Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Craig Hall v R&D Panelform (NSW) Pty Limited and Denis Charles Vella [2011] NSWIRComm 165 Hearing dates: 19 September 2011 Decision date: 16 December 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: The Court makes the following orders: 1. For the charges brought against R&D Panelform (NSW) Pty Limited in Matter No IRC1060 of 2010, under s 8(1) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $100,000 with a moiety to the WorkCover Authority. 2. For the charges brought against R&D Panelform (NSW) Pty Limited in Matter No. IRC 1061 of 2010, under s 8(2) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $100,000 with a moiety to the WorkCover Authority. 3. For the charges brought against Denis Charles Vella in Matter No. IRC1059 of 2010, under s 8(1) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $25,000 with a moiety to the WorkCover Authority. 4. For the charges brought against Denis Charles Vella in Matter No. IRC1058 of 2010, under s 8(2) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $25,000 with a moiety to the WorkCover Authority. 5. The defendants shall pay one order as to 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 re-list at short notice. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 by each defendant - partners in a limited liability partnership - defendants failed to ensure the health, safety and welfare at work of all its employees - defendant failed to ensure that people (other than employees of the defendant) and members of the public, were not exposed to risks to their health or safety - critical nature of risk known to defendants - nature of injury - proper propping system in place but failure to communicate with principal contractor - failure to check placement of crane - failure to ensure safety checks after changing SWMS - offences most serious - gravity of the potential risk - risk of serious injury and/or a fatality - foreseeability a factor but risk obvious - simple and straightforward steps to remedy the defects in the system available - general and specific deterrence - late guilty plea - remorse shown and contrition expressed - no prior convictions - mitigating factors - contribution to risk from other parties on site - evidence of ongoing corporate commitment to safe working - penalties Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Factories, Shops and Industries Act 1905 Occupational Health and Safety Act 2000 Cases Cited: Bishop v Chung Brothers (1907) 4 CLR 1262; [1907] HCA 23 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Clode v Barnes [1974] 1 WLR 544 Inspector Green v Big River Timbers Pty Limited and Inspector Green v Big River Timbers (Veneer) Pty Ltd [2006] NSWIRComm 279 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 JT & LC Tippett Pty Limited and RD & LF Tippett Pty Ltd v WorkCover Authority of New South Wales [2008] NSWIRComm 177 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531 Kondis v State Transport Authority [1984] 154 CLR 672 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Linfox Resources Pty Ltd v R [2010] VSCA 319 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 Littlechild LR6 QB 293 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR104 Regina v Dib (2003) NSWCCA 117 Signanto v The Queen (1998) 194 CLR 656 Veen v The Queen (No.2) (1988) 164 CLR 465 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994 Category: Principal judgment Parties: Inspector Craig Hall (Prosecutor) R&D Panelform (NSW) Pty Limited (First Defendant) Denis Charles Vella (Second Defendant) Representation: M P Cahill of counsel (Prosecutor) J J Fernon SC with A Fernon of counsel (Defendants) DL Piper, Solicitors (Prosecutor) Yates Beaggi Lawyers (Defendants) File Number(s): IRC 1058 of 2010 IRC 1059 of 2010 IRC 1060 of 2010 IRC 1061 of 2010 Judgment 1These prosecutions are brought by Inspector Craig Hall of the WorkCover Authority of New South Wales ("the prosecutor") against R&D Panelform (NSW) Pty Limited (a partner of R&D Panelform Limited Partnership) ("the first defendant" or "R&D Panelform") under ss 8(1) and 8(2) of the Occupational Health and Safety Act 2000 ("the Act") and Denis Charles Vella (a partner of R&D Panelform Limited Partnership) ("the second defendant") under ss 8(1) and 8(2) of the Act, by way of Amended Applications for Order. 2It is alleged, in matter No IRC1060 of 2010, the first defendant, R&D Panelform (NSW) Pty Limited (being a partner of R&D Panelform Limited Partnership, an employer) contravened s 8(1) of the Act in that it failed: By the acts or omissions as particularised below, to ensure the health, safety and welfare at work of all its employees, and in particular Arthur Nehme, Charlie Nehme, Joshua Cooper, Carlos Alvarez and Scott De Gail ( the employees ) on 25 and 26 September 2008, at or around a construction site at 5 Gladstone Road, Castle Hill, in the State of New South Wales ( the site ), contrary to section 8(1) of the Act. In particular: 1. The defendant was at all material times an employer; 2. The risk was the risk of the employees being struck or crushed by the crane, its associated lifting components, its load (the concrete panels) it was lifting, the slabs on which it was positioned or adjacent slabs and concrete panels collapsing; 3. The defendant failed to ensure that the outriggers of the 250 tonne mobile crane ( the crane ) being used at the site were positioned in places and in a manner so that the concrete slabs on which the crane was placed could support the crane's weight and would not collapse; 4. The defendant failed to obtain confirmation from the principal contractor (Denham Constructions), after positioning the crane outriggers but before commencing a lift, that the outriggers had in fact been placed in the correct position so that the concrete slab on which it was placed did not collapse; 5. The defendant failed to engage or require an independent surveyor or independent checker who would be required before the crane being operated to ensure that the outriggers of the crane were placed in the correct position so that the concrete slab on which it was placed did not collapse; 6. The defendant failed to undertake or have an independent person undertake, after positioning the crane outriggers but before commencing a lift, any checking of the alignment between the outriggers and the under-props so that the outriggers were placed in a correct position such that the concrete slab on which they were placed could support the weight of the crane and would not collapse; 7. The defendant failed to ensure that there was a clear and effective system of communication between the defendants and the defendant's subcontractor (Gillespies Cranes) and principal contractor (Denham Constructions) so as to ensure that the outriggers for the crane were placed in the correct position so that the concrete slab on which they were placed was able to support its weight and would not collapse; 8. As a result of the defendant's failures Arthur Nehme, Charlie Nehme, Joshua Cooper, Carlos Alvarez and Scott De Gail were exposed to risk. 3It is alleged, in matter No IRC1061 of 2010, the first defendant, R&D Panelform (NSW) Pty Limited (being a partner of R&D Panelform Limited Partnership, an employer) contravened s 8(2) of the Act in that it failed: By the acts or omissions as particularised below, to ensure that people (other than employees of the defendant), and in particular Mark Seagrott, David Kennedy and John Pearce ( the Gillespies employees ), Gareth Goronwy, Paul Sinclair and Andrew Gleeson ( the Denham employees ) and members of the public, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while the Gillespies employees, the Denham employees and members of the public were at the defendant's place of work on 25 and 26 September 2008, at or around a construction site at 5 Gladstone Road Castle Hill, in the