06 DATE OF JUDGMENT: 07/18/2006 PROSECUTOR Mr P Skinner of counsel Solicitor: Ms H Cameron WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: FIRST DEFENDANT Mr R Warren of counsel Solicitor: Mr M Ball Harris Wheeler SECOND DEFENDANT No Appearance JUDGMENT: - 21 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Boland J Tuesday 18 July 2006 Matter No IRC 633 of 2005 INSPECTOR STEVEN JONES v JB METAL ROOFING PTY LIMITED Prosecution pursuant to s 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 635 of 2005 INSPECTOR STEVEN JONES v JAMES NICHOLAS DENSON Prosecution pursuant to s 8(1) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of that Act JUDGMENT [2006] NSWIRComm 234 1 James Nicholas Denson ("first defendant") was a director of JB Metal Roofing Pty Ltd ("second defendant"). The second defendant had been contracted by Walker Group Constructions Pty Ltd to undertake metal roof and wall cladding work at an industrial complex at the corner of Mamre Road and Erskine Park Road, Erskine Park ("the site"). 2 On 4 November 2003, Inspector Steven Jones of the WorkCover Authority of New South Wales attended the site and witnessed four employees of the second defendant - Jason Paziuk, Peter Kroehnert, Gerard Cornish and Phillip Fleming - working at height on the roof of two sections of the complex. Both Mr Paziuk and Mr Kroehnert had on harnesses and lanyards whilst working. However, they were not attached to an anchorage point on the roof. Both Mr Fleming and Mr Cornish were wearing harnesses. However, they were not attached to an anchorage point on the roof and no anchorage points had been installed on that section of the roof where they were working. 3 Both defendants were prosecuted by Inspector Jones, the first defendant under s 8(1) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of that Act and the second defendant under s 8(1) of that Act. Section 8(1) provides: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 4 Section 26(1) provides: 26 Offences by corporations—liability of directors and managers (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 5 The first defendant, Mr Denson, pleaded guilty to the charge. Harris Wheeler, a firm of solicitors, initially represented the second defendant. On 11 May 2005 a plea of guilty was entered for the second defendant. On 27 June 2005, Harris Wheeler filed in the Industrial Registry a Notice of Ceasing to Act for the second defendant. Matter No IRC 633 of 2005 was called on for mention on 1 June 2006 because my Associate had received a communication from the prosecutor that in light of his failure to contact the second defendant and in light of the Notice of Ceasing to Act, he intended seeking leave to proceed ex parte in the sentencing proceedings listed for hearing on 9 June 2006. The second defendant entered no appearance. 6 The prosecutor and my Associate made further attempts to contact the second defendant at its registered office but those attempts were unsuccessful. My Associate contacted Harris Wheeler and inquired whether its former client had been advised of the sentencing hearing listed for 9 June. The answer was in the affirmative. On 9 June, the first defendant, a director of the second defendant, was in the Court when Matter No IRC 633 of 2005 was called on 9 June 2006. He did not respond. 7 Section 250 of the Criminal Procedure Act 1986 provides: 250 Procedure where accused person does not obey order to appear If the accused person does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned), the court may, if satisfied that the order was served on the accused person: (a) proceed to hear and determine the matter in the absence of the accused person, or (b) if the court thinks the matter should not proceed on that day or without the accused person, adjourn the hearing to a specified time and place and make an order for the apprehension of the accused person under Division 2. 8 The Court is satisfied by virtue of an affidavit of service by Lourie Aiden Rhodes, a licensed commercial agent, that the second defendant was duly served on 3 March 2005 with the relevant order made under s 246(1) of the Criminal Procedure Act 1986, as applied by s 168 of the Industrial Relations Act 1996. The Court proceeded to deal with the charge ex parte on the basis of a guilty plea. 9 The application for order in respect of the first defendant alleged that the defendant failed to: ensure the health, safety and welfare at work of all its employees, and in particular Jason Paziuk, Phillip Fleming, Gerard Cornish and Peter Kroehnert contrary to section 8(1) of the Act. The particulars of the charge are: (a) At all material times the defendant was a director of the corporation. (b) At all material times the corporation was an employer. (c) At all