Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Thomas Yeung v Stuart John Hill [2011] NSWIRComm 119 Hearing dates: 28 July 2011 Decision date: 29 July 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. In Matter No IRC 1772 of 2009, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $15,000 with a moiety to WorkCover Authority of New South Wales. 3. The defendant is to pay costs of the prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 10(1) of the Occupational Health and Safety Act 2000 - individual defendant a director of corporation who was owner of the premises and principal contractor on site - failure to ensure high voltage electrical wires were not removed from above construction site - safe systems of work not put in place given knowledge of risk - plasterer not warned suffers electrocution - plea of guilty - foreseeable element - general deterrence - remorse and contrition demonstrated - director defendant bankrupt - early plea challenge - penalty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Occupational Health and Safety Act 2000 (NSW) Cases Cited: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Inspector Patton v Hall and Quinn [2010] NSWIRComm 6 Inspector Wilkie v Anstee (No. 2) [2007] NSWIRComm 20 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 R v Dib [2003] NSWCCA 117 R v Gallagher (1991) 23 NSWLR 220 R v Stambolis [2006] NSWCCA 56 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of NSW (Insp Mansell) v Chen and Obing Pty Ltd t/as Old But New [2004] NSWIRComm 247 Category: Principal judgment Parties: Inspector Thomas Yeung (Prosecutor) Stuart John Hill (Defendant) Representation: C T Magee of counsel (Prosecutor) P H Givorshner of counsel (Defendant) WorkCover Authority of NSW (Prosecution) Willis & Bowring (Defendant) File Number(s): IRC 1772 of 2009 Judgment 1This prosecution is brought by Inspector Thomas Yeung of the WorkCover Authority of New South Wales against Stuart John Hill ("the defendant") under s 10(1), by virtue of s 26(1), of the Occupational Health and Safety Act 2000 ("the Act") by way of a further amended Application for Order. 2It is alleged the defendant, being an employer, on 12 November 2007 at 9 Fenton Avenue, Caringbah in the State of New South Wales ("the premises"), contravened s 10(1), by virtue of s 26(1) of the Act, in that it failed to: By its acts or omissions particularised below, ensure that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: (a) The corporation at all material times had control or alternatively limited control over the premises; (b) At all material times person not employed by the corporation, in particular Darren Bunney, Hussein Al-Jaboore, Gary Cook and Said Al-Khaled performed work at the premises; (c) At all material times the corporation had control by virtue that it was the owner of the premises and principal contractor for the construction of thirteen townhouses and units at the premises. (d) At all material times the defendant was a director of the corporation. The particulars of the risk are: (e) There was a risk of injury to non-employees working on scaffolding at the premises of suffering electric shock and/or electrocution from accidental contact by plant or equipment utilised by non-employees, with live overhead power lines running across the premises. The particulars of the acts or omissions in failing to eliminate the risk are that: (f) The corporation failed to ensure that the premises were safe and without risks to health in that it failed to ensure that people working on or otherwise accessing the scaffold at the premises were provided with a safe system of work for working near live overhead power lines in that it failed to undertake measures as follows: (i) ensuring that the live overhead power lines running across the premises were de-energised or re-directed away from the work area , in particular from areas where scaffolding was erected for the construction of blocks; (ii) ensuring that scaffold was not erected within four metres from live overhead power lines as required by Australian Standard 4576; (iii) isolating the power lines through the erection of physical control barriers around the scaffold; (vi) place warning signs on the scaffold to alert persons to the presence and proximity of live overhead power lines; (g) The corporation failed to ensure that the premises was safe and without risks to health in that it failed to undertake a risk assessment which: i considered and identified the hazards associated with working near live overhead power lines; and ii considered and identified the risk of equipment coming into contact with live overhead power lines. (h) The corporation failed to ensure that the premises was safe and without risks to health in that it failed to ensure that some or all of the non employees working at the premises were provided with information, instruction and/or training in relation to working near live overhead power lines in that it failed to undertake measures as follows: i conduct site specific inductions to inform persons of the presence and proximity of live overhead power lines; ii conduct tool box talks to inform persons of the presence and proximity of live overhead power lines; iii inform person that live overhead power lines were approximately 2.9 metres from the highest point on the scaffold. (i) The corporation failed to ensure that the premises were safe and without risks to health in that it failed to ensure that a safe work method statement was in place for working near live overhead power lines as required by clause of the 227 Occupational Health and Safety Regulation 2001; (j) The corporation failed to ensure that the premises was safe and without risks to health in that it failed to supervise to persons undertaking work at the premises in relation to working near live overhead power lines in that it failed to undertake measures as follows: i ensuring that non employees did not work from the top level of the scaffold that was in excess of 2 metres high with equipment that was capable of coming into contact with overhead power lines. (k) As a result of the corporations failures non-employees present at the premises, and in particular, Said Al-Khaled, sustained severe injuries from electric shock which was a manifestation of that risk. 3The defendant pleads guilty to the charge. 4Mr C T Magee of counsel appeared for the prosecution and Mr P H Givorshner of counsel appeared for the defendant. The prosecution relied upon an Agreed Statement of Facts with annexures which included: photographs; Scaffold Handover Certificate/Inspection Report, Factual Inspection Reports; Prohibition Notice; prior convictions certificate; and, a ffidavit of Inspector Yeung sworn 9 June 2011 . 5The defendant relied upon an affidavit of Stuart John Hill sworn 22 July 2011 . A number of relevant documents were attached to the affidavit. 6There was an Agreed Statement of Facts which relevantly reads: 2. At all material times STUART JOHN HILL of 28 Forest Road Yowie Bay ("Stuart Hill") was a director of Jacarada Property Developments Pty Ltd [ACN 091 272 132] ("Jacaranda"), a company which was wound up pursuant to an order of the NSW Supreme Court on 20 April 2009. 3. At all material times Stuart Hill was responsible for obtaining, managing and overseeing the contracts for building work for Jacaranda, including engaging subcontractors. 