Industrial Court New South Wales Medium Neutral Citation: Inspector Jason Andrew Wall (WorkCover Authority of New South Wales) v Lubo Medich Holdings Pty Ltd [2011] NSWIRComm 18 Hearing dates: 22 November 2010 Decision date: 09 March 2011 Jurisdiction: Industrial Court of NSW Before: Backman J Decision: (1) In No IC 1262 of 2009, the Court orders that Lubo Medich Holdings Pty Ltd is convicted of the offence and fined $61,000 with a moiety to the prosecutor. (2) In No IC 1263 of 2009, the Court orders that Lubo Medich Holdings Pty Ltd is convicted of the offence and fined $61,000 with a moiety to the prosecutor. (3) In No IC 1264 of 2009, the Court orders that John Matthew Medich is convicted of the offence and fined $5,500 with a moiety to the prosecutor. (4) In No IC 1267 of 2009, the Court orders that John Matthew Medich is convicted of the offence and fined $5,500 with a moiety to the prosecutor. (5) In Nos IC 1262, 1263, 1264 and 1267 of 2009, the defendants are to pay the reasonable costs of the prosecutor as agreed or assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Occupational Health and Safety Act 2000 - pleas of guilty - worker dies after falling 5.8 metres from a work platform on mobile scaffold - work platform lacked handrails and worker had no other form of fall protection - objective factors - subjective factors - contribution and respective roles - whether Court should exercise its discretion under s 10(1) of the Crimes (Sentencing Procedure) Act 1999 and dismiss the charge against individual offender - application refused - victim impact statement - totality - Orders Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Cases Cited: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan [2001] NSWIRComm 106; (2001) 105 IR 181 Graincorp Operations Limited v Inspector Mason [2006] NSWIRComm 304; (2006) 157 IR 103 Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 Inspector Jones v James Denson and Anor [2006] NSWIRComm 234 Inspector Stephen Cooper v Kwik-Seal Pty Ltd and anor [2006] NSWIRComm 48 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Regina v Previtera (1997) 94 A Crim R 76 Regina v Berg [2004] NSWCCA 300 Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259; (2004) 136 IR 449 Category: Sentence Parties: Inspector Jason Andrew Wall (WorkCover Authority of New South Wales) (Prosecutor) Lubo Medich Holdings Pty Ltd (Defendant) John Matthew Medich (Defendant) Representation: Mr M Scott, of counsel (Prosecutor) Mr M Cahill of counsel (Defendants) WorkCover Authority of New South Wales (Prosecutor) Anthony Clive Parisi (Defendants) File Number(s): IRC 1262 of 2009 IRC 1263 of 2009 IRC 1264 of 2009 IRC 1267 of 2009 Judgment 1Lubo Medich Holdings Pty Ltd pleaded guilty to two offences under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 (OHS Act 2000). John Matthew Medich, the corporate defendant's managing director at the time of the offences, pleaded guilty to two offences under s 8(1) and s 8(2) by virtue of s 26 OHS Act 2000. 2The offences concern a fatal accident on 27 August 2007 at a construction site owned and operated by the corporate defendant when Joseph Muscat fell approximately 5.8 metres from a mobile scaffold. Agreed Facts 3The corporate defendant at the time of the offences was a commercial property operator and developer. Mr Medich was one of three directors of the corporate defendant. Lubo Medich, the father of Mr Medich, was another director, although he had ceased in 2003 to play an active role in the corporate defendant's operations due to declining health. The third director was Geoffrey Medich, the brother of Mr Medich. The two brothers managed the day-to-day affairs of the corporation. 4Mr Muscat was employed by the corporate defendant as a handyman/maintenance worker. He had no trade or construction qualifications and had been working for the corporation for about three months at the time of the accident. 5The corporate defendant on 4 June 2007 entered into a Service Agreement with Access Consolidated Pty Ltd. Peter Heness was the sole employee of that corporation. Under the Service Agreement Mr Heness was appointed as the corporate defendant's property manager. In that role he was required to report to, and take instructions from, the directors of the corporate defendant. He was also required under Clause 4.1(a) of the Service Agreement to: superintend and control the access to our properties of all labourers, tradesmen, consultants and others as required by us in undertaking all such works to properties. 