Industrial Court of New South Wales CITATION: WorkCover Authority of New South Wales (Inspector Woodington) v Skyrise Installations Pty Limited and Domenico Hans Christian Vullo [2006] NSWIRComm 316 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Woodington) PARTIES: DEFENDANTS: Skyrise Installations Pty Limited Domenico Hans Christian Vullo FILE NUMBER(S): IRC 1173 & 1204 of 2005 CORAM: Staunton J CATCHWORDS: Occupational health and safety - pleas of guilty - general principles - foreseeability - objective seriousness of the offences - relative culpability of defendants - general and specific deterrence - defendants have no prior convictions - subjective features taken into consideration - respective financial positions of the defendants considered - penalties imposed - orders as to penalty, moiety and costs. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act (1996) Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED: Markarian v The Queen [2005] HCA 25: 18 May 2005 R v Gallagher (1991) 23 NSWLR 220 R v Thompson; R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA Thorneloe v Filipowski (2001) 52 NSWLR 60 HEARING DATES: 21/9/2006 DATE OF JUDGMENT: 10/04/2006 PROSECUTION: Mr P Strickland SC SOLICITORS: Criminal Law Practice Legal Group LEGAL REPRESENTATIVES: DEFENDANTS: Mr J Reimer of counsel SOLICITORS: Robert Tricca & Associates JUDGMENT: - 27 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Staunton J DATE: 4/10/2006 Matter No IRC 1173 of 2005 WorkCover Authority of New South Wales (Inspector Woodington) v Skyrise Installations Pty Limited Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 Matter No 1204 of 2005 WorkCover Authority of New South Wales (Inspector Woodington) v Domenico Hans Christian Vullo Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 316 1 The first defendant in this matter Skyrise Installations Pty Ltd (Skyrise), has entered a plea of guilty of guilty to an offence arising under s 8(1) of the Occupational Health and Safety Act 2000 ('the Act'). The second defendant, Domenico Vullo, by virtue of the deeming provision under s 26(1) of the Act, has also entered a plea of guilty to an offence arising under s 8(1). The offences arise from the same factual circumstances. Identical particulars are pleaded in relation to both defendants. 2 In relation to Skyrise, it is said that the defendant: Did fail, contrary to section 8(1) of the Act to ensure that its employees were not exposed to risks to their health, safety or welfare at work in that William Hill, being a person who was at its place of work and employed by the defendant to engage in the installation of curtain wall panels in circumstances which exposed him to a risk to his health, safety or welfare by reason of the weight of the panels being installed relative to the capacity of the lifting equipment being used and by reason of an inadequate safety line system. 3 The particulars of the charge in relation to Skyrise are: [1] The defendant was at all material times a subcontractor for the installation of the curtain wall panels. [2] The defendant was given the incorrect weight for the curtain wall panels that were to be installed. [3] The lifting equipment was not designed to lift panels of the correct weight. [4] There was no system for clearly identifying panel weights. [5] There was no system for ensuring the panel weights that were provided were appropriate and accurate. [6] The crane that was used to lift the panels into place was incapable of safely lifting the panels in question and as a result toppled off the fourth floor of the premises being constructed. [7] The method of putting the panels into place, once raised to the correct height, involved an open safety gate and a safety line lanyard that was both fixed and too short, leading William Hill to operate equipment without a lanyard attached to the safety line. [8] When the lifting equipment toppled due to being overweight relative to that equipment, Mr Hill also fell off the building. 4 The offence charged and the particulars pleaded in relation to Mr Vullo are in the same terms. On that basis, I do not repeat them. 5 The prosecution has tendered an agreed statement of facts. With respect to the two defendants, the following is agreed: [1] At all material times the First Defendant, Skyrise Installations Pty Ltd (ACN 082 670 684) ("Skyrise") was a company duly incorporated and having its registered office at 211 Eagleview Road, Minto 2566 in the State of New South Wales. [2] At all material times the Second Defendant, Domenico Hans Christian Vullo ("Mr Vullo") was the Managing Director of Skyrise Installations Pty Ltd (ACN 082 670 684). [3] At all material times Skyrise was an employer. [4] At all material times Australand Holdings Ltd (ACN: 008 443 696) ("Australand") was the principal contractor for a commercial building project at 1 Homebush Bay Drive, Rhodes in the state of New South Wales (the site). [5] The site was a large industrial complex consisting of 3 buildings, 2 of which were still under construction. The buildings were approximately 5 levels high and were of concrete slab and column design. [6] Between 13 and 14 January 2003, Australand entered into a subcontract with Sassall Glass & Joinery Pty Ltd (ACN 000 319 068) ("Sassall") for the manufacture, supply and installation of strip windows and curtain wall panels for the project, for an overall contract price of approximately $2 million. Curtain wall panels are a form of non load bearing cladding that is connected to the structural members of a building to form its external façade. The curtain wall panel consists of equal size quadrants of glass separated by aluminium strips and enclosed in an aluminium frame. The panels can be manufactured in various sizes and weights off-site, and then lifted up the side of the building