4. At all material times Neatrule Cement Rendering Pty Ltd [ACN 125 742 761], ("Neatrule") was a corporation with its registered office located at KPR Partners Pty Ltd, Suite 10, 2/4 Northumberland Drive Caringbah in the State of New South Wales. 5. At all material times Neatrule carried out cement rendering and plastering work in the construction industry. Background 6. At all material times Jacaranda was involved in the business of building and construction of premises, including town houses. 7. At all material times Jacaranda was the owner and principal contractor for the construction of 13 townhouses and units at 9 Fenton Avenue, Caringbah ("the site"). 8. At all material times Jacaranda had control in the course of its trade, business or undertaking of the site by virtue that it was the owner of the premises and principal contractor for the construction of 13 townhouses and units at the site. 9. At all material times persons not employed by Jacaranda, in particular Darren Bunney, Hussein Al-Jaboore, Gary Cook and Said Al-Khaled performed work at the premises. 10. At all material times the site was not occupied as a private dwelling. 11. At all material times Jacaranda contracted Tony Palmer as a site manager. Along with overseeing the work of subcontractors, Tony Palmer's duties included liaising with the local authorities and utilities as well as general labour. 12. Construction commenced at the site in or around February 2007. 13. In or around July 2007, Jacaranda engaged Waco Kwikform Limited ("Waco") to provide and erect scaffolding at the site. In turn, Waco subcontracted Solidscaff Pty Ltd ("Solidscaff'") to undertake the erection and dismantling of the scaffold. 14. At all material times, Darren Bunney was a director and employee of Neatrule. Darren Bunney is an experienced wet and dry plasterer and has been issued a Contractor License to undertake this work by the Office of Fair Trading. 15. In or around July 2007, Jacaranda entered into a verbal contract with Darren Bunney on behalf of Neatrule to provide cement rendering to the external walls of the newly constructed townhouses. 16. In turn, Neatrule entered into a number of subcontract agreements with the injured worker, Said Al-Khaled ("Mr Al-Khaled"), Hussein Al-Jaboore and Gary Cook to perform the cement rendering work ("the rendering subcontractors"). 17. Mr Al-Khaled is the holder of a Contractor Licence for wet plastering by the Office of Fair Trading. 18. Neatrule's rendering subcontractors commenced work on the site in mid-late July 2007. The Site 19. The site consisted of six double story blocks, which were a mix of freestanding townhouses and unit blocks. There were six blocks at the site named A to F. 20. Fenton Avenue bordered to the site on the west and Captain Cook Drive on the east, wrapping to the north of the site. 21. Six 33,000 volt power lines ran adjacent to the site along Captain Cook Drive from Pole CR02549 (north) to Pole CR02550 (south). Pole CR02549 was approximately 2m north of Block A and situated 4m to the East (1m outside the side fence). Pole CR02550 was situated outside the site fence at approximately Block C. 22. The power lines varied in height from estimated 10.7m from the grade upward. The power lines were identified as 33kV via the six insulators at each line at the connection with the poles. 23. Due to the fact that Captain Cook Drive ran on the east of the site and wrapped around to the north, this placed at the power lines between poles CR02549 and CR02550 at an angle running through the north east side of the site. 24. The scaffolding at the north eastern corner of Block B extended approximately 1 metre past the property line. The 33kV overhead line passed over the top of the scaffold at the north eastern corner of Block B. At this point the overhead line was approximately 10.7 metres from the ground. The scaffold work deck was approximately 5.5 metres from the grade and approximately 5.2 metres below the overhead power lines at the point at which they intersected. The scaffold handrail was approximately 6.5 metres from the grade and approximately 4.2 metres below the overhead power lines at the point at which they intersected. Several standards rose an additional 1.2 metres above the handrail, reaching approximately 7.7 metres from the grade. At the first standard to the south of the north east corner standard the power lines were approximately 2.9 metres above the highest point of the scaffold (being the top of the second scaffold standard on the eastern face). From directly above or below, the 33kv power lines were horizontally 0.3 metres inside the outer corner of the scaffold hand rail and 0.5 metres from the outer corner of Block B. Safe scaffold clearances 25. Clause 5.4 of AS/NZS4576 "Guidelines for Scaffolding" requires a safe working distance of 4 metres or more between metal scaffolding and overhead power lines of 33,000 volts. 26. Clause 6.5(d) of the WorkCover Code of Practice - Work Near Overhead Power lines (2006) ('the Code") provides that high visibility wrapping or "tiger tails" is not appropriate for use on overhead power lines exceeding 1000 volts. The Code further provides that although tiger tails provide a useful visual indication to people working in the area of overhead power lines, they should not be regarded as providing electrical protection from electrical hazards. 27. Clause 9.2 of the WorkCover "Safe Working at Heights" Guide 2006 provides that the power lines should be de-energised and access authority should be obtained from the network operator if the scaffold and the overhead power line have the potential to come within the 4 metre approach distance. 28. Clause 6.5(f) of the Code provides that safe working control measures include ensuring that a person or anything held by a person, or attached to the person, coming closer than 4 metres may require the erection of a hoarding on the external face of the scaffolding. Erection of Scaffold to Block A 29. On 23 July 2007 Solidscaff attended the site to erect the scaffold to Block A. 30. On 25 July 2007 Solidscaff stopped erecting the scaffold on the North East corner of Block A because its employees were concerned that by continuing to do so would result in the scaffold being too close to the overhead power lines. 31. Solidscaff/Waco told Tony Palmer to contact the local network operator, Energy Australia, to determine how to proceed. 32. Accordingly, work on Block A was put on hold whilst Stuart Hill sought advice from Energy Australia. 33. On 30 July 2007, Jonathan Mallin, Engineering Officer (Overhead Transmission) from Energy Australia, attended the site to undertake a preliminary assessment, including taking measurements. 34. At approximately 2:00pm on 2 August 2007, Jonathan Mallin attended the site again, together with several other Energy Australia employees, for a pre-arranged follow up meeting. 35. Jonathan Mallin told Tony Palmer that the power lines were 33,000 volts, and that tiger tails would not be appropriate. 36. Mr Palmer states that Jonathan Mallin suggested that the scaffold on Block 'A' would be too close to the overhead power lines if it was taken any higher. Mr Palmer states that Mr Mallin suggested an option would be to move the power lines to the other side of the power pole. Mr Palmer states that Mr Mallin provided a rough quote of $30,000.00 for the cost of Energy Australia moving the power lines to the other side of the power poles. 