material times the corporation employed Jason Paziuk, Phillip Fleming, Gerard Cornish, and Peter Kroehnert. (d) At all material times the corporation was performing roofing work on an industrial complex ("building") at the site. (e) The corporation failed to provide a safe system of work with respect to the roofing work performed at the site in that the corporation failed to ensure that its employees were provided with and were using an adequate fall prevention system whilst working at heights on the roof of the building and whilst accessing the roof of the building. (f) The corporation failed to provide such information, instruction, training and supervision as was necessary to ensure the health and safety at work of its employees in relation to the use of fall prevention systems for work conducted at heights. 10 In relation to the second defendant it was alleged the defendant failed to: ensure the health, safety and welfare at work of all its employees, and in particular Jason Paziuk, Phillip Fleming, Gerard Cornish, and Peter Kroehnert, contrary to section 8(1) of the Act. The particulars of the charge are: (a) At all material times the defendant was an employer. (b) At all material times the defendant employed Jason Paziuk, Phillip Fleming, Gerard Cornish, and Peter Kroehnert. (c) At all material times the defendant was performing roofing work on an industrial complex ("building") at the site. (d) The defendant failed to provide a safe system of work with respect to the roofing work performed at the site in that the defendant failed to ensure that its employees were provided with and were using an adequate fall prevention system whilst working at heights on the roof of the building and whilst accessing the roof of the building. (e) The defendant failed to provide such information, instruction, training and supervision as was necessary to ensure the health and safety at work of its employees in relation to the use of fall prevention systems for work conducted at heights. 11 A statement of agreed facts was tendered in relation to the first defendant. Relevantly, the statement provided the following facts: 6 On 17 October 2003 Inspector Jones visited the site and issued the following Improvement Notices: · Improvement Notice no. 39094 to Walker Group: "Employees/Persons may be exposed to risk of injury due to inappropriate access to roof area. Persons use Elevated Work Platform as point of landing." · Improvement Notice no. 39093 to Walker Group: "Principal contractor failed to ensure that a sub-contractor/s written safe work method statement for work to be carried out complies with clause 224 of the OHS Regulation 2001." · Improvement Notice no. 39092 to Garry Denson: "Employees/Persons may be exposed to risk of injury due to unsafe access/egress to roof work area. Persons access roof area using Elevated Work Platform as point of landing." 7 On 4 November 2003 Inspector Jones attended the site to carry out a compliance inspection following the issue of the Improvement Notices. 8 On this date Inspector Jones introduced himself to Daniel Bacic, site manager, employed by Walker Group and an inspection was conducted. 9 During the site inspection, Inspector Jones observed the following: · An industrial warehouse under construction of approximately 15,000 square metres in size. · Various construction workers carrying out various construction activities. · A scaffold stair access to a roof known as the Main Office Roof. · Two persons working on the edge of the Main Office Roof approximately 6 to 7 metres in height, none were attached to any fall prevention system. · Both persons were wearing a harness. · Two persons working in close proximity to the edge of a roof known as the Transport Office Roof approximately 3 metres in height, none were attached to any fall prevention system. Both persons were wearing a harness. · An access ladder to the Transport Office Roof 10 On 4 November 2003, Inspector Jones took photographs of the site. A copy of 8 photographs taken by Inspector Jones on this date are attached and marked "A". 11 JB Metal employed the following persons to undertake the roofing work at the site: · Jason Paziuk ("Paziuk"), 29 years of age, was employed as a labourer. · Peter Kroehnert ("Kroehnert"), 48 years of age, was employed as a leading hand. · Gerard Cornish ("Cornish"), 32 years of age, was employed as a labourer. · Phillip Fleming ("Fleming"), 28 years of age, was employed as a roof plumber. 12 At the time of Inspector Jones' visit to the site, Paziuk and Kroehnert were fitting upstands and trays for the airconditioning fans and were working approximately 2.5 metres from the edge of the Transport Office roof of the industrial complex. 