Industrial Court of New South Wales CITATION: Inspector Maddaford v Sasso Precast Concrete Pty Ltd and Anor [2006] NSWIRComm 364 Matter Number IRC 6441 of 2005 _____________________________ PROSECUTOR: Inspector Gregory Allan Maddaford DEFENDANT: Sasso Precast Concrete Pty Limited PARTIES: ACN 089 140 107 Matter Number IRC 6442 of 2005 _____________________________ PROSECUTOR: Inspector Gregory Allan Maddaford DEFENDANT: Paul Damian Tolomeo FILE NUMBER(S): IRC 6441 and 6442 of 2005 CORAM: Schmidt J CATCHWORDS: Occupational Health and Safety - prosecution under section 8(1) and section 26(1) of the Occupational Health and Safety Act 2000 - corporate defendant operating business that manufactures pre-cast concrete panels for construction industry - pleas - first offence - mitigation - general deterrence - penalties imposed - discount - moiety to prosecutor LEGISLATION CITED: Crimes (Sentencing and Procedure) Act 1999 Occupational Health and Safety Act 2000 CASES CITED: Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97 HEARING DATES: 23/10/06 DATE OF JUDGMENT: 11/22/2006 PROSECUTOR: Ms LM McManus, counsel SOLICITORS: Criminal Law Practice Legal Group WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANTS: Mr BK Hodgkinson SC SOLICITORS: Sparke Helmore JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 22 November 2006 Matter No IRC 6441 of 2005 INSPECTOR GREGORY ALLAN MADDAFORD v SASSO PRECAST CONCRETE PTY LTD Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 6442 of 2005 INSPECTOR GREGORY ALLAN MADDAFORD v PAUL DAMIAN TOLOMEO Prosecution under section 26(1) of the Occupational Health and Safety Act 2000 and deemed from section 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 364 1 On 10 December 2003, Mr Apa Time was injured while working at the defendant's factory at Wetherill Park, while assisting with the loading of precast concrete panels onto trucks. The defendant was Mr Time's employer. Mr Tolomeo was a director of the defendant and its general manager. The defendants both pleaded guilty to the offences with which they were charged under s 8 of the Occupational Health and Safety Act 2000 ('the Act'). This judgment deals with the question of penalty in each case. 2 The offences to which the pleas were entered provided: Matter Number IRC 6441 of 2005 FAILED TO ensure the health, safety and welfare at work of its employees, and in particular, Apa Time, whilst working with pre-cast concrete panels, contrary to section 8(1) of the Occupational Health and Safety Act 2000.The particulars of the charge are: a) The defendant failed to provide or maintain a system of work to move stored precast concrete panels from the storage bays to load onto trucks for delivery that was safe and without risk to the health and safety of its employees. b) The defendant failed to provide such adequate instructions, training and supervision to its employees as was necessary to ensure their health and safety at work whilst engaged in the process of moving the stored precast concrete panels from the storage bays to load onto trucks for delivery. As a result of the said failures Mr Time was placed at risk of injury and in fact suffered injuries. Matter Number IRC 6442 of 2005 1. I, GREGORY ALLAN MADDAFORD , of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in eh State of New South Wales am an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 1000 and empowered under Section 106 of the Occupational Health & Safety Act 2000 to institute proceedings in the within matter. 2. I seek to bring proceedings against PAUL DAMIAN TOLOMEO ("the defendant"), of 7 Feodore Drive Cecil Hills, whose date of birth is 31 January 1969, being at all material times a director of SASSO PRECAST CONCRETE PTY LTD [ACN 089 140 107], a corporation which contravened section 8(1) of the Occupational Health and Safety Act 2000. 3. The alleged offence under s26(1) of the Occupational Health and Safety Act 2000 is a deemed contravention of s8(1) of the Act as follows: On 10 December 2003 at 33 - 41 Cowpasture Road, Wetherill Park, SASSO PRECAST CONCRETE PTY LTD [ACN 089 140 107], a corporation, being an employer failed to ensure the health, safety and welfare at work of its employees and in particular Apa Time, in that it: a) Failed to provide or maintain a system of work to move stored precast concrete panels from the storage bays to load onto trucks for delivery that was safe and without risk to the health and safety of its employees. b) Failed to provide such adequate instructions, training and supervision to its employees as was necessary to ensure their health and safety at work whilst engaged in the process of moving the stored precast concrete panels from the storage bays to load onto trucks for delivery. As a result of the said failures Mr Time was placed at risk of injury and in fact suffered injuries. AND The Defendant being a director of the above company is deemed to have contravened the same section pursuant to s26(1) of the Occupational Health and Safety Act 2000. 3 The matters were heard together. An agreed statement of facts was tendered. It provided: 1. At all material times Inspector Gregory Allan Maddaford of the WorkCover Authority of New South Wales, 60 – 70 Elizabeth Street, Sydney was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under section 106(1)(c) of the said Act to institute proceedings in the within matter. 