Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Christensen v Wadwell Group Pty Ltd (ACN 125 970 345) as trustee for the Wadwell Family Trust [2012] NSWIRComm 126
• Hearing dates: 22 October 2012
• Decision date: 16 November 2012
• Jurisdiction: Industrial Court of NSW
• Before: Boland J, President

Decision

Matter No 728 of 2011 (corporate defendant)

(1) The defendant, Wadwell Group Pty Ltd (ACN 125 970 345) as trustee for the Wadwell Family Trust, is convicted of an offence under s 8(2) of the Occupational Health and Safety Act 2000.

(2) The defendant is fined an amount of $200,000.

(3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court.

(4) The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed.

Matter No IRC 729 of 2011 (Allan William Wadwell)

(1) The defendant, Allan William Wadwell, is convicted of an offence under s 8(2) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of that Act.

(2) The defendant is fined an amount of $20,000.

(3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court.

(4) The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed.

Matter No IRC 730 of 2011 (Scott Anthony Wadwell)

(1) The defendant, Scott Anthony Wadwell, is convicted of an offence under s 8(2) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of that Act.

(2) The defendant is fined an amount of $10,000.

(3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court.

(4) The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Pleas of guilty by corporate defendant and directors of corporate defendant - Excavation for bungee pool as favour for friends - Trench collapse - One fatality and injuries to another person - Objective seriousness of offences - Need for general deterrence - Subjective considerations - Whether s 10 of Crimes (Sentencing Procedure Act) 1999 should apply to one director - Victim Impact Statements - Guilty findings - Convictions - Penalties imposed
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Fines Act 1996; Occupational Health and Safety Act 1983; Occupational Health and Safety Act 2000; Occupational Health and Safety Regulation 2001
• Cases Cited: Capral Aluminium Limited v Workcover Authority of New South Wales (2000) 99 IR 29; (2000) 49 NSWLR 610; Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Limited [1999] NSWIRComm 353; (1999) 92 IR 8; Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275; Inspector Kelsey v The University of Sydney (unreported, Industrial Court, Hill J, No 1280 of 1995, 2 April 1997); Inspector Nicholson v Gallagher [2012] NSWIRComm 121; Hannah v Ricegrowers Co-op Ltd (unreported, Industrial Court, Fisher P, No 90 of 1988, 20 November 1988); Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364; Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117; R v Mansour [1999] NSWCCA 180; R v Previtera (1997) 94 A Crim R 76; Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143; WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd [2004] NSWIRComm 259; (2004) 136 IR 449; WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd [2001] NSWIRComm 62; (2001) 105 IR 236; WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163; WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd [2002] NSWIRComm 316; (2003) 123 IR 121
• Category: Principal judgment
• Parties: Inspector Madeline Christensen (Prosecutor); Wadwell Group Pty Ltd (ACN 125 970 345) as Trustee for the Wadwell Family Trust (Defendant in IRC2012/728); Allan William Wadwell (Defendant in IRC2012/729); Scott Anthony Wadwell (Defendant in IRC2012/730)
• Representation: Mr D O'Neill of counsel (Prosecutor); Mr M Shume of counsel (Defendants); WorkCover Authority of New South Wales (Prosecutor); Moray & Agnew, Lawyers (Defendants)
• File Number(s): IRC 728, 729 and 730 of 2011

Judgment

1 On 14 May 2009, Timothy Haynes was killed when the wall of a trench he was working in collapsed. As a consequence of the incident that led to Mr Haynes' death, two brothers, Allan William Wadwell and Scott Anthony Wadwell, and the corporate entity of which the brothers were directors (Wadwell Group Pty Ltd (ACN 125 970 345) as trustee for the Wadwell Family Trust), were charged with offences under the Occupational Health and Safety Act 2000 ("the Act"). The corporate defendant was charged under s 8(2), which provided:

(2) Others at workplace

An employer must, so far as is reasonably practicable, ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

2 In relation to the corporate defendant, it was alleged in an amended application for order that the corporate defendant, being an employer at East Maitland in the State of New South Wales ("the premises"), failed:

By its acts and omissions particularised below, to ensure that persons not in its employment, and in particular Timothy Jon Haynes, Shane Townsend and Trent Tynan were not exposed to risks to their health and safety arising from the conduct of its undertaking while at its place of work contrary to s 8(2) of the Occupational Health and Safety Act 2000.

3 The particulars of the amended charge were as follows:

Risk

Timothy Jon Haynes and Trent Tynan were at risk of being struck and/or trapped and/or asphyxiated by wall collapse whilst working in an excavated trench.

Shane Townsend was at risk of injury from falling into the excavated trench.

Undertaking

The corporation's undertaking on the day was work related to the construction of a bungy (sic) pool and in particular the insertion of 'H' beams into an excavation at the premises.

The particulars of the charge under section 8(2) of the Act are:

1.The corporation failed to ensure that the premises were safe and without risk to health in that the corporation failed to:

a.Ensure the trench was shored up so that the sides would not collapse whilst workers were undertaking construction work in the trench.

b.Use earth retention equipment or other measures to control the risk of fall or dislodgment of material from the sides of the trench whilst workers were undertaking construction work in the trench.

c.Ensure that prior to workers entering the trench the excavated material (spoil) was removed from where it was stacked near the edge of the excavation.

d.Provide edge protection for the sides of the trench whilst workers were working in the vicinity of the excavated trench.

2.The defendant failed to provide a safe system of work for the task of insertion of 'H' beams into an excavation at the premises in that the defendant:

a.Did not ensure that the principal contractor put in place a site specific OH&S management plan.

b.Did not provide any site specific induction.

c.Did not provide any work activity induction.

d.Did not undertake any proper risk assessment process.

e.Did not identify the risk of the sides of the trench collapsing.

f.Did not identify the risk of workers falling into the trench.

g.Did not prevent persons working in the excavation whilst there was no shoring of the trench so as to prevent the sides from collapsing.

h.Did not prevent persons working in the excavation when there was no earth retention equipment or other measures to stop material falling or dislodging from the sides of the trench.

i.Failed to ensure that prior to workers entering the trench the excavated material (spoil) was removed from where it was stacked near the edge of the excavation.

j.Did not prevent persons working in the excavation when there was no edge protection for the sides of the trench.

As a result of the acts and omissions of the corporation, Timothy Jon Haynes, Shane Townsend and Trent Tynan were placed at risk. Timothy Jon Haynes was fatally injured.