37. Jonathan Mallin told Tony Palmer work would need to cease immediately in the vicinity of the power lines and that arrangements would need to be made to move the power lines to the other side of the pole. 38. Jonathan Mallin provided Tony Palmer with a costs estimate for the work of $30,000.00 and said that these costs were to be borne by the owner/builder. Jonathan Mallin gave Tony Palmer his contact details so that Tony Palmer could formally accept the costs estimate. Tony Palmer told Jonathan Mallin that he would discuss the issue with Stuart Hill and they would decide on a course of action. 39. On 6 August 2007, having heard nothing from either Stuart Hill or Tony Palmer regarding the required changes, Jonathan Mallin alerted WorkCover to the situation. 40. On 10 August 2007, Inspector Jeffrey Bell visited the site in response to Jonathan Mallin's telephone call. Inspector Bell observed no work being conducted on Block A and assessed the scaffold in the presence of Tony Palmer. Inspector Bell observed that the scaffolding that was located on the east side of the building on level one had been erected without handrails. Inspector Bell observed that if the handrails had been installed they would have encroached the four meter exclusion zone. Inspector Bell advised Mr Palmer that if there was any work to be conducted on that level that harnesses should be used. 41. Mr Palmer informed Inspector Bell that there would be no work conducted on level one of that building until Energy Australia and the developer resolved their dispute regarding the power lines. Inspector Bell advised Mr Palmer that he should tape off the area to ensure that no workers would enter the area. 42. Inspector Bell agreed with Tony Palmer that rather than installing handrails the work would be undertaken using static lines and harnesses so as to maintain a safe working distance. 43. Having still heard nothing regarding the required changes, Jonathan Mallin telephoned Tony Palmer on two separate occasions after 6 August 2007. Tony Palmer told Jonathan Mallin that the owners were seeking money from the Council in relation to moving the power lines. Erection of Scaffold on Block B 44. Block B was a two-storey premise of approximately 105 m floor space. It was approximately 7m high at the north gutter line and around 8m high at the south ridgeline. It was situated between Block A (north) and Block C (south), approximately 4m from each. Block B is approximately 6m from Captain Cook Drive to the east and approximately 6m to the corner of Fenton Ave. 45. On 17 October 2007, Solidscaff erected the scaffold around Block B. 46. Block B was enclosed by perimeter scaffolder on the north, south, east and west sides. The first lift bays were at approximately 3m in height. The top bays were approximately 5.5m from the grade. The north and east faces had hand rails which were situated 1m above the top bays at approximately 6.5m. Several standards rose an additional 1.2m above the handrail (reaching approximately 7.7m from the grade). On the north side, top level, the scaffold was 6 bays long. 47. The power lines ran over the scaffolding at Block B, intersecting with it at the 1 st bay end point on the east (2 nd standard at 1.787m from the north-east corner standard) and the 4 th standard to the south (4.8m south from the north east corner standard) and were visible from the ground and the scaffolding. 48. The distance between the overheard power lines and the second standard on the eastern face of the scaffold on Block B (being the highest point on the scaffold) was 2.9m. 49. Upon completion of the scaffold Solidscaff/Waco gave Jacaranda a Scaffold Inspection Report. The report stated that the scaffold had passed an inspection, which included consideration of AS/NZS4576, and that it was safe to use. Annexed to this document and marked "Annexure A" is a true copy of Waco Kwikform Limited Scaffold Inspection Report (Inspection No. 21804) dated 17 October 2007. 50. However, the employees of Solidscaff had not ensured that the scaffold was compliant with AS/NZS4576 in that it did not allow a safe working distance of 4m from the overhead power lines. Rather than accurately measuring the distance from the power lines, the scaffolders relied on an estimate based on sight alone. 51. No warning signs were placed on the scaffold alerting workers to the presence or location of the overhead power lines. Incident 52. As at 12 November 2007, Block B was nearing structural completion. The roof and guttering (without downpipes) had been installed. Brickwork was finished or nearing completion. Windows, frames and glass panes were installed. 53. As at 12 November 2007, the power lines which ran over the scaffolding at Block B had not been moved or de-energised. 54. At approximately 7:00am on 12 November 2007, the rendering subcontractors - Mr Al-Khaled, Hussein Al-Jaboore, and Gary Cook - started work. Tony Palmer instructed them to start work on Block B. 55. They commenced working on the western wall of Block B. By approximately 3:00pm, the rendering subcontractors had completed rendering the wall on the western side of the Block B. 56. Shortly after 3:00pm on 12 November 2007, Darren Bunney arrived on site. Darren Bunney instructed Mr Al-Khaled, Hussein Al-Jaboore, and Gary Cook to complete the rendering on different walls of Block B. Hussein Al-Jaboore was instructed to clean tools on the western side of Block B, whilst Mr Al-Khaled was instructed to continue the rendering work on the scaffold adjacent to northeast of Block B. 57. Mr Al-Khaled proceeded up a set of stairs to the top level of the scaffold situated at the northeastern corner of Block B. The scaffold at this level was at approximately at roof height. 58. Immediately prior to the incident, Mr Al-Khaled was preparing to apply an aluminium straight edge onto a corner of Block B. 59. The aluminium straight edge was approximately six metres long. The purpose of using the straight edge was to make sure that the edge of the building that was being rendered was straight. 60. Mr Al-Khaled stated that before the Incident he was not aware that there were high voltage overhead power lines in close proximity to the scaffold at Block B. Hussein Al - Jaboore, a labourer working for Neatrule Cement Rendering stated that he was aware that there were high voltage overhead power lines in close proximity to the building at Block B, as they were very visible. Mr Darrren Bunnney, Director of Neatrule Cement Rendering stated that he was not aware that there were high voltage overhead power lines in close proximity to the building Block B, as it was the first day on working on that Block. The incident occurred towards the end of the first day that the renders had worked on Block B. 61. Some of the Neatrule Cement Rendering renders had worked on Block A which was also located in close proximity to the same high voltage overhead power lines as were located in close proximity to the building at Block B. 62. At approximately 3.45pm, Mr Al-Khaled lifted the straight edge in order to place it between the wall and the scaffold. In doing so, the straight edge struck the overhead power lines and Mr Al-Khaled received a severe electric shock. 63. At the time of the incident, Darren Bunney was working underneath the scaffold on the western side of Block B cleaning cement render off the windows. Darren Bunney said that he "got a flash" which threw a tool out of his hand. In response, Darren Bunney called out to Gary Cook as he thought that he was working above him on the scaffold. 