Industrial Court of New South Wales CITATION: Inspector Batty v David Smith t-as David Smith Roofing and Guttering [2009] NSWIRComm 203 Inspector Ian Batty (Prosecutor) PARTIES: David Smith t/as David Smith Roofing and Guttering (Defendant) FILE NUMBER(S): IRC 3185 of 2006 CORAM: Haylen J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) - guilty plea entered - workplace death - criminal proceedings alleging felonious slaying of worker under s 18(1)(b) Crimes Act 1990 - defendant pleads guilty in District Court - sentenced to two years imprisonment but sentence suspended and two year good behaviour bond imposed - occupational health and safety prosecution proceeds in relation to same accident particularly regarding risks to other workers - team of five performing re-roofing work on factory - work involved replacing whole roof and installing polycarbonate sheeting at intervals to allow light into factory - polycarbonate sheeting to be laid with safety mesh underneath to prevent falling through sheeting - failure to ensure safety mesh properly fitted and fixed - failure to properly supervise work including fixing of safety mesh - failure to provide adequate training, information and instruction - failure to ensure suitable restraint devices available for all workers and were worn by all workers - lack of safe access and egress to and from roof - serious breach found - difficulty in establishing extent occupational health and safety prosecution overlapped with Crimes Act conviction - double jeopardy a serious issue - benefit of doubt to be given to defendant - general and specific deterrence - significant subjective factors - penalty imposed. Crimes Act 1990 s 18(1)(b) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, ss 10, 12, 21A (3)(i) Occupational Health and Safety Act 2000 s 8(1) CASES CITED: De Simoni v The Queen (1981) 147 CLR 389 Pearce v The Queen (1998) 194 CLR 610 HEARING DATES: 21 October 2009 DATE OF JUDGMENT: 27 November 2009 Mr M Cahill of counsel (Prosecutor) SOLICITORS: WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Mr E Craney (Solicitor)(Defendant) SOLICITORS: Craney Family Solicitors JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J Friday, 27 November 2009 Matter No IRC 3185 of 2006 INSPECTOR IAN BATTY v DAVID SMITH t/as DAVID SMITH ROOFING AND GUTTERING Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2009] NSWIRComm 203 1 During 2003, Stelform Engineering ("Stelform") was the occupier of premises in Abdon Close, Bennetts Green (a suburb in the Newcastle area) from which it conducted its business. Early in 2003 Stelform called for quotations for the removal and replacement of roofing of the warehouse on the site. The task involved, in part, the replacement of existing skylights with full length light panels using translucent roofing sheets from the gutter line to the ridge in order to improve lighting to the workshop. Ultimately, a quotation was accepted from Mr David Smith t/as David Smith Roofing and Guttering ("Mr Smith") and a roofing company who, acting together, proposed to perform the task with the other company supplying the materials and Mr Smith carrying out the installation work. Mr Smith was a licensed roof plumber who operated his own small business. 2 In approximately mid-April 2003 the work at the warehouse commenced and by 25 April substantial progress had been achieved in the re-roofing task. On this day Mr Smith and his crew commenced work at approximately 7.00am. His crew consisted of Mr Richard Thirkell, a roof plumber and leading hand, Mr Justin Davis employed as a metal roofer, Mr Tony Davis employed as a roof labourer, Mr Andrew Williams, a sub-contractor and Ms Judith Davis employed in administrative work and general duties. At approximately 8.00am Ms Davis walked across the roof, stepped on to a sheet of polycarbonate near the ridge of the roof line and that sheet gave way as well as the safety mesh under it and she fell 9.6 metres to the concrete floor below where she suffered fatal head injuries. 3 The death of Ms Davis was investigated by the WorkCover Authority and the police. Between August 2004 and September 2004 the Coroner conducted an Inquest into the death of Ms Davis. In due course Mr Smith was charged under s 18(1)(b) of the Crimes Act 1990 with the felonious slaying of Judith Josephine Davis, an offence which attracted a maximum penalty of 25 years imprisonment. Mr Smith was committed for trial and on 4 November 2008 he pleaded guilty to the charge. He was sentenced on 6 November 2008 in the District Court sitting in Newcastle. Mr Smith was sentenced to a term of imprisonment for two years, however, pursuant to the provisions of s 12 of the Crimes (Sentencing Procedure) Act 1999, that sentence was suspended on the basis that he entered into a good behaviour bond and was to come before the court if called upon to do so. Also, he was to accept the supervision of the Probation Service and to attend counselling if that was thought necessary by the Probation Service. 