Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Nicholson v Nahed [2011] NSWIRComm 41 Hearing dates: 4 June 2010 Decision date: 11 April 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1) The defendant is found guilty of each of the offences with which he is charged and convicted accordingly. 2) In Matter No IRC 631 of 2009, I impose a monetary penalty of $20,000 and in Matter No IRC 632 of 2009 I impose a monetary penalty of $25,000, with a moiety in each case to the prosecutor. 3) The defendant is to pay the costs of the prosecutor in an amount assessed under the Legal Profession Act in default of agreement. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 10(1) and s 94 by virtue of s 26 of the Occupational Health and Safety Act 2000 - guilty pleas - appropriate penalties - inadequate safety procedures and risk assessment - objective seriousness - serious breach - prohibition notices - general and specific deterrence - no prior convictions - principles of totality - orders made Legislation Cited: Occupational Health and Safety Act 2000 - s 10(1), s 26, s 94 Cases Cited: Attorney-General v Tichy (1982) 30 SASR 84 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 EPA v Barnes [2006] NSWCCA 246 Inspector Nicholson v Ibrahim [2011] NSWIRComm 39 Inspector Nicholson v Mackey [2010] NSWIRComm 159 Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40 Inspector Nicholson v Pymble No 1 & Molinara (No 2) [2010] NSWIRComm 151 Inspector Nicholson v Sawmaa [2011] NSWIRComm 38 Johnson v R [2004] HCA 15 Pearce v The Queen [1988] HCA 57 Category: Principal judgment Parties: Inspector Nicholson (Prosecutor) George Nahed (Defendant) Representation: Mr R Reitano of counsel (Prosecutor) WorkCover Legal Group (Prosecutor) Mr J Whitfield of Whitfield Solicitors (Defendant) File Number(s): IRC 631 & 632 of 2009 Judgment 1As will be seen, these proceedings arise out of certain matters which occurred at a building site at 23 Ryde Road Pymble during May 2007. A number of prosecutions were instituted by the prosecutor in these proceedings against a number of defendants. As far as I am aware, I have dealt with the bulk of those proceedings. In the case of two of them, I acquitted the defendants ( Inspector Nicholson v Pymble No 1 Pty Ltd & Molinara (no 2) [2010] NSWIRComm 151) and in the case of one other the proceedings were undefended ( Inspector Nicholson v Mackey [2010] NSWIRComm 159 and Inspector Nicholson v Mackey (No 2) [2011] NSWIRComm 40). In most of the remaining proceedings ( Inspector Nicholson v Sawmaa [2011] NSWIRComm 38; Inspector Nicholson v Ibrahim [2011] NSWIRComm 39; Inspector Nicholson v Nahed [2011] NSWIRComm 41), the prosecutor and each of the defendants submitted that the Court should not impose any penalty until the hearing of all of the proceedings had concluded. I have acceded to this request. This explains the apparent delay in the delivery of judgment after the finalisation of the proceedings. Furthermore, I should stress that in considering each of the proceedings, I have deliberately confined myself to the evidence given in each discrete matter and I have not taken into account any evidence given in any other matter. 2The defendant, George Nahed, has been charged by the prosecutor, Inspector Anthony Nicholson of the WorkCover Authority of New South Wales, with two breaches of the Occupational Health and Safety Act 2000 ("the Act"). The defendant has pleaded guilty to the two charges and this judgment is concerned only with the question of appropriate penalties. 3In matter no IRC 631 of 2009 ("the s 10(1) charge"), the defendant is charged with a breach of s 10(1) of the Act. He is so charged by reasons of the provisions of s 26 of the Act in that he was said in the charge to be a person concerned in the management of Millennium Project Australia Group Pty Ltd ("Millennium"). 4Relevantly, ss 10(1) and 26 of the Act are in the following terms: 10 Duties of controllers of work premises, plant or substances (1)A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health. ... 26 Offences by corporations-liability of directors and managers (1)If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a)he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b)he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. (1)A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision. (2)Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed. (3)In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section. 