Industrial Court of New South Wales CITATION: Inspector Wilkie v Anstee (No 2) [2007] NSWIRComm 20 PROSECUTOR Inspector Robert Wilkie PARTIES: DEFENDANT Barry Francis Anstee FILE NUMBER(S): IRC 5166 of 2004 CORAM: Staff J CATCHWORDS: Occupational health and safety - Prosecution under s 10(1) of the Occupational Health & Safety Act 2000 - Repair of building - Failure to maintain safe system of work in relation to removal of lead based paint and asbestos - Defendant bankrupt - Whether Fines Act 1996 applies - Effect of bankruptcy on a fine - Application for orders pursuant to s 115 and s 116 of Act - Refused consideration of the purposes of costs - Plea of guilty - Conviction - Penalty imposed Bankruptcy Act 1996 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Procedure Act 1986 Fines Act 1996 Industrial Relations Act 1996 Occupational Health & Safety Act 2000 Occupational Health and Safety Regulation 2001 Australian Winch and Haulage Co Pty Ltd v State Debt Recovery Office (2005) 189 FLR 315 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 Environmental Protection Authority v Ableway Waste Management Pty Limited & Anor [2005] NSWLEC 469 Inspector Childs v Stimson (No 4) [2006] NSWIRComm 158 Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 166 Inspector Wolf v Rockdale Beef Pty Ltd [2006] NSWIRComm 280 Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 CASES CITED: R v Thomson; R v Houlton (2000) 49 NSWLR 383 State of Victoria v Mansfield (2003) 130 FCR 376 U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector de Silva) [2004] NSWIRComm 266 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority of New South Wales (Inspector Mansell) v Chen (2004) 137 IR 33 WorkCover Authority of New South Wales (Inspector Petar Ankucic) v The Crown in the Right of the State of New South Wales (Police Service of New South Wales) [2002] NSWIRComm 335 HEARING DATES: 10 November 2006 DATE OF JUDGMENT: 14 February 2007 PROSECUTOR Mr A Searle of counsel Solicitor: Mr R P Higgins LEGAL REPRESENTATIVES: Carroll & O'Dea DEFENDANT Mr B Anstee In person JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J 14 February 2007 Matter No IRC 5166 of 2004 INSPECTOR ROBERT WILKIE v BARRY FRANCIS ANSTEE (NO 2) Prosecution under s 10(1) of the Occupational Health & Safety Act 2000 JUDGMENT [2007] NSWIRComm 20 1 This matter involves the prosecution of Barry Francis Anstee ("the defendant") in respect of an offence under s 10(1) of the Occupational Health & Safety Act 2000 ("the Act"). 2 The defendant was charged on 30 August 2002 for failing to ensure that the premises he controlled, known as "The Maltings", Ferguson Crescent, Mittagong in New South Wales, and used by people as a place of work, were safe and without risks to health. The failures alleged in the particulars of the charge were: The Defendant, on the said date at the said site, being a person in control of premises used by people, in particular Mick Roy, Paul Rigby, John Eccleston and Luke Sloggett, as a place of work, DID FAIL, contrary to Section 10(1) of the 2000 Act to ensure that the premises were safe and without risks to health. In particular, the Defendant failed to provide and maintain a safe system of work in relation to removal of lead-based paints and asbestos from the site. 3 The defendant pleaded guilty to the charge. 4 The agreed statement of facts provided: 1. At all material times, the Defendant, Barry Francis Anstee (DOB: 13 March 1949) was the sole director of Velowing Pty Ltd [ACN: 077 393 394] ("Velowing"). 2. At all material times the Defendant and Velowing owned a property located at 'The Maltings', Ferguson Crescent, Mittagong in the State of New South Wales ("the site"), as tenants in common, the Defendant owning 1/5th of the site, and Velowing owing 4/5th of the site. 3. The Defendant and Velowing had control over the site at all material times. 4. At all material times, the Defendant had control over all of the activities of Velowing and over the work practices at the site. 5. At all material times the Defendant and Velowing were conducting demolition and construction work at the site which was a place of work. Velowing was an employer in the State of New South Wales at all material times. 6. Velowing employed a site supervisor, Mr John Murdoch. 7. The internal walls of "The Maltings" building, its ceiling and timber columns upstairs were all lime-washed. Visit on 18 December 2001 8. As a result of receiving a total of three (3) verbal complaints on 5 November, 27 November and 12 December 2001, the Prosecutor attended the site on 18 December 2001. Also present was Ken Vassel, Inspector WorkCover NSW. The Prosecutor observed the following: a) Several buildings on the site in varying states of repair and or disrepair. There was a creek that divided the site and that ran the entire width of the site. The eastern side of the site was occupied by a large building varying in heights from one (1), three (3) and four (4) stories high and was described as the 'malt-house'. The building was described as the 'old' Tooth brewery. b) The building was built of brick and had several window bays and door openings. There were roof rafters evident due to missing roof shingles from several parts of the roof structure. On the western side of the building was a large white horse emblem affixed to the building. On this side and near the White Horse was an area best described as a box like entry structure. This provided access to an area with a lift shaft and is described as the 'bag-lift'. c) Both inside and outside the building, large redevelopment was taking place. This included the demolition of structures, the stripping of large steel columns of paint, construction of stairways, removal of parts of the existing flooring and walls, and trenches were dug. Housekeeping involved the piling of rubbish within the building. d) The floor area of the inside of the building was speckled with what appeared to be green and cream paint flakes. The Prosecutor took samples of these flakes near the base of the columns. These samples were forwarded to WorkCover Laboratory Services Unit. These samples tested positive for lead. e) The ground on the outside of the building was littered with broken and crumbled fibrous type cement pieces. I took samples of these products. These samples were forwarded to WorkCover Laboratory Services Unit. These samples tested positive for Chrysotile asbestos. f) Also present on the outside ground was an amount of what appeared to be creamy coloured paint flakes. The Prosecutor took samples of these flakes. These samples were forwarded to WorkCover Laboratory Services Unit. These samples tested positive for lead. g) During inspection of the first and second floor of the building, several broken pieces of what appeared to be the same or similar material that was littering the ground outside were found. (Sub-paragraphs (h) and (i) not read). j) Taking into account the exposure to lead based paints (dust and airborne particles – abrasive blasting) and asbestos, there was no direct information available in the form of a risk assessment for the possible risk of exposure to such hazardous substances, prior to and including 18 December 2001. However, where elevated lead levels in the blood of workers was identified, the worker was removed from working with lead. An example of this was Mr Mark Gleeson, who tested for elevated levels of lead in his blood in November 2001. 