4 Section 26 of the Act provided:

26 Offences by corporations-liability of directors and managers

(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that:

(a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or

(b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.

5 Relying on s 26, in amended applications for order the prosecutor charged each of the two personal defendants, Scott and Allan Wadwell, with a breach of s 8(2) of the Act on the basis of the alleged acts or omissions of the corporate defendant. The personal defendants were at all material times the two directors of the corporate defendant and operated together as its guiding mind. They were both involved in the work that led to Mr Haynes' death on 14 May 2009.

6 All three defendants pleaded guilty to the amended charge against each of them.

Agreed statement of facts

7 The prosecutor tendered an agreed statement of facts. The statement indicated that the personal defendants operated a commercial plastering business. It employed Aaron Dunn as a plasterer and Tim Dunn as an apprentice plasterer. Allan and Scott Wadwell were also paid as employees. In addition, the corporate defendant contracted the following tradesmen:

(i)Trent Tynan as a plasterer;

(ii)Shane Townsend as a carpenter;

(iii)Timothy Jon Haynes as a plasterer;

(iv)Scott Hall as a plasterer; and

(v)Jamie Lavelle as a plasterer.

8 The corporate defendant's primary business was commercial fitouts, external cladding and some residential plastering. It also performed various incidental tasks including carpentry work and door hanging. Shane Townsend was contracted to do carpentry work including door hanging and metal framing.

9 Scott and Allan Wadwell were friends with Christine Hosking and her husband, Robin Hosking. Robin and Christine Hosking resided at the premises. Christine Hosking owned the property. The Hoskings leased surrounding land from the local council that they used as a horse training facility for pacers/trotters.

10 In approximately April to May 2009, Allan Wadwell and Robin Hosking discussed a project to construct a "bungee pool" at the premises to aid in the training of their horses. A decision was taken to build the pool. The pool was to be based on the size of the pre-cast concrete panels and the steel "H" beams that Allan Wadwell was able to source without cost. It was intended that the trench to accommodate the pool be lined with the pre-cast concrete panels, which were to be held in place by the steel "H" beams that were to be concreted into pier holes at the base of the trench. Then the internal floors were to be concreted, the joints waterproofed and the trench filled with water.

11 The agreed facts included that:

Allan Wadwell was involved in the planning and discussion to build the bungee pool and this included personally organising most of the steps to build the pool including designing the pool with Robin Hosking, organising the steel beams, organising the concrete panels, involving himself in the installation of the 'H' beams, organising for Full Bore Constructions to install concrete panels and organising the concrete pump.

During the design stage of the bungee pool, no advice was sought from an engineer or someone experienced in soil mechanics. They did not ascertain if there were any underground services. Christine Hosking, as property owner, did not obtain council approval for the construction of the bungee pool.

Allan Wadwell sourced the materials needed for the construction of the bungee pool free of charge.

Neither Robin Hosking nor Christine Hosking made payments to any person or the corporation in relation to the construction of the bungee pool.

12 The trench was to be excavated by a friend of Robin Hosking, Neville Blakemore, who was a certified backhoe operator. At the time of the incident, Mr Blakemore owned the backhoe he used, however he had retired from work on 31 December 2008. Mr Blakemore did not get paid for the work he undertook on the construction of the bungee pool.

13 In relation to the excavation of the trench, the agreed facts were that:

Mr Blakemore placed the spoil that he dug out of the trench along both sides of the trench. On the northern side of the trench the spoil was placed approximately 0.5m up to 1 metre from the edge of the trench and the spoil on the southern side of the trench was placed behind the steel mesh fence that was along the edge of the trench.

At the end of the day on 13 May 2009, Mr Blakemore parked the backhoe at the eastern edge of the trench and shut the farm gates before leaving the property. The investigation revealed that there was no consideration given to the weight of the backhoe while it was working adjacent to the trench or the weight of the backhoe when it was parked overnight over the eastern end of the trench.

On 14 May 2009, Mr Blakemore returned to the site and finished excavating the trench.

Mr Blakemore was aware that people would be working in the trench although he did not question anyone in relation to shoring the trench walls. Mr Blakemore assumed that the precast concrete panels that were being put in the trench would be used to support the trench walls.

14 The trench was 17 metres in length and varied in depth from 2.3 to 3.5 metres along the length and was approximately 2.4 metres wide. The trench had a ramp at both ends to allow the horses to walk in and out of the pool.

15 The agreed statement of facts explained how the employees of the corporate defendant and the contractors, including Mr Haynes, came to be working at the premises on 14 May 2009:

Allan Wadwell spoke to Tim Haynes late in the afternoon on 13 May. They discussed the excavation and Allan indicated that if Tim and Shane finished their job early on 14 May he might need them to give him a hand at the Hosking's. About 6.30am on 14 May Jamie Lavelle and Scott Hall picked up some equipment from the shed. Allan raised with them the possibility of giving him a hand at the Hosking's if they finished their job at Dungog. They did not expect to finish and did not attend.

Shane Townsend and Tim Haynes attended a job in Beresfield to perform work as contractors to the corporation on 14 May 2009, on a job they had been working on in previous days. On that day Trent Tynan attended a job in Rutherford, as a contractor to the corporation, to continue work on a job he had been working on the day before. Jamie Lavelle and Scott Hall attended a job at Dungog as contractors to the corporation on that day, to complete work on a job they had been working on in previous days.

Shane Townsend, Tim Haynes, Trent Tynan Jamie Lavelle and Scott Hall invoiced the corporation their full daily rate for work on 14 May 2009. Shane Townsend, Tim Haynes and Trent Tynan provided their invoices to the corporation on the morning of the incident and billed in advance for their work on Thursday 14 May 2009 as was their usual practice.

At approximately 8.30am Scott Wadwell had a telephone conversation with Trent Tynan who advised Scott that the work he was doing at Rutherford was completed. Scott Wadwell told him to go to the Hoskings' residence. Shane Townsend and Tim Haynes tried to contact Allan Wadwell when they discovered that they could not complete their work at Beresfield due to an error made by another tradesman. When they could not get through to Allan Wadwell they rang Trent Tynan, who told them to come over to the Hoskings' residence.

On the same day, the day of the incident, Tim and Aaron Dunn, employees of the corporation, were working at Scott Wadwell's residence gardening and were paid as employees for that work on that day.