5The charge is that the defendant, being a person concerned in the management of Millennium, is, by virtue of s 26, taken to have contravened s 10(1). The charge and particulars assert, relevantly, that Millennium being a corporation having control of premises at 23 Ryde Road, Pymble, being premises used by people as a place of work failed to ensure that the premises were safe and without risks to health contrary to section 10(1) of the Act. The particulars of the charge are: (1)At all material times, Millennium was involved in construction works at 23 Ryde Road, Pymble in the state of New South Wales ('the premises'). (2)The defendant was employed by Millennium as a site supervisor/foreman at the premises. (3)The defendant had authority in relation to occupational health and safety issues and the ability to compel corrective action to secure safety at the premises. (4)The defendant was a person concerned in the management of Millennium. (5)NT Prestressing Pty Ltd ('NT') was involved in construction works at the premises. (6)At all material times, Daniel Stewart and Benson ('Ben') Morris were employed by NT as labourers at the premises. (7)At all material times, REI Construction Pty Ltd (REI) was involved in construction works at the premises. (8)At all material times, ANS Formwork Pty Ltd (ANS) provided labour to REI to perform work at the premises. (9)At all material times, Wessam Chehade and Hasson Mhanna were employed by ANS and were provided to REI to work as formworkers at the premises. Saleh El Saddick was contracted to REI through SS Prime Form Pty Ltd. (10)At approximately 9.00 am on 1 May 2007 Inspector Anthony Nicholson visited the premises and saw Ben Morris and Daniel Stewart working on the edge of a building at the premises in excess of 6 metres above ground level without any fall prevention system in place. (11)At approximately 8:15 am on 2 May 2007 Inspector Anthony Nicholson an employee of WorkCover NSW visited the premises and observed Wessam Chehade, Hasson Mhanna and Saleh El Saddick (workers) working on the edge of a building on the site, in excess of 6 metres above ground level, without any fall prevention system in place. Daniel Stewart and Ben Morris were instructed to work without fall protection but refused. (12)At approximately 7.30 am on 22 May 2007 Inspector Anthony Nicholson visited the premises and saw people working at height on the edge of the concrete slab under temporary handrails in excess of 3 metres from the ground below without any fall prevention system in place. (13)On 14 June 2007 Anthony Nicholson again visited the premises and saw people at risk of falling 11 metres from height to the ground below without any fall prevention system in place. (14)Millennium failed to ensure the premises was safe and without risks to health in that it failed to: (a)conduct any or any adequate risk assessment in respect to working at heights at the premises; (a)provide people, and in particular the workers, with any fall prevention system at the premises, including any: (i)Perimeter scaffolding (ii)Temporary handrails (iii)Fall arrest harnesses (iv)Safe work platforms (v)Toe boards (b)ensure that people, and in particular the workers, followed the documented occupational health and safety risk management systems that were in place at the premises; (c)ensure people, and in particular the workers, undertook site specific induction training before working at heights at the premises; (d)provide any or any adequate information, instruction or training to people, and in particular the workers at the premises with respect to working from heights; and (e)properly supervise people, and in particular the workers, at the premises with respect to working at heights. (1)As a result of Millennium's contravention of the Act the workers were exposed to a risk of serious injury or death as a result of a fall from height. 6In matter no IRC 632 of 2009, the charge is brought under s 94 of the Act, which is in the following terms: 94 Offence: failure to comply with prohibition notice A person who, without reasonable excuse, fails to comply with a requirement imposed by a prohibition notice is guilty of an offence. Maximum penalty: (a) in the case of a corporation (being a previous offender)-1,500 penalty units, or (b) in the case of a corporation (not being a previous offender)-1,000 penalty units, or (c) in the case of an individual not acting in the capacity of an employee (being a previous offender)-750 penalty units, or (d) in the case of an individual not acting in the capacity of an employee (not being a previous offender)-500 penalty units, or (e) in the case of an individual acting in the capacity of an employee (being a previous offender)-45 penalty units, or (f) in the case of an individual acting in the capacity of an employee (not being a previous offender)-30 penalty units. 7The charge is, again, brought against the defendant utilising the provisions of s 26 of the Act by reason of the fact that he was concerned in the management of Millennium. The charge is that Millennium contravened s 94 of the Act in that on 2 May 2007 the corporation failed to comply with a requirement imposed by Prohibition Notice No. 148860, being a Prohibition Notice issued under section 93 of the said Act. The particulars of the charge are: (a) George Nahed (defendant) being a person concerned in the management of the corporation is, by virtue of section 26 of the Act, taken to have contravened section 94 of the Act in that the corporation failed to comply with a Prohibition Notice, number 148860. (b) Millennium was involved in construction works at 23 Ryde Road, Pymble in the state of New South Wales (the premises). (c) The defendant was engaged by Millennium as a site supervisor/foreman at the premises. (d) The defendant had authority in relation to occupational health and safety issues and the ability to compel corrective action to secure safety, at the premises. (e) The defendant was a person concerned in the management of