9. The Prosecutor took two (2) paint samples from the site on 18 December 2001 described above and sent them to WorkCover Laboratory Services Unit. Testing, reported on 4 January 2002, identified that the two (2) paint flakes samples were positive for lead with levels being recorded at 27.5 (% w/w) and 30.7 (% w/w) respectively. A copy of the test results is attached at Annexure "A". 10. The Prosecutor took two (2) fibrous cement samples from the site on 18 December 2001 and sent them to WorkCover Laboratory Services Unit. Testing, reported on 10 January 2002, identified that the two (2) samples tested positive for Chrysotile asbestos. A copy of the test results dated 10 January 2002 is attached at Annexure "B". Visit on 27 February 2002 11. A follow up visit was conducted on the site on 27 February 2002. The prosecutor attended the work site in the company of Inspector Vassel for a Compliance Follow up. John Murdoch, foreman on site, and employed by Velowing, said to me "The painters had ceased work and no work is being undertaken". The Prosecutor could see no work being performed. Visit on 30 August 2002 12. After receiving another complaint of work being conducted at the site, a further site inspection was undertaken by Inspector Vassel and the Prosecutor on 30 August 2002. 13. Present on site on 30 August 2002 were the following workers who were exposed to risks to their health and safety from lead and asbestos, in particular Mick Roy, Paul Rigby, John Eccleston and Luke Sloggett. Set out below are the Prosecutor's observations from that inspection: a. At the ground floor level inside the building known as the Malthouse which is situated at the rear of the site and closest to Southey St, were partially 'shot blasted' steel columns. The ground floor was totally covered with what appeared to be 'spent shot blast' that was littered with what appeared to be white/cream paint flakes. No containment or enclosure system was evident on the ground floor where shot blasting was taking place. b. The staircase at the rear of the Malthouse that led to the first floor was covered in what appeared to be 'spent shot blast'. The landings leading to the first floor were covered in what appeared to be 'spent shot blast' c. The first floor was covered with what appeared to be 'spent shot blast'. d. Lead based paint flakes, chips and debris had not been removed, bagged and or sealed and disposed of in accordance with Industry Standards and guidelines. e. Several workers were undertaking work within the confines of the Malthouse. I observed that access and egress for workers was through the 'spent shot blast'. I observed work being undertaken in areas that contained 'spent shot blast'. This work included bricklaying and general labouring duties. The workers doing the above work included Mick Roy, Paul Rigby, John Eccleston, and Luke Sloggett. f. The Prosecutor observed that no assessment of the risks of lead exposure had been undertaken. The Prosecutor observed that there was no adequate training or supervision on the removal of lead based paint. The equipment, being the shot-blasting machine, was deficient in that the on/off lever was at the compressor end and not at the nozzle end. The operator was unable to turn off the expelling shot blast. The Prosecutor saw no appropriate Personal Protective Equipment. The Prosecutor saw nothing to indicate that lead based paint flakes/chips/debris was being disposed of safely. Rather, such debris was just left lying where it fell. g. The Prosecutor observed that workers continued to undertake their tasks in the contamination that was present on that day. h. No suitably qualified person or company had been engaged at the time of 30 August 2002 to decontaminate the site of lead particles. Employment of an Occupational Hygienist did not occur until on or about 29 November 2002. i. Asbestos roof had been broken to gain access for the scaffold. Broken pieces of asbestos were evident. What appeared to be a new guttering system was laden with broken asbestos pieces. At the rear of and within the building approximately 40 open and split white bags of broken asbestos. No sealing of the asbestos was evident. j. On 30 August 2002 the Prosecutor observed that there was no prevention of persons gaining access to the site or contaminated areas of the site in particular from Southey St or within a certain location of the site. k. At the rear of the site there was no site security. The boundary from this side of the site (Southey St) no gate or perimeter fencing or other similar means of restricting access to the workplace was visible or in place. Access from Southey St was unimpeded; anyone could walk onto the site at anytime. Anyone could enter the contaminated building at anytime. l. The contaminated area was not fenced off to deny access. No signage was visible from Southey St identifying and warning of the hazards present on site at the Maltings. There was no signage within areas of the workplace alerting of hazards within that particular area or restricting access to a particular area. 14. On 30 August 2002, the Prosecutor took further samples of what appeared to be paint flakes and what appeared to be fibrous cement pieces and sent them to be tested at WorkCover Laboratory Services Unit. Test results dated 17 and 19 September 2002 were returned positive for asbestos identifying the samples to be Chrysotile asbestos and lead from 0.86% up to 34.3%. A copy of the test results dated 17 and 19 September 2002 are attached at Annexure "C". 15. A copy of a report from Ristech Holdings Pty Ltd dated 9 December 2002 is attached at Annexure "D". 16. Velowing went into liquidation on 17 December 2003. 17. The Defendant is an undischarged bankrupt from 28 July 2005. 18. Southern Finance & Investment Pty Ltd, being the first mortgagee of the site is in possession of the "The Maltings" property. 5 In addition, the prosecutor relied upon 60 colour photographs, two of which were taken on 18 December 2001, 47 on 30 August 2002 and 11 on 21 March 2003. 6 The defendant, who appeared in person, tendered the following: (i) a document headed "Maltings Mittagong Work Method Statement (WMS)" (undated). The defendant contended that this document was prepared on or around February 2002; (ii) a document headed "'Maltings' Mittagong Work Method Statement (WMS)" dated 15 February 2002; (iii) a document titled "WorkCover Authority of New South Wales 'Guidelines Notification of Lead Risk Work Employer Duties' "; and (iv) a document titled "Environmental Protection Authority 'EPA Home Page, Lead – Based Paint & Home Renovations' " bearing facsimile date of 25 September 2001 and Lead based Paint in Construction Work. Submissions 7 Mr A Searle of counsel, who appeared for the prosecutor, submitted that the sentencing practice in this Court under the Act involves a consideration of both the objective and subjective factors relevant to the offence and the offender. Counsel relied upon well-known authorities. Mr Searle submitted that the proper approach is to first consider the gravity of the offence, viewed objectively, keeping in mind those factors that militate the seriousness of the offence. 