with the use of a crane or other lifting device to be installed to the outside of the building. [7] Sassall subcontracted with Skyrise, a façade installation company, to install the curtain wall panels in the buildings under construction at the site. [8] Skyrise employed a group of window fixers to install the curtain wall panels. This group comprised Matthew Church, the leading hand, Josh Scully, Ashley MacCue and William Hill, all of whom were under Mr Vullo's supervision on site. [9] Mr Hill first commenced employment with Skyrise during his 2002/2003 summer semester break from University. He then deferred his study to continue working with Skyrise. On 3 February 2003 he commenced on a full time basis. At the time of the incident on 29 March 2003 involving Mr Hill, he was 19 years old. [10] Mr Hill had an elevated work platform ticket. Through observing other Skyrise employees, he had experience operating the crane used to lift and install curtain wall panels. On 29 March 2003, Mr Hill was operating the crane on Level 4 on the eastern side of Building B at the site to install the first set of starter panels on the eastern façade of Level 2. Overview of the incident [11] At about 11.30 am on 29 March 2003 Mr Hill was operating the crane in the process of drawing one of the largest size panels of the curtain wall in to place. This panel weighed approximately 480 kg and exceeded the maximum weight that the crane could safely lift. While attempting to pull the crane with its suspended curtain wall panel back, the crane suddenly and without warning lifted at the back and began to fall over the edge of the floor breaking through a timber edge stop. Due to a deficiency in Skyrise's system of work, Mr Hill was unattached to the static line at this point. Mr Hill instinctively attempted to stop the crane lifting and was taken over the edge of the building by the crane. He fell 4 floors, approximately 15 metres to the ground. [12] Mr Hill was on life support for 4 days. His injuries were severe and included: a jaw fractured in several places, fractures to his left and right arms and punctured lungs. Mr Hill received a tracheotomy and had a pin installed in his left hip. Weight of the Curtain Wall Panels [13] Sassall assembled the curtain wall panel frames at its factory in Wollongong. Sassall then sent the frames to Fabricated Glazing Pty Ltd located in Silverwater in the state of New South Wales. Between 22 January 2003 and 5 April 2003 Fabricated Glazing Pty Ltd had a works order with Sassall to glaze, palletize and then deliver the completed curtain wall panels to the site ready for installation by Skyrise. Sassall assembled 4 or 5 different size panels for this project. The size of the panels that were required for each building façade varied. There were at least 4 different sized panels required for the eastern façade of Building B. These panels included the starter panel or "full size panels" which measured 4.9 x 2.4m which were installed on Level 2. The full size panel extends from the top of the concrete floor of Level 3 above, to approximately 1.17 metres below the concrete floor of Level 2. The purpose of the 1.17 metre vertical extension was to enable the horizontal soffit, or ceiling panels, to be installed in the underside of the building. The "half size panels" measured 4.9 x 1.2 metres and were installed directly in front of the concrete columns on Level 2. The curtain wall panels to be installed on Levels 3 and 4 measured 3.7 x 2.4 metres and 3.7 x 1.2 metres, the latter being installed in front of the columns. [14] The weight of the panels varied with their size. The panels for Levels 3 and 4 measuring 3.7 m x 2.4 m weighed approximately 387 kg. The full size panels measuring 4.9 x 2.4 weighed approximately 480 kg. [15] On or before the day of the incident, there is no evidence that the delivery dockets attached to the crate identified the weight of the panels within. None of the curtain wall panels at the site had been labelled with their respective weights, for example by stickers attached to the glass. [16] At the time of the incident Skyrise employees were installing the full size panel measuring 4.9 x 2.4 metres and weighing approximately 480 kg. [17] Approximately 1 to 2 weeks before the incident, Skyrise commenced the installation of panels in the northern façade of Building B. Mr Vullo did not know of any system in place for determining the weight of the panels. Mr Vullo asked John Murphy, Sassall's Project Manager for the Curtain Wall, for the weights of the northern façade panels but he did not receive an answer. Mr Vullo saw drawings that recorded the panels' dimensions but not their weights. Based on his experience and from the dimensions of the panels he observed on the drawings, he considered the weight of the northern façade panels were within the capacity of Skyrise's lifting equipment. [18] While installing the northern façade, some of the panels for the eastern façade were delivered to the site. Some of these panels were approximately double the size of the northern façade panels. Approximately 1 week before Skyrise finished the installation of the northern façade, Mr Vullo asked Mr Murphy for the weights of the eastern facade panels. Mr Murphy responded, " I'm waiting for it. I've asked Sassall in Wollongong ." Mr Vullo told Mr Murphy, " there's no way I'll lift them unless I know their weights ." [19] John Sassall, Managing Director of Sassall did not know the weights of the panels. On or about 20 March 2003 he directed Sassall employee, Mike DeHossen, to prepare a weight estimate. At 11.28am on 20 March 2003 Mr DeHossen emailed Mr Sassall the weight estimate for the 3.7 x 2.4 metre panel. The weight was recorded as 387.2812 kg. [20] Mr Sassall then telephoned Mr Murphy with this information and said that the weight