13 Both Paziuk and Kroehnert had on harnesses and lanyards whilst working, however, they were not attached to an anchorage point on the roof. The parapet wall located on the edge of the roof that Paziuk and Kroehnert were working on was between 500 to 1200 millimetres in height. 14 Paziuk and Kroehnert used a ladder to access the Transport Office roof and did not use a fall prevention system whilst accessing the Transport Office roof. The Transport Office roof was approximately 3 metres high. 15 At the time of Inspector Jones' visit to the site, Fleming and Cornish were installing flashings on a parapet wall situated on the edge of the Main Office roof at a height of approximately 6 to 7 metres. Both Fleming and Cornish were wearing harnesses, however they were not attached to an anchorage point on the roof and no anchorage points had been installed on the roof. 16 James Denson, the sole director of JB Metal, was a supervisor of the workers at the site. 17 Following the inspection Inspector Jones issued a Prohibition Notice to Garry Denson to prevent work continuing on the main office roof and warehouse roof until a safe system of work was provided for working at heights. System of work 18 Prior to the roofing work being carried out, Daniel Bacic, Walker Group's site manager, accessed the Main Office roof to determine what work was required to be performed. 19 Walker Group required all subcontractors to provide them with copies of their safe work method statements prior to commencing work. 20 JB Metal provided Walter Group with a subcontractor safety pack which included a Safe Work Method Statement ("SWMS") for the task of fitting roof accessories. The SWMS included the following instructions: · All personnel to be trained in correct use of personal protective equipment. · Anchor points must be in place. · Ensure anchor points are inspected prior to use. · Ensure harnesses connected to plant is worn. · Fall protection system must be used. · Harnesses and adjustable lanyard rope/inertia reel must be working at all times. 21 A copy of the Job Safety Analysis was kept in the site office for JB Metal's employees and the Walker Group to view. 22 No formal training was provided by JB Metal to its employees in relation to safe working at height and the safe use and operation of fall prevention equipment. 23 The Walker Group Project Specific Safety and Injury Management Plan for the site (revision 1, last edited on 22 October 2003) provides that Walker Group will conduct regular inspections of the work areas to ensure uncontrolled hazards are eliminated or controlled. During the inspection the supervisor is to observe as a minimum, the status of company activities in relation to potential hazards including fall potential. 24 Walker Group did not identify that anchorage points had not been provided for persons to attach harnesses and lanyards to whilst working at heights on the roof of the industrial complex. 25 The Code of Practice " Safe work on roofs – Part 1 Commercial and industrial buildings" provides in paragraph 3.1: "Provision should be made to prevent persons falling if work is to be carried out within two metres of any edge on a new or existing roof from which any person could fall more than two metres or more." Events following the inspection 28(sic)In accordance with the Prohibition Notice issued, JB Metal prevented access to the roof following Inspector Jones' inspection on 4 November 2003. 29(sic)Since the incident, JB Metal have enrolled 8 employees in a safety line system course with CompBase Training Services Pty Ltd. The supervisors employed by JB Metal have completed this course including Kroehnert and James Denson. 30(sic)A revised Sub-Contractor Safety Pack including Safe Work Method Statements was produced by JB Metal on 9 November 2003. The Safe Work Method Statement for the task of fitting roof accessories included the following instructions: "Fall protection must be used. An approved handrail system will be in place on the active work platform physically preventing roof workers from being within 3 metres of roof edge. For employees working within 3 metres from the edge shall (sic) be protected by the use of an approved individual fall arrest system in compliance with AS 1891 & BS5062 which shall be constantly re-anchored to eliminating (sic) risk of a pendulum effect occurring in the case of an arrested fall. Anchor points must be in place and installed by qualified persons only. Ensure anchorage points are inspected prior to use. Roof workers not within this 3 metre perimeter will be protected by the presence of safety mesh…" Annexed to the statement of facts were eight photographs taken by Inspector Jones at the site on 4 November 2003 and "General Conditions of Subcontract" dated August 2000. 