Millennium. (f) At approximately 9.00 am on 1 May 2007 Inspector Anthony Nicholson visited the premises and saw Ben Morris and Daniel Stewart working on the edge of a building at the premises in excess of 6 metres above ground level without any fall prevention system in place. (g) Prohibition Notice 148860 was issued to Millennium on 1 May 2007 requiring it to cease work at heights until adequate fall prevention measures were in place. (h) At approximately 8:15 am on 2 May 2007 Inspector Nicholson visited the premises and observed Wessam Chehade, Hasson Mhanna and Saleh El Saddick (workers) working on the edge of a building on the site, in excess of 6 metres above ground level, without any fall prevention system in place. (i) On 2 May 2009, Daniel Stewart and Ben Morris were also instructed to work without fall protection but refused. (j) Millennium failed to comply with Prohibition Notice 148860 Issued on 1 May 2009. 8An agreed statement of facts became evidence in the proceedings, together with a factual inspection report, photographs, and copies of certain notices issued by the prosecutor, which I shall describe later in these reasons for judgment. 9There was also agreement that the defendant had no prior convictions for any offence under the Act. 10There was some dispute between the parties concerning the material to be included within an agreed statement of facts. This controversy was resolved by certain amendments being made to it and, as amended, the agreed statement of facts is in the following terms: (1)At all material times the prosecutor, Inspector Nicholson was duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("OHS Act 2000") and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter. (2)At all material times George Nahed of ( deleted ) in the State of New South Wales ("the defendant") was a person concerned in the management of Millennium Projects Australia Group Pty Ltd (ACN 083 238 742) ("Millennium"). He was the person at the premises who was responsible for supervising the work on behalf of Millennium. (3)Millennium carried on business in the State of New South Wales performing property development. (4)Millennium was an employer and employed David Roberts as a Manager and the defendant as a supervisor of the premises. The Parties (5)Pymble No.1 Pty Ltd (ACN 120 745 548) (Pymble No. 1) was the owner of the premises where a multi storey commercial building was being constructed. The value of the project was approximately 4.5 million dollars. Silvio Molinaro was a Director of Pymble No 1 (6)Millennium Projects Australia Group Pty Ltd (ACN 083 238 742) ("Millennium") was appointed as the principal contractor at the premises. Yu Hua Yu was a director of Millennium. Millennium engaged Mike Dalzell to assist in providing occupational health and safety consultancy services at the premises. (7)NT Prestressing Pty Ltd (ACN 110 933 983) ("NT") was subcontracted by Millennium to undertake concrete stressing activities and work at the premises. Philip Mackay was a director of NT. NT employed Tom Power as a Manager, Benson Morris and Daniel Stewart as labourers. (8)Millennium subcontracted REI Construction Pty Ltd ("REI") to perform concreting and formwork activities at the site. Romeo Ibrahim was a director of REI. REI employed Anmar Abdulmajeed as a foreman and Fred El Ali as a formworker and OHS representative (" REI workers"). (9)REI had a contract or arrangement with ANS Formwork Pty Ltd ("ANS") whereby ANS provided labour to REI in order to perform work at the premises. Under this contract or arrangement ANS provided Wessam Chehade and Hasson Mhanna to REI to work at the premises. REI paid ANS for providing labour at the premises including Wessam Chehade and Hasson Mhanna. Wessam Chehade and Hasson Mhanna Worked at the premises from 30 April to 12 May 2007 (10)REI also had a contract or arrangement with SS Prime Form Pty Ltd ("SS Prime Form ") whereby SS Prime Form provided labour to REI in order to perform work at the premises. Under this contract or arrangement SS Prime Form provided Saleh El Saddick to REI to work as a formworker at the premises. (11)At all material times ANS provided employees to undertake construction work at 23 Ryde Road, Pymble in the State of New South Wales ("the premises"). Details of Incidents between 1 and 2 May 2007 (12)On 1 May 2007, Inspector Nicholson attended the site and observed Benson Morris and Daniel Stewart working at the edge of a formwork deck without any means of fall prevention system in place. The edge of the formwork deck was approximately 6 metres high. In response to his observations Inspector Nicholson issued WorkCover Prohibition Notice No.148860 to Millennium. The notice required Millennium to cease work at heights until adequate fall prevention measures were in place. (13)On 1 May 2007, Inspector Nicholson also conducted an inspection of the premises. During the course of the inspection, Inspector Nicholson identified ten Improvement Notices previously issued to Millennium on 5 and 11 April 2007 that had not been complied with. A further 11 Improvement Notices were issued to Millennium following the inspection on 1 May 2007. (14)On 2 May 2007 Inspector Nicholson received a call from Fred El Ali, formworker and