Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Cobbin v Transfield Services Engineering Group [2013] NSWIRComm 33
• Hearing dates: 8 April 2013
• Decision date: 30 April 2013
• Jurisdiction: Industrial Court of NSW
• Before: Staff J

Decision

1. The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence, as charged.

3. The defendant is fined an amount of $100,000 with a moiety thereof to the prosecutor.

4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, as assessed.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 10(2) of the Occupational Health and Safety Act 2000 - maintenance services industry - collapse of steel frame - worker seriously injured - general and specific deterrence - subjective factors - plea of guilty to amended application for order- penalty imposed - costs
• Legislation Cited: Corporations Act 2001; Crimes (Sentencing Procedure) Act 1999; Occupational Heath and Safety Act 2000; Occupational Health and Safety Regulation 2001
• Cases Cited: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339; Ltd (1999) 92 IR 8; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29; Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8; Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66; Inspector Ch'ng v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73; Inspector Cobbin v Thomas & Coffey Limited (ACN 000 263 678) [2012] NSWIRComm 46; Inspector Olive v Transfield Pty Limited [2001] NSWIRComm 295; Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465; Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189; R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326; R v Sukkar [2011] NSWCCA 140; R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd t/a Transfield Maintenance (No 2) [2001] NSWIRComm 289; (2001) 110 IR 160
• Category: Principal judgment
• Parties: Inspector Wayne Cobbin (Prosecutor); Transfield Services Engineering Group Pty Ltd (Defendant)
• Representation: Mr R Reitano of counsel (Prosecutor); Mrs W Thompson (Defendant); WorkCover Authority of New South Wales (Prosecutor); K&L Gates (Defendant)
• File Number(s): IRC 305 of 2011

Judgment

1 Transfield Services Engineering Group Pty Ltd ("the defendant") provides project management services to industry. In or around July 2008, the defendant submitted a tender to BlueScope Steel (AIS) Pty Ltd ("BlueScope") for a project known as the Ore Preparation Upgrade Project ("OPUP") at its premises in Port Kembla in the State of New South Wales.

2 At the same time, Thomas & Coffey Ltd ("Thomas & Coffey") were engaged by BlueScope to carry out maintenance work on the existing cooler system for the No 3 Sinter Machine Plant.

3 Prior to the defendant commencing work at the site, Thomas & Coffey in 2008, had also installed for trial, the rail cooling system of the new No 3 Sinter Machine. The trial rail cooling system had been installed at a remote area of the Commonwealth Rolling Mills Site known as "Siberia". The trial rail cooling system was a component of the new No 3 Sinter Machine that was to be installed after a successful trial.

4 Discussions were held between the defendant and Thomas & Coffey, which resulted in Thomas & Coffey submitting to the defendant a price for carrying out the disassembly of the trial rail cooler as well as a price for the assembly of the cooler in the No 3 Sinter Machine Plant.

5 On or about 24 February 2009, a purchase order was issued to Thomas & Coffey by the defendant for the disassembly of the trial cooler. BlueScope also engaged Hatch Associates Pty Ltd ("Hatch") to provide engineering personnel and project management personnel.

6 Planning work for the disassembly of the trial cooler was carried out in consultation with the defendant, Hatch and BlueScope's OPUP project teams. The majority of the disassembly work was completed by 29 March 2009.

7 The dismantling of the trial cooler system on 30 March 2009 required the use of a crane. AllState Cranes and Plant Hire Pty Ltd ("AllState") were contracted to Transfield Services (Australia) Pty Ltd ("TSA") to provide crane services. As part of the dismantling process dip rail panels of the cooler weighing 7.5 tonnes were required to be removed from the dip rail pit area. The dip rail frame was made of fabricated steel measuring 2.3 metres high and 8.1 metres long and weighing approximately 1.7 tonnes.

8 The removal of the inner dip rail panel was completed without incident around 12.00pm. Discussion subsequently took place between fitters, riggers and labourers in respect of removing the bottom support frames as there was not enough clearance due to the height of a threaded bar securing the frame to the ground and the minimum clearance of a structure or ledge it sat under.

9 A decision was made that a boilermaker would cut the hold down bolts once the frame had been secured by the crane.

10 At approximately 2.00pm on 30 March 2009, two fitters, Joseph Zappia and Frank Kerr made a unilateral decision to remove the hold down studs before the frame was secured by the crane, leaving the dip rail frame unsecured. As members of the crew were attempting to hook up the dip rail frames to lifting chains that were attached to the crane, the frame toppled over landing on David Wormleaton's leg causing crush injuries that resulted in the amputation of his right leg just below the knee. No other worker was injured.