12 In addition to the agreed statement of facts, the prosecutor tendered a bundle of documents that consisted of: (1) WorkCover Code of Practice for Safe Work on Roofs. (2) WorkCover Code of Practice for Safety Line Systems. (3) Subcontractor Safety Pack dated 24 July 2003. (4) Subcontractor Safety Pack dated 9 November 2003. (5) Prior convictions record for James Nicholas Denson. 13 For the first defendant his affidavit sworn on 22 May 2006 was tendered and read together with two testimonials, the first by John Stokie, Director, MSB Electrical Pty Ltd and the second by Evan Stafford Jackson. 14 In relation to the second defendant the first defendant deposed that it was not currently trading, having ceased trading in 2005; it has no assets; it has a tax liability. Mr Denson said his company would shortly be placed in liquidation. 15 Mr Denson described his financial circumstances. It is apparent that his only assets are personal effects, a few items of furniture including a television and a fridge, a laptop computer that he has recently purchased under finance, books and DVD's. He does not own any real estate, or a car, motorcycle or boat. At the time of the sentencing proceedings he was earning a net weekly wage of $950.00 from his employment with Surfside Metal Roofing Pty Ltd but he had given his notice of resignation effective from 13 June 2006. 16 The first defendant has a personal loan under which about $7,500.00 is owed and which he is repaying at the rate of $200 per fortnight. In his affidavit the second defendant stated: I wish to leave the construction industry and find alternative employment as soon as possible. This may require me to undertake education or training for work outside the construction industry. I have in the last 6 months or so attended numerous interviews for positions outside the construction industry without success. I am looking for any unskilled fulltime employment in any industrial or commercial enterprise. I have listed myself with a variety of agencies such as Manpower, ET Australia and Adecco. I anticipate that I will earn much less than $950 net per week once I cease to work in the construction industry, particularly if I have to undertake eduction to gain qualifications for other work. If I have not secured a position outside the construction industry in the next two months I intend to undertake a Human Resources course commencing in July 2006 at Gosford TAFE. Enrolments commence on 22 June 2006. 17 Mr Denson described his approach to work prior to 4 November 2003. He stated that as at 4 November 2003, the second defendant had in place a Safe Work Method Statement ("SWMS") at the site. He stated he was on site at the Erskine Park site for about a week prior to the inspection by Inspector Jones on 4 November 2003. In that week, the supervisor, Peter Kroehnert, or himself conducted toolbox talks each day with all employees at the site, and more often than once a day if required when they started a new part of the job. In each toolbox talk the first defendant stated he reviewed the SWMS with employees, and carried out a risk assessment for the particular part of the job currently being carried out or about to be commenced. 18 Mr Denson stated that in the period prior to 4 November 2003 he regularly checked that employees were working in accordance with the SWMS. He did these checks daily between three and five times per day. Generally, he stated, when checking for compliance with the SWMS he found that employees were working in accordance with the SWMS. Further, Mr Denson deposed: It was JBMR's [JB Metal Roofing] policy at this time that any employee found not to be working in accordance with the SWMS would be given an oral warning, the employee would be directed to cease work, and a review of the SWMS would occur with the employee and the safety analysis for the work being carried out would be reassessed. If an employee had to be cautioned for not working in accordance with the SWMS on more than 3 occasions it is likely JBMR would have dismissed that employee, although this never occurred. On several occasions I did have to remind one employee, Mr Cornish, how to correctly fit his harness. In the week or so before 4 November 2003 I also met with the site foreman for the Walker Group, Daniel Basic, to discuss and consider each individual process of work which JBMR employees would undertake, and the risks involved and how those risks would be addressed. One of the safety issues I discussed with Mr Basic was the anchor points to be used on the buildings on which JBMR employees were to work. We agreed that for the main office building (on which Mr Fleming and Mr Cornish worked) the safety harnesses worn by JBMR employees would be attached to existing structural steel work which Mr Basic and I inspected and agreed was a more