4 In late September 2006 Inspector Batty commenced prosecution proceedings against Mr Smith alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000, a breach arising out of the same incident. By consent, those proceedings were adjourned on a number of occasions while awaiting the conclusion of the criminal proceedings in the District Court. By September 2009 Mr Smith had entered a plea of guilty in this Court to an Amended Application for Order. 5 The particulars of the amended charge were that Mr Smith was in breach of s 8(1) of the Act in failing to ensure the health, safety and welfare at work of all his employees and in particular Justin Davis, Richard Thirkell and Tony Davis in that: (a) the defendant failed to provide a safe system of work with respect to the removal and replacement of roofing at the site in that: (i) the defendant failed to ensure that the safety mesh on the roof of the building was properly fitted and fixed; (ii) the defendant failed to ensure that risks associated with working at heights were controlled in accordance with clause 56 of the Occupational Health and Safety Regulations 2001 (NSW); (iii) the defendant failed to provide all its employees with fall restraint devices that were properly fixed and fitted whilst working at height exceeding 2 metres; (iv) the defendant failed to ensure that all its employees wore properly fixed and fitted fall restraint devices whilst working at a height exceeding 2 metres; and (v) the defendant failed to provide a safe means of movement across the roof, including but not limited to safe means of movement across plastic roofing sheets. (b) The defendant failed to provide such information, instruction and training as was necessary to ensure the health and safety at work of its employees in that: (i) the defendant failed to provide adequate training and instruction to its employees in the appropriate methods for installing safety mesh; (ii) the defendant failed to provide adequate training and instruction to its employees with respect to the use of fall restraint devices; and (iii) the defendant failed to provide adequate training, including but not limited to training with respect to walking on metal purlins and, where necessary, the use of roof boards or roof ladders for the crossing of plastic roofing sheets. (c) the defendant failed to provide adequate supervision to its employees in that: (i) the defendant failed to provide adequate supervision to its employees in the appropriate methods for installing safety mesh; and (ii) the defendant failed to provide adequate supervision to its employees with respect to the use of fall restraint devices; (d) the defendant failed to provide all its employees with appropriate fall restraint devices that were properly fitted and/or fixed whilst working at a height exceeding 2 metres; (e) the defendant failed to ensure that all its employees wore appropriate fall protection devices, harnesses or fall arrest devices that were properly fitted and/or fixed whilst working at a height exceeding 2 metres; (f) the defendant failed to provide its employees with a safe and proper means of access to and egress from the roof and the areas of the roof on which they were required to work; (g) as a result of the abovementioned failures on 25 April 2003, Justin Davis, Tony Davis and Richard Thirkell were placed at risk of injury. 6 At the sentencing hearing, the evidence for the prosecutor comprised: a Statement of Agreed Facts; a prior convictions certificate indicating that Mr Smith had no prior convictions; a certificate of conviction recording that Mr Smith had been sentenced to two years imprisonment for manslaughter pursuant to s 18(1)(b) of the Crimes Act with that sentence being suspended and Mr Smith being placed on a two-year good behaviour bond; a statement and photographs taken at the scene by a WorkCover Inspector; a statement and photographs taken at the scene by police officers; Mr Smith's quotation for the work at Stelform Engineering; agenda and meeting minutes dated 24 March 2003; a one-page job safety assessment provided by David Smith Roofing and Guttering; a job safety and environment risk assessment provided by Stelform; a WorkCover Code of Practice dated November 1993 dealing with safe work on roofs - Part 1 Commercial and industrial buildings; the WorkCover Code of Practice for Safety Line Systems; Australian Standard 2424-1991 dealing with plastic building sheets - General installation requirements and design of roofing systems; a statement by Mr Noel Davis for whom Mr Smith had provided roof replacement services in mid-2002; a statement by Inspector Batty and another statement containing a number of photographs of the area of the accident; a statement of Inspector Michael Dall together with a number of photographs of the scene. 7 Mr Smith was represented at the sentencing hearing by Mr Craney of Craney Family Solicitors. Mr Craney informed the Court that he was appearing on an "amicus" basis in order to assist Mr Smith in this matter. Mr Craney made it clear to the Court that he had no expertise in this area of the law but was appearing to assist Mr Smith as best he could and to put this offence in context having regard to the criminal proceedings in the District Court and the severe penalties he had already faced. 