The charge

11 The defendant in an amended application for order was charged with a breach of s 10(2) of the Occupational Health and Safety Act 2000 ("OHS Act") by failing to ensure that the plant was safe and without risk to persons other than its employees and in particular to David Wormleaton, Joseph Zappia, Dean Graham, Alan Neves and Frank Kerr arising from the course of its trade, business or undertaking.

12 The particulars of the charge were:

(a) The risk to the health and safety of David Wormleaton, Joseph Zappia, Dean Graham, Alan Neves and Frank Kerr was the risk of a dip-rail frame made of fabricated steel weighing approximately 1.7 tonnes and being approximately 2.3 metres high by 8.1 metres long becoming unsupported and falling over and crushing them or any one of them underneath it.

(b) The defendant had control of the plant by reason of a contract between it and Bluescope Steel (AIS) Pty Limited for Major Works (with Design Option) of One Prepration Upgrade Project (OPUP) Major Shutdown Installation - Sinter Plant (CM 006) ("the Contract"). Under the Contract Mr Mark Sheldon was the nominated Team Leader for the installation of the Sinter Cooler.

(c) The premises were at the CRM site, Bluescope Steel, Old Port Road, Port Kembla, Sinter Plant and Raw Materials Handling Area, Port Kembla Steelworks, Port Kembla in the State of New South Wales.

(d) The defendant's trade, business or undertaking was the provision of project management services related to the Ore Preparation Upgrade Project at the premises.

(e) The defendant failed to ensure that the plant was safe when properly used because it failed to prevent the plant from being unsecured by reason of the hold down studs which had secured it being removed before it was secured to or attached to a crane.

(f) The defendant failed to ensure the plant was safe when properly used in that it failed to take adequate steps to ensure that the method used by T&C to remove the inner dip rail had been adequately risk assessed and documented and contained adequate controls.

(g) By reason of the defendant's acts and omissions the people identified above were exposed to the risk.

13 The defendant pleaded guilty to the offence as charged in the amended application for order. I am satisfied on the evidence that the defendant is guilty of the offence as charged and it is appropriate for a plea of guilty to be entered. It follows therefore, that this judgment is concerned with the question of penalty.

14 Section 10(2) of the OHS Act provides:

A person who has control of any plant or substance used by people at work must, so far as is reasonably practicable, ensure that the plant or substance is safe and without risks to health when properly used.

Prosecutors evidence

15 Mr R Reitano of counsel appeared for the prosecutor. Mr Reitano tendered an agreed folder of documents which included an agreed statement of facts which read:

Background

1. At all material times, the prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (Act) and empowered under Section 106 of the said Act to institute proceedings under the Act.

2. At all material times Transfield Services Engineering Group Pty Limited ACN: 076 861 615 (TSEG) had its registered office at Level 10, 111 Pacific Highway, North Sydney in the State of New South Wales.

3. At all material times TSEG was a corporation which conducted a business, trade or undertaking in the provision of project management services.

4. At all material times BlueScope Steel (AIS) Pty Limited (BlueScope) owned and occupied premises known as the Commonwealth Rolling Mills (CRM) site, Old Port Road, Port Kembla (the premises). At the premises, BlueScope operated a trial Sinter Cooler plant. BlueScope was undertaking a project known as the Ore Preparation Upgrade Project (OPUP) at the premises.

5. The OPUP Project commenced in March 2007. As part of the scope of works to be undertaken as part of the OPUP BlueScope commissioned a new Sinter Cooler which was manufactured in Korea.

6. To ensure that the new cooler functioned properly before its final installation BlueScope arranged to undertake a trial of the rail cooling system. The trial required the rail cooling system to be erected, tested and dismantled at the premises. The trial was also undertaken to reduce the shut-down time needed when the new Cooler was ultimately installed. The rail cooling system was installed and trialled at a remote location on the site approximately 3 kilometres from where the new Sinter Cooler was to be installed. The area was known colloquially as "Siberia". The area was completely fenced off and access to the premises was under the control of BlueScope, TSEG and Thomas & Coffey Limited ("T&C"). All visitors to the premises were required to sign the visitor's register before access was granted.

7. The Hatch Project Manager was Jim Fresh and the Construction Manager was Peter Hall. Both managers reported to Phillip Smith, the BlueScope Vice President for Capital Development and Engineering. BlueScope engaged Hatch Associates Pty Limited ("Hatch") to provide engineering personnel and project management personnel. The persons provided by Hatch for that role were Glen Stimson (Project Engineer), Sushil Rawat (Construction Engineer) and Bob Burke (Site Co-ordinator).