OHS Representative of REI advising him that workers had been directed to undertake work without any fall prevention system in place. This was contrary to Prohibition Notice No.148860 issued to Millennium on 1 May 2007. (15)On 2 May 2007 in response to Mr El Ali's call Inspector Nicholson attended the premises. At the site Inspector Nicholson saw Wessam Chehade, Hasson Mhanna and Saleh El Saddick working on the edge of a wooden formwork deck stripping upturn beam on the second level of the commercial building under construction on the premises which was approximately 6 metres high. There was no fall prevention system in place at the time. (16)On 2 May 2007 Wessam Chehade and Hasson Mhanna were instructed to perform this task by the builder Millennium and that no fall prevention equipment had been supplied to them prior to them commencing work. They were unaware that there was a prohibition notice in place prohibiting working from heights at the site. (17)On 2 May 2007 Daniel Stewart and Benson Morris were at the premises to perform stress works. Daniel Stewart was not made aware that there was a prohibition notice in place prohibiting the performance of work from heights. The defendant contacted him at 6.30am on 1 May 2007 to advise him that he was installing a handrail and that the plywood was being stripped. However, when Daniel Stewart attended the premises no handrail had been installed. Benson Morris told Inspector Nicholson that Daniel Stewart and himself were directed by the defendant and his father Antoine Nahed to "tension the strands on the deck before WorkCover gets here". (18)Inspector Nicholson attended the office on the premises with the intention of speaking to the supervisor. However, no supervisor was present at the premises. Inspector Nicholson spoke briefly with Romeo Ibrahim who was present at the premises at the time of this breach, however he left the premises whilst Inspector Nicholson was conducting his inspection. (19)On 2 May 2007, Prohibition Notices 148862 and 148863 were issued to Millennium and REI in relation to risk of falls from heights in excess of 6 metres. (20)On 2 May 2007, REI workers and ANS workers commenced work at the premises without being notified of the Prohibition Notice 148860 issued by WorkCover. REI workers and ANS workers were exposed to an immediate risk of falling in excess of 6 metres without any fall prevention system in place. NT employees were also directed on that day to work at heights without any fall prevention system in place. Details of Incident on 8 May 2007 (21)On 8 May 2007 Inspector Nicholson visited the premises to conduct a follow up inspection. Upon arrival, Inspector Nicholson was informed by Antoine Nahed that neither the defendant or Fred El Ali were present. (22)Inspector Nicholson conducted his inspection in the company of Antoine Nahed and Anmar Abdulmajeed. Inspector Nicholson observed that no handrails were in place on level 3 which was approximately 10 metres above the ground. He concluded that Prohibition Notices 148862 and 148863 had not been complied with. Details of Incident on 11 May 2007 (23)On 11 May 2007 Inspector Nicholson received a telephone call from the defendant. The defendant advised Inspector Nicholson that he had terminated the contract with the formworkers as they were working again without handrails and that the workers had been escorted from the premises by the police. (24)Following the call Inspector Nicholson attended the premises in the company of Inspector Wall. Together they arrived at the premises at approximately 5.30pm and noted that premises were closed. Inspector Nicholson observed that there was insufficient bracing and damaged bearers on the formwork. (25)Whilst at the premises Inspector Nicholson spoke with the defendant regarding his concerns with the inadequacy of the formwork. As such he issued further Prohibition Notices 148864 and 148865 to the Millennium and REI in relation to immediate risk of formwork collapse. Details of Incidents between 22 May and 14 June 2007 (26)On 22 May 2007 Inspector Nicholson visited the premises again and saw people working at height on the edge of a concrete slab under temporary hand rails without any fall prevention system in place. They were at risk of falling 3 metres to the ground below. Inspector Nicholson attended the premises to speak with the defendant however he was not at the premises. (27)On 23 May 2007 Inspector Nicholson received a telephone call from Anmar regarding safety issues at the site. Inspector Nicholson advised Anmar to both the defendant and Romeo Ibrahim and that a number of improvement notices had been issued to the principal contractor in relation to the indentified safety issues. (28)On 30 May 2007 Inspector Nicholson in the company of Inspector Estreich attended the premises. Whilst at the premises Inspector Nicholson spoke with the defendant regarding non compliance with the Improvement Notices previously issued. (29)Deleted (30)On 14 June 2007, Inspector Nicholson visited the premises again and saw a person at immediate risk of falling in excess of 11 metres to the ground below, I further observed that no overhead protection system was in place to prevent risk of falling materials into public areas