Industrial Court of New South Wales CITATION: WorkCover Authority of New South Wales (Inspector Belley) v Steven Carl Akerman [2007] NSWIRComm 55 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Belley) PARTIES: DEFENDANT Steven Carl Akerman FILE NUMBER(S): IRC 5606 of 2005 CORAM: Staunton J CATCHWORDS: Occupational health and safety - sentencing proceedings on ex parte basis - defendant resides in United States of America - no appearance by defendant despite being served - relevant sentencing principles reaffirmed - objective seriousness of the offence - principle of parity vis-a-vis other co-defendants applied - general deterrence - held specific deterrence not a significant factor - no prior convictions - no known subjective features - s 253 of the Criminal Procedure Act 1986 applicable - assessment of prosecutor's costs accepted as reasonable - penalty imposed - orders as to conviction, penalty, moeity and costs. LEGISLATION CITED: Criminal Procedure Act 1986 Occupational Health and Safety Act 2000 CASES CITED: Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 HEARING DATES: 14/3/2007 DATE OF JUDGMENT: 14 March 2007 PROSECUTION: Mr R Reitano of counsel SOLICITORS: LEGAL REPRESENTATIVES: Criminal Law Practice Legal Group DEFENDANT: No appearance JUDGMENT: - 9 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Staunton J DATE: 14/3/2007 Matter No IRC 5606 of 2005 WorkCover Authority of New South Wales (Inspector Belley) v Steven Carl Akerman Prosecution pursuant to s 10(2) and by virtue of s 26(1) of the Occupational Health and Safety Act 2000 JUDGMENT AS TO PENALTY [2007] NSWIRComm 55 1 In an earlier judgment concerning this defendant, I determined that the offence charged pursuant to s 10(2) of the Occupational Health and Safety Act 2000 by virtue of the deeming provisions s 26(1) of the Occupational Health and Safety Act 2000 had been proved beyond reasonable doubt: See my judgment in WorkCover Authority of New South Wales (Inspector Belley) v Steven Carl Akerman [2006] NSWIRComm 353 handed down on 24 November 2006. 2 The delay in proceeding to determine penalty has arisen predominantly because Mr Akerman resides in the United States of America. It was considered necessary he be advised of my decision as to liability and given the opportunity to be heard in relation to penalty if he desired to enter an appearance at this stage of proceedings. 3 The defendant is one of three directors of Akerman-Apache Joint Venture Pty Limited (Akerman-Apache). The other two directors are Mr Jonathan Herbert and Mr John Walker. 4 In 2005, Akerman-Apache and all three directors were charged with offences arising under the Occupational Health and Safety Act 2000. The offences arose from an accident that occurred on 3 November 2003 at Otford, New South Wales resulting in the death of Mr Ross Boyer. 5 Akerman-Apache was charged with an offence arising under s 10(2) of the Occupational Health and Safety Act 2000 (the Act). All three directors were charged with the same offence under s 10(2) by virtue of the deeming provisions of s 26(1) of the Act. 6 The corporate defendant together with Mr Herbert and Mr Walker all entered pleas of guilty to their respective offences and have been dealt with by me in relation to penalty: See my judgment in WorkCover Authority of New South Wales (Inspector Belley) v Akerman Apache (Joint Venture) Pty Limited, Jonathan Dwyer Herbert and John Lindsay Walker [2006] NSWIRComm 370 handed down on 24 November 2006. 7 As the above two judgments make clear, the defendant now before me for sentencing, Mr Steven Akerman, has never appeared before the Court. He currently resides in the United States and, despite having been personally served, has entered no appearance. To date, all proceedings in relation to his offence have been dealt with on an ex parte basis. Today's proceedings are no exception. 8 The factual matters relevant to the offence before me have already been fully canvassed in the earlier judgments to which I have already referred. I do not propose to repeat them except by reference as necessary. 9 I also reaffirm the relevant principles applicable to sentencing proceedings as referred to in WorkCover Authority of New South Wales (Inspector Belley) v Akerman Apache (Joint Venture) Pty Limited and ors paras [10] to [20] inclusive as being applicable to these proceedings concerning Mr Akerman. Relevant considerations 10 I have had regard to the affidavit of Mr Jason Hickman, a private process server of the State of Oklahoma, United States of America, sworn on 30 January 2007, deposing as to personal service of the following documents on Mr Akerman on 29 January 2007: (1) A judgment delivered by her Honour Justice Staunton in relation to the matter of WorkCover Authority v Steven Carl Akerman. (2) A judgment delivered by her Honour Justice Staunton in relation to the matter of WorkCover Authority v Akerman Apache and others. (3) Together with a letter from WorkCover Authority dated 11 December 2006. 