8. At all material times BlueScope had in place a safety management plan for the OPUP Project. The plan set out site safety rules, procedures and policies, including policies relating to contractors.

9. On or about 4 March 2009 TSEG entered into a contract with BlueScope for the last component of the Major Works (with Design Option) of Ore Preparation Upgrade Project (OPUP) Major Shutdown Installation - Sinter Plant (CM 006) (Contract).

10. Transfield Services Australia Ltd (TSA) provided labour to undertake work required under the Contract. Mark Sheldon (Mr Sheldon) was employed by TSA. The contract named Mark Sheldon, as Cooler Team Leader for the installation of the Sinter Cooler. The primary role of Mr Sheldon was to co-ordinate the works required to install the new Sinter Cooler, including the dismantling of the trial rail cooling system with the authority to direct work in relation to the sinter plant.

11. Under Schedule 7 of the Contract, T&C were nominated as the subcontractors to TSEG to provide the engineering services, supervision, labour, materials and equipment and overall management for the disassembly of the trial cooler at the premises. There was no separate contract between TSEG and T&C. The installation of the trial rail cooling system had been carried out by T&C under the direction of BlueScope and Hatch. T&C had access to the engineering drawing for the trial rail cooling system that had been provided by BlueScope and Hatch for the installation and subsequent disassembly of the plant. TSEG had no role in the installation and trial of the rail cooling system.

12. The scope of work to be undertaken by T&C was set out in the purchase order as "Provision of Labour, Materials and Equipment necessary for disassembly of the New Cooler generally as detailed in work portion 8.1 of target cost estimate." The purchase order also stated that "Work to be done under the direction of Transfield's Mr Mark Sheldon."

13. T&C employed Paul Rodgers (engineer), Peter Reinhardt (supervisor), Scott Rodgers (leading hand boilermaker), Joe Zappia (fitter), Frank Kerr (fitter), Alan Neves (rigger), Steve Ashton (boilermaker), and Vito Esposito (rigger). These workers formed the T&C work crew that was involved in the disassembly of the cooler.

14. For the disassembly of the trial rail cooling system Mr Paul Rodgers developed a time sequence and lift studies and trial lifts were conducted.

15. This planning work was carried out in consultation with TSEG, Hatch and BlueScope OPUP project teams. The majority of the disassembly work was completed by 29 March 2009. The work planned for 30 March 2009 was the removal of the inner and outer dip rails. The dismantling of the trial cooler system on 30 March 2009 required cranage. Allstate Cranes & Plant Hire Pty Ltd (AC) were contracted to TSA to provide crane services at the premises for the dismantling of the dip rails. Allstate Labour Hire Pty Ltd (ALH) provided labour to AC to assist with crane services provided for the disassembly of the new cooler at the site.

16. ALH employed David Wormleaton as a dogman, Dean Graham as a dogman, Darcy Rolfe as a crane driver and Wayne Fuller as a Supervisor (referred to hereafter at the "ALH Crew").

17. The company 24 Hour Cranes Pty Ltd were the owners of the crane that was used at the premises.

The Contract

18. Under the Contract TSEG was required to undertake work at the premises. The work that was required to be undertaken was set out in Technical Specification titled 'Engineering Specification for CM 006 - The Structural and Mechanical Installation of the Sinter Plant: Feed End, Discharge End and Cooler; Rev O, dated 14 March 2009, document number OPUP - TS - SP - CO - CM 006 - 00774. Under the contract TSEG and its subcontractors were required to carry out all of the work in accordance with the Contract.

19. Under the Contract access to the CRM premises conferred upon TSEG a right to use and control of the premises as was necessary to enable TSEG and its sub-contractors to carry out work under the Contract.

20. Under the Contract TSEG was obliged to comply with the Occupational Health and Safety Act 2000 (NSW) and with other advisory standards relating to occupational or workplace health and safety.

21. Under the Contract TSEG was entitled to subcontract any of the work required to be done by it to subcontractors nominated in the Contract including T&C. However, the subcontractors were to be approved by BlueScope pursuant to Schedule 7 of the Contract. Schedule 7 also provided BlueScope's list of preferred contractors. Under the Contract TSEG was responsible for the performance of its subcontracts (including T&C) and the management and supervision of their activities; was liable for the acts and omission of the subcontractors as if they were those of TSEG and was not, in the event that work was subcontracted, relieved of any of its obligations under the Contract.