below. Inspector Nicholson issued Prohibition Notices 148868 to Millennium and 148869 to NT in relation to these issues. and Inspector Jones issued Prohibition Notice 170203 in relation to working at heights issues. (31)On 22 June 2007 at approximately 10am Inspector Nicholson in the company of Inspector Estreich attended the premises. Upon arrival they proceeded to the Office, where they discovered that the defendant was not yet present at the premises. During the course of their inspection they observed REI workers working near an open penetrations in the stairwell on level 2. MILLENNIUM (32)Deleted (33)Deleted (34)David Roberts engaged Mike Dalzell to assist in providing OHS Consultancy services, including documentation and advice regarding compliance with the issued Notices. (35)WorkCover had informed David Roberts that the notices had not been complied with by their due date. (36)Deleted (37)Deleted (38)On 1 May 2007, safe work method statements were briefly discussed with REI workers and ANS workers at a premises induction. The safe work method statements were not being complied with at the time of the incident on 2 May 2007. (39)Deleted (40)Deleted (41)Deleted (42)Deleted (43)Deleted (44)Deleted REI AND ANS (45)Deleted (46)Deleted (47)Deleted (48)On 1 May 2007, safe work method statements were briefly discussed with REI and ANS workers. However, these safe work method statements were not being followed when Inspector Nicholson attended he premises on 2 May 2007. (49)Romeo Ibrahim was aware of safety issues raised at the premises. Despite this, REI and ANS workers were still allowed to continue working at the premises. (50)REI did not have an OHS Management Plan in place for the premises. (51)Deleted Prior Convictions (52)The defendant has no prior convictions. 11The prosecutor also tendered into evidence the original handwritten prohibition notice given by the prosecutor to the defendant on 1 May 2007, which forms the basis of the prosecution brought under s 94 of the Act. 12For the defendant, there was tendered into evidence a record of interview conducted by the prosecutor with Mr Michael Dalzell, the principal of Mike Dalzell Pty Ltd, which conducts a safety management assistance business. Mr Dalzell was retained by Millennium as a consultant. 13The prosecutor gave oral evidence in the proceedings. 14In his oral evidence, the prosecutor referred to a number of site visits to the construction site, which is at the centre of these proceedings. Whilst he was there, he met the defendant and the defendant's father Antoine Nahed who, it appears, attended the premises to assist particularly when the defendant was not present. The prosecutor also met with a Mr David Roberts who was a director of Millennium and was involved in what he described as the "financial aspects" of the construction project. 15The prosecutor gave evidence that he had issued 11 improvement notices to Millennium, which had not been complied with. He had spoken to the defendant about what needed to be done to comply. He had also spoken to Mr Roberts and Mr Dalzell about these matters. 16It was the evidence of the prosecutor that the persons working on the site had not been inducted in any way in terms of safe working practices and that this included the defendant's father Antoine Nahed. After Mr Dalzell was engaged some site inductions were carried out but this did not extend to all persons working on the site. In fact, the defendant had told him that his father had been carrying out inductions but some persons working on the site had told the prosecutor that they had been asked to sign forms concerning their induction but there was no induction process. Furthermore, there was no evidence that Millennium had any occupational health and safety management plan at the time of his visits to the site. In his opinion, overall supervision of the site provided by Millennium was inadequate and on occasions absent. 17The prosecutor said that there was no system of work concerning the manner in which the formwork would be erected and to allow for safe access to the decks. There was no safe work platform erected for persons engaged in formwork, and there were no documented systems identifying the roles of the various persons working at the site in terms of occupational health and safety matters. 18In cross-examination, the prosecutor gave evidence about his conversations with Mr Dalzell. He said that Mr Dalzell came into the picture after the prosecutor had tried to obtain compliance with his improvement notices by Millennium. 19The cross-examination of the prosecutor extended to what he had been told by Mr Dalzell concerning the respective responsibilities of the director, Mr Roberts, and the defendant. 20It was the understanding of the prosecutor in his conversations with Mr Roberts, the defendant, and "the employees at the site" that the defendant was the site supervisor and that he "was running the site." It was his understanding that Mr Roberts was "a senior management person" and that he was "not actively involved in the site". It was because of the defendant's lack of involvement in the safety of the site that Mr Roberts had arranged for Mr Dalzell to be retained. 