The task of building the bungee pool had nothing to do with the contractors, personally or individually.

The contractors, Trent Tynan, Shane Townsend and Tim Haynes had no interest in horses owned by the Hoskings or the Wadwells.

The contractors claimed and were paid for a full day on 14 May 2009.

Some of the beams were too heavy to be lifted by two people. Three people were required to assist with the lifting of some beams due to their size and weight.

16 It was an agreed fact that at all material times, Allan Wadwell supervised the work involved in the construction of the bungee pool after the excavation. He arrived on the site while Mr Blakemore, the backhoe operator, was finishing off the excavation. Allan Wadwell rang Scott Wadwell and asked him to come and give him assistance. Scott Wadwell turned up on site as Mr Blakemore was packing up.

17 During the morning of 14 May 2009, Scott Wadwell, Trent Tynan, Timothy Haynes and Shane Townsend arrived at the premises. At some stage Allan Wadwell, Trent Tynan and Timothy Haynes entered the trench and manoeuvred the steel "H" beam into the correct position in the north-eastern pier hole assisted by Scott Wadwell and Shane Townsend who were standing on top of the trench. What happened next was described in the agreed statement:

As Timothy Haynes, Allan Wadwell and Trent Tynan were manoeuvring the steel "H" beam into pier holes, the north-eastern trench wall behind the north-eastern pier hole collapsed toward the men in the trench.

As a result of the wall collapse, Trent Tynan was thrown back to the far side of the trench, Allan Wadwell was trapped up to his waist by the soil and Timothy Haynes was trapped up to his head by the steel "H" beam and soil.

As a result of the trench wall collapsing, Timothy Haynes sustained traumatic asphyxia causing his death. Allan Wadwell sustained facial and eye injuries.

18 The agreed statement described what the investigation into the incident revealed:

The investigation revealed that no principal contractor was appointed, there was no site-specific occupational health and safety management plan prepared and implemented, and there was no site-specific induction or a work activity induction given to the men undertaking the work.

There was inadequate risk assessment conducted.

There was no safe system of work put in place by the corporation for the insertion of "H" beams into the excavation.

In leaving materials stacked near the edge of the excavation work the corporation failed to comply with Clause 240(4) of the [Occupational Health and Safety] Regulation [2001].

In failing to put an adequate system in place in relation to shoring the corporation failed to comply with Clause 240(1) of the Regulation and in failing to control the risks of falling from height the corporation failed to comply with Clause 56(1) of the Regulation.

After the incident the emergency service personnel arrived on site and, while rescuing Allan Wadwell, they assessed the situation and decided that they would need to shore up part of the trench to ensure their safety while retrieving the deceased.

After the incident, the trench was backfilled and no longer poses a risk.

The Regulation

19 The relevant provisions of the Occupational Health and Safety Regulation 2001 were in the following terms:

56 Prevention of falls from heights-particular risk control measures

(1) An employer must ensure that risks associated with falls from a height are controlled by use of the following measures:

(a) provision and maintenance of:

(i) a stable and securely fenced work platform (such as scaffolding or other form of portable work platform), or

(ii) if compliance with subparagraph (i) is not reasonably practicable-secure perimeter screens, fencing, handrails or other forms of physical barriers that are capable of preventing the fall of a person, or

(iii) if compliance with subparagraph (ii) is not reasonably practicable-other forms of physical restraints that are capable of arresting the fall of a person from a height of more than 2 metres,

(b) provision of a safe means of movement between different levels at the place of work.

...

240 Protection of stability of excavation work-particular risk control measures

(1) An employer must ensure that, in relation to excavation work, an adequate system of safety, involving shoring, earth retention equipment or other appropriate measures, is in place to control risks to health and safety arising from one or more of the following:

(a) the fall or dislodgment of earth and rock,

(b) the instability of the excavation or any adjoining structure,

(c) the inrush of water,

(d) the placement of excavated material,

(e) instability due to persons or plant working adjacent to the excavation.

...

(4) An employer must ensure that adequate measures are taken in the immediate vicinity of excavation work so as to prevent the collapse of the work. In particular, an employer must ensure that no materials are placed, stacked or moved near the edge of excavation work so as to cause the collapse of the work.

Prosecutor's tender bundle

20 In addition to the statement of agreed facts, the prosecutor tendered into evidence the following material:

(a) a company search for the corporate defendant indicating that the only two directors were the personal defendants;

(b) prior conviction reports for the defendants indicating no previous convictions;

(c) an aerial view of the premises;

(d) a factual inspection report of Inspector Christensen attaching a sketch of the trench drawn by the Inspector and a sketch showing the "H" beam on the ramp;

(e) colour photographs of the incident scene taken by the prosecutor;

(f) colour photographs of the incident scene taken by Inspector Greg Saunders;

(g) a drawing of the trench by the prosecutor;

(h) the WorkCover Code on Excavation Work;

(i) a tax invoice statement to Wadwell Plastering from Trent Tynan Invoice No. 558499 and statement with transaction history dated 14 May 2009;

(j) a facsimile cover sheet to Inspector Christensen from Shane Townsend attaching tax invoice dated and bank statement, facsimile cover sheet to Inspector Christensen from Shane Townsend attaching transaction history;

(k) a tax invoice statement from Timothy Haynes to Wadwell Plastering dated 14 May 2009;

(l) a sketch signed by N Blakemore, certificate of competency as power crane driver of N Blakemore and WorkCover General Induction card of N Blakemore.

Defendants' evidence

21 The defendants' evidence consisted of affidavits by: Allan Wadwell; Scott Wadwell; Michelle Wadwell and Bob Shillington, fabrication manager of GWH Build Pty Ltd. Allan and Scott Wadwell were required for cross-examination.

Allan Wadwell

22 Mr Wadwell described his business, the employees of the business, the contractors he engaged and that he and his brother were good friends with the Hoskings.

23 Allan Wadwell described the decision to construct the bungee pool and how he and Robin Hosking designed the pool together. By that he meant:

Robin identified the position that the pool was going to be built, we used the size of the slabs to calculate the size of the pool and I drew up, on a piece of paper, a rough plan of the pool.

24 Allan Wadwell said:

Robin and I did not discuss any payments being made to any person or the corporation in relation to the construction of the bungee pool. In my mind, I planned to work on the job as a favour for good friends (Robin and Christine Hosking) and I had no intention of it being a project undertaken by the corporation.