22. Under the Contract TSEG was required to comply with BlueScope's site requirements. The site requirements required TSEG to develop, implement and administer a Site Specific Safety Plan ("SSSP plan"). Under the SSSP plan TSEG was required to conduct, review and audit any of its subcontractor's Health, Safety and Management systems prior to appointing the subcontractor. If the subcontractor's system failed to meet TSEG's requirements and the work was high risk the subcontractor was required to review its management system. Where the work was low risk the subcontractor was required to adhere to the TSEG management system. Under the Contract TSEG also had to comply with the BlueScope site safety plan in relation to subcontractors. Under the BlueScope site safety plans, BlueScope together with Hatch would review the subcontractors JSEA's for specific tasks and where BlueScope permits were required.

23. At all relevant times, BlueScope had in place a system for the issue of Authority to Work Permits. An "Authority to Work Permit" ("AWP") was issued to T&C for the disassembly of the trial rail cooling system for the period 26 March 2009 to 2 April 2009. Peter Hall issued the permit on behalf of BlueScope. Mr Jai Steele a Hatch engineer reviewed the JSEA's provided by T&C for the work. TSEG audited the safety systems of T&C on a regular basis. Under the protocols in place TSEG would from time to time review the JSEA's prepared by T&C for the disassembly work.

Sinter Cooling Plant Trial

24. Sinter is a hard wearing material manufactured at BlueScope Steelworks premises. Sinter is used to line the refractory surface of a blast furnace to minimise damage when the raw materials for the production of molten iron are added. It is produced by combining raw materials of iron ore, limestone and coke which are baked in a furnace and then left to cool on a circular conveyor type cooling bed. During the sintering process, when the sinter is cooled, it is discharged (tipped out) from the oven cars onto the cooling bed (revolving circular conveyor), then sent to the blast furnace for continuation of the process. The area where the discharge occurs is known as the dip-rail area.

25. The trial rail cooling system for the new Sinter Cooler was an elevated hollow circular structure. Two curved rail tracks formed part of the elevated track cars holding the sinter were to move along in a continuous sequence. The dip rail of the elevated circular track was a section in the rails which dipped down to allow discharge of the sinter from the cars onto a conveyor below. The culvert area below the track was used to access the inner area from the outer area of the track. The structure was supported by two steel frames in a horizontal position. A further two steel frames were positioned within the two beams in an inverted 'v' position and were bolted onto a concrete pad on the culvert floor by four hold down studs with nuts.

26. The trial of the Sinter Cooling Plant took place at a remote corner of the premises. The area was completely fenced off and access to the premises was controlled by TSEG and T&C. All visitors to the premises were required to sign the visitors register before access was granted.

The Incident

27. On the 30 March 2009 the ALH Crew arrived at the sinter cooler site Port Road, Port Kembla at about 7am. Lance Wise, an employee of TSA held a toolbox meeting outside the premises with the ALH Crew. The meeting covered the general site activities and hazards in accordance with the BlueScope safety management plan. Instructions were then given to the AC and ALH Crew to take the cranes to the work site where the dismantling of the trial rail cooling system was taking place ("Siberia"). The ALH Crew signed onto the TSEG attendance sheet.

28. The ALH Crew were assigned to work with the T&C crew to dismantle and remove the dip rail panels, rails and frames of the sinter plant cooling trial using a 100 tonne Grove Truck mounted crane.

29. The ALH crew were inducted by Peter Reichardt, Supervisor employed by T&C, into the specific site at which the work would be undertaken. The ALH crew attended the T&C job start and read through the JSEA. Following the job start session, the ALH crew together with Wayne Fuller conducted their own JSEA and lift study.

30. The ALH Crew together with T&C employees commenced work. As part of the dismantling process, the 7.5 tonne dip rail panels of the cooler were required to be removed from the dip rail pit area. The workers were then required to remove the side bracing of the dip rail structure which was comprised of two in situ beams and four beams lying in the work area. The two in situ beams were each secured separately to a concrete pad by four hold down studs with nuts. The dip-rail frame was made of fabricated steel measuring approximately 2.3 metres high by 8.1 metres long and weighing approximately 1.7 tonnes.

31. The dip-rail frame that had to be removed was situated under the top rail structure. Because of the minimal clearance between the frame and the top rail structure, the frame had to either be tilted over and then lifted clear by the crane or lifted slightly by the crane and the hold-down studs cut to allow it be moved sideways and then lifted.