2. At all material times SASSO PRECAST CONCRETE PTY LTD (ACN 089 140 107) ( the first defendant ) a company duly incorporated and having its registered office at Level 1, 147 Northumberland Street, Liverpool, in the state of New South Wales, operated a business that manufactured pre-cast concrete panels (the panels) for use in the construction industry. 3. At all material times PAUL DAMIAN TOLOMEO ( the second defendant ) was the Managing Director of the first defendant and had day-to-day control and responsibility for the work being done at the defendants' factory located at 33 - 41 Cowpasture Road, Wetherill Park, in the state of New South Wales ( the premises ). 4. The first defendant was an employer. 5. The first defendant employed Mr Time casually as a concreter and general labourer, from 21 March 2003 to 30 June 2003 and then again from 9 September 2003. His normal duties included making and cleaning the panels. His normal duties did not include hooking up and loading the panels from their storage bays onto trucks for delivery to customers. 6. The first defendant employed Mr Godoy as a general factory labourer from September 2003 to February 2004. His normal duties involved operating the overhead travelling crane to load the panels onto trucks in the factory. Mr Godoy had worked for the first defendant previously. 7. On or about 9 December 2003 the supervising foreman, Mr Czajkowskyj asked Mr Time to assist Mr Godoy to load stored panels onto the trucks. On 10 December 2003, Mr Time was injured while performing this task. 8. The panels were stored upright, from approximately 20 mm apart, in numbered bays located around the rear and side walls of the premises. 9. The panels varied in height, length and width . The panels were not stored according to their similar dimensions. The first defendant did not have a documented procedure for storing the various panels in the storage bays. 10. As at 10 December 2003 the longest panel the defendant moved with the overhead travelling cranes was approximately 13.5 metres long and the heaviest panel weighed approximately 12 tonne. The tallest panel was approximately 3.85m tall. The incident on 10 December 2003 11. The first defendant had no written procedures on how to safely perform the task of moving panels onto the trucks. On the job training was provided but was inadequate. 12. Two people were usually engaged in loading the panels from the bays onto the trucks, one operating the crane, while the second person connected the lifting gear to the panel (crane chasing). The employees were provided with a list that identified the panels to be loaded. They then located the panel in the storage racks. The second person would climb onto the top of the panels to connect the lifting gear, while the crane operator brought the crane and lifting chains over to the panel. The second person hooked up the clutches and the lifting chains into the lifting anchor points on the panel and it was then removed from the bay and loaded onto the truck. 13. On the day of the incident, Mr Godoy and Mr Time worked together to load the panels from the bays onto the truck. Mr Godoy operated the crane and Mr Time performed the "crane chaser" role. Initially Mr Godoy used a remote control to operate the crane but later used cable control as there was some difficulty with the remote operation. 14. At about 11.00am Mr Time assisted Mr Godoy in loading a truck for a job in St Leonards. The panels were located between bays 20 and 21. 15. The panel to be moved ( the middle panel ) was stored between two taller panels. The middle panel was approximately 1.7m tall. 16. The top of the panel on the left of the middle panel ( the left panel ) came up to the level of Mr Time's bottom when he was standing on the middle panel. The panel on the right of the middle panel ( the right panel ) was approximately double the height of the middle panel. 17. Mr Time used a metal frame constructed of tubular steel next to the panels and a pallet of bags of patching or concrete powder to access the top of the middle panel. He states that he would use, " anything I could use as a stepping stone " to climb on top of the panels, Ladders were available on the premises. Mr Time states that at the time of the incident, there was a ladder but it was broken. 18. Mr Time hooked the five tonne clutches onto the two middle lifting points of the middle panel. To do this he stood facing the left panel and shuffled along the middle panel towards the end wall using his hands to move along. Mr Time's feet were at an angle because the gap between the right panel and the left panel was narrower than the length of his feet. 19. Mr Time stated that it was very difficult to bend down to put the clutches into the lifting points. He was required to stand side on, on one leg and bend over with the other leg lifted out behind him and his left arm resting on the left panel. He was facing away from Mr Godoy. He was holding the catch of the hook of the clutch open with his right thumb. 20. When doing this Mr Time could only see the top of Mr Godoy's head. Mr Godoy could not see Mr Time. 21. Mr Time then went to the other end of the panel as Mr Godoy was bringing the crane over. When the crane hook and lifting chains came closer to Mr Time, he took the 10 tonne clutches off the chain hooks and dropped them to the floor. He then moved back down the panel towards the end wall holding onto the chains. The chains moved with Mr Time as Mr Godoy moved the crane along to the clutch in the panel. 