64. Darren Bunney proceeded to call out to Hussein Al-Jaboore and Mr Al-Khaled. Immediately, he heard a voice which he recognised as Mr Al-Khaled saying "Allah Allah." 65. Darren Bunney proceeded to run up the stairs and saw Mr Al-Khaled keeled over with his feet dangling over the scaffold at the far end of the eave. 66. Darren Bunney yelled for someone to call an ambulance. Gary Cook called the ambulance, climbed up the stairs and handed the telephone back to Darren Bunney who spoke to the operator. 67. Darren Bunney continued to attend to Mr Al-Khaled with the assistance of Hussein Al-Jaboore. He then called Anthony Palmer and requested that he attend the premises immediately. 68. An ambulance arrived at the premises and Mr Al-Khaled was transported to St George Hospital. Mr Al-Khaled was then airlifted to Concord Hospital. Mr Al-Khaled remained in Concord Hospital Burns Unit for two and a half weeks and was discharged on 26 November 2007. 69. As a result of the electric shock Mr Al-Khaled suffered burn injuries to 35% of his body. Systems of Work Prior to the incident Jacaranda 70. Mr Palmer, Site Manager for Jacaranda stated that he gave Mr Al-Khaled a verbal site-specific induction or briefing prior to commencing work at the site, however he was not able to indicate on what date this occurred, nor was the fact of the induction or what was contained in the induction documented. Mr Palmer stated that the induction would have been limited to a general overview of the site, where the amenities were located, where the first aid box was located and the assembly area in case of emergency. Mr Al-Khaled stated that he did not receive a site-specific induction or briefing prior to commencing work at the site. Jacaranda subsequently provided Hussein Al Jaboore and Gary Cook, renders engaged by Neatrule Cement Rendering with a site-specific induction on 19 November 2007. 71. Neatrule Cement Rendering did not provide to Jacaranda with a copy of their Safe Work Method Statements ("SWMS") for the work to be undertaken at the Site. 72. Jacaranda did not provide any instruction or documented risk assessment to Neatrule or the rendering subcontractors , in particular dealing with risks associated with working on scaffold near overhead power lines. 73. Jacaranda did not provide the rendering subcontractors with specific information or instruction in relation to the cement rendering works to be performed at the premises. 74. Jacaranda did not hold any toolbox talks with Neatrule or its rendering subcontractors. Neatrule and its rendering subcontractors, including Mr Al-Khaled, were not informed of the presence and location of power lines at Block B prior to commencing work. 75. Notwithstanding that it had been made aware of the rules regarding safe working distances from power lines as a result of its experience with Block A (detailed in paragraphs 29 to 43 above), Jacaranda relied on a Scaffold Inspection Report (Report No. 21804 dated 17/10/07) produced by the scaffolders. The Scaffold Inspection Report did not specifically address the issue of the proximity of the scaffolding to the power lines in the vicinity of Block B. However, Scaffold Inspection Report No. 21804, including a statement as follows: " NOTES This report should reflect the structure at the time of inspection. In assessing the structure you should refer to...Guidelines for scaffolding AS/NZS4576..." 76. Jacaranda did not undertake its own risk assessment and did not inspect or check the distance themselves in a situation where they were aware of the risk of the proximity of power lines to scaffolding. Jacaranda did not believe that it had a duty to make further enquiries of the scaffolders once the Scaffold Inspection Report was received from the scaffolders. 77. Jacaranda did not put in place any warning signs on the scaffold to alert workers to the presence and location of power lines. 78. Tony Palmer was off site temporarily at the time of the incident and Jacaranda did not have another supervisor at the site supervising the works being undertaken by the rendering subcontractors at the premises. Neatrule 79. At the time of the incident, Neatrule had in place an informal system of work, which was communicated verbally amongst the rendering subcontractors regarding the performance of tasks. It was the usual practice of Neatrule for its rendering subcontractors to work from the middle level of the scaffold and use the hop up to get to the top level. From there Neatrule's rendering subcontractors would put the straight edge in place. 80. Neatrule undertook a basic risk assessment in relation to cement rendering works at the site; however the assessment did not consider the risk of working on scaffold in close proximity to overhead power lines. 81. Neatrule did not have a written SWMS in place for the cement rendering works being undertaken at the premises. 82. Further, Neatrule did not request that its rendering subcontractors provided it with SWMS's. 83. Neatrule did not provide an induction or any daily toolbox talks to its rendering subcontractors. 84. Neatrule did not have a system in place to ensure that Jacaranda had adequately assessed the safety of the scaffold, in particular in that the scaffold maintained a safe working distance of 4 metres from the overhead power lines. 85. Neatrule did not have a system in place to ensure that Jacaranda advised it of identified risks identified on the site, in particular the risk of working on scaffold in close proximity to overhead power lines. 86. Neatrule did not provide its subcontractors any instruction on how work safely at the site safely, and in particular how to work safety on the scaffold in close proximity to power lines. Rather, Neatrule relied on the experience of its rendering subcontractors to work safety. 87. Neatrule did not provide adequate supervision to its rendering subcontractors. Investigation 88. On 12 November 2007, Inspector Derek Pryor attended the site in response to an incident notification. Inspector Pryor undertook an inspection and made observations contained in the Factual Inspection Report dated 3 December 2007, which is annexed and marked "Annexure B." 89. Inspector Prior took a number of photographs and bunted off the incident area for further investigation. Annexed to this document and marked "Annexure C" are seven coloured photographs numbered 969-5, 969-6, 969-7, 969-8, 969-10, 969-11, and 969-12. 90. On 15 November 2007, Inspector Prior returned to the site and took a number of measurements. Using a Leica Disto A3 (serial A299) laser measurement device Inspector Pryor measured the distance between the overheard power lines and the second standard on the eastern face of the scaffold on Block B (being the highest point on the scaffold) as being 2.9m. 91. Inspector Pryor issued Jacaranda two Prohibition Notices (No 170562 and No170564), which directed Jacaranda to: (a) immediately cease work on scaffold Block B; (b) in consultation with WorkCover appoint a scaffolder to rectify the scaffold to meet AS1576; and (c) liaise with Energy Australia and develop an agreement regarding the management of the 33,000volt power lines around the site. (Annexed to this document and marked "Annexure D" are true copies of the Prohibition Notices.) System of work after the incident 92. After the incident Jacaranda instructed the scaffolders to drop the height of the scaffold outside Block B so that it would fall within the safe working distance. This was completed on 21 November 2007. 