32. Around 11am the removal of the outer dip rail panel commenced. However Peter Reichardt requested that the load be re-slung as he was not happy with it. He also instructed the fitters Joe Zappia and Frank Kerr to replace the bolts while the dogman re-slung the load. At around 12pm the removal of the inner dip rail panel was commenced. This job was completed successfully without incident. The removed panels were placed in a lay down area.

33. Around 1pm Scott Rodgers had a discussion with Alan Neves, David Wormleaton and Steve Ashton. Scott Rodgers gave instructions to Alan Neves and David Wormleaton to sling the top beans. He requested that once this had been done that the fitters, Joe Zappia and Frank Kerr, were to remove the bolts on the top beams and then the riggers - Alan Neves and Vito Esposito, were to remove the beams.

34. Alan Neves, David Wormleaton and Steve Ashton discussed how to remove the bottom support frames as there was not enough clearance due to the height of the threaded bar securing the frame to the ground and the minimum clearance of the structure/ledge it sat under.

35. It was decided that Steve Ashton, boilermaker, would cut the hold down bolts once Alan Neves and David Wormleaton had secured the frame. The frame would then be swung out then lifted. Scott Rodgers then left the area to check upon other works being undertaken at the premises.

36. At approximately 2:00pm, Joe Zappia and Frank Kerr made the unilateral decision to remove the hold down studs before the frame was secured, contrary to the verbal instruction given by Mr Scott Rodgers. They proceeded to loosen and remove the hold down nuts marked "1", "2" and "3" on the bottom beams of the structure which secured it to the concrete pads leaving the dip rail frame unsecured. Mr Wormleaton and other members of the ALH crew were not made aware of the decision.. The result of their actions was to leave the dip rails unsupported and therefore unstable.

37. David Wormleaton and Alan Neves were attempting to hook up one of the dip-rail frames to lifting chains that were attached to the crane. Dean Graham was standing in the pit area near David Wormleaton acting as a spotter. Alan Neves reached up and slung the chain over one end of the structure and hooked on. David Wormleaton threw another set of chains over the structure but was not tall enough to hook on.

38. Alan Neves commenced to step up onto the bottom beam of the structure to attach the chain sling. As he did so the structure started to sway. Dean Graham noticed the frame sway, yelled out and ran away from the area. Frank Kerr also observed the structure move and yelled out to everyone to clear the area. David Wormleaton commenced to run away from the area, as he was doing so the frame toppled over landed on his leg, causing crush injuries that resulted in the amputation of Mr Wormleaton's right leg just below the knee. Alan Neves was unhurt.

39. At the time that David Wormleaton and Alan Neves were performing the tasks ready to remove the panels they were unaware that the hold down nuts had been removed from the studs.

40. Following the incident, various persons inspected the concrete pads and the hold down studs and nuts of the two in situ beams. The inspection revealed that all eight nuts had been either loosened or removed from both in situ frames making the frames both inherently unstable. The remaining dip rail was immediately secured. The dip-rail frame that fell was secured using a synthetic webbing sling and a come along type rigging apparatus. The other dip-rail frame opposite was also secured using the same method. The frames were then removed by attaching a crane to the frames before the hold-down nuts were removed completely and the securing rigging equipment removed.

Safety at the Premises

41. TSEG had a SSSP plan for the OPUP work conducted at the premises. TSEG's SSSP required pre-project meetings to be undertaken to ensure a systematic work methodology was followed throughout the project. A representative from each workgroup or team involved in the project was required to attend each meeting. In addition it required a start up meeting to be held at the beginning of each shift which was to be used as a common means of communicating safety initiatives and or concerns to all personnel working on the project.

42. At the time of the incident T&C had in place a Safety Management Plan. The T&C Safety Management Plan required T&C to undertake toolbox meetings at the start each shift or when there was a significant change in the work to be undertaken. All people working at the premises where the trial rail cooling system was located were required to attend the meetings.

43. At the time of the incident T&C undertook site specific inductions for the work undertaken at the premises. In accordance with the site specific induction, T&C required JSEA's to be undertaken for all tasks. In addition it required its supervisors to undertake a tool box talk which included a discussion regarding the JSEA's with all personnel involved. On the day of the incident Peter Reichardt undertook a toolbox talk in relation to the dismantling of the cooler trial. It covered working at heights, mobile crane load and housekeeping. Frank Kerr, Joe Zappia and Alan Neves were in attendance at the talk.