25 Mr Wadwell described the excavation of the pool and how he marked out on the ground the dimensions for the width and length of the hole for the backhoe driver. Mr Wadwell said:

During the day I attended the property on several occasions and went into the excavation whilst Neville [Blakemore] was there to check the depth of the hole. At no stage did Neville indicate that I should not be in the hole or that it might be dangerous. My observation at the time was that the walls of the excavation were very solid, there was no crumbling or falling in of any of the walls, and I did not even consider that the walls might collapse.

...

I was unaware that it was dangerous to put spoil close to the edge of the excavation. I thought that Neville, who I understood had been involved in that industry for more than 30 years, would have known this and taken the appropriate precautions. I relied upon his experience and knowledge to carry out the excavation safely.

I was also unaware of the need to shore up the hole. I have not been involved in any form of excavation work previously, other than having observed part of a backyard pool excavation.

I had not given any further consideration or made any further arrangements with any of the people that I had hoped to get assistance from in relation to the construction of the bungee pool. Robin's phone call about the availability of the excavator surprised me.

26 Allan Wadwell described what occurred on 14 May 2009. He referred again to the walls of the excavation:

My observation that morning was that the walls of the excavation were very solid. There was no sign of crumbling soil or falling in of any of the walls. There was nothing to indicate to me that there might be a problem, particularly that the walls might collapse.

27 Mr Wadwell proceeded to describe the collapse of the wall and its consequences:

As Tim and I were holding the beam in place, a section of the trench wall gave way and collapsed in on top of us.

I was pinned up to my waist and was unable to move from this position. I had been struck in the head and could hardly see as a result of this. Tim was in a much worse position than me as he was almost fully covered. Scott, Trent and Shane came to our assistance. They started digging out around Tim. I remember rescue people attending but as to what happened and how it happened, I do not know. I was conveyed to hospital by helicopter and remained in hospital under observation for 24 hours. The main issue I had was damage to my eyes.

28 Allan Wadwell explained the involvement of the corporate defendant. He said it was never intended by him that the corporation would undertake the work performed at the premises in relation to the bungee pool. Mr Wadwell said the job was completely outside of the corporation's expertise. He said he now understood that the corporation only became involved in performing work on 14 May 2009 when Tim Haynes, Trent Tynan and Shane Townsend assisted with the "H" beams. Mr Wadwell said:

I never intended for the corporation [to] do this work by having the contractors assist with the "H" beams because I was of the belief that the work was being performed as a favour without any payment. I gave no thought to the corporation being involved in the work prior to the incident.

29 In his affidavit, Mr Wadwell deposed to the following:

I had no experience in constructing pools prior to commencing work on the site for Robin Hosking. I will not be undertaking any work similar to the excavation or construction of the bungee pool again in the future, either by myself or by any corporation that I am involved in.

I have personally wanted to take responsibility for this incident since it occurred. I was of the belief that I had organised the work personally and that I was in control of the site on 14 May 2009. I did not believe that the corporation had played any part in the construction of the bungee pool.

I have attempted to plead guilty, by offer to the prosecutor on 4 October 2012, to a personal prosecution (unrelated to the corporation). This offer was not accepted. Scott played no part in the organisation of the construction of the bungee pool. I directed the work on a personal level, although I had told Scott what I was doing and that I may need him to give me a hand.

I have entered the plea of guilty based on the amendment of the prosecution to relate to the involvement of the corporation in relation to the "H" beams only. It had been my belief immediately after the incident, and as a result of advice provided, that the corporation was not involved in the construction of the bungee pool and in particular the insertion of pre-cast concrete panels. However, as identified above, the issue of the corporation paying Tim Haynes, Shane Townsend and Trent Tynan for work being performed on that day is sufficient to satisfy the corporation's involvement.

30 Allan Wadwell described his community activities and his close involvement with Tim Haynes outside work. He stated:

Tim's death was devastating. Because of my involvement in organising the work that was being performed I feel personally responsible. This is a really difficult issue to live with. Even though this occurred almost three and a half years ago I struggle to deal with it. There isn't a day that I don't think about it. I try to do this when nobody else is around because I really can't control my emotions. I don't like to talk about it and I think some people have thought that this means I don't care. The truth is I do care but I just can't bear to talk about it. I would like Tim's family to know that I am so sorry about what occurred and I just wish there was something I could do to change everything.

Michelle Wadwell

31 Michelle Wadwell is married to Scott Wadwell. Mrs Wadwell was employed by the corporate defendant. Her duties involved office administration including payment of wages, taxes and superannuation. Mrs Wadwell said the corporate defendant had five employees, Scott and Allan Wadwell, Aaron Dunn, Tim Dunn and herself. The corporation, she said, also used a number of contractors. Several of the contractors worked almost exclusively for the corporate defendant. They were Timothy Haynes, Shane Townsend, Trent Tynan, James Lavelle and Scott Hall.

32 In relation to payments to employees and contractors Mrs Wadwell stated:

I did all of the pays on a weekly basis for the employees and contractors of the corporation. They were done on two days of the week, Thursday and Friday.

On Thursday I paid all of the employees and Tim Haynes, Shane Townsend and Trent Tynan.

My usual practice on Thursdays was to process all of the payments in the morning between 6.00am and midday depending on my other commitments. The three contractors provided me with invoices, generally on the morning, via fax. Their invoices always included a number of nominated hours, usually eight, for the Thursday that I processed the payments.

33 Mrs Wadwell provided a copy of the three invoices that she received on Thursday 14 May 2009. She processed these invoices on the morning of 14 May 2009 by making a direct payment from the corporate defendant's bank account to each of the contractor's bank accounts.

34 Mrs Wadwell said she never saw any paperwork relating to the bungee pool. She was unaware, prior to the accident, that a bungee pool was being built.

35 An email was tendered from Mr Wayne Goodchild to Mrs Wadwell identifying certain bank transactions that occurred on 14 May 2009.

Scott Wadwell

36 Scott Wadwell covered similar ground in his first affidavit to what appeared in his brother's affidavit. In addition, he said Allan Wadwell informed him that he and Robin Hosking had discussed the possibility of constructing a bungee pool. Scott Wadwell did not hear anything further about this until he rang Allan Wadwell a few days before the incident and his brother told him he was with Robin Hosking and Ken Bradshaw at Hunter Pre-cast looking at precast concrete slabs for the bungee pool.