6According to the Agreed Facts, the corporate defendant, through its directors, advised Mr Heness about the work tasks he was to perform. He received his instructions at fortnightly meetings with the directors and reported to Mr Medich. The site at which the fatal accident occurred was located at 149 Cabramatta Road, Cabramatta East (the site). Mr Heness had been instructed to clean the two-storey building on the site. He passed on those instructions to Mr Muscat. It was the duty of Mr Heness to obtain any equipment necessary for Mr Muscat to perform the work. 7Mr Heness and Mr Muscat had been performing maintenance work at the site for about two weeks before the accident. According to Mr Heness, this work included the preparation of the walls of the building for future painting, as well as cleaning up the site. The roof of the building also needed replacing. This work was contracted out by the corporate defendant to Liverpool Metal Roofing, a roofing contractor. 8On the day of the accident, Mr Heness instructed Mr Muscat to rub down the building of paint and take down the down pipe and plumbing. Mr Heness arrived at the site that day some time after Mr Muscat. Mr Muscat at that time was on the mobile scaffold, painting, according to the Agreed Facts. 9At about 12.50pm, both men were working on the upper platform of the mobile scaffold. The mobile scaffold had two platforms. The lower platform was about 5.3 metres above ground and the upper platform was about 5.8 metres above ground. On the western side of the scaffold was a roof supported by metal purlins which were attached to the rear of the building. Mr Muscat stood on one end of the upper platform using an electric drill to remove the plumbing pipe from the wall of the building. Mr Heness looked toward the roof when he heard a "thump". He turned, walked westward along the platform, and saw Mr Muscat lying on the ground. A short while later Mr Muscat was taken by ambulance to Liverpool Hospital where he later died of his injuries. The mobile scaffold 10The mobile scaffold was owned by Liverpool Metal Roofing. It is not known who erected the scaffolding. Its construction, it may readily be inferred, was seriously defective and extremely hazardous. It was missing horizontal and diagonal bracing. It was not properly decked out and had no fall protection such as handrails. Mr Heness and Mr Muscat gained access to the upper platform by climbing from an external ladder located on the outside of the scaffold which was supported underneath one of its legs by what appeared to be three pieces of flat tiles. To get off the work platform Mr Muscat had to step onto the ladder. The awning 11Replacement of the roof was undertaken at the site on 25 and 26 August 2007 by Liverpool Metal Roofing. Old roofing sheets were removed and replaced. Polycarbonate sheets, which are non-weight bearing, were used to construct the awning. According to a spokesperson from Liverpool Metal Roofing, Mr Heness instructed Mr Rasipanov, working for Liverpool Metal Roofing, not to install safety mesh underneath the polycarbonate sheeting. An aluminium plank with the dimensions 3 metres x 225 mm was placed on top of the awning, running parallel with the roof sheeting next to the section of polycarbonate roof sheeting where the scaffold was located. The work platforms of the scaffold abutted the awning. Objective factors 12The system of work utilised by Mr Heness and Mr Muscat on the day of the offences was patently unsafe in a number of respects. The upper platform on which they were working was 5.8 metres above ground. There was no railing around the platform and no physical access between the platform and roof including the awning area, which would have prevented a fall. Neither Mr Muscat nor Mr Heness were wearing any form of fall arrest equipment such as a harness. They were not informed that fall protection should be worn while working at height. No risk assessment had been undertaken and no safe work procedure (SWP) developed with regard to the work they were doing at the time of the accident. No safety mesh had been installed under or over the awning area, although it was installed under the roof. Neither worker was warned or instructed not to place any weight on the polycarbonate sheeting which was non-weight bearing and which abutted the work platform of the scaffold. 13In addition, Mr Muscat was not supervised while doing the work. He was directed by Mr Heness as to what work to perform but, according to Mr Heness, Mr Muscat was responsible for his own supervision. Mr Heness was under the direct supervision of the directors of the corporate defendant and received his instructions from them during meetings at the corporate defendant's offices. The corporate defendant relied on Mr Heness' expertise to perform his duties. It did not provide him with any training. Nor were the two workers provided with any information, instruction or training by the corporate defendant in relation to safe work methods and associated risks for undertaking work at height. The corporate defendant made no enquiries as to whether Mr Muscat had received OHS general induction or site-specific induction training. 