State of New South Wales (the site), contrary to section 8(2) of the Act. In particular: 1. The defendant was at all material times an employer; 2. The defendant's place of work was at the site, the adjoining area between the site and neighbouring businesses and the neighbouring businesses in so far as it or they was or were affected by work being done at the site; 3. The defendant's undertaking at the site was the erection of pre-poured concrete panels at the site including providing information, instruction and supervision to a crane and crane crew; 4. The people who were at risk and who were at the defendant's place of work were the Gillespies employees, the Denham employees and members of the public; 5. The risk was the risk of people being struck or crushed by the crane, its associated lifting components, its load (the concrete panels) it was lifting, the slabs on which it was positioned or adjacent slabs and concrete panels collapsing; 6. The defendant failed to ensure that the outriggers of the 250 tonne mobile crane ( the crane ) being used at the site were positioned in places and in a manner so that the concrete slabs on which the crane was placed could support the crane's weight and would not collapse; 7. The defendant failed to obtain confirmation from the principal contractor (Denham Constructions), after positioning the crane outriggers but before commencing a lift, that the outriggers had in fact been placed in the correct position so that the concrete slab on which it was placed did not collapse; 8. The defendant failed to engage or require an independent surveyor or independent checker who would be required before the crane being operated to ensure that the outriggers of the crane were placed in the correct position so that the concrete slab on which it was placed did not collapse; 9. The defendant failed to undertake or have an independent person undertake, after positioning the crane outriggers but before commencing a lift, any checking of the alignment between the outriggers and the under-props so that the outriggers were placed in a correct position such that the concrete slab on which they were placed could support the weight of the crane and would not collapse; 10. The defendant failed to ensure that there was a clear and effective system of communication between the defendant and the defendant's subcontractor (Gillespies Cranes) and principal contractor (Denham Constructions) so as to ensure that the outriggers for the crane were placed in the correct position so that the concrete slab on which they were placed was able to support its weight and would not collapse; 11. As a result of the defendant's failures the Gillespies employees, the Denhams employees and members of the public were exposed to risk; 4It is alleged, in matter No IRC1059 of 2010, the second defendant, Denis Charles Vella (being a partner of R&D Panelform Limited Partnership, an employer) contravened s 8(1) of the Act in that he failed: By the acts or omissions as particularised below, to ensure the health, safety and welfare at work of all the defendant's employees, and in particular Arthur Nehme, Charlie Nehme, Joshua Cooper, Carlos Alvarez and Scott De Gail ( the employees ) on 25 and 26 September 2008, at or around a construction site at 5 Gladstone Road, Castle Hill, in the state of New South Wales ( the site ), contrary to section 8(1) of the Act. In particular: 1 The defendant was at all material times an employer; 2 The risk was the risk of the employees being struck or crushed by the crane, its associated lifting components, its load (the concrete panels) it was lifting, the slabs on which it was positioned or adjacent slabs and concrete panels collapsing; 3 The defendant failed to ensure that the outriggers of the 250 tonne mobile crane ( the crane ) being used at the site were positioned in places and in a manner so that the concrete slabs on which the crane was placed could support the crane's weight and would not collapse; 4 The defendant failed to obtain confirmation from the principal contractor (Denham Constructions), after positioning the crane outriggers but before commencing a lift, that the outriggers had in fact been placed in the correct position so that the concrete slab on which it was placed did not collapse; 5 The defendant failed to engage or require an independent surveyor or independent checker who would be required before the crane being operated to ensure that the outriggers of the crane were placed in the correct position so that the concrete slab on which it was placed did not collapse; 6 The defendant failed to undertake or have an independent person undertake, after positioning the crane outriggers but before commencing a lift, any checking of the alignment between the outriggers and the under-props so that the outriggers were placed in a correct position such that the concrete slab on which they were placed could support the weight of the crane and would not collapse; 7 The defendant failed to ensure that there was a clear and effective system of communication between the defendant and the defendant's subcontractor (Gillespies Cranes) and principal contractor (Denham Constructions) so as to ensure that the outriggers for the crane were placed in the correct position so that the concrete slab on which they were placed was able to support its weight and would not collapse; 8 As a result of the defendant's failures Arthur Nehme, Charlie Nehme, Joshua Cooper, Carlos Alvarez and Scott De Gail were exposed to risk; 5It is alleged, in matter No IRC1058 of 2010, the second defendant, Denis Charles Vella (being a partner of R&D Panelform Limited Partnership, an employer) contravened s 8(2) of the Act in that he failed: By the acts or omissions as particularised below, to ensure that people (other than employees of the defendant), and in particular Mark Seagrott, David Kennedy and John Pearce ( the Gillespies employees ), Gareth Goronwy, Paul Sinclair and Andrew Gleeson ( the Denham employees ) and members of the public, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while the Gillespies employees, the Denham employees and members of the public were at the defendant's place of work on 25 and 26 September 2008, at or around a construction site at 5 Gladstone Road Castle Hill, in the State of New South Wales ( the site ), contrary to section 8(2) of the Act. In particular: 1 The defendant was at all material times an employer; 2 The defendant's place of work was at the site, the adjoining area between the site and neighbouring businesses and the neighbouring businesses in so far as it or they was or were affected by work being done at the site; 3 The defendant's undertaking at the site was the erection of pre-poured concrete panels at the site including providing information, instruction and supervision to a crane and crane crew; 4 The people who were at risk and who were at the defendant's place of work were the Gillespies employees, the Denham employees and members of the public; 5 The risk was the risk of people being struck or crushed by the crane, its associated lifting components, its load (the concrete panels) it was lifting, the slabs on which it was positioned or adjacent slabs and concrete panels collapsing; 6 The defendant failed to ensure that the outriggers of the 250 tonne mobile crane ( the crane ) being used at the site were positioned in places and in a manner so that the concrete slabs on which the crane was placed could support the crane's weight and would not collapse; 7 The defendant failed to obtain confirmation from the principal contractor (Denham Constructions), after positioning the crane outriggers but before commencing a lift, that the outriggers had in fact been placed in the correct position so that the concrete slab on which it was placed did not collapse; 8 The defendant failed to engage or require an independent surveyor or independent checker who would be required before the crane being operated to ensure that the outriggers of the crane were placed in the correct position so that the concrete slab on which it was placed did not collapse; 9 The defendant failed to undertake or have an independent person undertake, after positioning the crane outriggers but before commencing a lift, any checking of the alignment between the outriggers and the under-props so that the outriggers were placed in a correct position such that the concrete slab on which they were placed could support the weight of the crane and would not collapse; 10 The defendant failed to ensure that there was a clear and effective system of communication between the defendant and the defendant's subcontractor (Gillespies Cranes) and principal contractor (Denham Constructions) so as to ensure that the outriggers for the crane were placed in the correct position so that the concrete slab on which they were placed was able to support its weight and would not collapse; 11 As a result of the defendant's failures the Gillespies employees, the Denhams employees and members of the public were exposed to risk; 6Each defendant pleaded guilty to each charge. 