Industrial Court of New South Wales CITATION: Inspector John Patton v Richard Warren Smith and Another [2010] NSWIRComm 142 Inspector John Patton (Prosecutor) PARTIES: Richard Warren Smith (1st Defendant) Talon Lock Enterprises Pty Ltd (2nd Defendant) FILE NUMBER(S): 2085 of 2008; 2086 of 2008 CORAM: Backman J LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 CASES CITED: Inspector John Patton v Darren Paul Mercer [2010] NSWIRComm 111 Inspector John Patton v Romeo Elias Ibrahim and Others [2010] NSWIRComm 109 HEARING DATES: 17/06/2010 DATE OF JUDGMENT: 15 October 2010 Mr Mr Scott of counsel (Prosecutor) WorkCover Authority of NSW (Mr D Hall) LEGAL REPRESENTATIVES: Mr R Smith (self represented) (1st Defendant) Mr R Smith (2nd Defendant) JUDGMENT: - 12 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Backman J Friday, 15 October 2010 Matter No IRC 2085 of 2008 Inspector John Patton v Richard Warren Smith Prosecution pursuant to section 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 Matter No IRC 2086 of 2008 Inspector John Patton v Talon Lock Enterprises Pty Ltd (ACN 063 717 359) Prosecution pursuant to sections 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT OF THE COURT [2010] NSWIRComm 142 Preliminary matters 1 Richard Warren Smith pleaded guilty to an offence under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 (2000 Act). Talon Lock Enterprises Pty Ltd, of which Mr Smith was a director at the time of the offence, pleaded guilty to an offence under s 8(2) of the 2000 Act. 2 The offences concern an incident which occurred at a construction site in Kiama on 18 November 2006 when Mohammed El Gendy, a 24 year old labourer, was crushed by a concrete block wall after it collapsed. Mr El Gendy suffered very serious injuries as a result of the incident which included multiple fractures to the base of his skull. Agreed facts 3 The project under construction at the site was a multi-storey hotel and convention centre, known as "Kiama Blue", a three-stage development located in Kiama. The project was under the control of Colmerc Projects Pty Ltd (Colmerc) as the principal contractor. The first stage of the project entailed the construction of residential units, a restaurant, brasserie, and a shop, which had been completed in early 2006. Stage Two involved the construction of a motel complex (serviced apartments) built over three basement levels and four hotel levels. Stage Three involved the renovation and conversion of an existing old heritage-listed school building into a convention and function centre. Stages Two and Three were run concurrently, with the incident occurring during Stage Two. The value of the construction work for Stage Two was about 12 million dollars. 4 In Stage Two of the project, the building was being constructed in two halves because of the post-tensioning of the concrete floors. A concrete pour strip was poured between the two floor slabs after the two slabs were tensioned. The strip divided the building into two halves designated as west and east. The ground floor hotel level on the west side, designated "H1 West" was the site of the incident. 5 A number of corporate entities and businesses were involved in the project. These entities and businesses are listed below: a. Multi-Formwork & Hire Pty Ltd, concrete package sub-contractor; c. REI Construction Pty Ltd, sub-contractor to Multi-Formwork & Hire; d. A1 Formwork (Aust) Pty Ltd, sub-contractor to REI Constructions; e. B-Stress, post-tensioning concrete contractor to REI Constructions; f. DJJ Construction Pty Ltd, concrete placement and steel fixing; g. Kajima Construction Pty Ltd, supervision contractor; h. Talon Lock, supervision contractor; i. O&H Construction Pty Ltd, labour hire; j. JML Bricklaying, bricklaying contractor; k. Colmerc, Principal contractor. 6 The agreed facts provide further details with regard to the sub-contractors at the site and their respective operations at that site. A summary of those details is provided below: (a) Colmerc, as the principal contractor, undertook the business of construction work, trading under the name of Mercer Constructions. John Darren Mercer was a director of Colmerc; (b) Multi-Formwork entered into a written contract with Colmerc worth about $1.75m to undertake formwork, steel-fixing and concreting at the premises, being work to create reinforced and stressed concrete floors. Multi-Formwork then sub-contracted the works to REI. Multi-Formwork owned the formwork and falsework that was used at the premises by REI to construct the concrete floors and columns; (c) Romeo Elias Ibrahim (Mr Ibrahim) was a director of REI at the time of the incident. Mr Ibrahim had, at an earlier stage, been the sole director of Multi-Formwork and at the time of the incident he retained effective management of control of that company. Mr Ibrahim signed the contract with Colmerc on behalf of Multi-Formwork; (d) REI sub-contracted out the concrete placement, stressing and steel fixing work to other sub-contractors. It carried out the formwork erection and stripping work with the assistance of two other sub-contractors, A1 Formwork and O&H Construction. About three