14There was a dispute between the parties as to whether the work being undertaken by Mr Muscat on the day of the offences was work that the defendants required to be done. According to the prosecutor, Mr Muscat and Mr Heness were performing work on behalf of and for the benefit of the corporate defendant at the time of the accident. According to the defendants, neither worker was instructed to undertake the work on the scaffold and accordingly the real criminality of the corporate defendant was its failure to ensure that its "system" was properly enforced or followed, that is, that it failed to ensure that Mr Muscat was prevented from undertaking the work. 15According to the agreed facts the actual work being undertaken by Mr Muscat at the time of the accident was disassembling the down pipe and plumbing from the wall of the building. Mr Muscat performed that work while on the scaffold at a height of 5.8 metres. He was instructed to do that work by Mr Heness. Earlier that day, Mr Muscat was on the scaffold, painting. It appears, although it was not entirely clear on the evidence, that the work Mr Muscat was performing at the time of the accident was in preparation for future painting of the walls. 16According to Mr Medich, the work required to be done at the site at the time of the accident was limited to general internal cleaning work and internal repairs, as well as re-roofing of the premises. This latter task had been sub-contracted out to commercial roofers (Liverpool Metal Roofing). In his affidavit, Mr Medich deposed that he did not at any stage prior to the accident instruct Mr Heness to direct Mr Muscat to work on the roof or to do any painting or work in preparation for painting of the premises. Mr Medich disclaimed all knowledge of what work Mr Muscat was performing on the day of the offence. In his affidavit, Mr Medich said: Both prior to and at the time of the incident, it was not in my contemplation that Mr Muscat would be performing any work at height at 149 Cabramatta Road, either on the roof of the building, or as a consequence of doing any painting work from a scaffold. It was only after the incident that I became aware that Mr Muscat had been directed by Mr Heness to prepare and repaint the rear wall of the premises. Also, it was only after the incident that I became aware that Mr Heness and Mr Muscat had used the mobile scaffold which was located at the rear of the premises on the morning of the incident. To the best of my recollection, I did not go to 149 Cabramatta Road in the days immediately preceding the incident, including Friday, 24 August 2007, and I did not see the scaffold in place at the rear of the premises until I attended on the site on the afternoon of 27 August 2007 after I had received notification of the incident. 17Mr Medich said that at the time of the offences Mr Heness was assigned his work at meetings which he attended with Mr Medich and Geoffrey Medich, at the corporate defendant's offices. These were held "roughly" at fortnightly intervals. Some minutes of those meetings are annexed to the affidavit of Mr Medich. One set of minutes headed "Peter's Copy" (a reference to Mr Heness) indicates that all work at the site was to be deferred except for work on the roof which was to be contracted out to the roofing specialists. These minutes are dated 4 June 2007 and 4 July 2007. The other set of minutes headed "Agenda meeting" suggests that all work at the site was to be deferred. These minutes, dated 4 June 2007, represent the meeting notes of Mr Medich. No other minutes of meetings held after 4 July 2007 up to the date of the offences were annexed to the affidavit. For present purposes, all that may be gleaned from the minutes is that Mr Heness may have understood as at 4 July 2007 that the only work to be undertaken at the site was the roofing work which was contracted out to specialist contractors and Mr Medich understood that all work at the site was to be deferred. 18None of this directly contradicts Mr Medich's unchallenged account in his affidavit that he gave no instructions to Mr Heness to direct Mr Muscat to prepare the back wall of the building at the site for painting or to paint the wall, and he had no knowledge that Mr Muscat had been directed by Mr Heness to perform this work. 19What does emerge from the evidence is that the defendants considered Mr Heness to be competent, reliable and experienced. He had a lengthy professional association with them, spanning some 15 years. Mr Medich said that Mr Heness was responsible for supervising the work at the site. Mr Medich had not visited the site for some days preceding the day of the offences and at no stage prior to that date did he see the scaffold erected at the site. 20These matters suggest that the defendants exercised no supervisory responsibility over Mr Muscat, instead delegating that responsibility entirely to Mr Heness. The systems, in operation by the corporate defendant for many years, were informal and consisted of sub-contracting all specialist work required to be undertaken at a site, such as painting or roofing, to sub-contractors. These systems were seriously deficient in that they made no provision for the safety of employees such as Mr Muscat or sub-contractors such as Mr Heness. Mr Muscat's safety, and any associated procedures, was solely in the hands of Mr Heness, at least insofar as the defendants were concerned. Mr Heness did not consider that supervision of Mr Muscat formed part of his duties. 