was 380 kg. Mr Sassall then forwarded Mr DeHossen's email to Mr Murphy at 3.00pm the same day to confirm the weight estimate. [21] On or about 28 March 2003 Mr Murphy told Mr Vullo that the eastern façade panels weighed 380 kg. [22] In fact Mr Murphy, relying on the 20 March 2003 email from Mr Sassall and Mr DeHossen, had informed Mr Vullo of the weight of the 3.7 x 2.4 panels which were to be installed on the eastern façade of Levels 3 and 4, and not the full size panels measuring 4.9 x 2.4 which were the first to be installed, and which in fact weighed approximately 480kg. [23] Skyrise did not check or confirm the weight before commencing work. Lifting System [24] Skyrise had a '3-floor configuration' system for lifting the panels and each window fixer had a different job. Mr Hill was on Level 4 to set up, position and operate the crane. Mr Hill would manually position the floor crane central to fixing brackets, (which had been pre-cast into the concrete floor slab). He did this by measurement and scoring a line on the concrete slab. The crane was raised off its four feet by use of the hydraulic pallet jack lifter system and pushed into position. The first position was to place the jib of the crane out over the edge of the floor a distance of approx 1.2 metres; this was achieved when the front feet of the crane touched a timber edge stop. The crane was then lowered back onto its feet. [25] Relevantly, Step 6 of Skyrise's site specific Safe Work Method Statement dated 22 October 2002 for "Crane Set Up and Use for Panel Installation" identified the risk of the crane rolling off the building. The control measure to eliminate that "Class 1" risk, being potential to cause death or permanent injury, was "Placement of steel wheel chock [attached to static safety line vide lanyard] against previously installed bracket." Mr Vullo states the reason why the timber beam was placed at the edge of the building, contrary to the control measure in Step 6 of his SWMS, was because it was, " easier for the guys to move into place because it was not as heavy as the steel ." [26] When the crane was in position, Mr Hill lowered the pendant control down to Mr Church on Level 3. Mr Church used the pendant control to lower the hook of the hoist to working height to Mr MacCue on Level 2 where the panels were stored. Mr MacCue attached the lifting chains and hooked up the panel. Mr MacCue then pushed out the panel to the edge of the building using 2 trolleys. Mr Church then raised the hook, lifting the front end of the panel off the front trolley, which Mr MacCue would pull out of the way. The panel was then raised into the vertical position, hanging approximately half the width (1.2 metres) of the panel away from the edge of the building. The panel was then spun so that it was the right way around. Mr Church then gave a command to Mr Hill using a two way radio to pull the crane back towards the centre of the building so that the panel was close to the brackets. At this stage the crane's feet were lifted off the floor with aid of the hydraulics. When the panel was pulled back into position, the crane was then lowered back onto its feet. Mr Church then lowered the panel to align it with the bracket and secured it. They then levelled the other end of the panel, clamped, drilled and fixed it off. The slings were then unhooked. [27] Mr Vullo was also working in the area and was in control of overall supervision. [28] Skyrise owned the crane used to install the curtain wall panels. It was a purpose built device consisting of an electric powered chain hoist attached to a metal frame with a fixed jib measuring approximately 3 metres in length ("the crane"). The crane was in turn welded to a 1.5 tonne pallet jack lifter, to make the crane mobile. This was so that the crane operator could move the crane backwards and forwards to manoeuvre the panel. With this system the crane operator could move the crane forward to the edge of the building, extending the jib over the edge to allow sufficient room to swing the hoisted panel around when parallel with the required level, and then backwards to the centre of the building to bring the panel flush with the side of the building and aligned with the brackets and secured. [29] The lifting frame had been tested by All Safe Lifting Equipment on 20 December 2002 and had been certified with a "Working Load Limit" (WLL) of 400 kg. The lifting frame had marked on it, "WLL 400kg". The WLL (also known as the Safe Working Load (SWL)) is the total amount of weight suspended at the end of the jib (including the panel and hoist), which may be lifted safely. The jib of the crane had a WLL of 400 kg or 250 kg depending on the setting. On the day of the incident this was set at the 400 kg capacity. [30] The electric powered chain hoist had also been tested and certified at a testing centre on 5 February 2003 with a "SWL" of 500kg. Before the incident, Mr Vullo tested the hoist himself to confirm that it could lift 500 kg. [31] The hoist and tackle weighed approximately 32 kg and is part of the load on the jib. Therefore the most a curtain panel could weigh in order for the crane to lift it safely, was approximately 368 kg, being 400 minus 32. [32] The curtain wall panel being lifted at the time of the accident was the full size panel, which measured 4.9 m x 2.4 m and weighed approximately 480 kg, not 380kg as Sassall had advised. The jib was therefore being used to lift an additional 112 kg, approximately 28% over its WLL of 400 kg. [33] The curtain wall panels measuring 3.7 m x 2.4 m weighed approximately 387 kg. The jib would be required to lift approximately 419 kg, (including the hoist and tackle), therefore an additional 19 kg, approximately 5% over its WLL. [34] Mr Vullo understood that the WLL of his crane was 400 kg and that hoist and tackle