weeks before the incident, A1 Formwork left the site taking all its employees to another major project in Sydney. REI, as a result, required additional workers to assist it to do the formwork and falsework. Mr Ibrahim, on behalf of REI, entered into a verbal agreement with Yassir Abdalla Hussein (Mr Hussein) as director of O&H Construction to supply labour to the site in order to meet Colmerc's requirements. O&H Construction commenced to supply labour to the site from about the middle to late October 2006, a period which overlapped with A1 Formwork employees still working at the site; (e) REI appointed a sub-contractor, Kajima, to supervise the work it was doing at the site. Kajima's nominated supervisor was Anwar Abdulmajeed, who was a director of Kajima; (f) Talon Lock undertook the business of supervising and co-ordinating sub-contractors on building sites on behalf of developers and construction firms. Talon Lock had a written agreement with Colmerc to supply Mr Smith as site foreman on the project. As site foreman, Mr Smith was responsible for day to day supervision of the work being done on the project by the sub-contractors, including the planning and co-ordination of that work. 7 Mr El Gendy was employed by O&H Construction. About five to ten employees were supplied to REI by O&H Construction to work on the project. Some of those employees were overseas students, recently arrived in Australia on student visas, who had no previous construction experience. 8 At the date of the incident, Mr Hussein had only eight months experience as a construction worker. 9 At the site, either Mr Smith or Mr Mercer informed Mr Abdulmajeed on a daily basis of the numbers of labourers required. Once A1 Formwork left the site (two to three weeks before the incident) more workers were required to do the formwork erecting and stripping. Mr Abdulmajeed, in turn, informed Mr Ibrahim each day of the number of workers required. Mr Ibrahim would relay the information to Mr Hussein or Osman Abdalla, an employee of O&H Construction. If more workers than usual were required on a particular day, Hassan Saad, a friend of Mr Hussein, would pick up additional employees from Sydney and drive them to the site in Kiama. 10 The circumstances immediately prior to and at the time of the incident have been conveniently set out in the agreed facts as follows: At the time of the Incident the Incident Wall was freestanding and not braced or secured by any means. The Incident Wall was not connected to the ceiling. The base of the wall was constructed on a layer of damp proof course (DPC), a thin strip of bitumen coated aluminium, which separated the wall from the concrete slab. As a consequence of Mr Smith's directions, on the day of the incident at H1 east, immediately adjacent to the area where the Incident Wall fell over, there were employees of REI stripping formwork and falsework from the underside of the H2 east floor above. One of the REI workers was Ali Saddick. There were five Sudanese workers employed by O&H who were denailing, cleaning and stacking the formwork and the falsework frames that were being stripped from this area. Four of these Sudanese workers were Shitag Akot, Arkangelo Kon, Manut Madouk and Dut Deng. At about that time Mr El Gendy, Mohamed Elzaher and Atef Nasser were carrying the smaller formwork pieces, namely the formwork jacks, and some of the formwork, up the scaffold stairs from the ground floor level to a higher level on the site. The supervisor, Mr Abdulmajeed, observed two of the workers carrying the jacks up the stairs and stopped them. Mr Abdulmajeed directed the three of them to form a chain, that is, one person stand on the ground floor, one on the scaffold and one on the higher level and pass the material up that way rather than walk it up the stairs. Mr Smith was unaware that at about the time of the incident, approximately 8.10am, Mr Elzaher and Mr Nasser were standing on the ground floor level (H1 west) adjacent to the Incident Wall. Mr Nasser was passing on Mr Abdulmajeed's instructions to Mr Elzaher. Mr El Gendy was standing approximately three metres away on the same level, but in front of the Incident Wall. Mr El Gendy, Mr Elzaher and Mr Nasser were standing by the Incident Wall when it began to move. Mr Elzaher pulled Mr Nasser away from the wall as it was falling and as a result both avoided being struck by the falling blocks. Mr El Gendy was turning and saw the wall falling. He put his arms up as the wall struck him. Mr El Gendy struck the side of his head on the scaffold next to him and fell to the ground with the concrete blocks on top of him. On top of the blocks were some of the steel formwork frames that had been leant against the wall, the other having slid away from the area. Mr El Gendy was unconscious for a short period. Mr Nasser ran over and commenced removing the blocks off Mr El Gendy while Mr Elzaher ran to get help. Other workers on the same floor came over to assist and commenced removing the formwork frames and the concrete blocks. The bulk of the concrete blocks were removed and dumped into a skip bin close by, and the area was cleaned up to allow the ambulance crew to get access to Mr El Gendy. 