21According to the defendants, Mr Medich had no expectation that Mr Muscat would be performing the work on the scaffold on the day of the offences. The real criminality of the corporate defendant according to the defendants is that it did not ensure that its systems were followed, that is, that Mr Muscat did not do the work on the scaffold. 22The clear inference which may be drawn from the evidence is that the corporate defendant had implemented no systems of safety at the site which would have ensured the safety of both Mr Heness and Mr Muscat. The "systems" upon which the defendants seek to rely were informal systems lacking any real component of safety. Mr Medich may have genuinely believed that Mr Heness was capable of properly supervising Mr Muscat, but his belief was not founded on any enquiries made by him as to whether Mr Heness was qualified and experienced in matters of safety at construction sites. Mr Medich's belief appears to have been based on what he says Mr Heness told him, as well as his observations of the work undertaken by Mr Heness as the corporate defendant's property manager. His conversations in this regard with Mr Heness have been set out in his affidavit. The affidavit reveals that Mr Heness was qualified and experienced with regard to managing building sites and supervising the works. The affidavit contains no details of Mr Heness' qualifications and experience in matters of safety, including the safe supervision of employees. The corporate defendant failed in its obligations to ensure the safety of Mr Muscat. Equally, it failed to discharge those obligations with regard to Mr Heness. The Court agrees with the prosecutor's submission that the "primary vice" of the corporate defendant's offences is that it did not ensure that Mr Heness and Mr Muscat received proper training and instruction. According to Mr Medich in his affidavit the only work scheduled to be done at the site was general internal work and repairs and the re-roofing of the premises, this latter task having been sub-contracted out to the roofing specialists. Whether or not Mr Heness may have misunderstood his instructions is not of significance. What is significant is that both defendants had no knowledge of what Mr Heness or Mr Muscat were doing at the site and they made no enquiries. There is no evidence which might give rise to an inference that Mr Heness ignored or disregarded clear instructions not to do the work at the site. These matters do not diminish the defendants' culpability in the circumstances of the offences. 23In submissions, the defendants accepted that the workers were exposed to a "high" risk to their safety and that the risk was reasonably foreseeable. I have already observed that the risk was obvious in circumstances where the workers were working 5.8 metres above ground on a seriously defective mobile scaffold with no adequate fall protection. In addition, neither worker had received any training or instruction from the defendants in matters of safety and the defendants had not formulated or developed any systems of safety at the site. There is an abundance of literature in the public domain which deals with the risk to safety arising from work at height and from work performed on unsafe scaffolding. Some of this literature was tendered into evidence during the sentence proceedings. It includes Australian Standard 1576, "Scaffolding Part 1: General Requirements"; Australian Standard 4576, "Guidelines for scaffolding"; "Code of Practice 1993, Safe Work on Roofs Part 1 - Commercial and Industrial Buildings"; and a WorkCover publication of 7 September 2005 entitled "Safety Mesh Used on Roofs". None of this literature was brought to the attention of Mr Heness or Mr Muscat by the defendants. There is no evidence which might indicate that the defendants were even aware of the literature. 24These matters exacerbate the objective seriousness of the offences. 25Mr Muscat's fatal accident is also a manifestation of the risk to his safety, which was the risk of a fall from a height of 5.8 metres in the absence of any fall protection. Section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 (CSPA) falls for application as an aggravating factor to be taken into account in determining penalty. 