21In cross-examination, the defendant's solicitor suggested to the prosecutor that it would have been difficult to have erected scaffolding at the rear of the site because of some environmental problems. The prosecutor denied this, indicating that in his opinion cantilevered scaffolding could have been erected to have given access. 22There was tendered on behalf of the defendant a statement taken by the prosecutor in an interview with Mr Dalzell. Mr Dalzell said that he had been called in to assist Millennium because of safety concerns about the site. He gave both the defendant and Mr Roberts advice that was directed to creating compliance with the safety obligations of Millennium and in particular compliance with 11 improvement notices which had been issued by the prosecutor. He first attended the site on 30 April 2007. He again attended the site on 1 May, where he provided a safety management system including a folder of daily site inspections, environmental checklists, hazard assessment forms and the like. He discussed the need to induct persons performing work on the site, to use safe work method statements and to undertake toolbox talks with respect to working at heights and other issues on the site. In his statement to the prosecutor, Mr Dalzell said that he had a number of concerns about the safety of the site and the absence of safety protocols. 23In cross examination, the prosecutor was taken to some specific parts of the prosecutor's interview with Mr Dalzell concerning Mr Dalzell's observations and understanding about what was happening at the site and the failures to ensure safety. Strictly, this is material that is hearsay and that should not be used adverse to the interests of the defendant. Nevertheless, it was evidence that was specifically adduced on behalf of the defendant and that was relied upon in submissions made to the Court. In these circumstances, I am constrained to take it into account. 24Mr Dalzell told the prosecutor about concerns that the defendant had encountered on the site in seeking to remove formworkers who, apparently, had either failed or refused to undertake a safety induction. Furthermore, these persons, or at least some of them, had been seen working at height on the perimeter of the building without any fall protection being provided. 25There is some suggestion in information given by Mr Dalzell to the prosecutor that a union official had become involved in resisting any attempt by the defendant to remove the formworkers from the site. However, there is also a suggestion by Mr Dalzell that the defendant had lost control of the site and was not exercising control. This was in the context of poor safety compliance in a number of areas, not confined to the formwork issue. 26The defendant sought to rely on this evidence either by way of exculpation or explanation as to why the defendant, as the site supervisor and representative of Millennium on the site, had permitted an inherently unsafe system to operate. If the defendant had wished to establish such a case, it would be necessary to call some more direct evidence concerning the intervention of a trade union official other than that which was given by Mr Dalzell to the prosecutor by way of a statement. Such evidence could have been given directly by the defendant, but he chose not to give evidence. Furthermore, he was not in the courtroom during the course of the hearing. 27The statement made by Mr Dalzell to the prosecutor about this issue is to the effect that: I don't believe George (Nahed) had an option of removing them (the formworkers). Because the union officials that were there were jumping up and down saying no, don't do that, don't remove them. There is then reference to a telephone call made by a named official of the CFMEU informing the defendant "that if he was to remove people from the worksite he would have problems, considerable problems." 28I observe that there is a marked difference between a failure to remove persons from a worksite and the taking of such steps as were necessary to ensure that adequate fall prevention means were put in place so as to make the construction site safe and compliant with the obligations of Millennium under the Act. 29It was submitted on behalf of the defendant that his ability to influence the conduct of the defendant was limited because of the involvement of Mr Roberts. There is simply no evidence that would allow such a conclusion to be drawn, and the evidence is to the contrary, namely that this defendant had overall responsibility for the supervision of the construction site and all of the work that was performed there. 30The starting point for the assessment of penalty is a determination of the objective seriousness of each of the offences with which the defendant is charged. I shall deal with each in turn. SECTION 10(1) OFFENCE 31The offence with which the defendant is charged is that committed by the corporation, Millennium. Accordingly, it is necessary to ascertain the objective seriousness of the contravention by the corporation of the provision. 