11 It should be clarified (from other evidence which emerged at oral hearing) that the wall (referred to in the agreed facts as the "incident wall") had been constructed the day before the accident by JML Bricklaying. Newly constructed brick walls are commonly referred to as "green" walls. The immediate cause of the collapse of the wall was due to a number of steel formwork frames that had been leant or propped against the wall by workers from O&H Construction. System of work in place prior to accident 12 The agreed facts record the system of work that was employed at the site prior to and at the time of the incident as follows: REI were using a conventional formwork system on site to construct the suspended floors of the building, that is, steel falsework frames, jacks, U-head jacks, upon which timber falsework is placed, namely timber bearers, joists and plywood to form a deck. This system requires the formworkers to erect the steel falsework across an open area, erect the timber formwork on top, place the steel reinforcement and stressing ducts, pour the concrete, stress the deck, then wait the appropriate period for the new concrete and steel floor to set before lowering the adjustable falsework so that the timber formwork (plywood, joists and bearers) can be stripped out and the metal formwork can then be removed from under the suspended floor. The formwork and falsework is then moved to the next level where required. In this case the level directly above was completed and the material was to be utilised several levels above. The usual building practice is for the metal formwork frames, when not in use, to be stored horizontally, with the frames tied together and moved either by forklift or by pallet jack to a point with external access (above ground floor this is usually a landing platform which juts out from the building) where they can be lifted by crane up to the floor above where they are then reassembled in order to construct the next concrete floor. Prior to the incident, there were no loading platforms installed on the floors of the building to allow materials to be moved out from under the concrete floors so that a crane could move the formwork up to a higher level. These loading platforms can be rolled in and out to allow work to continue on higher or lower levels, and were installed Monday 20 November 2006 as requested. It was the responsibility of REI to organise and pay for their own cranage as per their contract with Mercer Constructions. There were no materials hoist or man and materials hoist installed on the site. A materials hoist moves smaller materials up or down between floors. At the Premises before the incident brickwork was being done before the formwork had all been stripped and stored. This meant that sub-contractors from different trades were working alongside each other. In those circumstances it was particularly important that there was good communication and supervision of the different work. Disputed facts 13 During the proceedings, Mr Smith disputed some matters sought to be relied upon by the prosecutor. The main area of dispute concerned the state of the floor in H1 West. According to the prosecutor, the area in H1 West at the time of the incident was cluttered with materials, and a number of different tradespeople were working in the area at the same time resulting in poor organisation of work, materials and people. Mr Smith, on the other hand, contended that the floor area in H1 West at the time of the incident was uncluttered, clean and swept, with no materials stored there that should not have been there. 14 Mr Smith relied on photographs taken by the prosecutor on the same day, shortly after the incident, to support the contention. According to Mr Smith, the photographs (numbered 2, 12, 23 and 24) depict about 20 to 30 percent of the floor area in H1 West and show, "an uncluttered floor with no materials in the area". Photographs 12, 13 and 14, according to Mr Smith, depict the actual frames that were leant against the incident wall (causing it to collapse) but those frames were not stored in the area while the bricklayers were working. 15 The prosecutor tendered a record of interview with the bricklayer who constructed the incident wall, Jeff Lee, from JML Bricklaying. Mr Lee was asked whether, at the time the JML Bricklayers were laying bricks in H1 West, they had a clear area to work in. He replied: It wasn't too bad, there was still some formwork there and I had to get it moved. 16 The precise time during which this state of affairs was said to have existed in H1 West is not clear from the record of interview, however, it appears to correspond to a period of time about two days before the incident. This period of time falls within the date on which the offences occurred, namely, between 16 and 18 November 2006. 