22. When Mr Time was in position to attach the chain hook to the clutch he called to Mr Godoy. Mr Godoy commenced lowering the crane hook. Mr Time leaned down to insert the chain hook into the clutch, which he states, "took a few swings" to do. 23. During this process Mr Time was calling to Mr Godoy "down, down". 24. When Mr Time was able to insert the hook into the clutch, the lifting chains were lying on his back. The lifting chains were still lying on him as he started to shuffle back towards Mr Godoy to hook up the second clutch. As he commenced doing this he started to stand up. At the same time the hook block of the crane had caught on the top of the right panel, which caused slack to come into the wire rope. The hook block then fell onto Mr Time hitting him in the back. He collapsed over the left panel. 25. Mr Time was brought down from the top of the panels with the assistance of the other workers and taken by ambulance to Westmead hospital. 26. Later on 10 December 2003 work resumed and the middle panel was loaded onto the truck and was taken from the premises and delivered to site. 27. Mr Time's injuries included spinal contusion, a fractured L1,2 vertebrae and injury to his T11 vertebrae. He was paralysed from the rib cage down for approximately 5 months. He was released from Westmead Hospital on 30 December 2003 in a wheel chair. After a week as a rehabilitation patient in St Joseph's Hospital, Auburn he was transferred to the Royal Ryde Rehabilitation Spinal Unit. He was released from hospital around May 2004. He was able to walk unassisted in about December 2004. As at 28 June 2005 he was unable to do any repetitive bending and heavy lifting and no contact sport. He now works as a forklift driver. At the time of the injury he was 23 years old. Unsafe system of work 28. The first defendant did not have a documented procedure or assessment on how to safely perform the task. There were no written procedures or safe work procedures provided to employees or their supervisors in relation to the following: a. storing the panels in the storage bays; b. safely accessing the top of the panels; c. specifying the equipment to be used to safely access the top of the panels; d. preventing falls when walking and working on the top of the panels; e. attaching the lifting gear to the lifting points of the panels; f. accessing the lifting points of the panels including when panels of differing heights and lengths were stored side by side; g. attaching the lifting gear to the panels; h. operation of the crane for hooking and moving the panels. 29. Portable ladders were at the premises on 10 December 2003. To access the top of the panels by a portable ladder it would need to be placed leaning against the narrow end of the panel. There were no points to secure a portable ladder at the bays of the panels and no means to secure the ladders at the tops of the panels. The rubbish and obstacles located around the bays did not allow the workers unhindered access to place the ladder against the panels. 30. As different size panels were stored together, this meant that the surface the worker was required to access was uneven. The uneven surface of the top of the panels and the restricted work space created a risk of trips, slips, falls and of being caught between panels. 31. There was nothing to prevent employees from falling from the top of the panels. The height of the panel that Mr Time was standing on at the time of the incident was approximately 1.7m. Other panels were higher. Inadequate instructions and training 32. Before the incident, Mr Time had performed the role of crane chaser twice. Mr Time states, " He [Mr Czajkowskyj] asked me if I had loaded trucks before and I said yes, once before and he said good enough ." Mr Godoy showed Mr Time how to use the clutches. 33. Mr Czajkowskyj showed Mr Godoy how to undertake the task of operating the crane and attaching the clutches when Mr Godoy first started. He was shown the machinery and clutches, how to put the clutches on, where to position the crane, the movement the crane needs to make prior to lifting the panels off the beds and the directions and the speeds of the crane. Mr Czajkowskyj then observed Mr Godoy undertaking the job. This demonstration lasted for approximately 2 hours. Mr Godoy states, " That's the only training I got on how to use the crane. Everything else I learned myself ." 34. Although they were not required for the type of work he was performing, Mr Czajkowskyj did not have a NSW certificate of competency for operating the overhead travelling crane, or a national certificate of competency for operating any style of crane. He had been shown how to use the crane by previous employees. Mr Czajkowskyj states, " I didn't train [SASSO employees, including Mr Godoy], I just showed them what I had been showed ." 35. At the time of the incident, Mr Godoy did not hold a NSW certificate of competency for operating the Overhead Travelling Crane or a NSW certificate of competency for 'crane chasing'. Mr Godoy was not required to hold either of these certificates for the type of work he was performing. 36. After the incident, Mr Godoy failed his first attempt to pass the knowledge component of the assessment for the operation of the Overhead Travelling Crane and crane chaser duties but was deemed competent in the practical component of the assessment. 