11 The letter from the WorkCover Authority of New South Wales referred to above, addressed to Mr Akerman, stated relevantly: Her Honour has not as yet proceeded to convict you or impose any penalty upon you. Her Honour has asked that our office bring the judgments to your attention so that you can consider them with a view to deciding as to whether you should attend Court to protect your interests. You are entitled, if you wish, to appear and be heard by the Court as to whether any penalty should be imposed upon you, and if so, what penalty should be imposed. In this regard we suggest you obtain legal advice as a matter of urgency. Whether or not you wish to address the Court on the question of penalty is entirely a matter for you, but her Honour will be invited (whether you appear or not) by us to move to enter a conviction and impose a penalty upon you. The maximum penalty is AU$55,000 and we have been instructed to seek costs against you. Further, we also intend to proceed to invite her Honour to impose a penalty and order you to pay our costs. The matter is listed for mention to report back to her Honour on Monday 19 February 2007 at 9.30 am in the Industrial Court of NSW at 47 Bridge Street, Sydney, NSW, Australia. It is at that time that we will invite the Court to proceed to impose a penalty upon you and make an order for costs against you. We strongly suggest that you seek legal advice in respect of this matter. 12 Having regard to the above, I am satisfied the defendant has been served with information that has alerted him to the outcome of legal proceedings to date in matters affecting himself and Akerman-Apache, of which he is a director. Further, the conveying of that information has been served on Mr Akerman with sufficient notice to allow him to enter an appearance in these sentencing proceedings should he wish to do so. 13 No appearance has been entered and, accordingly, I am satisfied I can proceed to impose penalty on an ex parte basis. 14 As a defendant with no prior convictions, the maximum penalty I can impose on Mr Akerman is $55,000. 15 By reference to the facts and my considerations in WorkCover Authority of New South Wales (Inspector Belley) v Akerman Apache (Joint Venture) Pty Limited and ors the offence which I am considering in relation to the defendant was a serious one and I propose to approach the determination of penalty on that basis. 16 In doing so, having regard to the respective roles of the three directors of the company in the factual circumstances underpinning the offence of the corporate defendant, the principle of parity is a relevant consideration. On that issue, I refer to my judgment on penalty in WorkCover Authority of New South Wales (Inspector Belley) v Akerman Apache (Joint Venture) Pty Limited and ors relating to the relative culpability of the three personal defendants as follows: [59] In determining penalty in relation to each of the defendants as co-offenders, the principle of parity is relevant. The principle demands consistency in sentencing outcomes as between co-offenders determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability: see Lowe v R (1984) 154 CLR 606 and Postiglione v R (1997) 189 CLR 295. However, 'if there are relevant differences, due allowance should be made for them': Postiglione v R at 301. [60] It is necessary at this point to consider parity in relation to the relative culpability as between the two personal defendants and as between the two personal defendants and Mr Akerman. [61] It is apparent Mr Herbert and Mr Walker, as non-executive directors of the corporate defendant, took something of a back seat role in the day to day operations of the work being performed by the company under the PSPAT contract. Accepting the evidence of Mr Herbert and Mr Walker on this point, Mr Steve Akerman was the driving force and project manager responsible for getting the work done safely, on budget and on time. He was a visible and hands on presence at the workplace notwithstanding he was not there when the accident with the truck and the mud plant occurred. Whether Mr Akerman would have sanctioned what was done and the manner in which it was done is simply not known. The evidence that there is suggests that Mr Akerman was very aware of workplace safety and, as a general assessment, ensured the observance of safe workplace standards in the work being undertaken. [62] On this point, the view of Mr Barker, project manager for the PSPAT project as referred to in the agreed facts, warrants repeating as follows: [33] Steven Barker (Barker), Projects Manager employed