32It will be remembered that the application for order makes allegations of a course of conduct that occurred between about 1 May 2007 and about 22 June 2007. The prosecutor has chosen to characterise this course of conduct as constituting one breach only, rather than charging the defendant with successive breaches on each of the dates upon which there is evidence. That evidence is contained essentially in the statement of facts. This commences with the incident on 1 May 2007. It is clear on that date that there was no fall prevention system in place. A prohibition notice was issued to Millennium. At that stage, there could be no doubt in the minds of those responsible at Millennium, including, relevantly, the defendant as its representative site supervisor, that there was a breach of the Act. The visit by the prosecutor to the premises on the following day indicated that work was continuing despite there being no fall prevention system in place. Furthermore, even though Millennium was aware that a prohibition notice was in place, none of the persons on site on 2 May 2007, referred to in [17] and [18] of the statement of facts, was advised of this. A further prohibition notice was issued that day to Millennium. This situation was repeated on 8 May 2007, 22 May 2007, 14 June 2007 and 22 June 2007. 33This course of conduct constitutes a blatant breach of the requirements of s 10(1) of the Act in complete disregard of the prohibition notices, which had been issued from time to time, and the health, safety and welfare of persons performing work. 34As is made clear from the statement of facts, the defendant, as the representative of Millennium on the site, had overall control of the site as its site supervisor. Even though it might be said that Millennium did not have the close personal relationship with each of the persons performing work on the site who were either employed or engaged by subcontractors, Millennium nevertheless had overall control of the site and the supervisory functions. 35Despite the allusion to trade union influence on the site made on behalf of the defendant during the course of submissions, to which I have earlier referred, it is clear that Millennium was in fact able to execute its overall responsibilities with respect to the safe working environment at the site as is obvious from [24] of the statement of facts in that formworkers who were working without handrails had been forcibly removed from the site by police. 36There is evidence to which I have referred that Millennium had retained an expert to assist it in occupational health and safety matters, Mr Dalzell, but it appears from the evidence that his efforts to enhance safety on the site did not result in Millennium causing fall prevention systems to be put in place. 37In all the circumstances, the breach by Millennium, and hence by the defendant, of s 10(1) of the Act must be characterised as a most serious one, at the upper range of comparative seriousness. SECTION 94 38The charge brought against Millennium, and hence the defendant, under s 94 is confined to the failure on 2 May 2007 to comply with the prohibition notice issued the previous day. That failure is acknowledged by the plea of guilty. There is no evidence tendered in the proceedings that provides any clue as to why Millennium, or the defendant on its behalf, failed to comply with the prohibition notice. The notice is in unexceptional terms and is directed to the provision of a safe working environment for persons performing work at heights at the construction site. In all the circumstances, I regard the breach as a most serious one and also one which is at the upper range of comparative seriousness. It is one approaching a worst-case scenario. 39In assessing penalty, the Court is required to take into account both the general and specific deterrent effect that any penalty will provide. These matters are self-evident in the context of the building industry, which is an inherently dangerous industry in terms of occupational health and safety. SUBJECTIVE FACTORS 40The Court is entitled to take into account a number of subjective factors in mitigation of the penalties to be imposed. The defendant pleaded guilty to both charges at an early stage in the proceedings, but certainly not at the earliest available opportunity. He has no prior convictions for any offence under the Act. There is a suggestion in the authorities that the entry of a plea of guilty may reflect an indication of remorse and contrition. Whilst I concede that this is a possible motivating factor, there is simply no other evidence in the proceedings that would be indicative that this defendant has expressed any contrition or remorse for what has occurred. His plea of guilty is equally explicable as reflecting what might be regarded as an inevitable outcome if the proceedings were litigated, as well as taking advantage of the discount which applies where a plea of guilty is entered to reflect the utilitarian value of that plea. 41It was submitted on behalf of the defendant that the circumstances in which each of the offences was committed arose out of the same factual situation. That is, there was an unsafe working environment that continued over a long period of time, notwithstanding the issue at an early stage of a prohibition notice. These were said to be common features of both charges. There is some validity in this submission, but the essential nature of the charges is different. The s 10 charge relates to the safe working environment. The s 94 charge focuses attention on the failure to comply with an improvement notice. 