37. Neither Mr Godoy nor Mr Time held a NSW or national certificate of competency for dogging or for rigging or for any other type of crane. These certificates were not required for the type of work that Mr Time and Mr Godoy were performing. 38. The training and instruction for the task was inadequate. There was no checklist provided or other means to ensure that when the instructions were given by one employee to another that the instructions were complete, accurate and safe. After the incident 39. On 12 December 2003 Inspector Maddaford attended the premises. He prepared a Factual Inspection Report dated 5 January 2004 based on his observations. The Factual Report dated 5 January 2004 is behind tab A of the Prosecution's tender bundle. He also took a series of photographs dated 12 December 2003 which are behind tab B. 40. On 22 December 2003 Inspector Crispian Jelley attended the premises and took a photograph. Inspector Jelley's photographs dated 22 December 2003 is behind tab C 41. On 13 January 2004 Inspector Maddaford attended the premises again. He issued an Improvement Notice No 7-45648 in respect of the unsafe system of work for the storage, access to tops and lifting of stored pre-cast concrete panels. A copy of Improvement Notice No 7-45648 is behind tab D 42. On 14 January 2004 Inspector Maddaford attended the premises and issued further Improvement Notices, No 7-45800, No 7-45797, No 7-45804 and No 7-45802 in relation to the unsafe system. Copies of Improvement Notices No 7-45800, 7-45787 No 7-45804 and No 7-45802 are behind tab E 43. Improvement Notices No 7-45648 and No 7-45797 were reissued after Inspector Maddaford's consultation with the defendant and the National Precast Concrete Association Australia in March 2005. A copy of "Information to the National Precast Concrete Association of Australia regarding a Safe System of Work for Accessing the Tops of Vertically Stored Panels to Sling them for Movement with Mechanical Lifting Devices" prepared by Senior Inspector Maddaford dated 7 February 2005 is behind tab F 44. On 23 March 2005 Inspector Maddaford again attended the premises and took photographs. The majority of the panels were still stored in the ad hoc manner he observed when he attended on 12 December 2003. Inspector Maddaford issued further Improvement Notices, No 7-79703, 7-79695 and 7-79711. Inspector Maddaford's photographs dated 23 March 2005 are behind tab G; and copies of Improvement Notices, No 7-79703, 7-79695 and 7-79711 are behind tab H 45. On 8 July 2005, Inspector Maddaford attended the premises to observe a trial of the safe system of work the first defendant had implemented after the incident and the Improvement Notices. He prepared a Factual Inspection report dated 23 November 2005. Inspector Maddaford's photographs dated 8 July 2005 are behind tab I and the Factual Inspection report dated 23 November 2005 is behind tab J. 46. By August 2005, the first defendant had taken all the following remedial steps. a. training was conducted on the overhead travelling cranes by Electro-Mechanical Services Pty Ltd. Assessments were conducted on the overhead travelling cranes by Coast and Country Training & Assessments. Only those persons who passed the assessment were allowed to operate the cranes from then on. Mr Godoy undertook training and assessment in the operation of the overhead travelling crane. He failed the assessment the first time and passed the assessment when reassessed on 24 February 2004; b. the panels were stored in height order; c. written procedures and safe work method statements were prepared; d. whistles were provided to the operator of the overhead travelling cranes; e. a raised metal walkway was fitted along the Western, Northern and Eastern sides of the production area. The walkway was secured to the panels making up the exterior walls of the building and to the vertical structural steel members of the building. A fixed access ladder and ladder landing was positioned at every second vertical structural steel member; f. a steel rope static line was fitted above the walkways and hooked onto each static line was an inertia reel safety lanyard; g. full safety harnesses were obtained and provided to staff when accessing the raised walkways to work with the panels; h. the system of work to access the tops of the panels in order to hook the clutches and lifting gear was varied so that it is undertaken using either a manual order picking platform, a battery powered Elevating Work Platform (EWP). Inspector Maddaford's photographs dated 2 August 2005 are behind tab K. 4 This was a first offence for both defendants. The maximum penalty in the case of the corporate defendant was accordingly $550,000 and for Mr Tolomeo, $55,000. Evidence was given by Inspector Gregory Maddaford and by Mr Tolomeo. Various documents were also tendered. 5 Mr Maddaford's evidence went to aspects of his investigations and how the corporate defendant came to alter its systems of work, as well as the co-operation provided by the defendants in his investigation. Mr Tolomeo's evidence went to the size and nature of the corporate defendant's operations, its approach to safety matters both before and after the incident in question and how it had gone about addressing the deficiencies which the incident had revealed, as well as various other subjective matters relevant to the penalty to be imposed. 