93. Jacaranda prepared a site-specific work method statement for the work to be conducted on Block B. 94. Tony Palmer stopped working for Jacaranda in June 2008. Criminal History 95. Stuart John Hill has no prior convictions. Annexed to this document and marked "Annexure E" is a record of prior convictions. Relevant Principles 7In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s 10(1) and s 26(1) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23 and 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 8Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 9Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR 104 correctly, given the consideration in Markarian , recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. Proper regard is to be had to express legislative provisions and to the relevant statutory regime ( Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. 10In Inspector Morgenthal v Houghton [2010] NSWIRComm 192, the Court observed at [9]: In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ...are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[i]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion." 11Of relevance particularly is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia : . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, ... (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . . Consideration 12In a consideration as to penalty, the Court first assesses the objective seriousness of the offence as charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474): In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ... 13In considering the objective seriousness of this offence in context, it is necessary to state the relationship between Mr Hill and the corporation, Jacaranda Property Developments Pty Ltd ("Jacaranda") (now in liquidation), of which he was a director. 14Mr Hill faces prosecution under s 10(1), by virtue of s 26(1) of the Act, because, as a director of Jacaranda, he stands in the corporation's shoes for the purpose of the Occupational Health and Safety Act 2000. At the end of 2008, Jacaranda was placed into liquidation on a petition of Waco Kwikform Pty Ltd ("Waco"), the scaffolders on the particular development at the premises where the incident occurred. A liquidator was appointed to Jacaranda. Jacaranda, therefore, has not faced prosecution. Mr Hill has also been declared bankrupt. 15Jacaranda was involved in the building of six double storey blocks which contained a mix of free standing townhouses and unit blocks. Jacaranda was the owner and principal contractor for the construction of these townhouses and units. It had subcontracted the task of site manager to Mr John Palmer. Jacaranda had also engaged Waco to provide and erect scaffolding at the site. Waco subcontracted that contract to Solidscaf Pty Ltd ("Solidscaf"). 16In July 2007, Solidscaf began erecting scaffolding on the north-east corner of Block A. However, it ceased erection when it became apparent that the scaffold (with handrails) would have been within four metres of high voltage overhead power lines. Erection of the scaffolding with handrails, therefore, would have been in breach of clause 5.4 of Australian/New Zealand Standards 4576 ("Guidelines for Scaffolding") ("the Standard") which requires a safe working distance of four metres or more between metal scaffolding and overhead power lines of 33,000 volts. Energy Australia was contacted to determine how to proceed. After examination it was decided, as Energy Australia's quote for removing the power lines was in the sum of $30,000, that the lines would not be removed. Instead, it was decided, any workers required to work on the corner area of Block A (where there was exposure to the power lines) would be provided with static lines and harnesses so that handrails could be omitted from the scaffold to ensure compliance with the Standard's distance requirement. Accordingly, the scaffolder erected the scaffolding around the top of Block A without handrails and work then proceeded. 17However, the scaffolders then proceeded to erect the scaffolding with handrails around Block B. This was despite it being known that, with handrails, the distance between the scaffolding and the overhead power lines was short of the safe working distance required by the Standard. The scaffolding on Block B, therefore, did not adhere to the Standard. Further, Waco (the company who had subcontracted their scaffolding contract from Jacaranda to Solidscaf) issued to Jacaranda, the head contractor, a scaffold inspection report stating compliance with the Standard for the scaffold it erected on Block B. 18Renderers and plasterers were brought onto the site in the usual timetable of construction. The rendering work was undertaken by Neatrule Cement Rendering Pty Ltd ("Neatrule"), a subcontractor. One of the Neatrule renderers, a Mr Said Al-Khaled, holding an aluminium length some six feet long (used to ensure the corner of the building was rendered well), climbed onto the top level scaffold on Block B and raised the aluminium piece. It struck the overhead power lines. Unfortunately, Mr Al-Khaled was electrocuted and suffered severe burns to 35 percent of his body. 19Mr Hill, it is agreed, had knowledge of the concerns raised regarding the existence of the overhead power lines. It was he who contacted Energy Australia. When a WorkCover Inspector, Inspector Bell, came onto the site, he agreed with Energy Australia's assessment that no work was to be performed on Block A until the particular problem of the overhead power lines was addressed. Mr Hill directed no handrails be erected on the top level of Block A and that, if work was to be done up there, harnesses be used. However, notwithstanding that knowledge, Mr Hill allowed the Block B scaffold to be erected with handrails around it at the top level. 20Mr Hill opines: Notwithstanding the scaffold was erected in full (in Block B) the wires were not as close to Block B as they were to Block A. This was Mr Hill's opinion, not a fact. Mr Hill says he instructed workers on the top level of Block B to use the approved procedure, that is: the use of harnessing and static lines when on the top level. However, that procedure was not followed by Mr Al-Khaled when he went up to the top level of the scaffolding and held up the aluminium length. As a result, when the aluminium length struck the overhead powerlines, he suffered injury. 21It is alleged that Jacaranda failed to ensure that the premises were safe and without risk to health by failing to take steps to ensure that the live overhead power lines running across the premises were either de-energised or redirected away from the work area or, alternatively, covered to prevent direct access to them by workers. Jacaranda also failed to undertake a risk assessment of the work and failed to ensure that the subcontractor, Neatrule, had a specific risk assessment of the particular task (of rendering). 22Mr Palmer, the supervisor on site, stated that he gave verbal site specific inductions and briefings prior to Mr Al-Khaled working on the site. He, however, also agreed such instructions were limited to a general overview of the site, including, for example, where the amenities were located, where the first aid box was located and where the assembly area was in case of emergency. Mr Al-Khaled stated he did not receive a site specific induction or briefing prior to commencing work. Neatrule did not provide to Jacaranda a copy of the general safe work statement, nor did they have a specific job related safe work statement. Therefore Mr Al-Khaled was oblivious to the problem of the existence of high powered, overhead power lines. 