44. T&C's Safety Management Plan required it to have in place a JSEA/ safe work method statement which identified and considered the risks and control measures for the specific work tasks to be undertaken at the premises.

45. T&C had a JSEA in place at the time of the incident which related to the task of the removal of the outer and inner dip panels.

46. The T&C JSEA contained four parts. Part 1 of the JSEA was a two page checklist. Mr Peter Reichardt completed the checklist on 30 March 2009. The second page identified that an AWP was required. Part 2 of the JSEA was a checklist for manual handling. Scott Rodgers completed the checklist on 30 March 2009. Part 3 was a prepared risk assessment for the task of removing the inner and outer dip rail panels dated 24 February 2009. Points 1 to 11 of the risk assessment identified the work sequence, hazards, risk and controls to be used for the removal of the Outer & Inner Dip Rail Panels. Points 7 & 8 of the risk assessment identified the work sequence to be: (7) "Rig Outer Dip Rail for lifting" and (8): "Break Outer Dip Rail Panel Bolted Connections".

47. Part 4 of the JSEA required a daily risk assessment that identified the work sequence, potential hazards, risk and control measures The JSEA identified the risk of "crush injury" and identified the control measure to be used as "* cut bolts after load rigged up". It was later revealed during the WorkCover investigation that Scott Rodgers had added this page to the document after the incident following instructions from Peter Reichardt.

48. Because no daily risk assessment was completed as required by the JSEA, the JSEA did not address the various tasks associated with the removal of the support frames and consequently did not identify the requirement to cut the hold down studs and bolts after the load had been rigged up. That risk and control measure was the ideal measure to eliminate the risk of being struck or crushed by the dip rail frame falling over. Had this control measure been implemented and followed before the incident, David Wormleaton would not have been injured.

49. ALH had in place safe work methods for both slewing and non slewing cranes. The ALH Crew attended the T&C job start and read through the JSEA. Following the job start session, the ALH crew together with Wayne Fuller conducted their own JSEA and lift study.

50. As a result of the T&C JSEA not identifying specific steps on the day of the incident, neither of the safe work method statements identified the steps to be undertaken in the task of dismantling the dip rail frames and consequently did not identify the risk of frames falling by the premature removal of the hold down nuts.

51. ALH and TSEG did not see the JSEA prepared by T&C for the removal of the outer and inner dip rail panels.

52. On the morning of the incident Mr Sheldon had rung Mr Wayne Fuller of ALH to check that the cranes had arrived. Mr Fuller advised that the cranes were on site and that he was conducting start up meetings and lift studies. At about 11.45am Mr Sheldon spoke to Mr Reinhardt to check on the progress of the work. Mr Reinhardt advised that the work was going "OK". TSEG did not make any inquiry of T&C before work commenced as to whether they had completed the daily risk assessment for the work.

53. At 1pm Mr Sheldon conducted a progress review meeting with Hatch, TSA and T&C representatives. The T&C supervisor, Peter Reinhardt attended the meeting. The meeting was held at a building adjacent to where the disassembly work was being carried out. At about 2pm the meeting concluded and the participants then conducted an inspection of the lay down (holding) area.

54. At the time of the incident Mr Sheldon was approximately 100 metres to the north of the worksite with Mr Bob Burke and Mr Jai Steele. On hearing a noise the group immediately went into the worksite and took control of overseeing assistance to Mr Wormleaton and the securing of the unsupported dip rail frame.

55. The T&C employees who had worked on the assembly of the cooler trial were not the same employees working on the dismantling on 30 March 2009. There was no hand over between the two crews to confirm the process and steps associated with the assembly of the cooler.

56. At the time of the incident, David Wormleaton, Alan Neves and Dean Graham were not aware that the hold down nuts had been removed whilst they were undertaking the work in question. It is usual practice when performing this type of work to secure the load before undoing the hold down bolts. As a result they did not check whether the hold down bolts had been removed prior to commencing to sling the frames to secure it to the crane.

57. There was no procedural or informal requirement in place for any of the ALH or T&C workers to check the state of the hold down bolts prior to rigging the frames to the crane. As such no one from either crew checked that the hold down nuts or studs were still in place before climbing on to or working in the vicinity of the dip rail frame.

58. The sequence of work specified in the T&C JSEA did not specify that the dip rail frames were to be inspected before slinging to ensure the dip rail frames were secure and suitable for slinging to take place. However, the ALH Crew had conducted a site inspection before commencing work. At the time of the inspection the dip rail frames were bolted and secure. The dip rail frames did not become unsecured and thereby unstable until Mr Zappia and Mr Kerr removed all of the bolts at about 2pm.