6 The parties were largely in agreement as to the applicable sentencing principles. The prosecutor advanced two criticisms of the defendants. The first, the delay in addressing the deficiencies in the corporate defendant's systems, which the incident had revealed. While it was not submitted that no steps were taken by the defendants to address the risk, it was argued that no serious attention was paid until after the Inspector had advanced his suggestions in February 2005. The prosecutor also did not accept that the defendants had provided full co-operation in the investigation, pointing to the fact that the person put forward as the company representative, was not able to answer the Inspector's questions and declined to sign the statement which he did give. It was accepted that there was no legal obligation to do so. However, it was submitted that this refusal was relevant in considering whether or not there had been co-operation provided, an issue relevant to assessing mitigation. In this case, it was argued that the approach adopted by the defendants could not be accepted as having provided full co-operation in the investigation. 7 The defendants' case was that neither criticism would be accepted. The Inspector received all the information and co-operation which he required. All of the relevant persons involved in the incident provided statements. While the person provided by the corporate defendant to answer questions on its behalf did not have direct knowledge of the incident, all those who did had already given statements. There was no suggestion that the answers given were evasive or anything of that kind. As to declining to sign the statement, he was legally advised that there was no obligation to do so and no criticism could flow from the approach adopted. That did not go to co-operation, but to exercising a legal right. 8 As to the submissions in relation to delay, it was argued that the evidence showed that the defendants immediately began investigating alternatives and that it was relevant that it was only in February 2005, that the Inspector was able to make his suggestions. The industry association had no answer to provide in the meantime, nor did the consultants engaged. The defendants engaged engineering assistance after the Inspector's suggestions were made and redesigned the factory area by the introduction of raised walkways. They also redesigned the separator bars which were used in the new system. The evidence showed that the intermediary steps taken by the defendants had addressed the risk on an interim basis, but the defendants had still pursued a better answer, not just a bare minimum. A positive view would accordingly, be taken of the defendants' approach. Consideration 9 Consistently with the Crimes (Sentencing Procedure) Act 1999, a determination of the sentence here to be imposed must be approached from a consideration of the nature and seriousness of the offences in question, together with aggravating and mitigating factors. In these cases, I am satisfied that the evidence demonstrated, to the requisite degree, that the offences charged were proven. 10 What arises for consideration is a failure to address what was plainly a serious risk to safety, of an obvious kind. The agreed statement of facts records that the work in question was undertaken in a precarious way, by having an employee climb to the top of the concrete panels which were to be moved, by way of makeshift means, rather than by use of a stable ladder. The panels were of differing heights, not stacked with similar height panels being placed in proximity to each other. The tallest panel was 3.85 metres high. The one on which Mr Time was working was 1.75 metres high. There were spaces between the panels. The work being undertaken was to attach heavy chains to the top of each panel, to enable the panel then to be lifted by a crane. The work was being undertaken at a considerable height; the footing was unstable because it was not of a suitable width; the employee was not prevented from falling from the top of the panel by use of fall protection equipment, or other means; and the work required the employee to adopt an awkward position, when attaching the chains. Mr Time was inexperienced in the work. The crane operator could not clearly see Mr Time on the panel, so that the operator could ensure that he was not struck by the lifting equipment which was being moved into position. 11 While there was evidence that the defendants had paid some attention to safety considerations at this workplace before the accident, the evidence also showed that such attention was not paid in any systemic way, particularly so far as this particular operation was concerned. No risk assessment had been undertaken of the work being performed, no procedure for performing the work safely documented and no adequate training or instruction was given in how to perform the work safely. Given how the work and training were arranged, the risk of an employee performing this work being struck and then falling, was obvious. The risk which materialised was plainly foreseeable, given the approach adopted. On the evidence it was unremarkable that the result was that these defendants failed to meet the obligations which were imposed upon them by the legislation. 