8 Counsel submitted that subjective factors play a subsidiary role and that there was a need for general and specific deterrence. 9 Mr Searle submitted having regard to the factual material, that the offence is a serious one, falling within the mid to high end of the range. Counsel acknowledged that the financial position of the defendant, and how it is to be dealt with in the sentencing process, is a relevant consideration, referring to s 6 of the Fines Act 1996 ("the Fines Act"). 10 In light of the financial situation of the defendant, Mr Searle submitted that the Court should give consideration to orders pursuant to s 115 of the Act, or, alternatively, an order in respect of 116 of the Act. 11 The defendant, who was unrepresented, drew attention to a number of factual matters. He submitted that the size of the building known as "The Maltings" was relevant. "The Maltings" was a malting house, which used the 19th Century process of making malt from barley. It is one of three buildings built in 1914 by Tooth & Co Ltd as part of their malting houses. The defendant contended that the inside of the building had to be of a certain health standard at the time so that the barley was not contaminated. He acknowledged that yellow and green paint that appeared on the columns inside the building contained lead. However, the defendant submitted that the rest of the building, including the internal walls was all lime washed, as was evident from the photographs. He contended that there had been four columns stripped of paint and sandblasted and the seriousness of the offence had to be seen in this context. 12 The defendant pointed to the paint samples obtained on 30 August 2002 and analysed by the WorkCover Authority of New South Wales ("WorkCover"). One sample registered 0.06 per cent lead, while the second sample registered 34.3 per cent lead. This confirmed that one of the samples was of paint, which did not contain lead. The defendant contended that this was because much of the "shot blast" on the floor of the malt house was shot blast of the lime wash. 13 Whilst the defendant accepted that his plea to the charge had been properly entered, he contended that the seriousness was quite minimal. He contended that appropriate steps were taken and a work method statement prepared requiring removal of the paint by stripper. That was found to be unsatisfactory and WorkCover was approached to advise on a proper method to encapsulate and sandblast each individual column. It was further contended this resulted in an appropriate course being taken to minimise the risk. 14 In addition, the defendant submitted that asbestos was contained in the tiles on the roof of the building, which had been laid in about 1915-1920. It was necessary to remove some of the tiles due to a fire. A work method statement was prepared in respect of this work. 15 The defendant, whilst acknowledging work was occurring at the site, which resulted in the charge being brought, submitted it was not "incredibly serious". He submitted the work involving the removal of paint containing lead and tiles containing asbestos formed a very small part of the overall work. 16 In light of the totality of the building, he accepted that there was a foreseeable risk but submitted that it was not large. 17 The defendant stated that he is an undischarged bankrupt, becoming bankrupt on 28 July 2005 and that the company, Velowing Pty Ltd, which owns 4/5ths of the site, is in liquidation. He submitted the project had cost he and his family dearly and impacts on his ability to pay any fine. He commenced business in 1971 as a builder and property developer. However, he is no longer in business and is unemployed. The defendant is 57 years of age. He has no prior convictions. 18 The defendant contended that WorkCover had only informed him in September 2006 that the decision in Inspector Wolf v Rockdale Beef Pty Ltd [2006] NSWIRComm 280 had been delivered by the Full Bench. This matter had been adjourned pending delivery of that decision, as the defendant believed he had an arguable case in respect of jurisdiction. He informed WorkCover approximately two to three weeks prior to the hearing of the possibility that he intended to plead guilty and submitted that the first opportunity he had to do that was on the first day of the hearing. 19 The defendant opposed any order pursuant to s 115 of the Act, submitting that any publication of the offence may affect the marketability of the property. He did not oppose an order pursuant to s 116 of the Act. Consideration 20 The sentencing principles to be applied in the assessment of appropriate penalties under the Act have been considered on many occasions by Members of the Court and at Full Bench level and need not be repeated here: see U-RECT-IT Pty Ltd v WorkCover Authority of New South Wales (Inspector de Silva) [2004] NSWIRComm 266 at [11]; Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 at [10]. 21 The penalty in this matter must reflect the nature and quality of the offence in question and in the case of the plea, must be approached on the basis of the principles established in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419. 22 There was a failure on the part of the defendant to ensure the safety of workers at "The Maltings", Ferguson Crescent, Mittagong on 30 August 2002. The defendant and Velowing Pty Ltd, of which the defendant is the sole Director, owned the site and had control of it. The defendant did not have in place a safe system of work in relation to the removal of lead based paint and asbestos from the malt house. Although the defendant tendered a work method statement in respect of the removal of old lead based paint from steel columns, stripped paint material was allowed to contaminate the ground. The defendant submitted that the work method statement regarding the removal of lead paint was dated February 2002. Although this was not strictly proven to be the case, a work method statement in respect of asbestos removal bears a date of February 2002. I am prepared to accept the work method statement regarding lead paint removal was dated February 2002. The defendant acknowledged that this work method statement was deficient. 