26There were obvious and readily available steps the defendants could have taken to obviate the risk. Some obvious measures which could have been adopted by the defendants were implemented by them after the accident. These have been set out in the agreed facts as follows: * Provided signs on the roof alerting of the danger associated with the new polycarbonate awning. The signs said: " Warning no roof access ". The signs were made by Mr Heness; * Installed safety mesh over the polycarbonate awning; * Lubo Medich Holdings employed the Brief Group to put safe working methods in place which involved Mr Heness asking contractors for their workers compensation certificate of currency, their public liability insurance, their safe working method statements and references of previous work performed; * Lubo Medich Holdings now has a set of detailed documented procedures outlining the OH&S responsibilities for the property manager, the secretary and for contractors who do any work on any of their properties. 27General deterrence also falls for application. The use of unsafe work platforms while working at height is not an uncommon feature at construction sites. Falls from height at construction sites occur with alarming regularity: see Inspector Jones v James Denson and Anor [2006] NSWIRComm 234 at [35] per Boland J. Employers engaged in work at construction sites must be put on notice that inattention to safety matters which expose the workers at the site to danger will be met with severe sanctions. 28Specific deterrence must also be applied. The corporate defendant continues to operate in the industry, undertaking the same work. The defendants submitted that the need for specific deterrence was not a significant matter when regard is had to the corporate defendant's introduction, following the offences, of safety practices, described as "a complete makeover". These matters will be explored in more detail later in these sentencing reasons. They do not, either singularly or collectively, dispense with the necessity of applying the principle: see Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 643. It is appropriate therefore to apply the principle reflected as a small component of the overall penalty to be imposed, taking into account those post-offence measures implemented by the corporate defendant. 29Neither defendant has prior convictions. The corporate defendant faces a maximum penalty of $550,000. Mr Medich faces a maximum penalty of $55,000. Subjective factors 30The defendants submitted that the Court should find that they entered pleas of guilty at the first opportunity. The submission was not contested by the prosecutor. I propose therefore to award a discount of 25 per cent reflecting the utilitarian benefit of the pleas of guilty entered by both defendants. 31The absence of prior convictions is illustrative of good industrial citizenship which entitles both defendants to leniency: see Graincorp Operations Limited v Inspector Mason [2006] NSWIRComm 304; (2006) 157 IR 103. The defendants also co-operated throughout the course of WorkCover's investigation into the circumstances of the offences. 32Mr Medich also tendered into evidence several testimonials which attest to his good character. Those testimonials reveal that Mr Medich has made a considerable personal contribution to the social and commercial development of the Cabramatta area over a period of about three decades. 33Each defendant has also accepted responsibility for their role in the circumstances of the offences. Mr Medich, in his capacity as managing director and spokesperson for the corporate defendant, accepted responsibility and expressed remorse for the breach of the corporate defendant's occupational health and safety obligations and for the death of Mr Muscat. Mr Medich also expressed his own personal remorse and his deep regret with respect to Mr Muscat's death and the loss suffered by Mr Muscat's family. Each defendant also demonstrated their remorse by deeds, as well as words in that: * the corporate defendant has taken steps to provide additional financial support to Mr Muscat's family with respect to the cost of Mr Muscat's funeral. * Mr Medich personally attended at the hospital to provide support to Mr Muscat and his family. 34These matters which were unchallenged meet with the requirements of s 21A(3)(i) of the CSPA being evidence of contrition expressed by the defendants which will be taken into account on penalty. 35After the accident, the defendants implemented a number of measures designed to obviate any risks to the safety of persons at the site. These measures have been earlier set out. The prosecution conceded that the measures taken constituted "significant steps" and that it would be appropriate for this Court to have regard to them in the sentencing process. 