7Mr M P Cahill, of counsel, appeared for the prosecutor and Mr J J Fernon SC with Mr A Fernon, of counsel, appeared for the defendants. The prosecutor relied upon an Agreed Statement of Facts with annexures which included a Factual Inspection Report dated 5 November 2008 prepared by Inspector Bronwen Halcroft; 12 colour photographs taken by Inspector Halcroft on 26 September 2008; seven A4 colour photographs with hand written annotations ; 42 colour photographs of site taken between 26 September 2008 and 17 October 2008; colour photograph taken by mobile telephone; R&D Panelform (NSW) Pty Ltd ASIC Historical Search; R&D Panelform Limited Partnership - Partnership Agreement; R&D Panelform Limited Partnership Certificate of Registration; R&D Panelform Limited Partnership - Pay Record for Denis Vella; R&D Panelform Limited Partnership - Pay Record for Arthur Nehme; R&D Panelform Limited Partnership Safe Work Method Statement; Denham Constructions Safe Work Method Statement; Gillespies Crane Services - Job Sheet; Gillespies Crane Services, Lift Plan prepared for R&D Panelform dated 19 September 2008; R&D Panelform Limited Partnership - Set location plan; Henry & Hymas Site Inspection Report dated 16 July 2008; three transparent survey overlays prepared by Scott Deveridge, Project Surveyors; RMD back propping plan prepared 8 May 2008; hand drawn layout plan of 5 Gladstone Road, Castle Hill prepared by Gareth Goronwy and a Prior Conviction Record. 8The defendants relied upon the affidavits of Denis Charles Vella sworn 18 September 2011 with annexures marked "A" to "H", and Arthur John Nehme sworn 18 September 2011 with annexures marked "A" to "G". 9It was agreed that evidence in one prosecution be evidence in the other except as to the relevance of that evidence to the differing particulars relied upon in the amended Applications for Order. 10There was one Agreed Statement of Facts for all prosecutions which relevantly reads: Background 3. At all material times, Gillespies Crane Nominees Pty Ltd [ACN 001 802 133] (Gillespies Cranes): 3.1 was a duly incorporated company; 3.2 undertook the business of hiring out approximately 19 mobile cranes including operators and dogmen and associated drivers; 3.3 was engaged by R&D Panelform Limited Partnership to provide a crane and a crane crew for work to be undertaken at the site; 3.4 utilised the site as a place of work; and 3.5 was an employer of approximately 50 - 60 employees, and in particular employed Mark Seagrott (crane driver), David Kennedy (dogman), John Pearce (dogman) and Paul Pritchard (workshop manager) to perform work at the site in the course of its undertaking. 4. At all material times, R&D Panelform (NSW) Pty Ltd [ACN 122 483 390] and Denis Vella, being partners of R&D Panelform Limited Partnership (ABN 89 686 480 409) (R&D): 4.1 undertook the business of forming, pouring and erecting concrete panels for industrial and commercial business sites; 4.2 were engaged by Denham to form and erect concrete panels at the site; 4.3 utilised the site as a place of work; 4.4 subcontracted Gillespies Cranes to supply a crane and a crane crew to lift concrete panels at the site; and 4.5 employed approximately 25 employees, and in particular employed Arthur Nehme (erection supervisor), Charlie Nehme (labourer), Josh Cooper (labourer), Carlos Alvarez (labourer) and Scott De Gail (labourer) to perform work at the site in the course of the undertaking. 5 The partnership between R&D Panelform (NSW) Pty Ltd and Denis Vella, was formed pursuant to a Limited Partnership Agreement dated 19 January 2007. 6 At all material times, Denham Constructions Pty Ltd [ACN 086 503 568] (Denham): 6.1 was a duly incorporated company; 6.2 undertook the business of building and construction, including the role of principal contractor at the site; 6.3 subcontracted R&D to form and erect concrete panels at the site; 6.4 utilised the site as a place of work; and 6.5 employed approximately 45 employees, including about 6 - 7 employees on site on the date of the incident, and in particular employed Paul Sinclair (site manager), Gareth Goronwy (site foreman) and Andrew Gleeson (site foreman). 7 Denham was the principal contractor at the site. Denham's work involved the design and construction of 65 industrial, retail bulk-goods and high-tech units as well as the construction of associated car parking and landscaping. The project comprised a ground floor and a first floor, with each floor also having a mezzanine level. The project mainly involved the use of reinforced concrete slabs and tilt up pre-cast concrete panel construction. The contract period commenced in December 2007 and was essentially completed in June 2009. The contract was valued at approximately $27.7 million and the work was substantially completed by contractors. 8 Denham in turn contracted with R&D. The contract between Denham and R&D required R&D to erect pre-poured concrete panels at the construction site. Denham had previously worked with R&D on about four or five other projects. 9 Gillespies Cranes were contracted by R&D to provide a crane and a crane crew for work to be undertaken at the site in respect of the placement and erection of concrete panels around the site. R&D selected Gillespies Cranes due to a long established working arrangement between them both. 10 H&H Consulting Engineers were engaged by Denham as the structural engineers for the project and were responsible for the construction drawings, the review of the crane travel path and the review and design of the under-slab propping for crane positions. 11 Denham was required to supply and install the under-slab propping for the crane positions. 12 The positioning of the crane was vitally important because the concrete floor where the crane was to be set up was not designed to support the weight of the crane and its load and so it was essential that under-slab propping be positioned directly underneath where the outriggers of the crane were to be placed to support the weight of the crane and its load. 13 The propping system for the crane outriggers was confirmed by the engineers responsible for the slab, Australian Prestressing Services Pty Ltd. Crane set-ups 14 On or about 17 July 2008, R&D began the tilt-up panel work at the site. The work involved a crane being placed at 12 different set-ups around the site. 15 Between 17 to 21 July 2008 (visit one), set-ups 1, 2 and 3 were completed. 16 On 7 and 8 August 2008 (visit two) set-up 5 was completed. 17 On Monday, 22 September 2008 the Gillespies 250 tonne Liebherr mobile crane attended the site to complete lifts for visit three. Work continued during the week at set-ups 4, 6, 7 and 8. 