23 The agreed statement of facts provides that Mr Mark Gleeson, an employee at the site, was found to have elevated levels of lead in his blood when tested in November 2001. This was prior to the charge being brought against the defendant. There was no evidence of employees being tested in August 2002 at the time the charge was brought. However, the results of Mr Gleeson's blood test should have put the defendant on notice that there existed a risk of exposure to lead in working at the site. 24 There was no evidence of any signs warning of lead paint stripping in progress and the site was readily accessible to the public. Similarly, in respect of the removal of asbestos, although the defendant had a work method statement dated 15 February 2002, there had been no proper assessment of the risks associated with the removal of asbestos or the risks of lead exposure undertaken. No adequate training or supervision on the removal of lead based paints or asbestos was undertaken. Furthermore, there was no appropriate personnel protective equipment. The lead based paint flakes and chips were left lying where they fell. 25 Broken pieces of asbestos were evident on the site and there were approximately 40 open and split white bags of broken asbestos tiles at the rear of and within the building. No sealing of asbestos was evident. Furthermore, there was no perimeter fencing on the Southey Street side of the site to prevent access to the site and the contaminated area, nor was there any signage identifying and warning of the hazards present on the site. 26 It appears that the defendant knew of the need to have a work method statement in respect of the lead based paint and asbestos, but despite having such statements, failed to ensure compliance with them. Compliance with the work method statements would have avoided the risk. These statements had identified the risks and proposed putting in place procedures to avoid the risk. Such statements are essential to ensure safe systems of work and avoid risks to the health and safety of employees. All employees on the site should have been completely aware of the necessity for strict adherence to the work method statements and it was the defendant's responsibility to ensure that they were followed. 27 The dangers of exposure to lead were discussed in WorkCover Authority of New South Wales (Inspector Petar Ankucic) v The Crown in the Right of the State of New South Wales (Police Service of New South Wales) [2002] NSWIRComm 335, where Walton J, Vice-President observed at [3]: Lead exposure represents a significant health risk depending upon the nature and duration of exposure, the form of lead and particle size. It is a toxic substance which, when absorbed, ingested or inhaled, may be retained within the body over the long term. At certain levels of contamination, lead can have adverse effects upon the nervous and reproductive systems, kidneys and can interfere with the ability of the body to make haemoglobin. 28 Under cl 345 of the Occupational Health and Safety Regulation 2001, WorkCover must be notified before any lead risk work is carried out. Sixty (60) days notice is required. Persons intending to carry out such work are also required to establish health surveillance (including blood tests) for employees. It is clear, that what was lacking at "The Maltings" site was the implementation of a co-ordinated approach to safe operating procedures for the handling and disposal of lead based paint and asbestos including the use of personal protective equipment. 29 The risks of carrying out work where employees are exposed to lead based paint and asbestos were known to the defendant and were obvious. The measures available to overcome the risks were simple and straightforward. This included employees wearing personal protective equipment and ensuring health surveillance was undertaken. Appropriate induction training and ongoing instruction and supervision should have also been provided to the employees working with the lead based paint and asbestos. 30 In respect of general deterrence, the existence of lead based paint and asbestos in older factories, buildings or homes is well known. It is appropriate to draw attention to the need for employers involved in the demolition, renovation, and painting which involve the removal of existing paint, which may contain lead, to be proactive and constantly vigilant of the need to ensure that workers are not exposed to risks to their health and safety from working in an environment where there is a risk of lead contamination. I propose to include an element in the penalty for general deterrence. 31 In respect of specific deterrence, the defendant is no longer in business and is an undischarged bankrupt from 28 July 2005. He is also currently unemployed. Velowing, a company of which the defendant is the sole Director and which owned 4/5ths of the site, was placed in liquidation on 17 December 2003. Southern Finance and Investment Pty Ltd, being the first mortgagee of the site, is now in possession of "The Maltings" property. Nevertheless, there is no evidence to the effect that the defendant will never again work in the building industry. Specific deterrence, therefore, should be a factor taken into account in fixing penalty but not a factor carrying significant weight: see Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610. 32 There are a number of relevant subjective considerations. The defendant initially pleaded not guilty. He decided to await the determination of six questions of law referred to the Full Bench pursuant to s 5AE of the Criminal Appeal Act 1912, as applied by s 196 of the Industrial Relations Act 1996 by her Honour Justice Schmidt on 23 August 2005. One of the questions referred to the Full Bench raised the issue of whether, for a charge alleging an offence against s 10 of the Act to be valid, the application for order must plead any, or all of those matters which are referred to in s 10(3) and s 10(4) of the Act. 33 The decision in Inspector Wolf v Rockdale Beef Pty Ltd was delivered on 31 August 2006. This matter was originally listed for hearing commencing 13 June 2006 but adjourned by consent pending the decision in Rockdale Beef. 34 The defendant contends that WorkCover advised him of the publication of the decision in Rockdale Beef in early September 2006. He further contends that approximately two to three weeks prior to the hearing of this matter, he advised WorkCover of the possibility that he proposed to now enter a plea of guilty. A plea of guilty was entered on the first day of the hearing. 35 In these circumstances, I propose to allow a discount of 25 per cent for the utilitarian value of the plea in accordance with the principles found in R v Thomson; R v Houlton. In reaching this decision, I accept that a plea of guilty may have been entered at an earlier time, but for the proceedings involving Rockdale Beef. 36 A fundamental consideration in assessing penalty is the maximum penalty for the relevant offence. In the present case, the defendant is facing a maximum penalty of $55,000. 37 I take into account that the defendant has no prior convictions. I also take into account that the defendant had prepared work method statements in respect of the removal of asbestos and lead based paint, although such statements were deficient and not properly implemented. 