by Sydney Water and PSPAT, was responsible for the overall project. In an interview with WorkCover following the accident he said that he observed that there were very few problems with the first defendant's safety performance. Its quality systems were working and it worked very well within the environmental management plan. [34] It was Barker's responsibility to ensure the plant that sub-contractors used on the project was safe to use up to and on 3 November 2003. [35] Barker and Steve Akerman agreed that the directional drilling equipment should not be driven on the road but rather transported by low loader and this was included in safe work method statements. Barker and Steve Akerman also drew up an environmental management plan that was prepared for the project site which showed that the mud plant would be set up on site. [36] Barker and Steve Akerman agreed that the mud plant would remain at the Helensburgh Depot because of the danger of floods. [63] I accept that, relative to Mr Akerman, the culpability of Mr Walker and Mr Herbert is less. They were obviously content to allow Mr Akerman to do all the running on the project, acknowledging that the quid pro quo for them was, as directors of Apache Earthworks, they stood to gain if the joint venture project, under Mr Akerman's direction, was a success. Having said that, Mr Herbert and Mr Walker cannot avoid their responsibilities and ultimate culpability, which their plea of guilty acknowledges, simply because of their more arms length role vis-a-vis Mr Akerman. [64] I discern no distinction in the relative culpability as between Mr Herbert and Mr Walker. 17 Central to Mr Akerman's culpability in relation to his offence was his role as project manager for the joint venture. As well, the primary catalyst for the events leading to the death of Mr Boyer was the decision to move the mud plant and to do so in the manner which the facts disclose. On that latter issue, I refer to my earlier judgment concerning WorkCover Authority of New South Wales (Inspector Belley) v Steven Carl Akerman as follows: [37] The work being undertaken by the joint venture was overseen predominantly by Mr Akerman. According to Mr Jasper in his statement, Mr Akerman was the on-site manager when he was in Australia and Mr Chuck Nelson was when Mr Akerman was absent. According to Mr Jasper: 'It was obvious that Steve Akerman was in control of the job.' [38] Further, according to Mr Jasper, on a daily basis during his time when he was engaged to perform services for the joint venture, he was supervised either by Mr Steve Akerman or Mr Chuck Nelson. The hands-on involvement of Mr Akerman in the work being undertaken by the joint venture is corroborated in the statement of Mr Jay Haigh, another employee contracted to work with the joint venture company. [39] On the material before me, I am satisfied the defendant was very much able to influence the conduct of the corporation in relation to the contraventions grounding the offence of the corporate defendant under s 10(2) of the Act. As the statement of Mr Jasper explains, the defendant was the project manager for the work being undertaken by the corporate defendant. He was present at the worksite frequently, supervising the work being performed and issuing directions although, as I found, there is no evidence to show he was directly involved in the decision to shift the mud plant using the truck in the manner in which that was undertaken. Mr Akerman was certainly aware of the obligations of the corporate defendant to undertake the work the company was undertaking free of risks to safety. That obligation was reinforced by the corporate defendant's contractual obligations under the project which Mr Akerman was predominantly responsible for negotiating with Mr Barker. As Mr Barker explained: A55: My duties were to ensure that the project plan, which covered design, procurement, and construction, was correctly and fully implemented. For construction activities that meant implementing an incident management plan, safety management plan, an environmental management plan, the customer home plan and the construction plan. For example, the customer plan involved a site visit and interview with 600 families affected by the scheme. The Project Manager, Safety Officer, Site Engineers, Site Supervisors and the Construction Manager implemented a comprehensive project safety plan. It started with review of subcontractor safety plans during tendering, and on site it involved site inductions, checking equipment and labour accreditation, reviewing subcontractor safety plans and monitoring their implementation, toolbox talks, and safety inspections. [40] Given all of the above, there is no evidence of any actions or otherwise on which the defendant is able to rely such as