than adequate anchor point. I showed Mr Fleming and Mr Cornish where the anchor points to the existing structural steel were located before they commenced work on the roof. In respect of the Transport Office roof, JBMR supplied anchor plates which were to be fixed to the metal purlins by 6 or 7 12-gauge screws… each screw can take up to 5.8 kN of force. I was aware of this load capacity at the time and in my view an anchor plate fixed by 6 or 7 of these screws would be able to take 30 – 35 kN of force. The required load capacity for an anchor point under the relevant Australian Standard is 22 kN. I discussed using these anchor plates fixed with these screws with Mr Basic and we agreed they would be appropriate and safe for use on the Transport office building. 19 Mr Denson described the steps he took after 4 November 2003 to improve the approach to safety at the site. This included: (1) A review of the second defendant's SWMS. (2) A meeting with employees to explain to them the revised SWMS. (3) Enrolment of employees in a safety line systems course with Combase Training. (4) Engagement of an independent engineer to ensure the compliance of safety mesh installed at the company's sites. (5) Enrolment in a Workcover accredited occupational health and safety course. (6) Increased the level of personal checking employees' compliance with the revised SWMS. 20 Mr Denson deposed as to his personal character and participation in the local community. Further, that: I have been deeply affected by the circumstances of 4 November 2003 which gave rise to this prosecution, and of course by the other matter for which I am to be sentenced in October (sic). I sincerely regret my failure to ensure the safety at work of employees of JBMR. I also failed to ensure that all employees of JBMR followed safety instructions given to them in tool box talks and the SWMS. My failures resulted on this occasion in four employees working in a manner dangerous to themselves and to the people working around them. This is not acceptable After the incident I took steps to ensure that all aspects of JBMR's safety policies and enforcement procedures were "best practice" and in accordance with the legislative requirements, and were strictly complied with, up until JBMR ceased trading. I enrolled myself into a WorkCover accredited O.H & S. consultation course and began assisting other metal roofing companies (The Metal Roofing Company Pty Ltd and Surfside Metal Roofing Pty Ltd) in formulating their own safe work procedures. I have found the sense of responsibility required to conduct myself in a supervisory position to be an overwhelming burden given my age and experience. I have made several unsuccessful attempts to leave the construction industry since the incident and I am still making attempts to find an alternative means of earning a living. However even when I am able to secure such a position I will continue to pay the greatest attention to safe work requirements for myself and those I work with. 21 In relation to the second defendant, the prosecutor sought, and was granted, leave pursuant to r 177 of the Industrial Relations Commission Rules 1996 to read into proceedings evidence taken in the proceedings relating to the first defendant. That evidence consisted of the tender bundle in Matter No IRC 635 of 2005. Additionally, a statement of facts was tendered that was essentially in the same terms as the agreed statement of facts in Matter No IRC 635 of 2005. The prosecutor also tendered a Historical Company Extract for the defendant from the records of the Australian Securities and Investment Commission, noting that the second defendant was still registered and no administrator had yet been appointed. Maximum penalty 22 The maximum penalty applicable to the first defendant, given he has no previous convictions, is $55,000. For the second defendant it is $550,000. Careful attention should be given to the maximum penalties because, firstly, the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick: see Markarian v R (2005) 215 ALR 213 at [31]. Offending conduct 23 The second defendant failed to provide a safe system of work with respect to the roofing work performed at the site in that it failed to ensure that its employees were provided with and were using an adequate fall prevention system whilst working at heights on the roof of the building and whilst accessing the roof of the building. Further, the second defendant failed to provide such information, instruction, training and supervision as was necessary to ensure the health and safety at work of its employees in relation to the use of fall prevention systems for work conducted at heights. 