38 I regard this matter as a serious one, falling within the mid range. It follows that the detriment to safety, which arises for consideration, was a serious one. 39 This judgment should serve as a reminder to all employers in the building, construction and renovation industry that they are required, in accordance with the Act, to be proactive so as to ensure the health and safety of employees and non-employees. 40 It is appropriate that I take into account the defendant's financial position. Section 6 of the Fines Act requires that, in the exercise of a discretion to fix the amount of any fine, the Court is required to consider, amongst other things, "such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration". 41 The relevant principles in relation to the application of s 6 of the Fines Act have been considered in a number of decisions in this jurisdiction: see most recently Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 166 at [21]: [21] Her Honour also appeared to take into account the respondents' capacities to pay fines, notwithstanding that there was no evidence placed before her to enable any assessment of their respective financial means. Section 6 of the Fines Act 1996 NSW requires a court, in the exercise of its discretion to fix the amount of any fine, to give consideration to the defendant's means to pay the fine. In doing so, the section requires the court 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 of the court, are relevant to the fixing of that amount. Plainly, s 6 provides the court with an obligation to consider the defendant's means in a practical and commonsense way. Nevertheless, the consideration must not be, in proceedings under the Occupational Health and Safety Act, ritualistic or token, so that where a defendant relies on the provisions of s 6 of the Fines Act in such proceedings to temper the amount of any fine to be imposed, the defendant bears the onus of placing appropriate evidence before the court to enable it to give proper consideration to the exercise of its sentencing discretion. 42 It was an agreed fact that the defendant is an undischarged bankrupt from 28 July 2005. The effect of bankruptcy is considered in Butterworth's Practice and Procedure High Court and Federal Court of Australia Service at [80,000.45], page 88,174, where the authors state: When a debtor becomes a bankrupt his or her real and personal property at the date of the commencement of the bankruptcy vests in the trustee of the bankrupt estate: s 58. … The property of the bankrupt which vests in the trustee is that which is divisible among the creditors of the bankrupt estate, including after-acquired property (which vests as soon as it is acquired), and powers of appointment, pursuant to s 116(1) of the Bankruptcy Act 1966. Section 116(2) excludes certain classes of property, including necessary household furniture and effects, a car and tools of trade up to certain values, superannuation and some life insurance policies, etc. See regs 6.03 and 6.04. Other consequences of bankruptcy to the debtor are that he or she may be prohibited from being a director, promoter or concerned in the management of a company without the leave of a court; a partnership of which the debtor may be dissolved; and he or she may not sit as a member of Parliament etc. The debtor once bankrupt may forfeit certain professional qualifications and may be prevented from travelling overseas without the written consent of his or her trustee or an order of the court and must hand in his or her passport to his or her trustee. The debtor may be exposed to criminal sanctions for certain misconduct prior to bankruptcy and may commit offences after bankruptcy (for example, if he or she obtains credit of more than a certain amount without disclosing the fact that he or she is an undischarged bankrupt), and civil proceedings in which he or she has been involved prior to bankruptcy will be stayed (compare ss 58(3) and 60(4)). 43 In passing, I note that s 269 of the Bankruptcy Act 1966 (Cth) precludes an undischarged bankrupt from obtaining credit to the extent of $3,000 or more, or goods or services to the value of $3,000 or more from a person without informing that person that he or she is an undischarged bankrupt. 44 In my view, the fact that a defendant is a bankrupt may not be sufficient, without the provision of financial material showing the true state of a defendant's affairs, to meet the test in s 6 of the Fines Act. No issue was taken by the prosecutor in respect of the defendant's bankruptcy. 45 Although I have some reservations as to whether the Court is able to make an informed assessment of the defendant's means in light of the effect of bankruptcy on a defendant, coupled with s 269 of the Bankruptcy Act and his self representation, I am satisfied, in the circumstances of this matter, that I should take into account s 6 of the Fines Act. I should make clear that this may not be the result in all cases where a defendant is bankrupt. It was implicit in the submissions of the parties that the defendant is bankrupt, and unemployed. 46 In WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at pars [83] to [85] Walton J, Vice-President reviewed the various authorities regarding the financial means of a defendant: [83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at [50]): It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200 - 201. [84] This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at [81] - [82]): ... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714, 100 IR at 76). However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 - 210, Wright J, President observed: "... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. ... ... When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ..." [85] I would reiterate what the Court stated in WorkCover Authority of NSW (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 (at 476): Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 86. (See also Inspector William Hopkins v Michael Wheritt trading as M J Wherritt Concrete Pumping Services [2002] NSWIRComm16 at [59] - [60]). [86] Having regard to the aforementioned authorities regarding the relevance of the financial means of a defendant, I shall significantly reduce the amount of fine which would have otherwise been ordered to be paid by the defendant due to the defendant's limited means and impecuniosity. 47 This raises a question as to whether a fine or monetary penalty if imposed by the Court becomes a provable debt in bankruptcy. If so, then the burden of the fine would be borne not by Mr Anstee, but by his creditors, whose dividend would thereby diminish. If it were not a provable debt in bankruptcy, then Mr Anstee would continue to be personally liable for any such fine. 48 The effect of bankruptcy on a fine was considered by Lloyd J sitting in the Land and Environment Court of New South Wales, in proceedings brought for contempt of court against an individual and a corporation for having failed to comply with orders made by the aforementioned Court: Environmental Protection Authority v Ableway Waste Management Pty Limited & Anor [2005] NSWLEC 469. His Honour set out s 82 of the Bankruptcy Act and then considered various authorities dealing with whether contempt of court is "an offence" against "a law". 