weighed approximately 30 kg. The All Safe report for the crane stated that the Proof Load of the crane was 500 kg. The purpose of a Proof Load is to allow for a margin of error or other factors which may affect the stability of the crane. All Safe had tested the proof load to a factor of 1.25, or a margin of 25% above the WLL. [35] Skyrise had not previously installed panels as large as the full size panels for the eastern façade. Mr Vullo packed the crane feet with steel chocks where the floor was uneven to stop the crane from rocking. Before commencing work on the eastern façade, at 7am on 28 March 2003 Mr Vullo held an informal meeting with his employees. At this meeting Mr Vullo told the group, " The weight of these panels is getting up to the maximum limit so be extra careful ". He also told Mr Hill to take the lifting slowly. [36] 18 full size panels were to be installed on the eastern façade of Building B. The incident occurred at approximately 11.30am, with Skyrise having already installed all but 2 of the full size panels. [37] There is no evidence of any structural or mechanical failure of the lifting equipment other than the overweight load it was lifting, that is, the full size panel weighing approximately 480kg. As Mr Hill was pulling the crane back into the centre of the building for the panel to be fixed into the brackets, he saw the wheels of the crane lift up. The over-weighted crane was dragged to the edge of the building and cracked the wooden timber stop at the edge of the floor. Mr Hill states, " I attempted to stop it ." He fell with the crane, 15 metres over the edge of Level 4 of the building to the ground. Mr Hill was wearing a 2 metre lanyard but was not attached to the static line when he fell. Static Line and Safety Fence [38] The reason why Mr Hill was not attached to the static line was because he had to unclip his lanyard from the line in order to pull the crane back far enough into the building. The 2 metre lanyard he was wearing did not enable him to reach far back enough. Mr Hill should have had an inertia reel system which would have allowed him full mobility to move the crane while still attached to the static line. [39] Skyrise's safety system relevantly comprised a 1 metre high wire mesh safety fence approximately 2.15 m from the edge of the floor. Skyrise installed a static line running through the centre of the concrete columns, approximately 1.15 metres from the edge of the building, the line being approximately 2 metres high above the floor. [40] Step 4 of the SWMS dated 22 October 2002 identified the Class 1 risk of falling off the edge of the building. Step 4 required the workers to "put harness on and attach oneself to the static safety line". The control measure stated, "Worker to be inside the safety fence and have both feet on the ground whilst reaching over to attach the lanyard to safety line. Once attached the worker is to open the safety fence, walk through and close the fence behind him/her." [41] Given the proximity of the fence to the static line, it was impossible for the worker to comply with Step 4, that is, to stand behind the closed fence before attaching to the static line. The workers therefore opened the gate to the fence before attaching to the line, during which time they were within a Class 1 danger zone. [42] The lanyard and harness worn by the worker was required to be attached to the static line when operating in the area between the safety fence and the edge of the floor, a distance of approximately 2.15 metres. A 2 metre long lanyard attached to the static line 1.15 metres from the edge would allow a worker to go to the edge of the floor and to go to a distance of approximately 1 metre inside the safety fence. [43] There was a gate or opening in the safety fence at the point at which Mr Hill was to pull the crane backwards into the centre of the building to draw the hoisted panel into position. Mr Hill would pull the crane back towards the centre of the floor and through the gate of the safety fence to a distance of approximately 4.1 metres (which includes the length of the crane) from the edge of the floor. However, the safety system only enabled the worker attached to the safety line to come in about 3.15 metres from the edge of the floor (safety line in 1.15 m + 2 m lanyard). Therefore the 2-metre lanyard while attached to the static line was not long enough to enable the crane operator to pull the crane far back enough to lift the curtain wall panel into position. [44] Mr Hill could only pull the crane back far enough through the open safety fence, was by unclipping his lanyard from the static line. [45] Skyrise's risk assessment directly considered this point. Mr Vullo states that it was only after the accident that he realised that Step 4 of Skyrise's SWMS was deficient. He stated that, " when we moved away from that line it was relatively safe because we were far enough away from the edge not to be hooked up. We thought that the because the crane, which was 3 metres inside the edge, was in front of the worker, that they would be safe…" [46] Five, 5 metre retractable/inertia reel lanyards were available on Level 3 with the panel crew at the time of the incident. For the reason Mr Vullo gives as outlined in paragraph 45, and that the workers said that they found the inertia reel system uncomfortable to wear, Skyrise did not enforce a system for its workers to wear the retractable / inertia reel lanyard. [47] While operating the crane under this system of work, Mr Hill was at all material times in a class 1 danger zone. Action since the incident [48] Since the incident, Skyrise have replaced the manual floor crane system with a crawler crane, which is operated by a licensed crane operator with a certified Dogman giving the directions. A set of scales is rigged up to weigh each type of panel to be installed and the panel crew is trained to check the weight themselves. The weight is then documented and recorded on a sticker affixed to the panel. Skyrise also ensures that retractable lanyards are used when the safety fences are down. Previous History [49] Neither defendant has any previous relevant convictions. Early Plea [50] The defendants entered a plea of guilty and are entitled to the benefit of that plea. Cooperation with investigating authority [51] Mr Vullo has cooperated with the investigation, providing information and agreeing to give evidence relevant to the prosecution of Australand and Sassall. 