12 Most regrettably for Mr Time, the risk to which he was exposed as a result of the defendants' approach, was of a most serious kind. The crane operator could not clearly see him working on top of the panels. Mr Time was attaching chains to concrete panels of up to 12 tonnes in weight. Lifting gear strong enough to safely lift such loads was plainly going to seriously injure the person trying to attach the chains to the panel, if a part of the equipment such as the hook block which struck Mr Time, were to fall. There was also an obvious risk of him falling onto, or even from the panel. That these risks were present was apparent, given the system of work being used. As the result of the risks materialising, Mr Time suffered very serious injury, as was also entirely foreseeable. These are all matters which must be taken into account in assessing the nature and seriousness of the offences here in question. 13 It appears from the evidence that other employers operating in this industry had also failed to address the safety risks of this particular operation. The steps taken by the Inspector after the accident, as well as those taken by the defendants, amply evidenced this. That situation cannot, however, excuse these defendants' failures. As the steps later taken by the defendants to remove the risks demonstrated, there were steps available to be taken before the accident, which could have removed the risks in question. 14 That the defendants took considerable steps to address the risks which the accident had so graphically revealed was commendable, involving as it did very considerable effort and expense, with the introduction of what appears to have been a significant innovation in this industry. As the Inspector commented in his evidence, these commendable steps went further even than suggestions which he had himself made. These are matters relevant to be taken into account by way of mitigation of the penalties which are imposed. Nevertheless, they also demonstrated that this is yet another case where there were steps available to be taken, which could have prevented this risk from materialising, if proper attention had been paid to the safety of the work in question, before the accident occurred. 15 It must also be noted that there was a considerable delay between the time of the accident in December 2003 and the time of implementation of the new system in 2005. While the evidence showed steps being pursued by the defendants through that time, so that the risk to safety which had materialised could be addressed, I am unable to conclude that the evidence showed that the defendants' response immediately addressed the risk, given the work being undertaken and how it was done. 16 As has so often been observed in the authorities, the obligations which the Act imposes on employers requires them to be proactive, not merely reactive, in ensuring safety. 17 There was an issue between the parties as to how it was that the new system came to be devised. Undoubtedly, the prosecuting Inspector himself acted proactively in drawing industry attention to the risk which had been revealed, in his pursuit of a solution. There was a debate about whether it was the defendants or the Inspector who first approached the industry body. It is unnecessary to resolve that issue, because the industry body itself had no solution to offer. 18 On the evidence it is quite apparent that the new system which the defendant eventually introduced, had significant regard to what the Inspector had suggested in February 2005. That cannot be doubted, given that in September 2004, the corporate defendant wrote that it had highlighted its concerns about proposed changes to Inspector Maddaford and that it was 'confident that we have conducted the relevant investigations and assessment of work practices, and adopted the safest possible practices to ensure the safety of our employees in this situation. Furthermore, Sasso Precast Concrete Pty. Ltd. is open to any viable suggestions to increase the safety of our employees in this situation.' 19 Most commendably, the Inspector himself continued to pursue the issue and made suggestions in February 2005, which the defendants pursued by investigating the necessary engineering issues which arose. As the Inspector accepted, the final system improved upon his suggestions, in various ways. 20 These are all matters relevant to be taken into account by way of mitigation, of course. I am satisfied that in doing so, however, it cannot be overlooked that the accident occurred in December 2003, but the risk does not appear to have been removed until 2005. The Inspector issued improvement notices in January 2004 and March 2005 and himself made suggestions in February 2005, for the changes which the defendant eventually implemented. The Inspector inspected the work in March 2005. While that inspection and the photographs then taken suggest that the defendant had taken some steps in the meantime to address the deficiencies which had been revealed, the evidence does not permit the conclusion that the risk had by that stage been completely addressed. That had to await the new system being devised and implemented. The Inspector saw the new system in July and made further suggestions, which were implemented by August 2005. He produced a final inspection report in the following November. 