49 Section 82 of the Bankruptcy Act 1966 (Cth) relevantly states: (1) Subject to this Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy. … (3) Penalties or fines imposed by a court in respect of an offence against a law, whether a law of the Commonwealth or not, are not provable in bankruptcy. 50 Lloyd J observed at [40] - [41]: [40] In State of Victoria v Mansfield (2003) 130 FCR 376, (2003) 199 ALR 395, a Full Bench of the Federal Court considered whether parking infringement penalties were provable debts within the meaning of s 82(1) of the Bankruptcy Act. Specifically the Full Court considered the critical question: "Are relevant liabilities properly characterised as penalties or fines imposed by a court in respect of an offence against a law of the State?" (at 399[16]). The Full Court then considered the policy behind s 82(3) of the Bankruptcy Act and said (at [33]): Section 82(3) is framed on the premise, first, that a penalty or fine in respect of an offence is imposed by a court to meet the public interest in punishing the offender for his or her offence; and, secondly, that the interests of ordinary creditors should not be adversely affected by the criminal or quasi-criminal conduct of the bankrupt. (If fines or penalties were to be treated as provable debts, then the funds available to ordinary creditors would be diminished: see M Murray, "Fines and Penalties - Provable in Bankruptcy?" (2000) 10(3) New Directions in Bankruptcy 13, 13-14). [41] In Mansfield the Full Court found that the amount payable pursuant to an enforcement order under Sch 7 of the Magistrates' Court Act 1989 (Vic) had the characteristics of a penalty or fine imposed by a court in respect of an offence against a law within the meaning of that provision. What was meant by the term "an offence against a law" in s 82(3) was not specifically considered. 51 His Honour further observed at [42] - [45]: [42] In Mathers v The Commonwealth (2004) 134 FCR 135, Heerey J considered whether a penalty imposed under s 76 of the Trade Practices Act 1974 (Cth) for a contravention of Pt IV of that Act constituted a penalty for "an offence against a law" within the meaning of s 553B of the Corporations Act 2001 (Cth). Section 553B(1) of the Corporations Act is a provision in relevantly identical terms to s 82(3) of the Bankruptcy Act . Heerey J said (at 139-140): In my opinion what must be construed is the expression "offence against a law" in s 553B(1) of the Corporations Act . The Trade Practices Act does not purport to say what is the construction to be put on language used in other legislation. The word "offence" has no fixed technical meaning in the law: Kingswell v The Queen (1985) 159 CLR 264 at 276. A failure to do something prescribed by a statute may be described as an offence although Parliament does not impose a criminal sanction upon it, but a mere pecuniary sanction which is to be recovered as a civil debt: Brown v Allweather Mechanical Grouting Co [1954] 2 QB 443 at 447. … In my opinion, a contravention of s 46 or 47 of the Trade Practices Act is an "offence against a law" within the meaning of s 553B(1) of the Corporations Act . Plainly those provisions of the Trade Practices Act answer the description of "a law". A contravention of those sections is an "offence" against that law. …a contravention of s 46 or 47 has much in common with the public law aspects of criminal offences in the strict sense: … [43] The decision in Mansfield was followed and applied by Palmer J in Australian Winch and Haulage Co Pty Ltd v State Debt Recovery Office [2005] NSWSC 423. The question was whether a fine imposed by the Industrial Relations Commission of New South Wales on a company for a breach of the Occupational Health and Safety Act 1983 (NSW) was a provable debt against an insolvent company by virtue of the operation of s 553B(1) of the Corporations Act 2001 (Cth). Palmer J found that the fine was not a provable debt and in following Mansfield said (at [10]): It will be seen at once that, if the argument of the Plaintiff in the present case is correct, the rationale behind s.553B(1) would be defeated utterly. The burden of the fine imposed by the Industrial Relations Commission on the Plaintiff will be borne, not by the Plaintiff and its shareholders, but by the Plaintiff's creditors, whose dividend from the Deed Fund will be diminished substantially. Further, if the Plaintiff's argument is correct, the deterrent effect of a fine or penalty imposed upon a company by a court may be very easily negated by the simple expedient of entering into a Deed of Company Arrangement. [44] Having regard to each of the cases described above, I conclude that a finding of contempt of court amounts to "an offence" within the meaning of s 82(3) of the Bankruptcy Act . The next question is what is meant by the term "a law". [45] Kirby J used the term "contempt law" in Maniam (No. 2) (at 313). According to Osborne's Concise Law Dictionary (7th ed) a law is "an obligatory rule of conduct" . Jowitt's Dictionary of English Law (2nd ed) defines "law" as "a rule of action to which men are obliged to make their conduct conformable; a command, enforced by some sanction, to acts or forbearance of a class" . A court's orders declare rights and obligations in terms which are enforceable under sanction. If the term "a law" in s 82(3) of the Bankruptcy Act was limited to statute law, such construction would not sit comfortably with the general purpose and policy behind that section as explained by the Full Bench in Mansfield and by Palmer J in Australian Winch and Haulage . 52 The learned author the article of "Fines and Penalties - Provable in Bankruptcy?" which was referred to in State of Victoria v Mansfield (2003) 130 FCR 376 (see [50]), discussed s 82(3) of the Bankruptcy Act, commenting: The reason that severe or criminal fines or penalties are not generally provable in bankruptcy is that ordinary creditors of the bankrupt should not be prejudiced in diminution of their dividend by the criminal or quasi-criminal conduct of the bankrupt. The same applies in company insolvency under section 553B of the Corporations Law; although there, the penalty against the company is foregone altogether, as the company then suffers ultimate deregistration after liquidation. But a bankrupt 'survives' bankruptcy to live on, and thus a further reason for the policy in bankruptcy is that a penalty is seen as a matter of personal responsibility that the bankrupt should retain for the sake of society's need for retribution, compensation and deterrence, as with any criminal conduct. How far this exemption from discharge from bankruptcy extends should depend on the nature and seriousness of the conduct being fined or penalised. 53 In light of the authorities referred to by Lloyd J, and in particular, the findings of Palmer J in Australian Winch and Haulage Co Pty Ltd v State Debt Recovery Office (2005) 189 FLR 315, in my view, a fine imposed by this Court for a breach of the Act, or its predecessor, is a fine for "an offence against a law" within the meaning of s 82(3) of the Bankruptcy Act. Such a fine would therefore not be provable in bankruptcy. 