6 In addition to the agreed statement of facts, the prosecution has also tendered a bundle of documents including: (i) Test Safe Australia Inspection and Testing of GIS Electric Hoist Report, prepared for WorkCover on 21 November 2002; (ii) Skyrise Work Method Statements, dated 22 October 2002; (iii) Skyrise Installation Training records of William Hill; (iv) Diagrams of the crane and building as drawn by Inspector Woodington; (v) Code of Practice - Safety Line Systems; (vi) Mr Vullo's statements to WorkCover dated 18 September 2003, 18 November 2003 and 1 August 2006. 7 Also tendered by the prosecution, without objection, were a number of photographs, which have assisted me in understanding the nature of the machinery and equipment involved in the accident. 8 On behalf of the defendants, a statement of Mr Vullo was tendered without objection. He is a director of Skyrise and is involved in the day to day work undertaken by the company. He was on site on the day of the accident involving Mr Hill. 9 Mr Vullo and his wife founded Skyrise in 1998 together with Mr Vullo's colleague, Mr Kieran Griffin. Mr Vullo's statement included a number of references as testimony to the safe work record and occupational health and safety awareness of both Skyrise and himself from: (i) Mr DH Sansom. Mr Sansom is the Managing Director of Hilsen Architectural Window Systems, who have subcontracted Skyrise to undertake work previously. (ii) Mr John Lam. Mr Lam is the Commercial Manager of Hilsen Commercial Windows. (iii) Mr Andrew Vatiliotis. Mr Vatiliotis the General Manager of Permasteelisa Pty Ltd. (iv) Mr Dave Briffa. Mr Briffa is the Queensland Safety Manager of Baulderstone Hornibrook. 10 Mr Vullo's statement also included a letter from Ms Karen M Nelson, accountant and tax advisor to Skyrise and Mr Vullo. Financial statements relevant to Skyrise and Mr Vullo were attached to Ms Nelson's letter. 11 Mr Vullo was required for cross-examination. Relevant principles 12 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 13 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.' 14 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 15 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646. 16 On the issue of foreseeability, the Full Bench in Capral also stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. 17 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 18 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 19 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 20 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added) 21 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice... 22 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to. Considerations 23 Skyrise has no prior convictions. Accordingly, the maximum penalty able to be imposed is $550,000. As an individual with no prior convictions, the maximum penalty that may be imposed on Mr Vullo is $55,000. 24 There are two factors, it seems to me, pertinent to the assessment of the objective seriousness of these offences. The first is the facts and circumstances surrounding the weight of the panels relative to the Safe Working Load of the crane being used to lift the panels. The second is the facts and circumstances relating to the safety line lanyard being used by Mr Hill on the day of the accident. I shall address each in turn. 25 As the agreed facts disclose, the work being undertaken by Skyrise involved using a crane to lift heavy panels at a height. That task was not without risks. To do that safely required Skyrise to ensure a number of specific measures were addressed. 26 One was to ascertain the weight of the panels to be lifted. Another was to ensure the crane to be used to lift the panels had a weight lifting limit able to accommodate the weight of the panel as well as the weight of the hoist and tackle to be used in lifting the panels. 27 On behalf of Skyrise, Mr Vullo was in charge of the work being undertaken by Skyrise employees at the site. Overall, the panels to be installed on the eastern wall of the building as part of the contract varied in size and accordingly in weight. One size was 3.7m x 2.4m weighing approximately 387kg. Another, bigger sized panel was 4.9m x 2.4m weighing 480kg. 28 In ascertaining the weight of the panels to be lifted, Mr Vullo asserts he made enquiries of Mr John Murphy of Sassall Glass & Joinery Pty Limited (Sassall) a week or so before the accident. According to Mr Vullo, he was subsequently advised by Mr Murphy that 'the eastern wall panels weigh 380kg'. 29 On behalf of Skyrise, Mr Vullo took no steps to independently verify the weight of the panels before commencing the work. 30 As subsequent events have revealed, the weight of the panel to be lifted in the accident involving Mr Hill was 480kg - clearly a bigger sized panel than the one weighing in at approximately 380kg (3.7m x 2.4m). The crane being used by Skyrise employees on the day had a Safe Working Load (SWL) of 400kg. When the weight of the hoist and tackle (approximately 32kg) is added to the weight of the panel, it is self evident the crane was inadequate and thereby unsafe for the purposes and in the circumstances in which it was being used. 31 As the agreed facts confirm, the culpability of the defendants on this issue does not end there. That is, even if the panel had weighed 380kg or thereabouts, that weight, together with the weight of the hoist and tackle would have exceeded the 400kg SWL of the crane. 