23Notwithstanding Jacaranda was aware of the Standard's minimum distance requirement in relation to the separation of scaffolding and power lines (a knowledge which it held generally given it was working in the construction industry, and a knowledge it had particularly given its experience at Block A), Jacaranda did not undertake its own risk assessment of the worksite at Block B and did not put any warning signs in place. Its worksite was therefore unsafe. 24Counsel for the defendant submitted there was repetitiveness in the way the prosecutor framed the particulars of the charge alleged against Mr Hill giving rise to issues of double jeopardy. The defendant submitted that, in relation to Particular F, while it was conceded that the defendant failed to ensure people working on the scaffold were provided with a safe system of work, there was no obligation to do all of the things the particulars required in relation to that offence. The defendant, however, admitted that on the agreed facts there was a failure to ensure compliance with the relevant Australian Standard. 25Similarly, it contends, with respect to Particular B, there is overlap between subsections (i) and (ii) and also in Particulars H and J. I am of the view that there is some repetitiveness in the particulars. However, I am not of the view that the defendant could rely on delegation of its obligations for safe working through the certification by the scaffolding company. 26The defendant submitted, in assessing the objective seriousness of the offence, the Court should take into account the certification from the subcontractor, that the work complied with the relevant Australian Standard (especially given the specialised nature of the subcontractor's work and the standing of the subcontractor), as a factor mitigating the seriousness of the offence. The defendant relied upon the certificate of Waco which assured it: NOTES This report should reflect the structure at the time of inspection. In assessing the structure, you should refer to : Australian Standard-Scaffolding AZS/NZS1576 Guidelines for Scaffolding AZS/NZS1576 Waco Kwikform design and quotation Waco Kwikform Guidelines for Safe use of Scaffold Waco Kwikform Work Instructions for Ties and Needles I do not accept this submission. Jacaranda, as head contractor, had an obligation itself to ensure that its premises were safe and without risk to health. Further, it possessed knowledge of the danger and the presence of the high voltage, overhead power lines. Jacaranda failed to ensure that the subcontractor provided a safe work method statement. It also failed to ensure non-employees did not use equipment from the top level of the scaffolding on Block B which was capable of coming into contact with the overhead power lines. It particularly failed to ensure a worksite, on which it invited contractors to perform work, was safe. 27The defendant also contended there was no foreseeable element to the risk. Foreseeability makes an offence more serious. This was considered and affirmed by the Full Bench in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 stated at [82]: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. Accordingly Jacaranda, and the individual defendant director in this case, were under an obligation to exercise abundant caution, maintain constant vigilance and take all practical precautions to ensure safety. 28The defendant relies upon the certification of compliance it received from Waco in submitting there was no foreseeable element to the offence. Given, in the circumstances, Jacaranda and Mr Hill himself knew from the experience at Block A that there was too short a distance between the scaffold with handrails and overhead power lines (and, for that reason, the decision was made to erect the scaffold without handrails), the evidence persuades that the same risk on Block B should have been obvious. There was a foreseeable element to the offence. While Mr Hill expresses the opinion Block B did not look as close to the power lines, I accept the evidence establishes the inclusion of handrails at the top level brought the scaffold within four meters of the overhead powerlines and, therefore, was in breach of the minimum distance required by the Australian Standard. Opinion cannot replace the fact that there was a failure to comply with the minimum distance provided in the Standard. 29This Court has often emphasised and re-iterated the pro-active nature of the duty cast upon employers, under s 10(1) of the Act, to ensure the health, safety and welfare of contractors and others at their workplace. Mr Hill had an obligation to ensure his workplace was safe. 30I find this offence was a serious one. The gravity of the potential risk to safety flowing from the breach is relevant to the measure of the gravity of the offence and the culpability of the defendant. The words of Hill J, in Tyler v Sydney Electricity (1993) 47 IR 1 at (5), I find apposite: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from the breach and its foreseeability are clearly relevant ... Where the risk of death or serious injury becomes a reality, in a case such as this, it will be indicative of the seriousness of the risk. Section 21 A(B)(i)(b) of the Crimes (Sentencing Procedure) Act 1999 provides that the fact that an offence involved the risk of death or a serious injury is an aggravating factor to be taken into account in determining the appropriate sentence. Mr Al-Khaled suffered burns to 35 percent of his body through electrocution. It was a serious injury. 31The systems that Jacaranda did have in place prior to the incident were deficient. Insufficient attention was paid to ensure there was a safe distance between the power lines and the scaffold around Block B. However, I accept, after the incident, Jacaranda instructed the scaffolders to drop the height of the scaffolding outside Block B to within a safe work distance. It also spent considerable money preparing, on the advice of experts, a site specific work method statement. 32The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71] - [77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example , Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] ) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. In Capral , the Full Bench also affirmed what was said by Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 (at 388): the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. 