17 Mr Lee was asked further questions in the record of interview in relation to the issue. Those questions and his responses are extracted below: Q38 Prior to the incident, where were the formworkers storing their formwork material? A38. There was formwork material stored on the ground at the west end outside the building, and where the formworkers were working. Q41 Did you have any safety concerns on the site prior to the incident? A41. Yes, there were safety issues. One of the main ones was trip hazards from materials across the floors, way too much material stored on each floor. The majority of the stripped formwork was sitting on the floors because they didn't have the man power to move it because they were all working on the formwork for the pours. There wasn't enough power boards on site. We were running leads from floors below. One big thing was water taps. Every trade was trying to use one tap on each floor. Every one would rip out a hose while the brick saw was running so they could hook up to the tap. At one stage, there were three floors using the one tap. The coordination of the trades was poor. Everybody was working over the top of each other. All the trades I spoke to told me they didn't have a free run at the work. On one day, we made Mercer Constructions remove the formwork off a section of H1 level. They finally moved it, and we were set to start. Over the weekend, the framers came in installed frames. I had to work around the framers. Rick Smith told the framers to work. I went past the other day and those walls still aren't lined, so there was no need to install the frames before we laid the bricks. I was bricking walls up around service penetrations, that Rick Smith wanted put up, and next the plumber was knocking them down because he hadn't put the pipes in the penetration yet. In the basement area there was a lot of trouble. The post tensioning guys hadn't finished and we were laying blocks around them before they finished stressing. One day I had a massive screaming match with Rick Smith. He had me come to site to lay bricks, and when we turned up, there was a massive pile of gravel on the slab and a bobcat running around backfilling the walls. We couldn't work while the bobcat was running around, and anyway, there wasn't any sand on the slab for us to use anyway. I saw Rick Smith load up the basement level and H1 West level with pallets of bricks, sand and materials even before the formworkers had started to strip the formwork. They were expected to strip the formwork around the pallets and sand. Because they built the west end first, they were dragging the materials over to the east end before the formworkers were even ready to form up. Q42 Who did you raise these safety concerns with prior to the incident? A42. I spoke to Rick Smith many times about giving us a free run, I spoke to Darren Mercer about giving us a free run. By free run, I mean coordinating the trades properly, cleaning up the area we were expected to work in, a clear area for us to work in. Q43 What did Rick Smith and Darren Mercer do once you raised these safety concerns? A43. They would agree with me that I needed a free area, but it never happened. 18 Mr Lee, when asked his opinion as to the cause of the accident, said that it would not have occurred if the formwork had been completely stripped thereby dispensing with the need to stack material in the area. 19 Andrew Pearson, the safety officer at the site and an employee of Colmerc, was also asked in a record of interview some questions about multiple trades working in the same area at the same time. Those questions and his responses are extracted below: Q95 Why were the bricklayers working in the immediate area of the formworkers while they were still in the process of stripping formwork on the level that the incident occurred? A95. The foreman Rick Smith asked them to. Q96 Who organised for the bricklayers to work on the same level and area as the formworkers? A96. Rick Smith. Q97 What do you believe could have been done to prevent the accident from occurring? A97. Appropriate supervision of formworkers by the formwork foreman. Segregation of different trades. Suitably qualified and experienced formworkers undertaking the work. 20 Neither Mr Lee, nor Mr Pearson, were required for cross-examination. I am satisfied, therefore, (beyond reasonable doubt) that the area in H1 West accommodated, one or two days before the incident, a number of tradespeople working there which caused difficulties in co-ordinating the workforce and properly organising the assemblage and dispatching of materials from the site, which in turn hampered the overall work effort. The evidence is sufficient to sustain an inference that the state of H1 West at this time gave rise to safety issues associated with the risk of collapse of the incident wall, on 18 November 2006. 21 The finding is supported by the agreed facts (set out above) that the bricklaying was being done before the formwork in H1 had been stripped and stored which meant that sub-contractors from different trades were working alongside each other. The comment made in relation to this in the agreed facts was that, "it was particularly important that there was good communication and supervision of the different work". Other objective factors 22 The risk to the safety of the workers on the day of the incident arose, in the Court's view, because of inexperienced workers at the site who were inadequately instructed and supervised, and because of the absence of safe alternative means of transporting and storing the materials stripped from the H1 area. 23 As the agreed facts record, the majority of the O&H Construction workers were overseas students, recently arrived in Australia with no previous construction experience. Most of them could not read English. 