37 Scott Wadwell said the next time he heard anything about the pool was on the afternoon of 13 May 2009 when Allan Wadwell told him that Robin Hosking had organised for an excavator to come out and he had been out there helping with the levels. He said he did not pay too much attention at the time, as he was really not involved in the organisation of the work.

38 Scott Wadwell deposed the following as to the events of 14 May 2009:

At around 7.10am I rang Allan. During that conversation he said words to effect of "I am trying to get steel beams from Bob at GWH Building and I might need a hand".

At around 8.03am on 14 May 2009 I rang Allan and during that conversation he said to me words to the effect "the steel we need for the bungee pool will be ready this morning. Can you come over and give me a hand".

After I finished the phone call with Allan I arranged to leave my home. At that time Aaron and Tim Dunn, the corporation's employees, were performing gardening work at my house because there was no other work available for them on that day.

I arrived at the site at around 8.30am. Shortly after arriving I noticed that Neville Blakemore was packing up his backhoe equipment, I also noticed that there was a hole that had been excavated. Neville left the site shortly after I arrived.

I was unaware that it was dangerous to put spoil close to the edge of the excavation. I thought that Neville, who I understood had been involved in that industry for more than 30 years, would have known this and had taken the appropriate precautions with this excavation.

I was however unaware of the need to shore up the hole. I had not been involved in any form of excavation work previously, other than having observed part of my backyard pool excavation which was carried out by a contractor.

At around the same time, I had a missed phone call from Trent Tynan and I rang him back at about 8.32am. I don't remember the conversation but shortly thereafter he turned up at Robin Hosking's place.

Somewhere between 11.00am and 11.30am, Shane Townsend and Tim Haynes also turned up at Robin's. Allan, Trent and I were already working and they just got in and started helping us. I did not contact them to attend Robin's. I now know that they tried to call Allan but when they couldn't get him, they rang Trent and Trent told them we were at Robin's place.

I had not given any thought to the fact that the corporation was performing this work. I believed that it was a job Allan had organised with Robin unrelated to the corporation and that I was just giving my brother and a mate a hand.

Until Trent turned up this was the case. I now understand that because Trent, Tim and Shane were being paid by the corporation on the day that the corporation, by default, was doing the work.

Had I believed at the time that the corporation was performing the work, I would have directed Aaron and Tim Dunn, the corporation's employees, to assist with the work at [the premises].

39 Scott Wadwell stated that he had no experience in excavation work. He said he would not be undertaking any style of work similar to the excavation or construction of the bungee pool again in the future, either by himself or by any corporation in which he is involved.

40 Scott Wadwell explained the circumstances in which the guilty plea was entered:

On 4 October 2012 I instructed my barrister to hold discussions with WorkCover regarding the possibility of an amended charge based on my now understanding that the corporation did in fact have some involvement. I understand that at 4.54pm on 5 October 2012 my solicitor received a fax from WorkCover indicating that the charge would be amended so that the prosecution relating to the involvement of the corporation was in respect to the "H" beams only.

Soon after 5.00pm on 5 October 2012, I provided my solicitor with instructions to enter the plea of guilty based on the amendment of the prosecution to relate to the involvement of the corporation in relation to the "H" beams only. It had been my belief immediately after the incident, and as a result of advice provided, that the corporation was not involved in the construction of the bungee pool and in particular the insertion of pre-cast concrete panels. However, as identified above, the issue of the corporation paying Tim Haynes, Shane Townsend and Trent Tynan for work being performed on that day is sufficient to satisfy the corporation's involvement.

I entered my plea of guilty as soon as possible after the charge had been amended.

41 Scott Wadwell explained the effect of the incident on him:

Tim's death was a tragedy. I was involved in Tim's life from an early age as he was our first apprentice. This makes the whole matter even more difficult to deal with. Even though this occurred three and a half years ago I still have difficulty dealing with it. I think about it every day. My family have noticed a big change in my behaviour and personality. I am now less patient and tolerant to my family and this has placed a strain on my relationship with my family. I would like Tim's family to know that I am so sorry about what occurred and I just wish there was some way I could wind back the clock and change what happened.

42 In his second affidavit Scott Wadwell detailed how the corporate defendant engaged a workplace safety consultant to review the corporation's workplace safety documentation. The consultant prepared a workplace safety management manual in 2010, which was updated in 2012. The manual is a comprehensive one.

Bob Shillington

43 Mr Shillington deposed to the following matters:

I recall that on 14 May 2009 I had a conversation early in the morning with Mr Allan Wadwell. Mr Wadwell asked me about purchasing steel beams in a size which I cannot particularly recall however I do recall that they were UB.

After my conversation with Allan I went out into the yard and checked the yard as to whether or not we had any off cuts to suit the size that Allan required. I then rang Allan back and let him know that we had some available. I understand as far as I can recall that conversation was sometime around 7.00 to 7.30 in the morning. I recall this because we start around 5.00 and it was a couple of hours after that.

I recall that Allan came down to the yard mid morning at some stage I would estimate around 10.00 or 10.30. He collected the steel from the yard.

The first conversation I had with Allan in regards to picking up the steel was that conversation early in the morning.

I had been dealing with Allan for over 12 years and he and the Wadwell Group have been contractors for GWH over that time. I am the fabrication manager at GWH Build Pty Ltd and have been for a number of years.

References

44 In evidence were two character references, one by Mr Jonathan Craig, Director of GWH Build in relation to Allan Wadwell and one by Mr Wayne Brown, Director, W A Brown Building Pty Ltd in relation to both Allan and Scott Wadwell.

Consideration

45 The Court must first, and primarily, consider the objective seriousness of the offence in determining penalty: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. This requires attention to be focussed upon "the risk [to safety] and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk": Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32].

46 The defendants pleaded guilty to amended charges that involved a risk to persons of being struck and/or trapped and/or asphyxiated by wall collapse whilst working in an excavated trench and a risk of injury from falling into the excavated trench.

47 The risk arose in the following circumstances:

(a) a trench up to 3.5 metres deep; 17 metres in length and 2.4 metres wide was excavated by a backhoe;

(b) tonnes of spoil from the trench was placed within a metre of the edge of two sides of the trench;

(c) the backhoe was parked overnight over the eastern end of the trench;

(d) the "H" beams were supported by four wooden stakes 9000 mm long sledge hammered into the earthen sides of the trench, the uppermost two stakes appearing to be about one metre from the top of the trench;

(e) three persons entered the trench and manoeuvred a steel "H" beam into the correct position in the north-eastern pier hole assisted by two persons who were standing on top of the trench.