18 The system of work for set-ups involved the following: 18.1 R&D was responsible for building the concrete panels and lifting them up by crane; 18.2 Denham was responsible for: 18.2.1 marking the top of the slab with 'pin points' and paint for the set-up positions of each of the crane's four outriggers; 18.2.2 under-propping the slab; 18.2.3 ensuring that the position of the props were aligned directly under the pinpoints and paint marking set up points placed on top of the slab for the outriggers; and 18.2.4 then, informing R&D where the set-up positions for each outrigger were and that the set-up was ready for the crane to move into position; 18.3 R&D was responsible for supervising Gillespies Cranes employees to make sure that the crane was correctly set up on the marks. Set up 9 19 On Thursday, 25 September 2008, the crane moved into set-up 9. 20 Before it was moved into position it was discovered by Denham by that it could not be placed in the particular position that had been identified and marked in July 2008 because of the existence of an electrical pit and plumbing pipes underneath the slab where the under-slab props were to be put in place. A new position was then found for the props and new markings were put in place on the top of the slab as to where the outriggers were to be positioned. 21 Gareth Goronwy (site foreman for Denham) marked the new pin-points on 25 September 2008, and had these approved by Paul Sinclair (site manager for Denham, with overall responsibility for the site). 22 Paul Sinclair says he approved both the marks and the props by reference to a drawing that showed the coordinates for the set-up. 23 Gareth then showed Arthur Nehme (erection supervisor for R&D) pin-points for the set-up. 24 Arthur then supervised Gillespies Cranes employees in setting up on the pin-points. As part of this process, Arthur notified Gareth that some rio bars were in the way of the set-up, and offered to cut them. Gareth, without consulting with Paul Sinclair, said that was fine, and R&D cut the bars using one of their labourers on site. 25 After the crane had been set-up, it completed approximately 10 to 15 lifts on set-up 9, without incident. 26 The crane remained in its position at set-up 9 overnight, with full 96-tonnes of counterweights fitted. It was not moved, operated or interfered with in any way following work ceasing on 25 September 2008. 27 Work continued at set-up 9 on Friday, 26 September 2008 until the incident occurred at about 10.08am 28 Subsequent to the incident: Arthur Nehme (R&D) has stated that he directed Gillespies to set up the crane and observed that the crane was set up with each of its four outriggers over the 4 new markings on the top of the slab that were shown to him by Gareth Goronwy; Gareth Goronwy has stated that he placed 4 new markings on the slab to indicate where each of the outriggers were to be placed which he then showed to Mr Nehme and that Mr Nehme did not ensure that the crane outriggers were placed on the 4 new markings which he showed to Mr Nehme. Whatever markings were placed on top of the slab by Mr Goronwy at set up 9 prior to the incident, when the crane was set up on 25 September 2008 each of the outriggers was placed over a mark that did not align with and was not directly supported by backing props erected under the slab. Crane accident 29 On Friday, 26 September 2008, at approximately 10.08am, crane operator Mark Seagrott, an employee of Gillespies Cranes, attempted to lift a pre-cast concrete panel from the suspended first floor concrete slab of a construction site at the premises, using a 250 tonne Liebherr truck crane (crane). 30 In this attempt, the crane's rear right outrigger punched through the first floor concrete slab, causing the crane to tip and the front of the crane to be raised totally off the ground. The crane's boom came to rest across an erected panel and it remained in that position for approximately one hour. 31 The boom was extended across a number of small business premises situated next to the site. These adjoining businesses, located in 8 units managed by Beaumont Strata Management Pty Ltd, became the subject of prohibition notices which resulted in them closing and losing approximately one week of trade until the overhanging boom was removed on 3 October 2008. 32 The 10 tonne panel and associated lifting components including the spreader bar fell from the crane and crashed over the side of the suspended slab landing in an area between the construction site and the neighbouring businesses (Adjoining Area). The Adjoining Area was accessible to and used as a short-cut by members of the public. 33 The Adjoining Area and the neighbouring businesses were a place of work of Gillespies Cranes, R&D and Denham insofar as it/they was/were affected by work being done at the site. 34 Mr Seagrott was able to run away before the collapse, and sustained only minor injuries, in the form a twisted ankle. 35 A second collapse occurred approximately one hour later when the panel that the jib was resting on collapsed and the rear of the crane continued collapsing through the first floor slab. No injuries were sustained as a result of the second collapse except for Charlie Nehme hurting his leg as he ran away from the second collapse. Risk 36 No one was killed or seriously injured as a result of the collapses. There were people in the vicinity of the crane when the two collapses occurred. Those people were working at the site. 37 In addition to the crane driver, the employees in the immediate vicinity of the crane at the time of the first and/or second collapse include: 37.1 David Kennedy (dogman) of Gillespies Cranes, who tripped as he ran away from the first collapse, and who was about 30m away at the time of the second collapse; 37.2 John Pearce (dogman) of Gillespies Cranes who was spinning the panel that was being lifted by the crane when it dropped, and he ran away; 37.3 Paul Pritchard (workshop manager) of Gillespies Cranes who attended the site after the first collapse and got very close to the crane to hit the emergency stop button before the second collapse; 37.4 Arthur Nehme (erection supervisor) of R&D, who was supervising at the time of the first collapse; 37.5 Charlie Nehme (labourer) of R&D who was directly under the crane at the time of the first collapse, and who also ran away from the second collapse, hurting his leg; 37.6 Joshua Cooper (labourer) of R&D who was about 15m from the crane at the time of the first collapse; 37.7 Carlos Alvarez (labourer) of R&D who was about 5m from the crane at the time of the first collapse; and 37.8 Scott De Gail (labourer) of R&D who was about 6m from the crane at the time of the first collapse. 38 The Denham employees on site included Gareth Goronwy (site foreman), Paul Sinclair (site manager) and Andrew Gleeson (site foreman). Mr Goronwy, Mr Sinclair and Mr Gleeson were about 100 - 150m away from the crane at the time of the first collapse, but then proceeded to go 'underneath' the area of the collapse to see where the outrigger had punched through the slab. Mr Goronwy and Mr Sinclair had passed by the area in which the crane was situated before the collapse. The hazard posed by the crane collapsing extended beyond the crane's exclusion zone and created a risk to Denham employees at the site. Failures 39 Denham did not have any system for checking that the crane had been set up on the correct pin-points. Denham left this for R&D. 40 At the Site, neither Gillespies nor R&D had any system for checking that the position on top of the slab on which each of the outriggers of the crane was placed were actually aligned with the under-props. Gillespies and R&D left this to Denham. Once the crane was on the marks, R&D assumed that it was correct. 