33There is a question as to whether specific deterrence should be a factor taken into account in this matter. Mr Hill has given evidence. Mr Hill's original qualification was carpentry. He established Jacaranda Property Developments in 2000. He operated the business in partnership with his wife. At the end of 2008 it was placed in liquidation. He was made bankrupt in the Federal Magistrates Court in 2009. He has been using an excavators licence that he has had since 1999 to earn his living. He contracts his services as an excavator/labourer through a company called Hills Excavations Pty Ltd. He earns a gross annual income of approximately $42,000. The family now resides in rental accommodation. He lives with his wife and two children and had, up until recently, supported one stepchild. His two children are aged 16 and 13 and are still dependent. His stepchild is no longer dependent. His wife has a small income from a jointly owned bottle shop, the Yowra Bay Cellars, of between $700 and $800 a week. He does not generate any income from this investment. He places his financial records before the Court. All of this background information is given to me to persuade that although he is still working in the construction industry, he is not in control of any particular operation. Therefore, I find, there will not be an element of specific deterrence in penalty, notwithstanding the reasoning in Inspector Wilkie and Anstee (No. 2) [2007] NSWIRComm 20 and Capral Aluminium . 34However, there will be an element in penalty of general deterrence. The sentence should reflect the need to deter others in the construction industry from failing to take a rigorous approach to known hazards such as permitting work to be conducted in the vicinity of live overhead power lines. Known minimum safety procedures must be put in place. The industry must once more be reminded of the need to comply with the Australian Standards, which Standards often outline only the minimum steps necessary to ensure safety. 35The defendant is entitled to the consideration of other subjective matters placed before the Court. It is necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 relevant to the defendants. As was said in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168: [56] ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c) Ultimately, all of the above factors must be considered as part of "a complex of inter-related considerations" ( R v Gallagher (1991) 23 NSWLR 220 (at 228)). 36The prosecutor raised the question of the level of discount the defendant should receive on sentence for the utilitarian value of its guilty plea ( R v Thomson and R v Houlton ). The file indicates the defendant entered a plea of guilty on 15 April 2011. A further amended summons was not filed until 24 June 2011. The Application for Order was filed on 10 November 2009. The prosecutor submits the defendant's plea was not an early plea and relies, in support of that submission, on the authority of R v Stambolis [2006] NSWCCA 56 (10 March 2006) where Howie JA stated at [11] and [12]: [11] Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity. [12] I accept that there may be exceptional cases, where as a matter of fairness to the offender, a discount will be given even though there was no utilitarian value in it. One such situation that has been recognised is where the Crown rejects the accused's plea of guilty to manslaughter and the accused is later acquitted of murder but convicted of manslaughter after trial: R v Oinonen [1999] NSWCCA 310; R v Cardoso [2003] NSWCCA 15. But in R v Harmouche [2005] NSWCCA 398 Hulme J, with whom Sully J and Latham J agreed, wrote: [38] Undoubtedly, the Respondent on the evidence before, and findings of, Judge Delaney made out an impressive subjective case. He had the factors of a plea, delay and youth arguing for a lesser penalty than would have been appropriate in their absence and was also entitled to have taken into account 134 days, i.e. something over 4 months, pre-sentence custody. [39] That said, the 25% discount for the Respondent's plea was unduly generous. In giving it his Honour seems to have made a mistake commonly seen in this Court that because a plea was entered at the earliest opportunity (commonly shortly after the Crown reduces a charge) an offender is entitled to that discount. Such an approach is to misread R v Thompson and Houlton (2000) 49 NSWLR 383 and to ignore the rationale for a discount of that degree. The Chief Justice made it clear, at [154-5], that the rationale for a 25% discount was the extent of the utilitarian benefit and the complexity of evidence gathering and of any trial which was avoided. Certainly his Honour made reference to a plea being entered at the earliest opportunity but that was in the context to which I have referred and where his Honour was obviously contemplating the committal stage of criminal proceedings where the community would be saved the costs associated with prosecution of the case from (the beginning of) that stage. 40 That what I have said correctly reflects what the Chief Justice said derives support from observations of Hodgson JA, with whose remarks Barr J agreed, in R v Dib [2003] NSWCCA 117 where, dealing with a complaint that only 16.7% had been allowed in the case of a plea entered in response to a lesser charge than originally preferred, his Honour said, at [5 - 6]: "If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability." [41] I myself would go further. Albeit the extent of any discount is a matter in which a sentencing judge has some discretion - although as R v Thompson and Houlton at [159] makes clear, one subject to appellate review - where the rationale for a discount as high as 25% does not exist, a discount of that degree should not be given. The prosecutor relies also upon the reasoning of Hodgkinson JA in R v Dib [2003] NSWCCA 117 at [5] and [6]: [5] If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. [6] This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability. 37Relying on the above authorities, it was submitted that any discount for the utilitarian value of a plea is to be: ... restricted to pleas entered at the earliest opportunity and should rarely be given after a matter has been set down for trial. In Cameron (2002) 187 ALR 65 (24.2.02) the High Court however held when a defendant accepts responsibility for a crime and shows a willingness to facilitate the course of justice, the Court in the assessment of the value of such a circumstance must consider ". . . whether the plea was entered at the first reasonable opportunity". The effect of Cameron on the guideline judgment in Thomson was considered by the Court of Criminal Appeal in R v Sharma (2002) 54 NSWLR 300. The court held that the reasoning in Cameron was not applicable in New South Wales because the common law principles enunciated there have been modified by statute. It held s22 of the Crimes (Sentencing Procedure) Act 1999, renders it mandatory that a sentencing judge in New South Wales take into account both "the fact" of the plea of guilty and "when" it was made. Further, if a lesser penalty is not to be imposed then the Court must give reasons. The Chief Justice held in Sharma the statutory reference to "the fact" of the plea as the matter required to be considered, does not direct attention to the subjective intention of the person pleading guilty. Nor is the element of timing, reflected in the reference to "when" a plea was made, a reference only to subjective elements. Thus the Court must take the plea into account even if there is no subjective intention to "facilitate the administration of justice", as referred to in Cameron . The Chief Justice concluded that the guideline judgment of Thomson is still of full force and effect and must be followed. 38While the first Application for Order was filed in November 2009, the plea was not entered till April 2011. This is not an early plea. However, the defendant did enter his plea prior to when the amended Application for Order, as agreed, was filed. In such a circumstance I allow a discount of 20 percent. 