48 As the three persons in the trench were manoeuvring the steel "H" beam into pier holes, the north-eastern trench wall behind the north-eastern pier hole collapsed toward the men in the trench. As a result of the trench wall collapsing, Timothy Haynes sustained traumatic asphyxia causing his death.

49 There was almost a complete absence of any active consideration by the defendants of the risk and no measures were put in place to guard against it. It simply did not consciously enter the minds of the personal defendants that the task they were undertaking carried with it the most serious risk of a person or persons being killed. The facts in this regard included that:

(a) there was no site-specific induction or a work activity induction given to the men undertaking the work;

(b) there was inadequate risk assessment conducted;

(c) there was no safe system of work put in place by the corporation for the insertion of "H" beams into the excavation;

(d) in leaving materials stacked near the edge of the excavation work the corporation failed to comply with cl 240(4) of the Regulation; and

(e) in failing to put an adequate system in place in relation to shoring the corporation failed to comply with cl 240(1) of the Regulation and in failing to control the risks of falling from height the corporation failed to comply with cl 56(1) of the Regulation.

50 The fact that the defendants were unaware of the risk is no reason in this case why the Court would be more lenient than it otherwise might be. The test is whether the risk was reasonably foreseeable, that is, whether or not the ordinary jury person or reasonable observer could have foreseen the risk: Inspector Kelsey v The University of Sydney (unreported, Industrial Court, Hill J, No 1280 of 1995, 2 April 1997 at 10).

51 In Hannah v Ricegrowers Co-op Ltd (unreported, Industrial Court, Fisher P, No 90 of 1988, 20 November 1988) Fisher P stated:

It was true that it may be difficult to anticipate the way in which even an obvious and avoidable risk may work itself out. Most serious accidents are not anticipated. This does not excuse any employer from a failure to employ a safe system of work incorporating obvious and desirable safety standards.

52 In Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Limited [1999] NSWIRComm 353; (1999) 92 IR 8, Walton J, Vice-President stated:

Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng, Matter No. IRC 3064 of 1997, 12 August 1999 at 39), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (at 700); James Moore v Vibro-Pile (Aust.) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at p17) and The University of Sydney (at 16).

53 In WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd [2001] NSWIRComm 62; (2001) 105 IR 236 at [70]-[74] Walton J, Vice-President stated:

[70] The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature: Capral at [82]....

[71] The defendant submitted, however, that the risk had not been actually foreseen and, therefore, the offence was relatively less serious. In support of this contention, it was submitted that the process giving rise to the incident was not considered by the defendant to be a normal work practice. Further, it was submitted that the means of transferring the molten metal by the defendant on the day of the incident had not been assessed for risk and, therefore, the risk had not been foreseen.

[72] I accept the contention advanced by the defendant that had the risk to safety been actually foreseen, there would be an increase in the overall seriousness of the offence: Axer Pty Ltd v Environmental Protection Authority (unreported, Court of Criminal Appeal, Matter No. 60763 of 1992, 22 November 1993) at [8]. I also accept the submission by the defendant that the risk of injury had not been actually foreseen in the present matter.

[73] However, the submissions made by the defendant as to whether the incident was 'foreseen' also reveal that the defendant had not established a system for the assessment of risk in relation to the work practice in question prior to the incident. Whilst the defendant, on the evidence, had taken elaborate and extensive steps to ensure occupational health and safety at the workplace, the adoption of the particular process giving rise to the incident, without the assessment of risk, does indicate at least some flaw in the safety systems adopted by the defendant.

[74] True it is, that the procedure adopted was not a regular work practice. However, the systems of work adopted by the defendant must include searching for and identifying all possible risks and the institution of safety measures to guard against those risks: WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Hill J, Matter No. CT1280 of 1995, 2 April 1997 at 21). Employers are required to maintain constant vigilance and take all practical precautions to ensure safety in the workplace: Capral at [77].

54 In applying those authorities to the present case one may first ask whether the risk was reasonably foreseeable. In my opinion, the answer to that question is "yes". The reasonable observer would see a trench dug into the earth up to 3.5 metres deep, 17 metres in length and 2.4 metres wide. The observer would see that there was no shoring up of any of the walls of the trench, that wooden stakes had been driven into the earthen walls at the point of the pier holes to hold the "H" beams temporarily in place, and that if the walls collapsed there would be no protection for any person working in the trench. The reasonable observer could come to no other conclusion than that a risk existed.

55 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Kembla Coal and Coke. In the present case death and injury did result.

56 An offence will be serious "where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible": Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 at [90]. Clearly, shoring the walls of the trench was an available and feasible measure.

57 Whilst it may be accepted the defendants did not foresee the risk, the facts were that they never considered whether a risk might exist notwithstanding the work they undertook was unfamiliar to them. The corporate defendant was engaged in an active business; it was an employer of labour and the two personal defendants were the directors of that business. The business was subject to the occupational health and safety laws. Mr Allan Wadwell agreed in cross-examination that he was familiar with the concept of undertaking a risk assessment before doing work and familiar with safe work method statements. Scott Wadwell agreed in cross-examination that as a director of the corporate defendant he had an understanding of safety management plans as at 14 May 2009 and that he had an understanding of risk assessments and safe work method statements. However, none of the experience and knowledge gained in the operation of the defendants' business in relation to safety was applied to the task of the bungee pool at the premises.

58 In my opinion, the objective seriousness of the offence is not diminished by the defendants not having foreseen the risk in circumstances where they did not undertake an adequate risk assessment and took no safety precautions whatsoever: see Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275 at [11]-[12].

59 It was said by Allan Wadwell that he had relied upon Mr Blakemore's experience and knowledge to carry out the excavation safely. However, he also said he did not consider safety and consulted no one, including Mr Blakemore, about the safety of the excavation including whether sledge hammering the pegs into the wall might have some effect on the stability of the walls. He simply assumed it was safe. Scott Wadwell said he was unaware that it was dangerous to put spoil close to the edge of the excavation and he was unaware of the need to shore up the hole. He said he thought that Mr Blakemore would have known about the danger of putting spoil close to the edge of the excavation and that Mr Blakemore would have taken the appropriate precautions with the excavation.