41 Prior to the incident Gillespies, Vella and Arthur Nehme suggested to Denham that the location and alignment of the under slab props relative to the positioning of the crane outriggers be confirmed by drilling a small hole through the outrigger position on the suspended slab and to drop a line and plumb bob through the hole to mark the prop position. This idea was rejected by Denham because of a water-proofing issue with the units below and there were concerns raised about the drill hitting a stressing cable or electrical conduit. R&D and Denham knew that a recognised safety precaution was not available at the site. At other jobs, R&D had done on mezzanine floors it had been set up off gridlines, pilot holes drilled and a plumb bob plumbed for the underside of the top slab to the bottom slab. R&D had never had an issue at other sites using this practice. This was not adopted at the site. 42 R&D also suggested that the outriggers be placed on steel plates on the concrete slab to distribute the crane's load. This suggestion was also rejected by Denhams and its engineers. 43 Gillespies Cranes had been on the site working on other crane set-ups since 17 July 2008 and knew that this recognised safety precaution was not available. 44 Following the incident, R&D and Gillespies Cranes did not operate cranes on site until a surveyor had marked the pins, and R&D and Denham checked the positioning of the props and crane using grid-line documents. 45 Prior to the incident, there was no system for an engineer or surveyor to routinely check the set-ups. Although this had occurred for set-ups 1 and 2, it did not occur for set up 9. 46 Gillespies, R&D and Denham failed to ensure that there was a clear and effective system of communication for ensuring that the crane had been placed on the correct marks and that the crane was aligned to the under-props. Denham relied on verbal instruction and gestures (pointing) to communicate the correct marks to R&D. Denham did not check that the crane had been set up on the correct marks, and R&D and Gillespies Crane did not seek verification before lifting. 47 The markings for set-up 9 were not clear as a result of the following factors: 47.1 Yellow paint was used for all marks. 47.2 Denham claims the new marks were 1200mm east and 400mm south of the old marks. 47.3 The initial marks were not removed or eliminated by Denham. Denham claims that it scribbled over the old marks. This is denied by R&D. 47.4 The pin which Denham claims was inserted into the slab to mark the revised set up point for the rear left outrigger was not located after the collapse. The area of the slab comprising the point at which this pin should have been located formed part of the collapse. 47.5 Upon inspection of the top surface of the slab immediately adjacent to the western edge of the slab collapse, Inspector Hall did not observe any yellow paint marks consistent with yellow paint having been used to mark the rear left outrigger set up point. 47.6 There was various refuse and building materials placed near where the crane was to be set up and on top of where the rear right crane outrigger should have been placed in order to be aligned with the under slab prop. 48 Between the time of the first and second collapse: 48.1 Denham did not prevent its employees from initially 'going underneath' the slab; and 48.2 Neither Denham or Gillespies Cranes prevented Paul Pritchard of Gillespies Cranes from approaching within a close vicinity of the crane to hit the emergency stop button. 49 R&D conducted a toolbox talk with the Gillespies Cranes employees on the day of the incident. R&D provided supervision to Gillespies Cranes' employees. 50 R&D had a safe work method statement that was prepared for the site and dated 21 May 2008 (SWMS). The SWMS had been approved by Denham. Page 3 of the SWMS contained an 'erection method statement' which included the following steps: '12. Check propping under suspended slab and engineers certification for crane loads on slab. 13. Erection and crane travel area is to be barricaded off to provide a 20m zone, restricted to erection personal (sic) only. All traffic to be directed with adequate signage/barriers and traffic control/ controller. 14. Crane outriggers to be positioned over positions marked by surveyor as set out in relation to propping.' 51 Page 8 of the SWMS contained a hazard identification assessment for crane set up and panel erection which included control measures for lifting slabs including: Crane to be set up in positions as per the casting layout drawing. All instruction as per Panel Supervisor [meaning Arthur Nehme of R&D]. Mono props are securely positioned ready to receive beam load. Site to be secure, traffic and pedestrian control to be as per the builders Traffic Control Management Plan. No access is to be permitted under panels during the lifting process. 52 The SWMS was lacking in detail as to how and when steps such as checking the under-props was to occur. 53 Denis Vella was both a limited partner of R&D and the sole director of R&D Panelform (NSW) Pty Ltd being the general partner of R&D. 54 Mr Vella was involved in the design of the system of work at the site, and signed off on the Safe Work Method Statement. 55 Denis Vella was responsible for communication with Denham via Adam Kearns, Project Manager for Denham. 56 Mr Vella knew about set-up 9 being moved about a week before the incident but no information was given to him concerning where the revised set up was to be located and Mr Vella did not make any enquiries regarding the revised set up. Mr Vella was responsible for supervising the forming of concrete panels at the site, however, it was Mr Arthur Nehme who was always responsible for supervising the lift sequence of the panels. Relevant Principles 11In 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 ss 8(1) and (2) 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). 12Their 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]). 13Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 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. 14In 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." 15Section 3A of the Crimes (Sentencing Procedure) Act 1999 contains a comprehensive statement of the purposes of sentencing. It provides: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 16It is recognised that these purposes are sometimes conflicting and reconciliation of them can be difficult ( Veen v The Queen (No.2) (1988) 164 CLR 465 (at 476); WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 at [184] and the authorities cited therein). 17Of particular relevance is the effect of s 21A of the Crimes (Sentencing Procedure) Act . Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia : 21A Aggravating, mitigating and other factors in sentencing . . . (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) . . . 18When, in a plea of guilty, an Agreed Statement of Facts is tendered, those facts, as agreed, are proved beyond reasonable doubt. A fact advantageous to the offender can be proved on the balance of probabilities ( R v Olbrich [1999] HCA 54 ; (1999) 199 CLR 270 (at 281)). Not all facts are resolved in a way which either increases or decreases sentence. Matters may not be known by the sentencing judge ( Weininger v The Queen [2003] HCA 14 ; (2003) 212 CLR 629 at [23] - [24]). Consideration 19In 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 ... 20The charges faced by each defendant arise out of the same incident. The first defendant, R&D Panelform (NSW) Pty Limited, is charged with breaching the provisions of s 8(1) and s 8(2) of the Act in putting at risk both its employees and other sub-contractors's employees and members of the public at its worksite. The second defendant, Denis Charles Vella, the director of the corporation, is also charged with breaching the provisions of s 8(1) and s 8(2) of the Act. 21R&D Panelform was incorporated on 1 November 2006. Mr Vella, the second defendant, while the corporation's sole director is also the company secretary and its sole shareholder. The company was first formed some 25 years ago and its speciality was the casting (in concrete) and erection of tilt-up panels which panels are used in the construction of the walls in commercial and industrial buildings. 