32 Even relying on a panel weight of 380kg, Mr Vullo knew the panels being lifted were at the limit of the crane's lifting capacity. For example, the day before the accident, Mr Vullo told his employees at an informal meeting: The weight of these panels is getting up to the maximum limit so be extra careful. 33 As well, some short time before the accident, while the crane was being used to install the northern wall panels, Mr Vullo saw the crane rocking. He knew at that stage that the crane was 'getting up to its limit' so he packed the crane feet with chocks where the floor was uneven to stop the rocking. 34 Given all the above, it was necessary for the defendants to have developed and implemented an accurate and precise system of work for weighing the panels. Instead, the defendants relied upon either the verbal statements by Mr Murphy of Sassall and/or by assessing the weight of the panels by reference to the drawings which recorded the panel's dimensions. On any view, such an informal process cannot be described as a settled safety procedure and instructions in relation to a job to be done that was fraught with risk. 35 That much is readily apparent by what happened when the crane gave way under the weight. Mr Hill attempted to pull the crane back in order to raise the panel. However, the crane lifted at the back and fell over the edge of the floor. Mr Hill fell 15 metres to the ground along with the crane. While he eventually recovered, he was on life support for a period of four days and suffered severe internal injuries. 36 The consequences of the weight lifting issue resulting in the toppling of the crane and Mr Hill's fall highlighted the second factor relevant to the objective seriousness of the offences. 37 The work being undertaken by Mr Hill undoubtedly encompassed risks to safety. Skyrise's own risk assessment recognised and identified a number of risks inherent to the task being performed. One of the risks contemplated by Skyrise's Safe Work Method Statement titled 'Crane Setup and Use for Panel Installation' was the risk of a worker falling off a building. To guard against that risk, step 4 of the Safe Work Method Statement required workers to wear safety harnesses and attach themselves to the static safety line with a lanyard. The type of lanyard to be used was not specified. 38 The static line which employees such as Mr Hill were required to attach themselves to ran through concrete cement columns which were 1.15 metres from the edge of the building. A wire mesh safety fence was positioned another metre behind the static line. The control measures outlined in the safe work method statement required workers to be inside the safety fence when attaching the lanyard to the static line. Once workers were attached to the static line, a gate to the safety fence could be opened. Workers could then proceed to the area outside the safety fence. 39 As the facts disclose and, as extraordinary as it may seem, Mr Hill was not attached to the static safety line while working with the crane. Mr Hill's failure to attach himself to the static line with a lanyard as required by the Safe Work Method Statement was due, it would seem, to the length of the lanyard. 40 That is, the lanyard provided to Mr Hill by Skyrise was a two metre long fixed lanyard. When attached to the static safety line, it only extended to 3.15 metres, rendering it impossible to pull the crane back far enough through the safety gate to raise the curtain panel. The safety fence gate was approximately 4.1 metres from the edge of the floor. Because the lanyard was too short, Mr Hill did not clip the lanyard to the static line while undertaking this task. 41 In cross examination, Mr Vullo, who was supervising the work, conceded it was likely he would have seen Mr Hill operating the crane without the lanyard attached to the static line. It is stating the obvious to observe that Mr Vullo should have insisted Mr Hill attach the lanyard to the static line. If the lanyard being worn was too short, a retractable inertia lanyard should have been utilised. 42 Mr Vullo described retractable lanyards as being similar to a seatbelt in that "… the further you go, the more it expands so there is never any slack in the harness lanyard". Requiring it's workers to wear retractable lanyards attached to the static line was a relatively easy safety measure and, in the circumstances, should have been implemented by Skyrise. As I understand the process, it was a measure that would have prevented Mr Hill falling. This was highlighted in the WorkCover Code of Practice 'Safety Line Systems', at 3.8, which states: '… inertia reels are not designed for continuous support but become effective in the event of a fall…' as the retractable lanyard could 'be connected to a static line with a snap hook fitted with a locking device'. 43 Skyrise had provided it's workers, including Mr Hill, with five metre retractable inertia lanyards additional to the safety harnesses and the fixed two metre lanyard. However, the retractable lanyards were not used by the workers, nor were they enforced because "…the five metre retractable lanyard is uncomfortable to wear". The decision to use the retractable lanyards was left in the hands of the employees. Such an approach to workplace safety is simply unacceptable. Mr Vullo should have enforced the need to wear the retractable inertia lanyard in spite of the uncomfortable nature of it. An employee's safety, not their comfort, is the paramount obligation owed by an employer. 