54 A large fine would have a significantly adverse impact on the defendant. Whilst the offence in respect of which the defendant has pleaded guilty is a serious one, I propose to take a similar course to that of Walton J in Schrader and significantly reduce the fine in light of the circumstances. I consider that the defendant should be fined an amount of $1,200. 55 Mr Searle submitted that given the financial situation of the defendant that the Court should also give consideration to making orders pursuant to s 115 of the Act. Section 115 provides as follows: 115 Orders to publicise or notify offence (1) The court may do any one or more of the following: (a) order the offender to take specified action to publicise the offence, its consequences, the penalty imposed and any other related matter, (b) order the offender to take specified action to notify specified persons or classes of persons of the offence, its consequences, the penalty imposed and any other related matter (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender's conduct). (2) The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order. (3) If the offender fails to comply with an order under this section, the prosecutor or a person authorised by the prosecutor may take action to carry out the order as far as may be practicable, including action to publicise or notify: (a) the original contravention, its consequences, the penalty imposed and any other related matter, and (b) the failure to comply with the order. (4) The reasonable cost of taking action referred to in subsection (3) is recoverable by the prosecutor or person taking the action, in a court of competent jurisdiction, as a debt from the offender. 56 Mr Searle submitted that an appropriate publication would be the Southern Highlands News. 57 In WorkCover Authority of New South Wales (Inspector Mansell) v Chen (2004) 137 IR 33, the Full Bench in considering the jurisdiction of the Court to make a s 115 order, observed at [59]: [59] More significantly, is the process whereby the order was sought in the first instance. In our view, any application for such an order, must be properly supported by details of the order sought under s115 of the Act and grounds in support of the same. An order sought under s115 should be precisely formulated in writing both as to the person or classes of persons to whom the order is intended to be published for or notified to. As well, it would be necessary to specify with clarity where such a notice is to be published, the precise terms of the notice as well as any other related matter sought to be included in the publication or notice. That much is necessary, it seems to us, so that an offender is on notice as to the precise terms of the order sought and the steps that it (or he or she) must take in order to comply with the order. The power of the Court to make such an order is discretionary. In the exercise of that discretion, the Court will consider whatever matters the offender may wish to raise as to why such an order should not be made. The offender is unable to do that unless the matters we have identified are clearly and precisely specified by the party seeking the order. No such steps have been taken here and notwithstanding the appellants last minute written proposals, we do not propose to make the order sought in these proceedings. 58 The prosecutor did not specify the precise terms of the notice, or any other related matter, sought to be included in the publication or notice. Mr Searle submitted that the observations of the Full Bench in Chen were directed to s 115(1)(b), rather than s 115(1)(a). Counsel submitted it was appropriate for the defendant to be ordered to take specified action to publicise the offence and the consequence of any penalty imposed in accordance with s 115(1)(a). 59 I do not read the observations of the Full Bench at [59] of Chen to be confined to s 115(1)(b). 60 The defendant opposed such an order, submitting that it may impact upon the marketability of "The Maltings". I do not propose to make such an order in this case. 61 In the alternative, Mr Searle sought an order pursuant to s 116 of the Act. This section provides as follows: 116 Orders to undertake OHS projects (1) The court may order the offender to carry out a specified project for the general improvement of occupational health, safety and welfare. (2) The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order. (3) A Local Court may not make an order under this section unless it is satisfied that the cost of complying with the order does not exceed the jurisdictional limit of a Local Court when sitting in its General Division within the meaning of the Local Courts Act 1982. 62 In my view, this section is designed to improve occupational health and safety for workers and is in addition to any penalty that may be imposed under the Act and for an entirely different purpose to punishment, namely, the improvement of occupational health and safety. It seems to me that the observations made by the Full Bench in respect of s 115 in Chen would also be applicable to s 116. It is necessary for the prosecutor to specify with clarity the precise terms of any proposal that it would invite the Court to consider. As the Full Bench in Chen observed: … The power of the Court to make such an order is discretionary. In the exercise of that discretion, the Court will consider whatever matters the offender may wish to raise as to why such an order should not be made. The offender is unable to do that unless the matters we have identified are clearly and precisely specified by the party seeking the order. No such steps have been taken here and notwithstanding the appellants last minute written proposals, we do not propose to make the order sought in these proceedings. 63 The purpose of this approach is to ensure that any proposal is put to a defendant who, of course, may agree to such an order. This did not occur in this case and, in my view, it is unfair and inappropriate for an application for an order under s 116 to be raised in the way it has come forward in this matter. 64 In the event that the Court was disposed to make such an order, Mr Searle sought leave to provide a proposal, or proposals, to the Court for its consideration. The defendant did not oppose such an order in circumstances where he is currently unemployed. In my view, an application under s 116 should not be raised at the conclusion of a sentencing hearing without any consideration having been given to the terms of such a proposal. It is not a proper use of court time for an adjournment to occur to allow the prosecutor to consider the terms of a proposal, even in circumstances where a defendant does not oppose such a proposal. It is a matter for the Court to determine orders under s 116. Such an order may, in appropriate circumstances, result in a further discount in penalty. For these reasons, I decline to make an order under s 116, or grant leave to the prosecutor to advance a proposal for a s 116 order at this time. 65 The prosecutor sought costs and a moiety. As I have already observed, the defendant is an undischarged bankrupt. I asked the defendant if he wished to put any submissions in respect of this application. He declined to put any further submission. 