24 Mr Paziuk and Mr Kroehnert had on harnesses and lanyards whilst working, however, they were not attached to an anchorage point on the roof. The parapet wall located on the edge of the roof that both men were working on was between 500 to 1200 millimetres in height. Messrs Paziuk and Kroehnert used a ladder to access the Transport Office roof and did not use a fall prevention system whilst accessing the Transport Office roof. The Transport Office roof was approximately 3 metres high. 25 Mr Fleming and Mr Cornish were installing flashings on a parapet wall situated on the edge of the Main Office roof at a height of approximately 6 to 7 metres. Both Fleming and Cornish were wearing harnesses, however they were not attached to an anchorage point on the roof and no anchorage points had been installed on the roof. 26 The second defendant provided no formal training to its employees in relation to safe working at height and the safe use and operation of fall prevention equipment. 27 Given the danger of falling from a height of three metres, let alone six to seven metres, which may easily result in death as too many of the cases that come before this Court demonstrate, it beggars belief that an employer would not take steps nowadays to ensure that employees working at height were secure. Moreover, only three weeks earlier Mr Denson had been issued with an Improvement Notice that "Employees/Persons may be exposed to risk of injury due to unsafe access/egress to roof work area. Persons access roof area using Elevated Work Platform as point of landing." This should have placed him on a high state of alert regarding the risks associated with working on the roof of the complex. 28 Nonetheless, this is not a simple case of the employer ignoring completely its safety responsibilities in relation to employees working at height. Whilst the employer failed to ensure the four employees were secured to anchorage points and failed to provide training in relation to safe working at height and the safe use and operation of fall prevention equipment, there are mitigating factors to be taken into account. 29 The first defendant was the sole director of the second defendant. Mr Denson was a young man of 25 years who was the working supervisor at the site on 4 November. The employees he was supervising were older and some possessed more experience than he. For instance, Mr Denson relied on Mr Kroehnert, an older more experienced person as his leading hand. Mr Denson was obviously aware of the risks of working at height and had supervised the installation of anchorage points where Messrs Paziuk and Kroehnert were working. In so far as Messrs Fleming and Cornish were concerned, although no separate anchorage points had been installed, the two men had been instructed to use structural steel fittings for anchorage. There was no dispute about the adequacy of these fittings as safe anchorage points. Mr Denson also arranged for toolbox talks to be held on the site where safety was discussed and at least on occasion Mr Denson had spoken to Mr Cornish about the safe fitting of his harness. 30 At the time Inspector Jones saw the four men working on the roof without their safety harness being properly anchored Mr Denson said that: At 11.30 am on 4 November 2003 whilst I was working at the site, I received a call on my mobile phone from Inspector Jorgenson, from Workcover's Parramatta office, who wanted to talk to me about another JBMR site at Campbelltown which Inspector Jorgenson was then at. The call lasted some 45 minutes. It was during this period that Inspector Jones arrived and carried out his inspection at the Erskine Park site. It may have been that if Mr Denson had not been distracted he would have noticed the employees working unsecured and done something about it. 31 In assessing the culpability of the defendants what must also be taken into account is that safety harnesses and anchorage points were provided and the four employees failed to secure themselves. Why they were not prosecuted was not explained. 32 Although an injury caused by a breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In this case, no injuries resulted but it is clear there was a prospect of serious injury or death if any of the employees had fallen from the roof. Foreseeability 33 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that is relevant to the assessment of the gravity of an offence. The four employees were working on the edge of different sections of roof of the complex. It was entirely foreseeable that without proper restraints there was the risk of falling and sustaining serious injury. Whether remedial steps available 34 The existence of simple and straightforward remedial steps that could have been taken by a defendant to avoid the risk to safety are relevant to assessing the seriousness of the offence. The remedial steps taken by Mr Denson following 4 November 2003 were uncomplicated and relatively inexpensive. If they had been taken prior to the date of the offence the breach could have been avoided. General and specific deterrence 35 Offences involving falls from heights in the building and construction industry occur with alarming regularity. There is a clear case in respect of both defendants for fixing a penalty at a level that will have an appropriate deterrent effect. 