44 The risk assessment conducted prior to Mr Hill's accident focused on the possibility of a fall from the building as a result of working close to the edge of the building. Mr Vullo stated that Skyrise's risk assessment was based on the assumption that when a worker was repositioning the crane, it would be done in a sideways motion near the edge of the floor. In that instance, a worker was required to wear a 2 metre fixed lanyard. However, workers were not required to wear a lanyard when the crane was being moved inwards and away from the edge of the floor. At the time of the accident, it was Mr Vullo's belief that a distance of 3 metres between the crane and the inside edge of the building was an adequate safeguard to prevent the risk of falling. That may have been the case if Mr Hill was wearing the proper lanyard attached to the safety line. 45 As stated by the Full Bench in Capral at 650, 'a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences'. In isolation, the potential for 'serious consequences' is not conclusive of the nature and quality of the offence, but it is clear that such a factor is to be considered when assessing the ultimate culpability of a defendant. 46 Further, as was stated in Capral, the existence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). 47 Given the facts and circumstances as I have identified them, the risks to safety were readily foreseeable as was the prospect of serious injury occurring to Mr Hill in the way that it did. To the extent that latter issue is a factor in assessing the nature and gravity of the offences, it is an aggravating feature as contemplated by s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 48 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. 49 Following the accident, Skyrise abandoned the use of the manual floor crane. It replaced the manual floor crane with a crawler crane operated by a licensed crane operator with a certified Dogman giving directions to the crane operator. 50 Skyrise has also purchased a set of industrial scales and has implemented a system which allows independent verification of panel weights prior to installation. Skyrise employees weigh the panels and record the weight on stickers affixed to the panel. Mr Vullo is generally present while the weighing of panels takes place. 51 Additionally, Skyrise has also made changes to its safety procedures for employees working at heights by improving the lanyard safety system. All employees are now required to use retractable lanyards instead of fixed lanyards. As an additional safety measure, Skyrise has also implemented attaching a small lanyard to the harness fitted at back of the helmet as an additional safety restraint. Employees are also required to undergo height safety training from a certified trainer. 52 Following the accident, the Company and its employees have also completed safety courses in crane operating and dogging tickets as well as Basic Rigging Tickets. Weekly in-house safety meetings are also conducted on site. 53 In consideration of all the above matters, I assess the offence as being towards the upper end of the scale of objective seriousness and will assess penalty on that basis. 54 Further, I consider the respective culpability of the defendants to be equal. On the evidence before me, Mr Vullo is very much a hands on director on a day to day basis and would appear to be, on an operational basis, the controlling mind of the corporate defendant. 55 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 56 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 57 Considerations of general and specific deterrence are relevant in this instance. The defendant continues to operate in an industry replete with ever present risks to the safety of workers. However, in light of the preventative and remedial actions taken by Mr Vullo since the accident, the weight accorded to specific deterrence should be tempered. Mr Vullo is to be commended for his prompt implementation of the remedial steps undertaken. 58 The defendants' general commitment to workplace safety are attested to by Mr Andrew Vatiliotis, General Manager of Permasteelisa Pty Ltd. In his letter, Mr Vatiliotis states: During my association with Skyrise Installations, we have worked with them to mitigate low risk activities and eliminate high-risk activities. To the best of my knowledge, I am not aware of any concerns that involve the methodology of installation, safety of workers during installation, nor any other negative concerns about the company, their workers or directors in terms of safety whilst working on a Permasteelisa project. …Skyrise have equipment that is adequate for the works being undertaken, their employees are encouraged to undertake work related courses which increase their skill levels and the management stresses the importance of participating in safety related courses such as working at heights, and the safe use of certain plant and equipment and tool box talks. 59 Mr Dave Briffa, the Queensland Safety Manager of Baulderstone Hornibrook also attested to Mr Vullo and Skyrise's commitment to safety by way of work performed in Brisbane on a 40 storey building project involving Skyrise and Baulderstone Hornibrook: Throughout this project they have demonstrated an attitude towards safety that has seen them being awarded the monthly site safety award for this project on a number of occasions. The safety award is awarded to a company that has shown and implemented a safe working attitude through regular toolbox meetings, regular attendance to site safety meetings, review of safe work procedures, compliance with site safety requirements and minimisation of work injuries. … They have demonstrated to me on numerous occasions that they have the right attitude, resources and commitment to working at all times in a safe manner. 