24 With regard to matters of training, supervision and information, the agreed facts record that Mr El Gendy received "limited" O&H Construction induction prior to the incident. The only training received by the other O&H Construction employees was "on the job". Nothing in the agreed facts sheds any further light on what Mr El Gendy's "limited" training consisted of or what elements comprised the "on the job" training received by the other workers. 25 With regard to supervision and information, the agreed facts set out the following matters: There was confusion on the site as to who was the supervisor of the O&H's employees. Mr Smith believed Mr Abdulmajeed was the supervisor of O&H. When Mr Ibrahim engaged Mr Hussein to supply labour to the site, he stated that O&H had to provide a supervisor, and Mr Ibrahim was informed that this would be either himself or Mr Osman Abdulla. Mr Hussein and Mr Abdulla did supervise the O&H employees when they were at the site. Neither he nor Mr Abdulla were at the site however on the day of the Incident nor on the previous three to four days. Mr El Gendy, Mr Elzaher and Mr Saddick did not know who their supervisor was. The O&H employees did not know who the builder or person in control of the site was. On the day of the incident, there was no direct supervision of the O&H workers on the H1 level by either O&H or REI. Mr Abdulmajeed was on site as the supervisor representing REI and Multi-Formwork, but not O&H. As the Site Foreman supervising works at the site on the day of the incident Mr Smith did not direct JML Bricklaying that when it had constructed the untied and unbraced newly constructed free standing block masonry wall, which was still 'green' (the Incident Wall), that the area around that wall was to be cordoned until such time as the wall was braced or otherwise made stable, because Mr Smith deemed the wall safe and did not require bracing. There was no written information given to any of the employees of O&H. None of the employees were shown or told the contents of the only SWMS for formwork on site that was prepared by REI. There were no written procedures for O&H or SWMS. Most of O&H employees could not read English. 26 The agreed facts do not allege that Mr Smith had direct supervisory responsibilities for the O&H Construction workers. It is apparent that no one person or entity present at the site at the time of the offences exercised, or considered they (or it) had, supervisory responsibilities for the workers. This was a particularly serious deficiency in the systems operating at the site given the workers' collective inexperience and, in most cases their limited capacity to read English. 27 As for Mr Smith's role at the site it was an agreed fact that he was responsible for day to day supervision of the work being done at the site by the contractors. According to Mr Smith, this responsibility did not extend to direct supervision of the individual workers at the site. It was limited to supervision and co-ordination of the "head contractor" for each trade. Mr Smith said Mercer performed the inductions and his role was, "to point them in the right direction". According to Mr Smith the supervisor appointed by each of the sub-contracting entities gave directions to the employees of that entity. 28 To some extent, Mr Smith's actions on the day the wall collapsed belie his words. By his own account Mr Smith gave direct instructions to O&H Construction workers on 18 November 2006 not to stack the materials in H1 West. He directed them to move formwork frames (which had been deposited in the area near the incident wall) because he said he needed the area cleared for the bricklayers. He directed the workers to return the materials to H1 East, in readiness, he said, for the delivery of a crane and platform due at the site the following Monday (which would be utilised to transport materials to the next level). 29 The newly constructed wall once lateral forces were exerted against it (the steel frames) presented an obvious hazard to any worker who came within its near vicinity. It was, in addition to being "green", freestanding, not braced or tied and no barriers or signage were placed around it to prevent access. Australian Standard AS 3700-2001 Masonry Structures states at 11.9.1 and 11.9.2: 11.9.1 Temporary bracing Masonry under construction shall be braced or otherwise stabilised as necessary to resist wind and other lateral forces, in such a manner that the structural integrity of the member or structure is not impaired. 11.9.2 Premature loading Masonry shall not be subjected to any load until it has gained sufficient strength to carry this load safely. 