39The Court is entitled to give consideration to the defendant's means to pay under s 6 of the Fines Act 1996. The prosecutor submitted, where a defendant decides to plead incapacity to pay as a determinative issue in the imposition of penalty, it behoves the defendant to discharge its onus to prove that a finding of incapacity is open by placing all the information it relies upon before the Court so that the Court may give that information proper consideration in the exercise of its sentencing discretion ( WorkCover Authority of NSW (Insp Mansell) v Chen and Obing Pty Ltd t/as Old But New [2004] NSWIRComm 247). 40It is apparent that the defendant was made bankrupt in October 2009. He has only a modest income of approximately $800 to $900 per week. The impact of the imposition of a monetary penalty on a bankrupt was considered comprehensively by Staff J in Inspector Wilkie v Anstee (No. 2) [2007] NSWIRComm 20 . The appropriate approach to sentencing an individual who is bankrupt was also discussed by Haylen J in Inspector Patton v Hall and Quinn [2010] NSWIRComm 6 : [36] The provisions of the Fines Act 1996 requiring the Court to give consideration to the means of a defendant to pay a fine also extends to the question of costs (see the Full Bench in WorkCover Authority (Inspector Yeung) v Wilson (t/as Wilson's Tree Service) (2005) 143 IR I87 at para [122] et seq ). In that case the Full Bench accepted the proposition that normally, a successful litigant, including a prosecutor in occupational health and safety prosecutions, is entitled to his or her costs but that, nevertheless, the Court possessed a wide discretion in relation to the issue of costs. In applying the provisions of the Fines Act and considering the means of the defendant to pay the fine and the costs, adjustments to the reasonable costs sought may be required. At the request of the Court, the prosecutor, following the completion of argument, indicated that the approximate total professional costs and disbursements in each matter were as follows: in the matter of Mr Hall, approximately $10,000 and in the matter of Mr Quinn, approximately $11,000. It should be noted, however, that there was considerable overlap in the evidence in both cases with the specific role of each defendant being the main difference. As pointed out by the Full Bench in Wilson, the costs should not be disproportionate to the fine. Bearing those principles in mind and the evidence as to the means of each defendant, the Court determines that a just and reasonable order for costs in the case of Mr Quinn would be $2,000 and in Mr Hall's case, $1,000. [37] One final matter requires brief mention. The prosecutor submitted that, in the present proceedings, the Court should not follow the course I adopted in Inspector Batty v Brian John Goldsmith [2009] NSWIRComm 72 . In that case, the defendant had only recently been declared bankrupt and the evidence supported a conclusion that he had an ongoing incapacity to pay any fine. In applying the provisions of the Fines Act the Court reduced the penalty to be imposed but also took the step of deferring the payment of that penalty until the expiration of the nominal term of the defendant's bankruptcy. In the present proceedings the prosecutor urged that course should not be adopted in these cases and further submitted that there was no legislative support permitting the Court to suspend or defer the payment of the fine. In the present proceedings it appears the nominal term of bankruptcy for Mr Hall will expire within the next few months and Mr Quinn's nominal expiry date is in 2011: they have prospects of being discharged from their bankruptcy at that time. Those facts and the different circumstances found in Goldsmith would lead the Court to conclude that the approach adopted in Goldsmith is not necessarily appropriate in the present matter and indeed, neither defendant sought such an order. Because of the general difficulty of dealing with bankrupt defendants in sentencing under the Occupational Health and Safety Act , it is of some importance to clarify the basis upon which the Court acted in Goldsmith. It may be accepted that there is no precise statutory provision permitting the suspension of payment of a fine although it might be said that a Court could, as an integral part of the sentencing process, defer the issue of orders until such time as the defendant was discharged from bankruptcy and was able to return to some normality in relation to their financial affairs. It may be possible for the Court to lay down a regime for the payment of a fine beginning at a future date. Quite apart from these possibilities, it should be understood that, in the absence of a statutory limitation, a superior court of record (such as this Court) even though of limited jurisdiction, has power to do all things necessary to give effect to that jurisdiction which is conferred upon it. That approach is consistent with the judgments in Philip Morris Inc and anor v Adam P Brown Male Fashions Pty Ltd and ors (1981) 148 CLR 457 and National Parks and Wildlife Service and anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 although these cases were decided in a different context. Ultimately, the Court must impose a sentence that is just and appropriate having regard to all the factors, including the defendants' capacity to pay a fine. The imposition of a fine that is crushing in its effect on a defendant does not advance the cause of justice or assist in obtaining its numerous objectives. In view of the course proposed to be taken by the Court in the current matters, this issue need not be fully considered for present purposes although it should be noted that in WorkCover Authority of NSW v Anywhere Tower Cranes Pty Ltd and ors (20070 NSWIRComm 44, in the context of applying the Fines Act to a bankrupt defendant, Marks J contemplated that the payment of the monetary penalty would occur after discharge from bankruptcy. For present purposes, these matters need not be considered further but are mentioned in view of the issues raised by counsel for the prosecutor and the general importance of the subject matter. 41I accept that, although the defendant is a bankrupt, he must face a penalty for this offence. However, while penalty must reflect the seriousness of the offence, the Court mitigates penalty for the fact that he has a modest income. 42The defendant has no prior convictions under Occupational Health & Safety legislation. 43It is conceded the defendant co-operated with the WorkCover Authority of New South Wales throughout its investigation. 44The maximum penalty the defendant faces, given he is an individual (standing in the shoes of the corporation as a director), is $55,000. 45I am satisfied the defendant has expressed contrition and remorse in accordance with his obligations. 46I find the defendant guilty. The defendant is fined in the sum of $15,000. The defendant shall pay a moiety of the fine to the WorkCover Authority of New South Wales. The defendant shall pay the prosecutor its reasonable costs and disbursements in the sum agreed or assessed. Orders 47The Court makes the following orders: 1. In Matter No IRC 1772 of 2009, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $15,000 with a moiety to WorkCover Authority of New South Wales. 3. The defendant to pay the costs of the prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to 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: 02 September 2011