60 Those comments were not challenged by the prosecutor. I am satisfied that all of the above evinces a commitment to workplace safety on the part of the defendants. 61 Both defendants are entitled to have their early plea of guilty taken into account in determination of penalty. In assessing the impact of the plea, the Court is guided by the decision of R v Thompson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. I award a discount in favour of each defendant of twenty five per cent. 62 The prosecution has acknowledged there are additional and powerful subjective factors in favour of the defendants. 63 The prosecution accepted that Mr Vullo was genuinely contrite in relation to the offence and has taken pro-active steps to improve the safety deficiencies revealed as a result of the accident. 64 Counsel on behalf of the defendants submitted that the mitigating factors operating in favour of the defendants could be identified by reference to s 21A(3) of the Crimes (Sentencing Procedure) Act and in particular: (a) ... (b) ... (c) ... (d) ... (e) the offender does not have any record (or any significant record) of previous convictions, (f) ... (g) ... (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) ... (j) ... (k) a plea of guilty by the offender (as provided by section 22), (l) ... (m) assistance by the offender to law enforcement authorities (as provided by section 23). 65 Mr Vullo considered quitting the industry in light of the events surrounding Mr Hill's accident but is now committed to continuing with his business and improving the safety record of Skyrise. Skyrise has maintained Mr Hill as an employee on its books for the purposes of paying money into a redundancy fund for him. Skyrise also continues to pay superannuation for Mr Hill. Mr Vullo also made an ex gratia payment of approximately $4,000 to Mr Hill shortly after the accident. 66 Additionally, the prosecution acknowledged Mr Vullo's cooperation with WorkCover's investigation and his willingness to give evidence relevant to the prosecution of Australand and Sassall were significant mitigating considerations. In making that submission, counsel for the prosecutor relied on ss 21A(3)(m) and 23(2)(a) of the Crimes (Sentencing) Procedure Act 1999 as relevant considerations. On that issue, counsel stated: It is, in my submission, significant that Mr Vullo indicated he is willing to give evidence in accordance with his statement at the proceedings involving other defendants, Australand and Sassall. Section 23 (2) refers to the type of matter that the Court must consider determining whether to impose a lesser penalty with that assistance. Not all the matters are relevant but some are and in my submission Mr Vullo's offer of assistance is significant and useful to the prosecuting authorities. We accept the evidence he gives is the truth completely and reliably and accept it is timely. 67 The defendants did not plead inability to pay but evidence of the financial circumstances of both defendants was put forward. Those details are matters that may be taken into account for sentencing purposes. On that point, s 6 of the Fines Act (1996) provides: 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. 68 The corporate defendant is essentially a small company which generally employs between 15 to 30 employees. At present, the company employs 19 people. Mr Vullo gave evidence that the number of employees fluctuated as a result of the cyclical nature of the business and the need to downsize during quieter periods. 69 The financial details of Skyrise provided show that from 1999 until 2006, the annual operating profit after tax of the company has varied from a loss of $62,201 in 2003 to profits of $107,537 and $82,754 in 2004 and 2005 respectively. At present, the company has no bank loans and it's only other liabilities are in relation to hire purchase and leasing commitments. Those commitments currently amount to $121,330 and $115,660 respectively. On that limited view, it would appear the company trades on a relatively successful basis. 70 In terms of Mr Vullo, his personal assets include the family home in Camden, which is valued at approximately $550,000 and a company car. His financial records reveal that his taxable income for 2005 came to a total of $59,032. That amount comprised of salary from Skyrise to the amount of $44,460, dividends from Skyrise amounting to $14, 285, distribution from the Skyrise Unit Trust to the amount of $3,963 and interest paid from investment in the unit trust of $4,864. 71 Counsel for the prosecutor submitted the corporate defendant's earnings were a substantial amount and it was capable of paying a significant fine. 72 The approach of this court in assessing such matters is set out in the decision of Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed that 'the penalty should reflect the objective seriousness of the offence'. 73 Taking into account all the matters referred to, I assess penalty as follows: (1) Matter No IRC 1173 of 2005: WorkCover Authority of New South Wales (Inspector Woodington) v Skyrise Installations Pty Ltd : Prosecution arising under s 8(1) of the Occupational Health and Safety Act 2000: (i) The defendant is guilty of the offence charged. (ii) I impose a penalty of $140,000. (iii) I allocate a moiety to the prosecutor on the usual terms. (2) Matter No IRC 1204 of 2005: WorkCover Authority of New South Wales (Inspector Woodington) v Domenico Hans Christian Vullo : Prosecution arising under s 8(1) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of the Act: (i) The defendant is guilty of the offence charged. (ii) I impose a penalty of $14,000. (iii) I allocated a moiety to the prosecutor on the usual terms. (3) Between them, I order the defendants to pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment. 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.