22However, a Limited Partnership, known as R&D Panelform Limited Partnership, also was formed between R&D Panelform (NSW) Pty Ltd and Mr Vella on 19 January 2007. R&D Panelform (NSW) Pty Ltd, the first defendant, is named "general partner" in the Partnership Agreement and Mr Vella is named the "limited partner". 23All contracts were written with the limited liability company (that is, through the partnership agreement). The first defendant had been sub-contracted by Denham Constructions Pty Ltd ("Denham"), the principal contractor, to form and erect pre-cast concrete panels. These precast panels were erected as room walls within a complex. The partnership company then sub-contracted Gillespies Cranes Nominees Pty Ltd ("Gillespies") to provide the crane and crane crew required to lift and place the pre-cast concrete panels into place at the site. 24To enable the crane to lift and erect the pre-cast panels the engineers designed the erection of an under-slab propping system which was to be placed under each point on suspended slabs at which the crane was to be set up. The under-slab propping system required a pair of Megashore backing-props to be erected under the point on the suspended slab on which each of the four outriggers of the crane were to be placed so that the weight on each outrigger would be borne directly by the pair of the Megashore backing-props. 25It was essential to the design of the propping system that each outrigger be placed directly over the pair of props as placed under the slab. 26However, Denham Constructions, the principal contractor, discovered that an electrical pit and plumbing pipes under the slab meant the crane would not be placed on the original pin points and yellow markings. A new position was found. New markings were made but in the same yellow colour which was already on the slab. 27R&D was on notice that the "system" for the placement of the crane as planned by Denham Constructions needed amendment. Mr Nehme of R&D was aware the set up marks initially put in place by Denham Constructions at one of the other units were erroneously marked and the markings on that set-up were only corrected after he brought the error to Denham Constructions' attention. However, Mr Vella, who was responsible for communicating with Denham Constructions in relation to the project, received no communication in relation to the new plan for re-location and made no inquiries about that change, although he knew there was to be an amendment to the original plans. 28Mr Goronwy, site foreman for Denham re-marked the slab. The slab, therefore, had two sets of yellow markings with two sets of points (mickey pins). Mr Nehme, the erection supervisor for R&D Panelform was shown the set up points by the site foreman, Mr Goronwy . Mr Nehme then guided the crane onto markings. The points onto which each outrigger was lowered was neither directly aligned with, nor supported by, a set of under-slab backing props. 29No check was undertaken by Denham Constructions or R&D Panelform (NSW) Pty Ltd, nor Mr Vella, that the outriggers were properly placed. No surveyor nor independent engineering report was required although the SWMS of the first defendant and the crane operator required such inspections. 30After set-up, the crane weighing 250 tonne (plus the weight of the outriggers) was used to lift some of the pre-cast concrete panels into place. On 26 September 2008, at approximately 10.08am in beginning a new lift, the crane's right outrigger pierced the concrete slab. The crane front fell to the ground. A second collapse occurred and the rear of the crane fell through the slab. 31There was the risk of serious injury and/or a fatality associated with the collapse of a crane through the suspended slab. The risk of this hazard was specifically known to the defendants well prior to the incident. The markings had also been a problem in a prior placement of the crane. No steps had been taken to amend the practices or to introduce any controls prior to the incident. 32The system of work adopted therefore required the first defendant to supply and erect concrete panels and to supervise Gillespies Cranes employees to make sure that the crane was correctly set up on the marks. Denham was responsible for marking the top of the slab with "pin points" and paint to indicate the set-up positions; the under-propping of the slab; ensuring that the position of the props were aligned directly under the pinpoints; painting the marking for the set up points on top of the slab, informing R&D where the set-up positions for each outrigger were and when the set-up was ready for the crane to move into position. 33Denham did not have any system for checking that the crane had been set up on the correct pin-points. It had refused both a check required by R&D for pin holes to be drilled into the slab and it failed to get an engineer's clearance as R&D's SWMS required by the crane operator (who had also wanted to use and was refused larger pads over the prop sites). It also suggested the outrigger be placed on steel plates and Denham and its engineers rejected this proposition. 34The charges cover the risk to not only R&D's employees (s 8(1)), but the risk to all persons on this busy industrial site (s 8(2)). 35Further, given there was prior knowledge held by each defendant that such marking points had caused confusion and in a circumstance where there was a prior practice by the defendant corporation to drill spot holes (a procedure refused by Denham) there was in such a circumstance a foreseeable element to the offence which makes the offence more serious. The Court, having sighted photographs is of the view the risk to safety was obvious. That element also makes each offence more serious in nature. 36The availability of simple and straightforward steps to remedy the defects in the system in place is also relevant to the consideration of the objective seriousness of the offence ( WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994). There were such steps readily available. Remedial activity after the incident is indicative of the fact a safe system of work was readily available and practical. 37The gravity of the potential risk to safety flowing from a breach is relevant as a measure of gravity of the breach and the culpability of the defendants ( Lawrenson Diecasting (at 474)). The potential risk of significant injury or death was not a remote possibility. There was a high risk to the safety of any person at work being required to work near this crane. The fact that no person was injured is good fortune - the risk was significant. 38This was a serious breach of the Act by the corporation and its controlling mind, Mr Vella, and the risk was more than foreseeable, it was obvious. 39I am satisfied the evidence establishes R&D did not have any system for checking the spots on which each of the outriggers of the crane was placed, were actually aligned with the under-slab props. R&D left this to Denham and presumed once the crane outriggers had been placed on the marks on top of the slab, the crane's location was correct, the outriggers were propped and it was safe to commence lifting. 40The second defendant, Mr Vella, was involved in the design of the system of work to be followed at the site and he approved the SWMS for the site in his capacity as Managing Director and was responsible for communication in relation to the site between Denham and the corporation; Mr Vella, knew about the need for the change in location of the props prior to the incident but was neither provided with, nor sought, any information regarding the change. 