8 Although initially it was not proposed any evidence would be called for Mr Smith and that his case would be dealt with by way of submissions, ultimately, Mr Smith gave evidence in order to put some financial details before the Court. In that evidence Mr Smith said he was currently employed on a casual basis and in the last month he had been working approximately 40 hours per month, an average of 10 hour per week. He commented that work in the building industry was slow and this was the only work he was able to obtain. He had previously received Centrelink benefits but after working for six weeks that benefit was discontinued. Because of lack of work in the building industry he thought it possible he would soon return to Centrelink benefits. Mr Smith said he did not own any property, real property or houses and at the moment he was living in a flat at the rear of his mother's property. He had a car that had a resale value of approximately $2,000 but that was under finance arrangements requiring him to pay $62.00 per week. That obligation was to continue for the next two to three years. In the last month he had earned $800 and his outgoings as a generalisation were approximately $300 per week. For the past month he had been spending more than he was earning. He had a bank account with $300 in it. The work he was performing on a casual and not continual basis paid an hourly rate of $22.50. Mr Smith had been released from bankruptcy in April 2008 with outstanding debts of $814,000. He was unable to make any contributions to the Trustee in Bankruptcy in relation to that bankruptcy because he did not have any assets. He did not believe he would be able to gain employment on a full-time basis because of the nature of the industry and current economic circumstances. He had no superannuation that he could now draw upon. 9 In view of issues raised by the Court concerning the nature of the charge to which Mr Smith had entered a guilty plea in the District Court, counsel for the prosecutor tendered the District Court indictment and the Agreed Statement of Facts for Mr Smith and also the indictment and the Statement of Facts for Mr Thirkell, an employee of Mr Smith on the day who had also been charged with feloniously slaying Ms Davis. In relation to Mr Thirkell, the District Court, pursuant to s 10 of the Crimes (Sentencing Procedure) Act, found the offence proved but declined to record a conviction. The prosecutor also tendered the sentencing judgment of her Honour English DCJ, dated 6 November 2008 in relation to Mr Smith. 10 The circumstances of the present case lead the Court to attach some significance to the sentencing remarks of English DCJ. Her Honour noted that Ms Davis was a 41-year-old woman who had been in a de facto relationship with Mr Smith for approximately 14 years although they had separated approximately three weeks before the accident. In his evidence in the District Court, Mr Smith said they were attempting to reconcile and that Ms Davis continued to work in the business although he regarded her more as a partner than an employee. After describing the nature of the work it was recorded that the contract provided for payment of $22,800. The roof to be replaced was approximately 9.64 metres above ground level and the roof was quite flat with a pitch of approximately 6 degrees. A ladder to a lower roof and then a second ladder on to another roof gained access to the work site. The metal sheets were rigid enough to walk across but the polycarbonate sheeting was not as strong. A piece of safety mesh made of wire was to be rolled out under each polycarbonate sheet as a safety measure. The polycarbonate sheets and the safety mesh were secured to the girders and purlins with tek screws. Her Honour described the accepted method of securing the safety mesh in one of two ways, both of which involved twitching the wire back on itself. 11 In the course of her Honour's sentencing remarks she noted that the evidence of Mr Tony Davis was that the safety mesh had been installed the day before the accident when Mr Smith was not present at the site. There was no evidence as to who secured the safety mesh at the ridge end. Mr Smith accepted that he should have checked that the safety mesh was installed in the correct manner but he did not do so. 12 It was noted that Mr Smith was then 53 years old and had no prior convictions. He had been brought up in the Newcastle area, educated there and had been in continuous employment since leaving school. He became a roof plumber at 22 when there was no requirement to complete a trade course or become an apprentice but he was a licensed plumber. Mr Smith had started his own business in his mid-40s and continued to operate that business until just after the accident. Mr Smith had spoken about Ms Davis as being his life partner as well as his business partner and no major business decision was made without discussing it with her. As a