30 Australian Standard AS 3700 Supplement 1 - 2004 provides the following supplemental information on matters of temporary bracing and premature loading of masonry under construction: C11.9.1 Temporary bracing It is not unusual for high winds, soil or water pressure to cause the collapse of incomplete masonry, when the flexural strength from mortar bond is not fully developed or when lateral support from returns and floor or roof structures are not yet provided. Site control should recognise this hazard and should make provision for temporary bracing capable of stabilising the construction, where necessary, to be installed. C11.9.2 Premature loading It is usually assumed that the design strength of unreinforced masonry is fully developed at an age of about 7 d (days). For reinforced masonry this should be extended to 28 days, because of the grout component in that masonry. Greater times should be allowed during periods of cold weather when the rate of gain in strength of the masonry is reduced because of the lower temperatures. 31 A WorkCover publication, tendered by the prosecutor, entitled "Safety Alert. Temporary Support of Masonry Walls under Construction", states, relevantly: This alert is produced as a result of a number of recent masonry wall collapses that have resulted in death and serious injury in the construction industry. This document alerts people to the potential collapse hazard associated with the construction masonry walls. It provides guidance about precautions to prevent masonry walls from collapse before being fully incorporated into the finished structure. Masonry walls, and in particular freestanding walls not yet attached to any other structure, are vulnerable to wind or other lateral forces. They are particularly vulnerable to instability problems because their ability to withstand lateral forces greatly reduces as the height of the wall increases. Therefore it is essential that principal contractors, employers and subcontractors assess the risk of collapse of masonry walls which are not tied in to the completed structure and determine and implement appropriate risk control strategies. 32 These matters attest to the very serious and obvious risk to the safety of workers in the vicinity of the wall once the O&H Construction workers placed the steelwork frames against the wall. They also serve to illustrate that Mr Smith fundamentally misunderstood the nature of the newly constructed wall which he had deemed safe and therefore unnecessary to be braced. 33 The risk to safety in the circumstances was also reasonably foreseeable, a fortiori when the inexperience and absence of supervision of the O&H Construction workers is factored in. 34 The likely consequences of the breach of the offences, realised in the serious injuries sustained by Mr El Gendy, also add to the seriousness of the offences. 35 Another factor which adds to the overall seriousness of the offences is that simple and readily implemented steps prior to the offences would have avoided the risk. Work could have been organised by way of appropriate instruction and supervision to ensure that none of the workers were required to work in the vicinity of the incident wall. The wall itself could have been barricaded and/or otherwise properly secured. 36 On the issue of failure to provide supervision to the workers engaged in the stacking of the steel frames, Mr Smith, after instructing the workers to remove the frames from the area in H1 West, could have, following Mr Abdulmajeed's arrival at the site (before the wall collapsed), spoken directly to Mr Abdulmajeed to ensure his instructions were properly carried out. Although the agreed facts state that Mr Abdulmajeed was the supervisor on site representing REI and Multi-Formwork, not O&H Construction, Mr Abdulmajeed nevertheless took it upon himself to supervise and direct O&H Construction workers to form a chain and transport materials up the staircase in the H1 West area in the vicinity of the incident wall. These facts suggest that had Mr Smith spoken to Mr Abdulmajeed some appropriate alternative arrangements could have been made to ensure the safe passage of the materials and the safety of the workers. 37 General deterrence also falls for application. I adopt my observations on this issue made in Inspector John Patton v Romeo Elias Ibrahim and Others [2010] NSWIRComm 109 at [63]: General deterrence must also be applied. The present set of circumstances reveals a most unsatisfactory approach to matters of safety at a construction site. Construction sites are, or can be, notoriously dangerous places for workers when they are not the beneficiaries of well-organised and promulgated systems, adequate instruction, information, training and supervision. The present matters are a timely illustration of what can go wrong when safety procedures are not properly addressed, devised or implemented. The importance of safety measures again needs to be emphasised to all employers and contractors who engage workers, particularly inexperienced workers, to perform work at a construction site. 38 Specific deterrence also falls for application at least as regards Mr Smith's circumstances. Mr Smith informed the Court that he has worked in the construction industry for some 25 years and during that time no workers under his control or supervision have suffered any work-related injury. This good record will be taken into account in Mr Smith's favour in assessing penalty. Nevertheless, Mr Smith continues to work in the construction industry having recently formed a new corporation, "Calec Construction Group" of which Mr Smith is a director. Calec Construction Group undertakes work in the construction industry. Talon Lock is in liquidation. Specific deterrence therefore has no application to that defendant. 