41However, there was a contribution to the risk by other parties. Denham Corporation was responsible for the site, under-propping the slab and ensuring the alignment of props and outriggers. Denham was present during the placement of the crane, or at the very least shortly thereafter. Denham did not interfere with the placement of the crane. 42The 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 Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 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. 43The WorkCover Authority concedes that the site was generally well managed and that R&D generally had good occupational health and safety systems and was conscientious in the application of those systems. R&D's occupational health and safety systems have been reviewed and improved by an occupational health and safety consultant subsequent to the accident. 44Further, R&D have worked in a dangerous industry for a long period without recording any conviction under Occupational Health & Safety legislation. R&D had recognised the risk that arose in the unusual event of working on a suspended slab and adopted a procedure to deal with the risk. However, on this site that procedure was rejected by Denham. R&D did not take further steps to ensure the alignment of the props and outriggers. 45While significant steps have been taken by the corporate defendant under Mr Vella's instruction after the incident, to minimise and attempt to eliminate risk, an element of specific deterrence is factored into penalty against Mr Vella and the corporate defendant. Each continues to operate this most successful business. 46As to general deterrence, this was a serious offence that could have led to a major tragedy. Those handling heavy machinery on a construction site must once more be reminded that every detail of such an operation must not only be planned, but when that plan is amended, the identification of hazards in the new SWMS must also be reviewed. Some of the necessary checks were in place in the original SWMS but they were not reviewed nor enacted. A simple method of spot checking after the placement of the crane would have revealed the potential of a most serious of industrial incidents. 47There was no clear marking of the new alignment points. It is unclear how the confusion between Mr Goronwy and Mr Nehme occurred but it was a failure to properly communicate and that led to disastrous consequences. The industry must again be warned that amendments to SWMS require a review of safety features and the identified safety steps in a work method must be enacted on the work site. 48Pursuant to s 21A(3)(k) of the Crimes (Sentencing Procedure) Act 1999 the defendants are to have their pleas of guilty taken into account in the assessment of penalties as factors in mitigation. T he defendants are entitled to a discount on each penalty flowing from the utilitarian benefit of each plea in accordance with the principles outlined in the guideline judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 ACrimR104 . The utilitarian value of the plea is offered in recognition of the practical advantages to the administration of justice. It is not to be exercised on the basis of mitigation of culpability (see Regina v Dib (2003) NSWCCA 117 at [3] - [8]). 49It is conceded by the prosecutor the 25 per cent allowance outlined in R v Thomson ; R v Houlton , whilst not binding on the Court, continues to provide guidance as to the maximum discount that should be allowed for the utilitarian value of a plea of guilty. There is some utilitarian benefit from the pleas in this case, albeit they were not early pleas. The issue is the quantification of that benefit. The benefit gained is not, however, the full benefit that would have flowed from the entering of early pleas. The defendants shall have the benefit of a 10 per cent discount for the entering by each of a plea of guilty but at a late stage in the proceedings and just before the listed hearing date. 50The defendants have no prior convictions and the prosecutor acknowledges that the Court may extend to each of the defendants the leniency normally extended to "first offenders". 51The defendants co-operated with the WorkCover Authority. 52Mr Vella came to Australia as a child of immigrant parents and has worked his way up from his parent's operations as market gardeners. He, through the partnership and the corporation, controls work performed by some 40 tradespersons and labourers and apprentices. The corporation is the major tilt up panel operator in NSW and has expanded its operations into Victoria and Queensland. Effort is made to employ staff from local communities. Local charities, when the corporation has a presence in the area performing major construction work, are supported. 53Both defendants are also fine corporate citizens. Mr Vella, on behalf of the defendant corporation, has expressed his personal remorse and that of the corporation and the amended SWMS are now rigorously adhered to on all sites as a demonstration of their determination to not re-offend. 54As to penalty, the defendants submitted they should be viewed by the Court as one employer for the purposes of penalty. The employer of the employees on site was under the partnership agreement. It was further submitted by the defendants the proper approach is to regard the offences in respect of both defendants as two offences and to apply a penalty as if it was two offences under the Act (s 8(1) and s 8(2)), not four offences. The Court would then impose the penalty on the company alone or on both the company and Mr Vella (by 50/50 division of each penalty) recognising that the penalty should not be imposed twice for the same offence and also recognising that the maximum penalty upon an individual with no prior conviction, is one tenth of the maximum penalty for a corporation. 55However, the prosecutor submitted it is not open on the evidence for the Court to sentence the defendants before the Court as if only one legal entity were before the Court (see Clode v Barnes [1974] 1 WLR 544 ; Linfox Resources Pty Ltd v R [2010] VSCA 319; Inspector Green v Big River Timbers Pty Limited and Inspector Green v Big River Timbers (Veneer) Pty Ltd [2006] NSWIRComm 279). 56Reliance is placed by the defendants on the reasoning in JT & LC Tippett Pty Limited and RD & LF Tippett Pty Ltd v WorkCover Authority of New South Wales [2008] NSWIRComm 177, where the Full Bench observed at [99]: Although the defendants have been found guilty of the same offence that was in the same terms and arose out of the same circumstances, their offences relate to corporate co-offenders who are in a partnership that is the employer. There is, therefore, a critical factual difference to that found to exist in Big River Timbers : in this case, the issue of totality does not arise because, as a result of the partnership, there is but one employer entity in law. We propose to proceed to sentence on this basis. However, it appears from the judgment in Tippett that the Full Bench was not referred to the decision of the High Court in Bishop v Chung Brothers (1907) 4 CLR 1262; [1907] HCA 23 or to Clode . I do not agree with the approach adopted in Tippett (that is, a partnership is a singular legal entity if it is the employer). In Bishop v Chung Brothers (1907) 4 CLR 1262; [1907] HCA 23, the question raised on appeal was whether the defendants both could be lawfully informed against and convicted in their firm's name. The Court convicted "Chung Bros" and gave one fine against "Chung Bros" for a breach of the Factories, Shops and Industries Act 1905. It was held on appeal (by majority) that the court at first instance had to find who "the individuals were that committed the offence" (reliance was placed on the reasoning in R v Littlechild LR6 QB 293). The error found was that the defendants were convicted jointly and should have separately been convicted and fined. 