66 In Inspector Childs v Stimson (No 4) [2006] NSWIRComm 158, I determined an application by the defendant that there should be no order for costs, or alternatively, a significantly reduced quantum of costs awarded. The relevant statutory provisions are to be found in the following legislation. Statutory Provisions Fines Act 1996 67 The relevant provisions of the Fines Act provide: 3 Definitions (1) In this Act: "fine" —see section 4. "function" includes a power, authority or duty. "law enforcement officer" means a person exercising law enforcement functions in the official capacity of any of the following: (d) a public servant, (e) an officer or employee of a statutory body representing the Crown, 4 Meaning of "fine" (1) For the purposes of this Act, a "fine" is: (c) any court fees or charges payable by a person under an order made by a court in proceedings for an offence, or ... (e) any witnesses' expenses payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer, or (f) any costs (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer, or … (3) In this section, "proceedings for an offence" includes: (b) proceedings on appeal in respect of proceedings for an offence. ... 6 Consideration of accused means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A) 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 of the court, are relevant to the fixing of that amount. Criminal Procedure Act 1986 68 The relevant provisions of the Criminal Procedure Act provide: 253 Court may order payment of costs (2) The costs payable by a prosecutor or accused person in accordance with a direction under this section are to be determined: (a) by agreement between the prosecutor and accused person, and (b) if no such agreement can be reached, in accordance with the rules. Crimes (Sentencing Procedure) Act 1999 69 The relevant provisions of the Crimes (Sentencing Procedure) Act provide: 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: ... (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. Industrial Relations Act 1996 70 The relevant provisions of the Industrial Relations Act 1996 provide: 181 Costs (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (2) ... (3) The Commission in Court Session may not award costs in proceedings for a contravention of a dispute order or in proceedings under Division 2 of Part 4 of Chapter 5 (Rules of industrial organisations). (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. 71 After considering the above statutory provisions in Stimson (No 4), I made the following observations at [18] - [19]: [18] A Full Bench of this court recently considered the above statutory provisions and the principles found in relevant authorities which deal with costs orders. In WorkCover Authority (Inspector Yeung) v Wilson (t/as Wilson's Tree Service) (2005) 143 IR 187, the Full Bench observed at [122]: Relevantly, a "fine" in the Fines Act is defined to include any costs order (including expenses or disbursements) payable by a person under an order made by a court in proceedings for an offence that were brought by a law enforcement officer. [19] After referring to the judgment of Pearlman J in Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 287 at [8] and a statement by Lord Bingham CJ in R v Northallerton Magistrates' Court; Ex Parte Christopher John Dove [2000] 1 Cr App Rep (S) 136 at [4], the Full Bench stated at [131] - [133]: [131] …We consider the approach of Lord Bingham preferable to this approach. [132] Section 6 of the Fines Act allows consideration of the financial situation of the respondent in the court's consideration as to the appropriate costs order. Pearlman J reasoned a costs order must be "just and reasonable". Lord Bingham CJ defined the test as an "acceptable total". While the power exists to consider the financial circumstances of a respondent in both penalty and costs the overall result must comply with the test of "just and reasonable". [133] …In accordance with established principle, the court must make its determination in accordance with s 6 of the Fines Act . The court must also set the appropriate penalty for the offence giving proper weight to the objective seriousness of the offence. The court must then determine the appropriate costs order. Such a consideration, in our view, may also take into account the financial situation of the defendant. In so ordering the court must then determine that the total fine and costs order be an "acceptable total" or as otherwise said "just and reasonable". If the total penalty and costs order is viewed by the court to be excessive the court must make an appropriate adjustment to the costs order. The total must not be disproportionate to the offence… 72 Although the defendant did not make an application for an order pursuant to s 10 of the Crimes (Sentencing Procedure) Act, I have given consideration to the making of such an order. However, on balance, I have formed the view that the defendant may not have the requisite exceptional circumstances required for the making of such an order: WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [21], [24] - [26]; WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 at [57] - [58]. 73 In this matter, I propose to assess penalty and costs together. The parties were advised of the course that I was proposing to adopt and were invited to provide written submissions in the event that there was an objection to this approach. The prosecutor did not take issue with this approach. I also requested that the prosecutor provide a skeleton outline of his total costs. The prosecutor advised that he estimated that professional costs including disbursements would amount to $44,200, exclusive of GST. 74 Having taken into account all of the factors to which I have earlier referred and after giving proper weight to the appropriate seriousness of the offence, I consider, as I have already determined, that the appropriate penalty for this offence is $1,200. In determining this penalty, the Court has taken into account the financial situation of the defendant. 75 I have decided, noting that the purpose of costs is not a punishment, that the defendant will pay five per cent of the prosecutor's costs. In reaching this result, I have weighed both penalty and costs together and had regard to the totality of the amounts. In my view, this represents a just and reasonable order. ORDERS 76 The Court makes the following orders: 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 $1,200 with a moiety to the prosecutor. 4. The defendant shall pay five per cent of the prosecutor's costs of $44,200 exclusive of GST, being $2,210. 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.