36The defendants also rely on post-incident measures in addition to those identified by the prosecution. These have been helpfully summarised in submissions which are extracted below: * The Lubo Medich group has provided John Medich, Geoffrey Medich and the Lubo Medich group's employees with detailed induction training with respect to the group's new oh&s and contractor management systems. * The Lubo Medich group has adopted and is in the process of the ongoing promulgation and enforcement of a comprehensive Occupational Health and Management System, including quarterly reviews of the group's oh&s and contractor management systems - with John Medich personally involved in those reviews. * The Lubo Medich Group has developed formal, documented induction procedures for its directors and employees. * The Lubo Medich group requires its contractors to submit oh&s documentation for review as part of the contracting process now followed within the group. * The Lubo Medich group no longer employs a person in the role formally performed by Mr Muscat. * The property manager now employed by the group has as part of his contractual obligations day to day management of the group's oh&s and contractor management systems and has been fully trained and inducted into those systems. 37These measures, as well as other subjective factors favourable to the defendants, will be taken into account in assessing the appropriate penalties to be imposed. Respective roles and contributions 38The defendants submitted that the Court should draw a distinction, for the purpose of penalties, between the criminal culpability of the corporate defendant and that of Mr Medich. The relative culpability of Mr Medich, it was contended, is significantly less than that of the corporate defendant. Two factors were relied upon in developing the contention. First, it was contended that the corporate defendant cannot be properly described as the alter ego of Mr Medich. Secondly, while it is accepted by Mr Medich that he had significant responsibility for the provision of directions, the receipt of reports and the provision of supervision to Mr Heness, these matters were not solely his responsibility within the structure and function of the corporate defendant. This was said to be so because Mr Heness attended at, reported to, and received instruction from management meetings held fortnightly, and it would be appropriate to conclude that it was not part of Mr Medich's function to provide direct personal supervision to Mr Heness or Mr Muscat on a daily basis. Support for this latter contention was sought to be derived from Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 per Heydon J at [120] where his Honour said (formal references omitted): ... The trial judge there concluded that Mr Kirk "did not supervise the daily activities of employees or contractors working on the Farm". The suggestion that the owners of farms are obliged to conduct daily supervision of employees and contractors - even the owners of relatively small farms like Mr Kirk's - is, with respect, an astonishing one. A great many farms in Australia are owned by natural persons who do not reside on or near them, and a great many other farms are owned by corporations the chief executive officers of which do not reside on or near them. The suggestion reflects a view of the legislation which, if it were correct, would justify many of the criticisms to which counsel for the appellants subjected it as being offensive to a fundamental aspect of the rule of law on the ground that it imposed obligations which were impossible to comply with and burdens which were impossible to bear. 39The prosecution made no submissions on the issue. 40The corporate defendant at the time of the offences had three directors, Lubo Medich (the father of Mr Medich), Geoffrey Medich, and Mr Medich who was also the managing director. The evidence indicates that Lubo Medich ceased to have any involvement in the corporate defendant's day to day affairs in 2003. Documentation tendered during the sentencing proceedings reveals that Geoffrey Medich attended the fortnightly meetings with his brother, Mr Heness and the corporate defendant's solicitor during which operational matters were discussed. Apart from this there is little evidence of what Geoffrey Medich's level of involvement was in the corporate defendant's affairs. It was properly conceded on behalf of the defendants that Mr Medich had significant responsibility in operational matters of the corporation. Nevertheless, the evidence, such as it is, indicates that Geoffrey Medich also had some active involvement in the corporate defendant's operational affairs. This finding alone would preclude a finding that Mr Medich was the alter ego of the corporate defendant. The culpability of Mr Medich I find therefore is less than the culpability of the corporate defendant. 