consequence of the accident, Mr Smith had lost his life partner, his business partner, his business, his house and his relationship with his stepchildren. He was now living in a granny flat in the backyard of his family home. He was performing casual roofing work. 13 Mr Smith told the District Court that he had four employees and a sub-contractor at the site. He said he had not given any instruction to employees about how the safety mesh was to be tied off. He had no knowledge how the mesh had been tied off but he was sure that he had not been present on the day before the accident but if he had been, he did not go on to the roof. He acknowledged that there was a lack of supervision of the work performed on the roof which contributed to the death of Ms Davis. He said that if he had checked the work it would not have happened and had he found a defect, he would have fixed it. He believed that the job had been done correctly and he thought the workmen performing the work knew how to do their job properly as they had previously performed this task. 14 As to the effect of Ms Davis' death, Mr Smith said that, as a consequence, he was "shattered". He thought about her daily and her death. He had been prescribed medication to assist him to sleep and although he had formed a subsequent relationship that had resulted in the birth of a child, that relationship had since failed. He provided financially for that child. He said that all he could say to Ms Davis' children and to the extended family was that he was sorry and nothing else could be said. 15 Her Honour noted that the offence was an unusual one and neither the court nor the legal representatives had been able to discover a precedent that was close to the circumstances of this case. Her Honour noted that, shortly after this accident, amendments had been introduced to the Occupational Health and Safety Act 2000 designed to stop rogue employers and employees who were indifferent to health and safety of others in the workplace and whose acts or omissions resulted in the death of others. The intent of that legislation was to target and punish those who were more culpable and indifferent to health and safety of employees and others at the workplace although a defence of lawful excuse remained available. Her Honour also noted that the offence under the Occupational Health and Safety Act provided a much lower penalty than that under the Crimes Act. Under the amendment to the Occupational Health and Safety Act the maximum penalty was five years' imprisonment or a fine of up to 1,500 penalty units in the case of an individual or 15,000 penalty units in relation to a corporation. Her Honour was influenced by the fact that, had this legislation been in operation at the time, Mr Smith would be facing a much lower maximum penalty. 16 Her Honour noted that Mr Smith had been charged with manslaughter and such an offence was a serious offence because it involved the loss of life. The maximum penalty of 25 years' imprisonment reflected the legislature's and the community's desire for the protection of human life and personal safety. However, the incident involving the death of Ms Davis was not the loss of life caused by an intention on the part of Mr Smith to act in a way which would cause the death of Ms Davis or to cause her grievous bodily harm - it was not an act done with malice. Mr Smith had a non-delegable duty of care and he could not delegate the duty to others, including Mr Thirkell - it was an absolute duty and it was a duty he had breached. He was charged because his conduct or omission was said to have caused the death of Ms Davis and it was conduct falling short of a standard of care that a reasonable person would have exercised in the circumstances and involved such a high degree of risk that death or serious bodily injury would follow. That action or, inaction as the case may be, merited criminal punishment. 17 Although the plea had been entered on the first day of trial, the trial was set down for 10 days and her Honour regarded the plea as having significant utilitarian value warranting a discount of 20 per cent. Her Honour noted that there had been a significant delay in the matter coming to trial following police attending on the day of the accident and thereafter WorkCover taking over the investigation. Her Honour stated that, despite some 5.5 years passing, WorkCover had not seen fit to decide what action it proposed to take. It was not until September 2006 that a Court Attendance Notice was issue by the police in respect of s 18(1)(b) of the Crimes Act and the matter then proceeded to a committal hearing but was not committed to Newcastle District Court until mid-April 2008. The Crown accepted that the delay was not Mr Smith's fault. 