60 Even if it be accepted the defendants relied on Mr Blakemore to advise them about the safety of the excavation because of his purported expertise and even if it were accepted Mr Blakemore was negligent in not doing so, that does not excuse the conduct of the defendants. The responsibility for safety may not be delegated. It is the employer upon whom the Act places the obligation to ensure a safe workplace: WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd [2002] NSWIRComm 316; (2003) 123 IR 121 at [40]-[42].

61 A further matter relevant to the objective seriousness of the offence is the maximum penalty: Morrison v Powercoal (No 3) at [16] and [17]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [30] and [31]. In respect of the corporate defendant that maximum is $550,000 and for the two personal defendants it is $55,000 each.

62 The Full Bench in Capral Aluminium Limited v Workcover Authority of New South Wales (2000) 99 IR 29; (2000) 49 NSWLR 610 held that both general and specific deterrence should normally be given weight of some substance in the sentencing process, "and although there may be exceptional cases ... we would expect such cases to be very rare ..." (at [74]).

63 In relation to general deterrence, counsel for the prosecutor submitted:

There must be a clear message coming from the court as the Act recognises, that if companies are going to have their contractors and/or employees involving themselves in areas that they are not familiar with, companies must take the appropriate steps to inform themselves of all relevant safety information in relation to that work.

64 In this regard, I agree with the prosecutor. There will surely be occasions where directors of corporations, especially smaller ones in the contracting field, are asked by family, friends, neighbours or community organisations to undertake or assist in undertaking work because, as employers, they have certain resources and/or business contacts that will enable the work to be done more cheaply or efficiently than otherwise might be the case. The work will range from small jobs to large and may involve the corporation using its employees or contractors. Where that is the case and whether the job involves work familiar to the corporation and its directors or is unfamiliar, it will require the corporation and its directors to take the same approach to safety they are required to take in their normal work under the occupational health and safety laws, whether that be on a construction site, in a factory or any other place of work.

65 Accordingly, the penalties will include an appropriate element for general deterrence.

66 In considering what weight is to be attached for specific deterrence, the Court must consider a defendant's propensity to re-offend. Allan and Scott Wadwell continue to assist on community projects using their corporation's labour. However, the Court is satisfied the incident on 14 May 2009 had a devastating effect on both these men and their propensity to re-offend and that of their company, in my view, is low. I take into consideration the fact that the incident has caused the personal defendants to review and update the safety policy and procedures of their company when undertaking its usual work of commercial fitouts and external cladding.

67 In the context of objective seriousness one must examine the level of culpability of each of the defendants. The first matter I need to deal with in this respect was a dispute about particular 2(a) in the amended charges. That particular provided that the defendant:

a. Did not ensure that the principal contractor put in place a site specific OH&S management plan.

68 There seems to have been agreement that the principal contractor was the owner of the premises, that is, the Hoskings. The WorkCover Authority's Code of Practice covering Excavation Work (March 2000) provides that:

The principal contractor should ensure that a site specific occupational health and safety management plan is prepared and documented for each place of work where construction is to be carried out.

69 The Code of Practice was approved as an industry code of practice pursuant to s 44A of the Occupational Health and Safety Act 1983 ("the 1983 Act") and is relevant in these proceedings: see s 46 of the Act.

70 The Occupational Health and Safety Regulation 2001 provided at cl 210 that a principal contractor was to be appointed in respect of a place of work at which high risk construction work was undertaken and the cost of the work did not exceed $250,000: cl 210(1)(b) and (2). Clause 210(6) provided:

Subject to subclause (4), if an owner does not appoint a principal contractor for the construction work, the owner is taken to be the principal contractor for the construction work.

71 Clause 210(4) is not relevant. The pertinent point is that cl 210 provides that the Hoskings were the principal contractor.

72 There was no specific legislative obligation on the defendants or any of them to ensure the Hoskings put in place a site-specific OH&S management plan. However, the Code of Practice required a contractor to consult with the principal contractor on matters of safety including prevention of collapse or failure of trenches and open excavations (3.1), shoring (3.3) and fall prevention (3.6.1). The Code of Practice also required consultation between a contractor and principal contractor to ensure that a site-specific occupational health and safety management plan was prepared and documents before construction commenced.

73 If the charge had been that the defendants had failed to consult about the site-specific occupational health and safety management plan that particular would have been made out. However, I am disinclined to find the defendants guilty of failing to ensure that the principal contractor put in place a site-specific OH&S management plan when there was no legislation obligation to do so. The particular 2(a) is struck out, although consistent with the view of all parties, to do so makes little difference to the gravamen of the amended charges.

74 The next matter is that the charges relate to a specific day, namely, 14 May 2009, and to a risk that arose, in my opinion, on that day once persons approached the edge of the trench (risk of falling in) and once persons entered into the trench (risk of injury from collapse). So any conduct before or after that day, for example, Allan Wadwell's involvement with Robin Hosking in planning and designing the bungee pool, is not a matter for the Court's consideration and cannot be taken into account in aggravation. However, the Court is able to take into consideration that Allan Wadwell had far greater involvement in the construction of the pool than the other two defendants and on 14 May 2009 was in the most informed position to recognise risks to safety and undertake safety measures.

75 The corporate defendant had no involvement until 14 May 2009. According to the amended charge, the corporate defendant's involvement was limited to "work related to the construction of a bungy (sic) pool and in particular the insertion of 'H' beams into an excavation at the premises." Scott Wadwell was aware of an intention to build a bungee pool in April 2009, but it was not until 13 May 2009 that he was told an excavator had been organised to dig the trench. Then at about 8.00 am on 14 May 2009 Scott Wadwell was asked by his brother to "come over and give me a hand."

76 In terms of relative culpability, Allan Wadwell is most culpable. He had the closest involvement and was clearly in charge of the work. Scott Wadwell's culpability is less than that of his brother for the reason that his involvement in what occurred on 14 May 2009 was essentially limited to providing his labour.

77 The level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s 26(1) cannot be greater than that of the corporation who has been convicted or otherwise assumed to be guilty for the purposes of the operation of the section. However, the culpability of the personal or individual defendant may be less than that of the corporate defendant: WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [38] in which Wright J, President was referring to the predecessor provision of s 26, namely, s 50(1) of the 1983 Act.