16 The tender bundle also contained the following documents:

1. 33 colour photographs taken by Inspector Wayne Cobbin on 30 March 2009 showing the northern frame mounting studs and hold down bolts with the 100 tonne crane.

2. Photographs supplied by Peter Reichardt.

3. Factual Inspection Report of Inspector Wayne Cobbin dated 28 April 2009.

4. Extract from Australian Standard 2601-2001 - Demolition of Structures, Section 2.

5. Incident Investigation 'Attachment 1: Sequence of Events'.

6. Thomas & Coffey Job Safety & Environmental Assessment (JSEA) dated 30 March 2009.

7. Thomas & Coffey Toolbox and Safety Talks for dates 25 February to 30 March 2009.

8. Thomas & Coffey Site Safety Audits.

9. Audit Report 2009 conducted on Thomas & Coffey by Transfield Services.

10. Thomas & Coffey Safety Management Plan.

11. BlueScope Steel minutes of meetings for dates 10 March 2006 to 30 March 2009.

12. Purchase Order dated 24 February 2009.

13. Prior Convictions Report, indicating no prior convictions.

14. Judgment: Inspector Cobbin v Thomas & Coffey Ltd [2012] NSWIRComm 46.

17 Mr Reitano also tendered an Australian Securities and Investments Commission current and historical extract of the defendant under s 1274A of the Corporations Act 2001.

Defendant's evidence

18 Mrs W Thompson of counsel appeared for the defendant. Mrs Thompson read an affidavit of Mark Duckett, who was required for cross-examination.

19 Mr Duckett is currently the General Manager for TSA, South Australia and Northern Territory. As at 30 March 2009 he was the General Manager Operations, Major Projects for Transfield Services and seconded to and held the position of Project Director in the defendant. His secondment was for a period of approximately four months.

20 Mr Duckett set out the background to the tender process to which reference has already been made in this judgment and also deposed that he had had discussions with Mr Mark Sheldon, an employee of TSA who performed the role of Cooler Team Leader for the work of installing the new Sinter cooler at the No 3 Sinter Machine.

21 Mr Duckett annexed a copy of the contract with BlueScope which identified the Principal as BlueScope for the whole of the project known as the OPUP.

22 Pursuant to Sch 7 of the contract, the defendant was to engage approved contractors as set out in the schedule. Thomas & Coffey were nominated as the "prime subcontractors" for work of "cooler" installation. The contract also referred to technical specifications for the scope of works including that the Project Manager for OPUP was Hatch. When the defendant was awarded the contract, Mr Duckett arranged for additional personnel from TSA to be seconded to work on the project. He stated that the major shutdown of production at the Sinter Plant had not commenced at the time of the injury to Mr Wormleaton.

23 Mr Duckett detailed the corporate structure of the defendant stating that it was established for the purpose of providing project management services. TSA conducts business operations in relation to the provision of maintenance services. The services provided by the defendant were different to the services provided by TSA. It was an established company that provided maintenance services to industry participants and had been contracted to BlueScope at the site prior to the contract. Therefore, the defendant submitted the tender for the project management of particular work at the site as part of the OPUP project.

24 TSA employed all personnel who were engaged at the site. Mr Duckett's evidence was that since the completion of the contract with BlueScope, the defendant has been dormant and there were no plans for the entity being used in any future operations. Mr Duckett stated that BlueScope required all contractors to be inducted into the BlueScope Safe Management Plan. Members of the BlueScope Project Management Team attended monthly site co-ordination meetings in relation to the progress of the work carried out by the defendant and its subcontractors. They would review Safe Work Method Statements ("SWMS") and Job Safety Environmental Analysis Statements ("JSEAS"), attend toolbox meetings, carry out site inductions and review safety systems. The BlueScope Project Management Team supervised and monitored the defendant and Thomas & Coffey to ensure that the safety systems it provided were being implemented as well as the safety systems in place by the defendant and TSC.

25 Mr Duckett stated that BlueScope did not provide the defendant or Thomas & Coffey with specifications or a plan for the disassembly of the trial rail cooler system. The contract specified the work in relation to the disassembly at part 3.5.1 as follows:

(a) The Contractor shall match mark and disassemble the cooler trail assembly.

(b) The Contractor shall dispose of all redundant materials, including but not limited to the temporary discharge hopper steelwork and packers that are not required for the final installation.

Note:

The demolition of the temporary foundations is not a part of the Contractor's scope.