18 In the concluding pages of her Honour's judgment on sentence, she noted that the task of imposing a sentence on Mr Smith was particularly difficult. Material placed before the court justified a degree of understanding and sympathy towards him but it was noted that the court had to have regard to the criminal justice system, the expectations of the community at large, the victims, Mr Smith's circumstances, the circumstances of the unfortunate incident but also there had been significant delay in the charge being laid and the matter ultimately proceeding to trial thus entitling him to a degree of leniency. It was noted that he had suffered the loss of his partner, suffered significant financial loss as a consequence of the incident, including the loss of his home and his business, suffered significant emotional hardship and for a considerable period of time he also had the uncertainty of the outcome of the present proceedings hanging over his head. He had been through the committal process and still had the WorkCover prosecution to deal with. Her Honour found that Mr Smith had experienced "extra curial punishment". Her Honour found that the offence was not part of a planned or organised criminal activity and it was not the result of the cutting of corners, for example, in an endeavour to make a greater profit from the job than would otherwise have been the case. Mr Smith did not fall into the category of being a rogue as referred to in the Second Reading Speech when amendments were introduced to the Occupational Health and Safety Act. Mr Smith was a person of otherwise good character and was entitled to have that factor taken into account. Her Honour found that he was unlikely to re-offend and that he was truly remorseful and contrite. She found that he had good prospects for rehabilitation. 19 Her Honour then stated that the offence was one of criminal negligence by act of omission, Mr Smith's failure to supervise his workers and a failure on his part to discover the existence of a defect in workmanship that led to the death of Ms Davis. That being said, however, there was no evidence to suggest that it was Mr Smith who incorrectly installed the safety mesh at the ridge line that caused the polycarbonate sheeting to give way, resulting in Ms Davis' death. There was no evidence to enable a finding to be made as to who failed to properly attach the safety mesh. In those circumstances her Honour found that this was an offence which fell into the lowest end of the scale of offences for manslaughter. In deciding not to impose a custodial sentence, her Honour noted that Mr Smith came before the court as a person of otherwise good character who had contributed to society throughout his working life and provided for his family and continued to attempt to do so. He had suffered "enormous hardship as a consequence of his omission, including emotional and financial hardship which had, and would continue to be, a lifelong reminder to him of his criminality". DELIBERATION 20 It is important, at the beginning of this sentencing task, to clarify what changes were brought about by the Amended Application for Order and to identify what matters had become the focus of this prosecution. Firstly, the Amended Application alleged a failure to ensure the health, safety and welfare at work of all the defendant's employees and in particular, Justin Davis, Richard Thirkell and Tony Davis but the name of Ms Judith Davis that appeared in the original application was omitted. Secondly, the particulars continued to make a general allegation about the failures of the work system, including failures to ensure that "all employees" wore appropriate fall protection devices and there was a failure to provide "all employees" with a safe and proper means of access to and egress from to the roof. The original Application for Order alleged that, on 25 April 2003 as a result of the identified failures, Judith Davis, Justin, Tony Davis and Richard Thirkell were placed at risk of injury. In the Amended Application the name of Ms Davis was removed from this particular. Thirdly, the original Application specifically identified that, as a result of the specified failures, Ms Davis fell a distance of approximately 9.64 metres from the roof of the building at the site and sustained fatal injuries. That particular was omitted from the Amended Application. The Amended Application, therefore, presented a significantly different case for consideration by the Court. 21 It is to be observed, however, that the charge remains framed in relation to a failure to ensure the health, safety and welfare at work of "all" of Mr Smith's employees on 25 April 2003" and thereby Ms Davis remains included although the prosecution refers particularly to the safety of Justin Davis, Richard Thirkell and Tony Davis. The particulars are then expressed generally except particulars (e) and (f) which again refer to failures to ensure all employees were protected from specified risks to their safety. Counsel for the prosecutor accepted that the Court was required to be careful to ensure that Mr Smith was not subjected to double jeopardy by being penalised in these proceedings for matters already dealt with in the criminal proceedings in the District Court. In that respect it was accepted that the failure to properly secure the safety mesh by "twitching back" featured in both offences. 