21 Given the evidence that the risk which here materialised was a problem present elsewhere in industry, it follows that general deterrence must feature in the penalty here imposed. On the evidence, I am satisfied that specific deterrence also has a role to play, albeit a smaller one than would have been the case, without the ultimate removal of the risk. 22 I also accept that the plea was entered at an early point, so as to properly lead to a 25% penalty discount for utilitarian savings. (See Inspector Brett Martin v Encore Tissue Pty Limited [2005] NSWIRComm 271 at [29] to [31] and Inspector David Waterhouse v Innovative Property Developments Pty Ltd and Others [2006] NSWIRComm 97 at [64] to [67]). The other matters relied upon by the defendants by way of mitigation, must also be taken into account. I accept the defendants' contrition for what here occurred and have taken the matters relied upon into account, by way of further reduction of the penalty imposed. In doing so, however, I have had regard to the delay in addressing this risk, which I earlier discussed. I also take the view that the nature of the defendants' commitment to safety prior to the accident, as portrayed by Mr Tolomeo in his affidavit, was revealed by the answers he gave in cross examination, not to have been quite as complete as his affidavit had suggested. Undoubtedly, however, the steps taken afterwards, adopted quite a different and more rigorous approach, to which I have had regard. 23 Having weighed all of these matters, I have concluded that the appropriate penalty in this case for the corporate defendant is $84,000. 24 As for Mr Tolomeo, it was argued that although he was the managing director of the defendant who had day to day control and responsibility for the work being undertaken, as well as overseeing all aspects of the defendant's business, it ought to be concluded that his culpability for what had occurred ought not to be found to have been as high as that of the corporate defendant. 25 The submission was explained on this basis: In the broad it is clear prior to this accident Mr Tolomeo was driving his organisation so that it was a compliant organisation with WorkCover generated schemes. This has involved the independent audit of occupational health and safety systems and processes. Mr Tolomeo has a good record both personally and the corporation that he is driving has a good record. That reflects very well on the systems that he did have in place when one considers the evidence that your Honour does have about lifting, about both within the factory premises and out onto the trucks and the like and the fact that they have an operation as a site-based operation so your Honour would see that the steps that Mr Tolomeo was taking were having a positive effect. In terms of his culpability he was not out of step with the industry. He was not doing something that nobody else would dream of doing. Indeed it seems on balance in the evidence that his processes or the processes that Sasco had adopted were at least consistent with the type of approaches adopted by others. There was no ready alternative to what he was doing. He took steps personally to investigate. He went overseas. He looked at other alternatives. He had people on behalf of his corporation investigate. He participated through Sasco with the inspector in the iterative steps that the inspector himself wanted to participate in his investigation of alternate systems and when it came time, when there was a suggestion on the table that a system could be designed which had not previously been done but could be, he took it and drove it the next step further. He was not resting on the laurels and the fact that here is the answer, I have just got to do the bare minimum and I will be right and it was now as at early 2005 a case of having a permanent alternative which addressed the risk issues but he drove that further. He took it (sic) the next step by making what had been suggested better again, and when one looks at his culpability then, as I respectfully submit, it is different to the corporation's culpability and it is at the lesser end of the culpability that one might see in the deemed offences. 26 Mr Tolomeo's evidence was that he was effectively the controlling mind of the corporate defendant, so far as adherence to the safety obligations imposed by the Act are concerned. Given all of the evidence as to the corporate defendant's approach to its safety obligations before and after the accident and Mr Tolomeo's involvement in and responsibility for that approach, I am unable to see any basis upon which it could be concluded that the corporate defendant had any greater culpability for the failures here in question, than did Mr Tolomeo. I am satisfied that this conclusion must be reflected in the penalty imposed, as must the mitigating factors which must result in a discount of that penalty, in the same way as the penalty imposed on the corporate defendant has been discounted. 27 Having weighed all of these matters I have concluded that the appropriate penalty in this case for Mr Tolomeo is $8,400. Orders 28 For the reasons given, I find the defendants guilty of the charges to which the pleas were entered. Sasso Precast Concrete Pty Ltd is ordered to pay a penalty of $84,000 in matter number IRC 6441 of 2005 and Paul Damian Tolomeo is ordered to pay a penalty of $8,400 in matter number IRC 6442 of 2005, with a moiety to the prosecutor in each case. 29 I also order the defendants to pay the prosecutor's costs as agreed, or in the absence of agreement, the matter may be referred to the Registrar for assessment. The parties have liberty to approach in that respect. ------------------------ 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.