to establish a defence under s 26(1)(a) of the Act. [41] I come to the same conclusion in relation to s 26(1)(b). That is, there is no evidence to establish, as a director of the corporate defendant, the defendant took any steps to prevent the contravention by the corporate defendant. He was certainly in a position to do so. As project manager for the work being undertaken, the defendant was directly complicit in the acts and omissions of the corporate defendant that gave rise to the offence under s 10(2). Notwithstanding the agreement Mr Akerman had with Mr Barker in relation to the fixed location of the mud plant, the system of work that was in place at the time simply failed to ensure that instructions were in place to ensure the mud plant remained at the project base and if it was to be moved, it would be done using a low loader. As project manager, Mr Akerman was directly responsible to ensure such instructions were in place and complied with. [42] In all the circumstances, there is no evidence the defendant is able to rely on, of any actions on his part such as to establish a defence under s 26(1)(b) of the Act. 18 While I accept the principle of general deterrence is relevant in my considerations, I am not persuaded specific deterrence is as significant a factor. If I accept the evidence of Mr Walker and Mr Lindsay in their proceedings, which I do, Mr Akerman has no intention of returning to operate a business in New South Wales. Again, I refer to my judgment on penalty in WorkCover Authority of New South Wales (Inspector Belley) v Akerman Apache (Joint Venture) Pty Limited and ors at [67] where I said: [67] I consider general deterrence to be relevant to all three defendants. Specific deterrence brings with it somewhat different considerations. The joint venture company is no longer operating. According to both Mr Walker and Mr Herbert, Mr Akerman advised, in or about mid 2005, that he no longer wished to operate in Australia. The fact that Mr Akerman has made no appearance in his own proceedings and is currently residing in America would support that assertion. Counsel for the prosecutor contended that specific deterrence was a relevant consideration in relation to the corporate defendant in that, while currently dormant, it was still registered and could commence to operate again in the construction industry. 19 There is no evidence to suggest Mr Akerman intends to ever return to New South Wales to operate any business. If anything, the evidence points to the contrary. While it cannot be said he will never do so, I consider, in all the circumstances, it is highly unlikely. Overall, while it cannot be dismissed, I consider specific deterrence to be of limited weight in my ultimate considerations. 20 Given the non-appearance of Mr Akerman I have little, if any, evidence going to subjective factors that may be relevant in mitigation to my considerations on penalty except to note that as Project Manager for the site, he did cooperate with Mr Barker on behalf of PSPAT in relation to workplace safety. That much is identified in my earlier judgment in relation to Akerman-Apache and ors and the extract that appears in para [16] above. 21 Likewise, in relation to Mr Akerman's financial circumstances. 22 In proceeding to impose penalty, the prosecution have sought an order as to conviction and costs. In order to do so, having regard to the provisions of s 253 of the Criminal Procedure Act 1986 (now repealed) but which is applicable to these proceedings, it is necessary for costs to be assessed. On that point, I refer to my judgment in Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 as follows: I have already concluded that in making an order for costs, I must do so in accordance with the provisions of s 253 of the CPA. The costs to be paid must be such costs as the Court specifies and the costs specified must be made 'in and by a conviction or order'. In order to effect that provision it is necessary for the prosecutor's costs to be assessed. 23 In support of such orders, I have before me an affidavit of Ms Brooke Benson deposing to her status as the solicitor with the carriage of this matter on behalf of the prosecutor. Annexed to her affidavit is a bill of costs expended by the prosecutor in relation to the legal proceedings against Mr Akerman. I accept the assessment of $7353.03 as properly and reasonably reflecting the costs incurred by the prosecutor and will make an order in those terms. 24 In conclusion, I make the following orders: (i) the defendant is convicted of the offence as charged; (ii) I impose a penalty of $18,500. (iii) I allocate a moiety to the prosecutor on the usual terms; (iv) the defendant is to pay the prosecutor's costs in the sum of $7353.03. 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