22 The principle of double jeopardy is dealt with in some detail in Pearce v The Queen (1998) 194 CLR 610. In that case the High Court held, inter alia, that to the extent to which two offences that a person is convicted contained common elements, it would be wrong to punish the offender twice for the commission of elements that are common. The joint judgment of McHugh, Hayne and Callinan JJ recognised that the expression "double jeopardy" was not always used with a single meaning and was sometimes used to refer to pleas in bar or autrefois acquit and autrefois convict but those issues do not arise in the present case. The expression was also employed in relation to several stages of the criminal justice process, including punishment. At page 623, in dealing with the process of sentencing, the joint judgment stated: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. 23 Counsel for the prosecutor, understandably, did not seek to depart from this statement of principle but suggested that the prosecution in this Court was more generally based, especially insofar as it referred to other workers besides Ms Davis and dealt with a range of other matters that were not the concern of the criminal proceedings in the District Court. Further, it was pointed out that negligence and recklessness were the focus of the District Court proceedings but were not necessarily elements of the offence being dealt with by this Court. While those observations are correct, the essential fairness of the double jeopardy principle addresses the common elements so that a person is not unfairly penalised twice for those matters. In the present case, counsel for the prosecutor accepted that a common element in both cases was the failure to secure the safety mesh in an approved manner by "twitching back" the ends of the safety net so as to secure it. That is a significant element of the breach alleged in these proceedings. The task of determining what are common elements is made more difficult because the indictment in the District Court contained no particulars and a plea of guilty was entered without reference to any particulars. The Agreed Statement of Facts in the District Court referred to the practice of securing the safety mesh under the polycarbonate and that the safety mesh was not attached in an approved way because it was not "twitched back" as required by the relevant Code. The Agreed Statement of Facts in those proceedings also stated that Mr Smith accepted that he should have checked that the safety mesh was properly installed and that there was no evidence as to who actually secured the mesh. 24 The other source of information as to the elements considered by the District Court is the judgment of her Honour in sentencing Mr Smith. That judgment generally refers to acts of commission as well as omission and while generally conveying the width of the consideration, those acts were not precisely identified. Her Honour had heard the case of Mr Smith and Mr Thirkell and it appears that Mr Smith gave evidence in his own case but the transcript of that evidence was not before this Court. Her Honour noted that Mr Smith accepted that he should have checked that the safety mesh was properly installed and he admitted that he had not given instruction to employees about how the safety mesh was to be tied off and in fact, he was unaware how they tied it off. Mr Smith acknowledged that there was a lack of supervision of the roof work and how it was to be performed and he had proceeded on the basis that he believed the workers knew how to perform the task. These remarks make it clear that, at least, the method of securing the safety mesh and the associated lack of supervision and instruction were elements of the offence. To that extent, there are parts of particulars (a) and (c) in the present proceedings that may be said to have common elements and it may be properly found that, to the extent there was lack of supervision of how to perform the work, there are parts of particular (b) that are common to both offences. It is apparent, however, that the failure to provide each worker with a fall safety device and ensure those devices were working and were properly fitted and fixed did not form any part of the consideration of the offence in the District Court - the same may be said in relation to the failure to provide information, instruction and training as to the method of walking on metal purlins, the use of roof boards and ladders for crossing the plastic sheeting and a failure to provide safe and proper means of access and egress from the roof. In relation to the matters that are not common, it might be observed at this point that fall safety devices were provided but not in sufficient number nor were they all in a state in which they could be properly used as a fall safety device. There had been an induction conducted adopting Stelform's safety documents and that induction did refer, in general terms, to the need to be provided with and to wear fall safety devices when working at heights. The particulars in this prosecution should be approached on that basis and Mr Smith should be given the benefit of any doubt as to the extent of the overlap of elements of the two offences. 