42The principles that apply in considering whether there should be some discounting to reflect the totality of culpability covered by two or more offences are stated in the oft-quoted joint judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen [1988] HCA 57 at [40]: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; .... 43Where a defendant is guilty of a criminal offence that is punishable by the imposition of a fine, principles of totality are also applicable. In EPA v Barnes [2006] NSWCCA 246, Kirby J held (with whom Mason P and Hoeben J agreed) at [50]: there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 In an earlier decision, Kirby P (Campbell and James JJ agreeing) in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, at 704 noted that: The principle of totality is applicable where the penalty imposed is by way of fine: see R v Sgroi (1989) 40 A Crim R 197 at 203. However, it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see R v Brown (1982) 5 A Crim R 404 at 407. 44In the case of Johnson v R [2004] HCA 15, Gleeson CJ referred to a judgment of Wells J in Attorney-General v Tichy (1982) 30 SASR 84 where his Honour at 93 states: What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been found guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. 45With guidance from the aforementioned authorities, I am persuaded that it is appropriate to apply principles of totality to the ultimate fine to be imposed, albeit only to the extent that the limited commonality is that both charges originate from the same factual scenario. I intend to accede to the defendant's submission in this regard, 46In failing to provide a safe working environment and failing to remedy the situation whether or not notified by the prosecutor of those risks by way of prohibition notice, the defendant, engaged in "one multi-faceted course of criminal conduct". Whilst the precise wording of the charges focus on different aspects of the conduct of this defendant as the company's appointed supervisor, the circumstances out of which each charge arises are related and, accordingly, some consideration should be given when applying totality. Each charge relates to the ongoing and inadequate supervision of persons performing work, together with the complete lack of fall prevention systems and resultant general disregard for workplace safety. 47The prosecutor sought an order for costs and a moiety of the penalties and these applications were not opposed. 48The maximum fine applicable to the offence under s 10(1) is $55,000. The maximum fine in connection with a s 94 offence is, at first blush, not so easy to determine. It might be thought that the maximum penalty might be that fixed by s 94(f), namely in the case of an individual acting in the capacity of an employee not being a previous offender. The maximum fine is reflected by way of 30 penalty units. However, the prosecutor submitted that the maximum penalty was that provided in (d), namely as an individual not acting in the capacity of an employee. It was said that the reference to a "capacity of an employee" is a reference to the capacity in which the person becomes a defendant. Mr Reitano, counsel for the prosecutor, gave by way of example the reference in s 8(1) to a person's capacity as an employer, in s 10 to someone who is self-employed, in s 9 to someone in control of premises and in s 20 to an employee. In s 26, which is the section by which this defendant comes to be charged, the capacity in which this occurs is either as a director or a person concerned in the management of a corporation. On this basis, it would not matter that, for the purpose of s 26, the director or person concerned in the management was an employee or not. As Mr Reitano submitted, it would give an incongruous result if a non-executive director were to be subject to a much greater fine than an executive director because the former was not and the latter was also an employee of the corporation. 49I accept the prosecutor's submissions in this regard. Accordingly, I approach the question of assessment of penalty on the basis that the maximum penalty is $55,000. 50Having regard to all of the circumstances to which I have referred, I intend imposing a penalty in the s 10(1) matter in the sum of $25,000 and in the s 94 matter in the sum of $30,000. 51Applying the principle of totality, I reduce each of the penalties as follows, namely the s 10(1) penalty to $20,000 and the s 94 penalty to $25,000. 52The prosecutor is entitled to an order for costs and a moiety of the penalties. ORDERS 53I make the following orders: 1) The defendant is found guilty of each of the offences with which he is charged and convicted accordingly. 2) In Matter No IRC 631 of 2009, I impose a monetary penalty of $20,000 and in Matter No IRC 632 of 2009 I impose a monetary penalty of $25,000, with a moiety in each case to the prosecutor. 3) The defendant is to pay the costs of the prosecutor in an amount assessed under the Legal Profession Act in default of agreement. ********** 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: 11 April 2011