39 Neither defendant has prior convictions. The maximum penalty faced by Talon Lock is $550,000 and by Mr Smith, $55,000. Subjective factors 40 Both Talon Lock and Mr Smith entered pleas of guilty to amended charges which were filed in court on the day of the sentence proceedings by the prosecutor. In these circumstances, the Court finds that the pleas of guilty were entered by both defendants at an early stage. I propose therefore to award a discount of 25 per cent on penalty for the utilitarian benefit derived from the pleas of guilty. 41 As a separate consideration from the utilitarian values of the pleas, the defendants are also entitled to leniency in recognition of the remorse shown by the pleas of guilty. The absence of prior convictions in the case of the two defendants also entitles them to leniency normally extended to an offender who is not adversely recorded. 42 The defendants also co-operated with WorkCover during the course of its investigations into the incident. 43 Mr Smith also informed the Court that he and his wife are guarantors for a debt in the vicinity of $9.5 million. the debt is owed to Network Consumer Finance Pty Limited (NCF) by one of Mr Smith's former companies, Upper Class Developments Pty Limited. Mr Smith tendered a statement of claim in support of a submission to the effect that he had a limited capacity to pay a fine. The statement of claim lodged on 3 February 2009 nominates NCF as the plaintiff and Mr Smith as the defendant in Supreme Court proceedings. A claim in the sum of $12,586,069.32 is made against Mr Smith in relation to a loan agreement between NCF as the lender and Mr Smith, Shani Gwen Smith (Mr Smith's wife), Calzah Pty Limited and Upper Class Developments, as borrowers. 44 In the presence of the prosecutor, at oral hearing, it was explained to Mr Smith by the Court that in order for it to take into account his capacity to pay a fine, reliable and comprehensive evidence needed to be placed before the Court. Mr Smith was invited to provide relevant financial records to the Court and to the prosecutor if he wanted the Court to take into consideration in his sentence proceedings his capacity to pay a fine. The prosecutor agreed to explain to Mr Smith after the sentence hearing what type of documentation the Court would require in order to properly consider the issue. 45 Documentation was sent by Mr Smith some days after the sentence hearing. On the basis of the prosecutor's acquiescence in the matter, the Court intends to consider the material. 46 The documentation consists of the following records: (i) incomplete Income Tax Return in Mr Smith's name for financial year ending 30 June 2008; (ii) draft Income Tax Return in Mr Smith's name for financial year ending 30 June 2009; (iii) copy of statement of claim tendered during the sentence proceedings; (iv) copy of Short Minutes of Order entered into between NCF and Richard Smith on 17 June 2010 with regard to the filing and serving of evidence; (v) St George Bank document evidencing an increase on a loan facility to Shani Gwen Smith from $640,000 to $840,000 on 3 September 2008 (referred to by Mr Smith in his covering letter as a mortgage to St George Bank on "our home" at 317 Jerrara Road, Jerrara; (vi) valuation of Jerrara Road property (market value: $800,000); (vii) St George Bank statement issued to Shani G Smith for month of June 2010 with regard to the loan facility approving a credit limit in the sum of $840,000. 47 In the covering letter enclosing the documentation, Mr Smith wrote that the combined net income for the last taxation year of himself and his wife was $102,000. Mortgage repayments on the current loan total $57,360 per annum and the balance of the income supports "his family of six children". 48 These matters, taken together, suggest that Mr Smith has some limited capacity to pay a fine. The Court proposes to take into account this limited capacity and impose a fine which will be somewhat less than would have been imposed given the seriousness of the offence. Respective roles 49 Neither party directly addressed the question of the their respective culpabilities by reference either to each other or to other co-defendants. Other co-defendants have been prosecuted in relation to the incident concerning the collapse of the wall on 18 November 2006: Inspector John Patton v Ibrahim; Inspector John Patton v Darren Paul Mercer [2010] NSWIRComm 111. 