36 In so far as specific deterrence is concerned the second defendant is still registered as a corporation. I propose to include in the penalty an appropriate element for specific deterrence. Mr Denson has left the construction industry and has indicated he does not wish to continue in that field. He nevertheless, has a strong association with the industry and may, by dint of circumstance, find himself with little option but to return to construction work. I have, accordingly, included a small element in the penalty for specific deterrence. Subjective factors 37 The defendants are entitled to have taken into account as mitigating factors that they have no previous convictions and that steps were taken to avoid a re-occurrence of the offences. They are also entitled to a discount of 25 per cent for the utilitarian value of the guilty pleas. Mr Denton is also entitled to consideration for the remorse he obviously has regarding the breach as well as his cooperation with the investigating authority. 38 I regard Mr Denton as a person of good character. He took appropriate steps to rectify the shortcomings in the second defendant's safety systems following the breach and I regard the chances of him re-offending as slight. Parity 39 In Inspector Steven Jones v Walker Group Constructions Pty Ltd [2006] NSWIRComm 11, Walker Group Constructions Pty Limited was fined an amount of $90,000 for breach of s 8(2) of the Act in relation to the incident of 4 November 2003. 40 I take the view that the offence by the second defendant was more serious than that committed by the defendant in Inspector Steven Jones v Walker Group Constructions Pty Ltd given the more direct obligation on the second defendant to ensure the safety of its employees in the circumstances. I note, however, that Walker Group had a previous conviction: WorkCover Authority of New South Wales (Inspector Blake) v Walker Group Pty Ltd [1997] NSWIRComm 139. Capacity to pay fine 41 Section 6 of the Fines Act 1996 provides that: In the exercise by a Court of a discretion to fix the amount of any fine, the Court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and (b) such other matters as, in the opinion to the Court, are relevant to the fixing of that amount. 42 In McColl v John Watson Building Services Pty Limited (2004) 137 IR 310 at [24] the Full Bench stated: A Defendant who wishes to rely on the provisions of Section 6 to temper the amount of any monetary penalty bears the onus, of putting such evidence in support as is appropriate before the Court and bears the onus on the basis of the balance of probabilities, of satisfying the Court as to the truth of such evidence and its relevance to the fixing of penalties. 43 In relation to the second defendant, there was no evidence before the Court to warrant the Court exercising the discretion conferred by s 6 of the Fines Act in favour of the defendant. 44 As for Mr Denson, I accept he is a person of quite limited financial means and I propose to have regard to that in mitigation as well as the fact that the second defendant is the alter ego of the first defendant. However, the penalty fixed must ultimately reflect the objective seriousness of the offence and must not be inconsistent with the criminality of the offence: Inspector Yeung v Donald Edward Wilson (Trading as Wilson's Tree Service) (2005) 143 IR 187 at [110]. 45 Having regard to all of the relevant circumstances I consider an appropriate penalty to be applied to the first defendant is $5,000 and in respect of the second defendant, $75,000. Orders 46 The Court makes the following orders: Matter No IRC 633 of 2005 - JB Metal Roofing Pty Limited (1) The offence is proven and a verdict of guilty is entered. (2) The defendant is convicted of the offence as charged. (3) The defendant is fined an amount of $75,000 with a moiety thereof to the prosecutor. (4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. Matter No IRC 635 of 2005 - James Nicholas Denson (1) The offence is proven and a verdict of guilty is entered. (2) The defendant is convicted of the offence as charged. (3) The defendant is fined an amount of $5,000 with a moiety thereof to the prosecutor. (4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. __________________________________ 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.