41As for the involvement of Mr Heness the unchallenged account set out in Mr Medich's affidavit was that Mr Heness was Mr Muscat's supervisor on the day of the offences. There was no evidence however that Mr Heness, although a qualified and experienced tradesperson and builder, possessed either qualifications or experience in matters of safety, specifically with regard to the provision of proper or adequate supervision of a workforce at a building site. There may have been an expectation on the part of the corporate defendant and of Mr Medich that Mr Heness had safety qualifications and experience and was capable of discharging his responsibilities of supervision in an appropriate manner but this expectation was not followed through by any relevant enquiries which might have revealed whether Mr Heness had any qualifications or experience in occupational health and safety matters. One group of charges to which the defendants entered pleas of guilty alleges that the corporate defendant failed to ensure that Mr Heness was adequately trained, instructed and informed on safe work at height. Mr Heness was not provided with site induction or a pre-work briefing at the site. He was not told he was not permitted to work at height unless he used a fall system. He was not provided with information with respect to the risks of falling associated with the use of scaffold for work at height. He was not trained or instructed in the requirements for a safe work method statement for work at height or how to complete a risk assessment process for work at height. These are all failures on the part of the corporate defendant which form the subject of particulars set out in the charges. They suggest that Mr Heness was ill-equipped to discharge appropriate supervisory responsibilities towards any workers at the site. The matters relied upon by Mr Medich to support an inference that Mr Heness also had responsibility within the function and structure of the company (attendance at fortnightly meetings, etc) were limited to operational matters which did not include matters directed towards the safety of workers. Exercise of discretion under s 10 42An application was made on behalf of Mr Medich that the Court exercise its discretion under s 10 of the CSPA and make an order under s 10(1) of the CSPA to dismiss the charge, or alternatively, to discharge Mr Medich on condition that he enter into a good behaviour bond for a term not exceeding two years. 43A number of factors were relied upon by Mr Medich in support of the application. Mr Medich's antecedents were emphasised. He has no prior convictions. He entered a plea of guilty at an early stage. He actively co-operated with the prosecutor during the investigation into the circumstances of the offences. It was also contended that the offences took place against a background of a long-term management relationship between Mr Medich and Mr Heness in whom Mr Medich, perhaps somewhat naively, placed a great deal of reliance. Further, this reliance should be assessed against Mr Medich's background. He is a pharmacist by profession and lacks formal training in the building and construction industry. 44An order under s 10 of the CSPA is only made in rare, limited circumstances in proceedings under the OHS Act 2000: see Inspector Christopher Downie v Menzies Property Services Pty Limited [2004] NSWIRComm 259; (2004) 136 IR 449 at [45] [50]. 45Mr Medich sought reliance on a judgment of Haylen J in Inspector Stephen Cooper v Kwik-Seal Pty Ltd and anor [2006] NSWIRComm 48 in which his Honour granted an application made by the individual defendant under s 10 of the CSPA. The circumstances which confronted his Honour in that case were vastly different from the present circumstances and the judgment is readily distinguishable. His Honour had the advantage of hearing the defendant giving evidence in the witness box and formed a favourable impression of that evidence. His Honour also found that the defendant and the corporate defendant had in place prior to the offences a safe system of work at the accident site and that what happened on the day of the offences was contrary to that safe system and appeared to have been the result of a conscious decision made by one of the sub-contractors. His Honour found that the individual defendant had personally issued instructions to the sub-contractor (the person exposed to risk) on the morning of the offences. Those instructions were consistent with a work method in force for some weeks in which the sub-contractor had been trained but had chosen for some undisclosed reason not to follow. His Honour formed the view that what occurred on the day of the offences was uncharacteristic of the operation of the individual defendant's business and something of an aberration: at [58]. 