50 At oral hearing, the prosecutor's only submissions on the respective roles of Mr Smith and Talon Lock in the circumstances of the offences were expressed in the following exchange with the Court: The primary vice, the prosecutor says, that arose in regard to this site and the work in question is that of poor organisation of work and materials and people. It is not, the prosecutor submits, a matter which is solely at the discretion of Mr Smith and the company Talon Lock, but they had very real role to play, as Mr Smith sets out in his affidavit. HER HONOUR: You're saying Mr Smith was not solely responsible? SCOTT: No. If one goes to the statement of facts you will see there were a number of companies on-site. There were also a number of different companies with their own supervisors on-site. Mr Smith had an overriding coordination role, but in doing that, he was subject to the direction of the principal contractor. If one goes to paragraph 34 of the statement of facts ... HER HONOUR: The principal contractor being Colmerc Pty Ltd. SCOTT: Yes. And paragraph 52 assists in this regard. It shows they were multiple firms on-site Talon Lock Enterprises were subject to the direction of Colmerc Projects Pty Ltd, but had the role of being the site supervisor, and within that there were a number of supervisors of different levels, Mr Dung Gee (sic) being one of those, and he worked for his own company, but he was contracted to work as a supervisor for Kajima Constructions. 51 The Court infers from the submission that the prosecutor accepts, in terms of a hierarchy of respective culpabilities, that Mr Smith's culpability was less than that of the principal contractor, Colmerc, and perhaps "on par", or slightly above, that of the other supervisors at the site, including Mr Abdulmajeed. It was not explained by the prosecutor, however, how a designation of site supervisor, per se, could without further details, satisfy the Court as to Mr Smith's and Talon Lock's culpabilities. The sections of the agreed facts to which the Court was referred do not take the matter any further. Paragraph 34 of the agreed facts sets out the contractual arrangements on the site in the form of a graph. Paragraph 52 of the agreed facts sets out the organisational chart for Colmerc at the time of the incident, also in graphical form. 52 Mr Smith alluded in submissions to Mr Abdulmajeed's knowledge of REI's Safe Work Method Statement (SWMS), prepared by REI in relation to the project. In particular, Mr Smith directed the Court's attention to the work method set out in the SWMS with regard to the movement and placement of materials to construction levels. The safe method identified in the document for the activity was that formwork material was to be stacked on loading platforms and "the builder" was to provide mobile cranes to transport the material to another level. According to Mr Smith, Mr Abdulmajeed (as the person appointed to supervise REI employees and all sub-contractors working for REI at the site) was aware of the proposed method for transporting materials between levels. Moreover, Mr Abdulmajeed knew that a crane and platform was due to arrive at the site the following Monday to facilitate the movement of the materials from H1 level to H2 level. There was therefore no necessity for Mr Abdulmajeed to direct the workers to manually transport materials up the staircase. In reply, the prosecutor submitted that no other method of moving the materials was available. 53 The submissions by both parties, however, do not explain why it was that the materials had to be moved to the level above H1 West on 18 November 2006 instead of waiting until the following Monday for the arrival of a crane and loading platform which would have transported the materials, utilising the method contemplated in REI's SWMS. Mr Smith suggested that time and financial considerations were the driving factors. There was no evidence to support the submission. The Court is unable therefore to consider the matter. 54 In the absence of adequate submissions on the issue of respective culpabilities, it would not be appropriate for the Court to embark on a consideration of the issue by reference to the respective roles of other co-defendant's, and persons not prosecuted in relation to the incident, such as Mr Abdulmajeed. Penalties 55 In determining penalties against the defendants, I have taken into account the objective seriousness of the offences, the maximum penalties, factors in mitigation and the absence of prior convictions. These matters have been considered by reference to the Crimes (Sentencing Procedure) Act 1999, in particular, s 21A. Orders 56 In No. IC 2085 of 2008, the Court makes the following orders: The defendant, Richard Warren Smith, is convicted of the offence and fined $8,000 with a moiety to the prosecutor. (3) The defendant is to pay the reasonable costs of the prosecutor as agreed, or in the absence of agreement, as assessed. 57 In No. IC 2086 of 2008, the Court makes the following orders: The defendant, Talon Lock Enterprises Pty Ltd, is convicted of the offence and fined $90,000 with a moiety to the prosecutor. (3) The defendant is to pay the reasonable costs of the prosecutor as agreed, or in the absence of agreement, as assessed. ___________________ 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. 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