57Clode v Barnes (per Lord Widgery CJ at 547) considered the circumstance where a partner in a car sales business, who did not himself apply the false description to a car the partnership then sold (he being the partner who was working only in administration) was held to be jointly liable through the partnership. He was independently convicted and fined. 58Here the corporate defendant and the individual formed a partnership with limited liability. That partnership purported to be the employer of the employees on this site. WorkCover have not prosecuted the partnership but the two partners within the partnership. They are prosecuted in their respective capacities as an employer of workers employed " on behalf of the partnership" (cl 11.4(a) of the Partnership Agreement). The pleas of guilty, entered on behalf of each of the defendants to the charges constitute an admission of the legal elements of each offence, including employment, and are an acknowledgement by each defendant of their separate roles as an employer of workers who were employed "on behalf of the partnership " pursuant to the terms of cl 11.4 (a) of the Partnership Agreement and working at the site on 25 and 26 September 2008 . 59In Tippett on which reliance is placed by the defendant, the Full Bench held there was only one employer and the corporation and the family trust were but one. However, they were separately convicted of contravening s 8(1) of the Act. The penalty was subjected by the Full Bench first to the "unitary" approach with one overall penalty then allocated 50/50 by the Court as a penalty to be borne by each of the defendants who were trading in partnership. 60The facts and circumstances before this Court gave rise to two charges, each in similar terms, alleging contraventions of ss 8(1) and 8(2) of the Act against each defendant partner. The issue is, given the partnership was the vehicle through which the employment was enacted, can Mr Vella and the corporation through a partnership which was the sub-contractor on site performing the task giving rise to the breach and in a circumstance where each has admitted employment be viewed because of the partnership as one employer. In Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531 the "plurality" (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.) state at [10] of their joint judgment that: ... The obligation [imposed] upon the employer [by section 15 (1) of the 1983 Act] is expressed in terms personal to that employer. It is the employer who must ensure the health, safety and welfare of employees at work. The obligation is of the kind of non-delegable duty spoken of in Kondis v State Transport Authority [citation omitted]. It is not expressed in terms of the standard recognised by the common law, to take reasonable care. It is higher. So much is evidenced from the requirement "to ensure" the health, safety and welfare of employees or that persons are not exposed to their health and safety at the place of work [i.e. section 16 (2) of the 2000 Act. Exclusion of the common law standard is confirmed by the terms of the defences provided by s 53 ... 61In Kondis v State Transport Authority [1984] 154 CLR 672 Mason J (at 687 - 688), with whom Deane and Dawson JJ agreed, observed that the relationship between employer and employee is, beyond serious challenge, a relationship which generates in the employer a 'special responsibility', or duty to see that reasonable care is taken with respect to its employees: That such an element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences. 62Here I accept each partner was the employer as admitted and each carries a personal non-delegable duty to ensure a safe work site. 63On the authorities, I accept the criminal liability for breaches of the Act attaches to each of the named defendants both of whom through the partnership were carrying on the business jointly (as partners) and the liability carried by partners is personal and individual to each defendant partner. 64Further, the duties owed under s 8(1) of the Act and the duty owed under s 8(2) of the Act, whilst co-extensive, are duties owed to different classes of person. However, a simple comparison of the particulars as between the s 8(1) charge brought against each defendant discloses an overlap of criminality. The overlap in criminality will be reflected in an adjustment by the Court of the "total penalty" to be imposed on each of the defendants. 65The differing roles of each defendant and therefore the differing levels of criminality are also to be taken into account and properly reflected in the respective penalties to be imposed ( Signanto v The Queen (1998) 194 CLR 656 at 670). 66Therefore, I am of the view in the circumstances each defendant owed a duty both to their employees and others at their worksite. Each defendant was an employer. Each are distinct persons and not one legal entity and are independently liable for each offence committed in the name of the partnership. There will be differences in sentencing outcomes which will reflect the differences in the circumstances between the co-offenders. There is a difference in the maximum penalties applicable in that the corporate defendant is liable to a maximum of $550,000 in relation to each offence and the individual defendant is liable to a maximum of $55,000 in relation to each offence. 67While I accept there are mitigating factors which must be given consideration, penalty must reflect the seriousness of these offences. 68In IRC1060 of 2010 in the charge against R&D Panelform (NSW) Pty Limited under s 8(1), I find the defendant guilty. 69The defendant is fined in the sum of $180,000. 70In IRC1061 of 2010 in the charge against R&D Panelform (NSW) Pty Limited, the charge under s 8(2), I find the defendant guilty. 71The defendant is fined in the sum of $180,000. 72Under the principles of totality, as each charge relies upon similar facts, the totality of the penalty will be reduced to $200,000. 73Therefore, in IRC1060 of 2010, the corporate defendant is fined in the sum of $100,000 with a moiety to the WorkCover Authority of NSW. 74Therefore, in IRC1061 of 2010, the corporate defendant is fined in the sum of $100,000 with a moiety to the WorkCover Authority of NSW. 75In IRC1059 of 2010 in the charge against Denis Charles Vella under s 8(1) of the Act, I find the defendant guilty. 76The defendant is fined in the sum of $35,000. 77In IRC1058 of 2010 in the charge against Denis Charles Vella under s 8(2) of the Act, I find the defendant guilty. 78The defendant is fined in the sum of $35,000. 79In consideration of the totality of the criminality, the individual defendant is fined in the sum of $50,000. 80Therefore, in IRC1059 of 2010, the defendant is fined in the sum of $25,000. 81Therefore, in IRC1058 of 2010, the defendant is fined in the sum of $25,000. Orders 82The Court makes the following orders: 1. For the charges brought against R&D Panelform (NSW) Pty Limited in Matter No IRC1060 of 2010, under s 8(1) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $100,000 with a moiety to the WorkCover Authority. 2. For the charges brought against R&D Panelform (NSW) Pty Limited in Matter No. IRC 1061 of 2010, under s 8(2) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $100,000 with a moiety to the WorkCover Authority. 3. For the charges brought against Denis Charles Vella in Matter No. IRC1059 of 2010, under s 8(1) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $25,000 with a moiety to the WorkCover Authority. 4. For the charges brought against Denis Charles Vella in Matter No. IRC1058 of 2010, under s 8(2) of the Occupational Health and Safety Act 2000, I find the defendant guilty of the offence as charged. The defendant is fined in the sum of $25,000 with a moiety to the WorkCover Authority. 5. The defendants shall pay one order as to 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 re-list at short notice. 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: 16 December 2011