78 The corporate defendant's culpability is limited by the fact it did not become engaged until its contractors were placed at risk on the morning of 14 May 2009. That is to say, the corporate defendant could not be held to be culpable in relation to the construction of the bungee pool. However, once it became engaged its failures to ensure safety were comprehensive, both in respect of its failures to ensure that the premises were safe and without risk to health and its failures to provide a safe system of work for the task of insertion of 'H' beams into the excavation at the premises. Whilst the corporation was not involved in excavating the trench for the bungee pool it was involved in the insertion of the "H" beams in the excavation. The insertion of those beams required persons to stand near the edge of the excavation and to go into the excavation. The failure by the corporation to ensure the safety of those personnel in that circumstance is central to its culpability.

79 There are a number of subjective considerations. First, the three defendants pleaded guilty. However, the pleas were not entered at the earliest opportunity and frankly I am unable to see any great difference in the amended charges compared to the original charges. It would have been open to the defendants to enter pleas at an earlier stage. As it was, the defendants did not enter pleas until the charges were amended in October 2012 to limit the liability of the corporate defendant to the task of insertion of 'H' beams into the excavation at the premises. I am prepared to discount the penalties by 20 per cent.

80 Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provides in relation to remorse as a mitigating factor as follows:

(i) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

81 It is undoubtedly the case that Allan Wadwell has accepted responsibility for his actions. He has pleaded guilty and sought to take the whole of the blame for what occurred. It is evident he has been personally severely affected by Mr Haynes' death. Mr Scott Wadwell also pleaded guilty and was badly affected by the death. He also arranged to take comprehensive steps to ensure the corporate defendant in undertaking its usual work had up to date policies and procedures in place regarding occupational health and safety. The corporate defendant is the alter ego of the personal defendants. One may accept their remorse is reflected in the corporate defendant.

82 A further consideration is the co-operation by the defendants with the WorkCover Authority. Whilst cooperation is required, I note there was no reticence or unwillingness to cooperate with the investigating authority.

83 The evidence also indicates that the defendants are of good character and are unlikely to re-offend.

84 It was submitted by counsel for the defendants that in respect of Scott Wadwell, an order pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act would be appropriate. Sections 10(1) and 10(3) provide respectively:

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

...

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person's character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

85 An offence that is objectively serious will rarely attract the exercise of a sentencing discretion under s 10 in favour of a defendant: WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd [2004] NSWIRComm 259; (2004) 136 IR 449 at [55]. The exercise of such a discretion is saved for extraordinary and highly exceptional circumstances: Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143 at [13].

86 The offences in this case were objectively serious. In respect of Scott Wadwell, whilst I accept his culpability was considerably less than his brother what cannot be overlooked is that Scott Wadwell had been in business with his brother for 16 years. During that period the business were subject to the occupational health and safety laws and Scott Wadwell had an understanding of safety management plans, risk assessments and safe work method statements as at 14 May 2009. There was no reason why that understanding should not have been applied to the tasks involved on 14 May. Scott Wadwell's late entry into what occurred on 14 May is also no reason to withhold conviction. It was part of Scott Wadwell's responsibility to search out risks to safety and those risks being so obvious in this case preclude any resort to s 10.

87 The Court accepts the defendants' guilty pleas and the defendants are convicted of the offences charged.

Victim Impact Statements

88 Tim Haynes' mother, Ellen and father Phil, provided Victim Impact Statements. Mrs Haynes described her utter shock on hearing the news of her son's death. She said 2009 was to be a year of joy for the family with her son to be married and to have his 30th birthday. Instead of his wedding and birthday the family had his funeral to arrange.

89 Mrs Haynes said her health has been affected by the stress and she suffered a stroke on the day before Timothy's funeral. Mrs Haynes described how much she missed her son and the sadness she feels on some days was overwhelming.

90 Mr Haynes said that having to identify his son's body was the worst day of his life and would continually haunt him. He said the lives of his family and close friends had been changed forever. Mr Haynes struggles to cope every day with the continual reminders of what should have been. He said he and his son were good mates "but I will never again have the chance to tell him so or how much I loved him." Mr Haynes said:

As parents, we will never again get to hear his voice, enjoy his company or to see what was to be our son's upcoming marriage. We will never have the opportunity to be grandparents to Timothy and Kasey's children that would have surely followed and which would have verified our belief that he would have made a great father.

This still all seems like a bad nightmare yet here we are.

91 The Court extends its sincerest sympathy to Mr Haynes' family, including his fiancée. The Court of Criminal Appeal in R v Mansour [1999] NSWCCA 180 and R v Previtera (1997) 94 A Crim R 76 said that on sentence the Court may bear in mind the Victim Impact Statement and have regard to the particular effects of the death of the deceased on members of the family. However, the Court should not give these considerations weight in determining the sentence to be imposed.

Penalty

92 In determining penalties in this matter I am conscious that any penalty on the corporation, which is only a small enterprise, will be a penalty to be borne by the personal defendants. That is a matter I have taken into account, but I should add there was no evidence of incapacity to pay any penalty.

93 As it was recently observed in Inspector Nicholson v Gallagher [2012] NSWIRComm 121 at [95] the primary consideration of the Court in sentencing is to impose a sentence which is commensurate with the seriousness of the crime. However, it is also the case that, the Court is not to impose a crushing or oppressive penalty.

94 Having regard to all of the circumstances I intend to impose a penalty on the corporation of $200,000 and on Allan Wadwell of $20,000. The penalty on Scott Wadwell will be $10,000.

Orders

95 The Court makes the following orders:

Matter No 728 of 2011 (corporate defendant)

(1)The defendant, Wadwell Group Pty Ltd (ACN 125 970 345) as trustee for the Wadwell Family Trust, is convicted of an offence under s 8(2) of the Occupational Health and Safety Act 2000.

(2)The defendant is fined an amount of $200,000.

(3)Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court.

(4)The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed.

Matter No IRC 729 of 2011 (Allan William Wadwell)

(1)The defendant, Allan William Wadwell, is convicted of an offence under s 8(2) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of that Act.

(2)The defendant is fined an amount of $20,000.

(3)Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court.

(4)The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed.

Matter No IRC 730 of 2011 (Scott Anthony Wadwell)

(1)The defendant, Scott Anthony Wadwell, is convicted of an offence under s 8(2) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of that Act.

(2)The defendant is fined an amount of $10,000.

(3)Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court.

(4)The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed.

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Decision last updated: 16 November 2012