25 There is a further matter of principle that should be mentioned at this point. In the Agreed Statement of Facts in the present matter reference is made to "prior similar work", referring to three other locations where Mr Smith had undertaken re-roofing involving installation of safety mesh. The Agreed Statement of Facts stated that inspection showed that the safety mesh had not been properly installed and secured. Two of these three re-roofing jobs were performed prior to the date referred to in the particulars of the charge and it is unclear whether the third job was undertaken before or after the accident that occurred at Stelform. It is apparent that at least one of these jobs involved the installation of polycarbonate sheeting but it is not clear whether the other two jobs involved that kind of sheeting. It is also unclear whether any other contractor was involved in these re-roofing jobs and the extent, if any, of their role. Nevertheless, Mr Smith had agreed to the inclusion of these matters in the Agreed Statement of Facts. Besides these generally expressed concerns, the overriding principle established by the High Court in De Simoni v The Queen (1981) 147 CLR 389 is that a sentencing Judge must take into account all the circumstances of the offence but that requirement is qualified by the overriding principle that no one should be punished for an offence of which he or she has not been convicted. The present offence relates to a specified date, namely, 25 April 2003. The three matters identified are likely to be statute barred and now, no prosecution can be commenced in relation to the matters and further, the earlier matters would have had the propensity to alter the first offender status available to Mr Smith. Having regard to these matters, the three further incidents should be disregarded for the purposes of imposing a penalty in relation to this breach. Further, in light of the concession made by counsel for the prosecutor, these three examples concern the failure to properly secure by "twitching back" the safety mesh and that matter was dealt with by the District Court and Mr Smith is not to be punished again in relation to that matter. 26 It is against that evidence, material and background that the Court is to determine the appropriate penalty. The first task is to establish the objective seriousness of the offence. It was not suggested on behalf of Mr Smith that this was not a serious breach and the facts speak for themselves. 27 This re-roofing work had to be carried out at considerable height. Mr Smith has pleaded guilty to an Amended Application for Order that particularises numerous omissions and failures, including failures to comply with codes of conduct and standards. The risk of serious injury by falling was obvious. In relation to the detail of the work there was a failure to provide a safe system of work regarding the removal and installation of new roofing. While there were harnesses available, Mr Smith had failed to provide to all employees fall restraint devices that were properly fixed and fitted when they were working at heights exceeding two metres. There was a failure to ensure that all employees wore properly fitted fall restraint devices and there was a failure to provide other safe means of movement across the roof, including across the polycarbonate sheeting. There was a failure to provide adequate training and instruction in the use of fall restraint devices and also with respect to walking on metal purlins and if necessary, the use of roof boards or roof ladders for the crossing of plastic roofing sheets. Mr Smith had failed to provide adequate supervision to his employees regarding the use of fall restraint devices. While there is a common thread running through these particulars this breach was, nevertheless, a serious breach. 28 In fixing an appropriate penalty in this matter, general and specific deterrence are to be considered as elements of that penalty. In relation to specific deterrence, Mr Smith no longer operates his own business and appears to be employed on a casual basis or on a sub-contracting basis. It appears that he is unlikely, or at least in the near future, to operate his own business but nevertheless, specific deterrence should feature as a consideration in the penalty to be imposed although at a significantly reduced level. It was said in addresses that Mr Smith had handed in "his contracting licence", a comment apparently directed to indicating a lower level of involvement in the industry. 29 In relation to subjective factors, Mr Smith is a first offender in relation to occupational health and safety legislation and is entitled to the leniency that accompanies that status. He has been in business and employing people for a considerable period of time and in the circumstances, having regard to the nature of the industry, that speaks well of his safety record. The prosecutor accepts that he has entered a guilty plea at the first reasonable opportunity and having regard to the history of this matter, the Court concurs with that description: in recognition of that early plea, he should be granted a discount of 25 per cent on the total penalty to be imposed. 