46In contrast, the present proceedings reveal that there was no system of safety in operation at the site at the time of the offences. The offences, for reasons earlier set out, are objectively very serious. Mr Medich at the time of the offences had been managing director of the corporate defendant for four years - enough time to gain some experience in occupational health and safety matters referable to building sites. There can be no doubt that Mr Medich is a person of good character as the testimonials tendered on his behalf attest. The Court has also acknowledged Mr Medich's sincere expressions of regret for Mr Muscat's death. None of these matters, favourable to Mr Medich, are sufficiently persuasive to attract the Court's discretion in order to grant the application either under s 10(1)(a) or s 10(1)(b) of the CSPA. Victim Impact Statement 47After the parties had presented their respective cases on sentence, the Court received a victim impact statement, handed up by the prosecutor, made by Mr Muscat's widow, Mary Muscat. 48The basis upon which the Court receives the statement, and takes it into account, reflects the prevailing law on the issue as set out in s 28 of the CSPA; Regina v Previtera (1997) 94 A Crim R 76; cf Regina v Berg [2004] NSWCCA 300 per Woods CJ at CL at [42] to [49]; Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [43]. 49The statement reveals the devastating impact Mr Muscat's tragic and needless death has had on the lives of Mrs Muscat and their children. The Court extends its deepest sympathies to Mrs Muscat for the loss of her husband and to Mr Muscat's children for the loss of their father. Totality 50The defendants submitted that the principle of totality should apply to penalties to be imposed respectively for each of the offences charged against them. The bases upon which the principle was said to apply were that there is a significant overlap between the criminal culpability as between the two classes of offences. The particulars drafted in the charges against each defendant are, in essence, identical with one distinction which is that the s 8(1) charges relate to employees and the s 8(2) charges relate to non-employees. 51A similar situation arose in the Full Court judgment of Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan [2010] NSWIRComm 106; (2001) 105 IR 181 where the appellant had been charged with two offences under s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983 (the 1983 Act). The only distinguishing feature of significance between the two charges was that the s 15(1) charge related to employees and the s 16(1) charge related to non-employees. The Full Court held that the application of the principle of totality to both charges was appropriate because the charges contained very substantial common elements: at [51]. 52The Full Court in Keenan , after conducting a review of the authorities dealing with the principle and its application in the sentencing process, considered that the following formula should be used when applying the principle (at [37]): We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate. 53The Court agrees with and adopts the analysis of the defendants with regard to the substantial overlap and commonality of elements of the charges under s 8(1) and s 8(2). The only distinguishing feature of any significance is that the charges relate to different workers at the site, namely, Mr Muscat, an employee of the corporate defendant, and Mr Heness, a non-employee. Accordingly, the principle of totality falls for application. 54In relation to the corporate defendant I consider that a fine in the sum of $122,000 should be imposed for the offence under s 8(1) and a fine of $122,000 should be imposed for the offence under s 8(2). In relation to Mr Medich I consider that a fine in the sum of $11,000 should be imposed for the offence under s 8(1) by operation of s 26(1) and a fine of $11,000 should be imposed for the offence under s 8(2) by operation of s 26(1). 55In order to properly reflect the criminality of the first defendant, taking into account the principle of totality, I consider the total fine for the two offences under s 8(1) and s 8(2) should be $122,000. In order to properly reflect the criminality of Mr Medich, taking into account the principle of totality, I consider the total fine for the two offences under s8(1) by operation of s 26(1) and s 8(2) by operation of s 26(1) should be $11,000. Orders 56In No IC 1262 of 2009, the Court orders that Lubo Medich Holdings Pty Ltd is convicted of the offence and fined $61,000 with a moiety to the prosecutor. 57In No IC 1263 of 2009, the Court orders that Lubo Medich Holdings Pty Ltd is convicted of the offence and fined $61,000 with a moiety to the prosecutor. 58In No IC 1264 of 2009, the Court orders that John Matthew Medich is convicted of the offence and fined $5,500 with a moiety to the prosecutor. 59In No IC 1267 of 2009, the Court orders that John Matthew Medich is convicted of the offence and fined $5,500 with a moiety to the prosecutor. 60In Nos IC 1262, 1263, 1264 and 1267 of 2009, the defendants are to pay the reasonable costs of the prosecutor as agreed or assessed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2011