30 The evidence as to his financial circumstances is sketchy but again, considering the circumstances in which he came before this Court, that is not a matter for adverse comment. Before the District Court, evidence was accepted that he had lost his business, lost his home and was working casually. In this Court the evidence was that he continued to obtain casual employment but on an intermittent basis and in recent months he was spending more than he was earning, had approximately $300 in the bank and had no other assets. He was now living at his mother's home in a flat in the backyard. He appears to have child support obligations and is paying off his car, a financial obligation that will endure for another two to three years. Bearing all these matters in mind, the Court is of the view that there should be a reduction in the penalty to be imposed. 31 There was some debate as to whether or not Mr Smith had satisfied the provisions of s 21A (3)(i) of the Crimes (Sentencing Procedure) Act in relation to contrition and taking responsibility for this accident. Although these matters were drawn to the attention of Mr Smith's legal representative, there was no oral evidence before this Court that addressed those issues. In terms, the District Court briefly addressed the issue of remorse and contrition, identifying Mr Smith's personal loss with the death of his life and business partner and the loss of links with her family and how there was little more he could say except he was sorry. He spoke of being "shattered". The District Court accepted that he was truly remorseful and contrite. In a direct and technical sense it might well be that, in these proceedings, Mr Smith has not satisfied the requirements of s 21A(3)(i) but in these sentencing proceedings the judgment of the District Court was placed into evidence. In the circumstances it is unnecessary to decide whether that material is sufficient to satisfy the amendment in order that contrition and accountability can specifically be taken into account and the Court does not proceed to do so. It proceeds on the general basis that the material before the Court from the District Court proceedings is indicative of the character and nature of the person who is now being dealt with by this Court. 32 It is to be remembered that the death of Ms Davis as a result of the failure to properly secure the safety mesh and the failure to supervise the job, including to that extent a failure to train, inform and instruct workers in this task, are matters that have been dealt with by the District Court. They are very significant matters yet leave a number of safety issues to be considered in this sentencing exercise. It is of some significance that, in the District Court, her Honour found Mr Smith to be a person of good character whose entire life had been greatly affected by this incident. It was concluded that he was unlikely to re-offend and that there were good prospects of rehabilitation. This Court would not depart from those findings and conclusions. Having observed Mr Smith during the proceedings, it is apparent that he has been greatly affected by all the circumstances surrounding this accident and it is difficult to see what sentencing goal or purpose could be served by inflicting upon him another heavy penalty. In any event, properly considered, all the circumstances of these offences may be regarded as falling in the lower range of penalties. 33 No application was made for the Court to give consideration to taking action under s 10 of the Crimes (Sentencing Procedures) Act and having regard to the fact that Mr Smith was legally represented (admittedly in special circumstances), it is not appropriate for the Court to give consideration to that course - that situation arises in circumstances where counsel for the prosecutor specifically sought to be heard on that matter if such an application was made. The monetary penalty to be imposed will have regard to all of the abovementioned matters and the fact that, although discharged from bankruptcy, Mr Smith has limited means and there is no immediate prospect his financial situation will improve. This is undoubtedly a case where, should Mr Smith make an application to the Registrar for time to pay the fine, it will constitute an application of considerable merit. ORDERS 34 Having regard to the variety of matters discussed above, the Court makes the following orders: (i) David Peter Smith is convicted of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 3185 of 2006 in relation to which he entered a plea of guilty; (ii) the defendant is fined the sum of $5,000 with half that amount to be paid to the prosecutor by way of moiety. (iii) the defendant will pay half the costs of the prosecutor in a sum agreed or, in the absence of agreement, as further ordered by the Court. 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.