Suitable supports (crafting timber or scrap plywood - Principal supply) shall be used to temporarily support the rotating assemblies.

26 Mr Duckett gave evidence about the role of the defendant. He stated that as a contractor to BlueScope the defendant was required to submit its own site plan. A copy was annexed to his affidavit. Part of the work included overseeing the disassembly of the trial rail cooler by Thomas & Coffey.

27 Mr Sheldon, an area superintendent, was responsible for coordinating the work for dismantling the rail cooler as well as the installation of a new cooler system at the No 3 Sinter Machine. He reported to Mr Frank Radandt, the defendant's construction manager. Mr Radant had a number of area superintendents report to him.

28 Mr Duckett described Mr Sheldon's role as coordinating the activities of the sinter plant area in order to carry out the installation of the new No 3 Sinter Machine in the planned shut down period in April 2009. In March 2009 Mr Sheldon was required to ensure that the dismantling process of the older cooler (separate to the trial cooling rail system) was dismantled in a way that did not pose a risk to the workers in the area where production was still being carried out. It was this work that took up the majority of his time.

29 Mr Sheldon was also responsible for co-ordinating the activities in relation to the disassembly of the trial cooling rail plant. The work included monitoring the work of Thomas & Coffey and the contractors providing mobile crane services for the disassembly work. Mr Duckett stated that Mr Sheldon worked closely with the BlueScope project management team and with Mr Paul Rodgers, a project engineer employed by Thomas & Coffey.

30 He said the worksite of the trial rail cooler system was a secured site and under the BlueScope safety system and an "Authority to Work Permit" ("AWP") was required for the disassembly of the trial rail cooler system.

31 Mr Duckett acknowledged that he method of disassembly did not take into account the Australian Standard 2601-2001 - Demolition of Structures, Section 2.

32 He stated that he had been informed by Mr Sheldon that no written instruction or direction was issued by either BlueScope or Hatch to either the defendant or Thomas & Coffey that the Australian Standard was to apply.

33 Mr Sheldon carried out audits of the work carried out by Thomas & Coffey approximately every two days. He would also attend toolbox meetings and provide safety documentation including JSEAs.

34 Mr Duckett stated that on 30 March 2009 AllState, a new contractor was used by the defendant for mobile crane services. Discussions took place between Mr Sheldon and Mr Wayne Fuller, the supervisor of AllState on 29 March 2009 in respect of the work to be carried out and the induction and start-up requirements.

35 Mr Duckett's evidence was that Mr Sheldon conducted regular progress meetings every Monday at 1.00pm at a building adjacent to the trial rail cooler system which were attended by representatives from Thomas & Coffey, BlueScope and Hatch. Topics discussed were recorded in minutes of these meetings.

36 Thomas & Coffey employed Mr Scott Rodgers as the Project Engineer and Mr Peter Riechardt as the supervisor for the disassembly work. Mr Sheldon consulted with both of them about the sequence of the work and the methods to be undertaken. Mr Duckett stated that the defendant regarded Thomas & Coffey as specialists in the sinter cooler systems. He annexed an AWP issued to Thomas & Coffey for the period 26 March 2009 to 2 April 2009.

37 Mr Duckett noted the details of the incident were contained in the agreed statement of facts. He was advised of the incident within hours of it occurring and monitored the progress of the subsequent treatment and recovery of Mr Wormleaton. He liaised with AllState in respect of Mr Wormleaton's treatment and arranged for a safety and fundraising program to be commenced to assist him via the NSW Amputees Association for which "a couple of fundraising events occurred throughout this project".

38 Mr Duckett on behalf of the defendant, expressed its sincere remorse and regret that the incident occurred and that Mr Wormleaton sustained the amputation of his right leg. He said the defendant was deeply saddened that the incident had on Mr Wormleaton and his family. This had reinforced to the defendant and in particular their related companies to the defendant that there is a need to be ever vigilant and pro-active with safety in the workplace.

39 Mr Duckett's evidence was that in accordance with BlueScope's requirements, the defendant had prepared and implemented a Safety Management Plan that complied with the BlueScope SMP. Included in the implementation of the plan were audits of the safety management documentation of Thomas & Coffey. The last audit was conducted on 18 March 2009.

40 He said prior to the incident BlueScope would run team building and safety meetings with the employees from Thomas & Coffey and representatives of the defendant.

41 Mr Duckett was actively involved in the subsequent investigations conducted by the defendant. He annexed a copy of an investigation report prepared by it and provided to the WorkCover investigators. He stated that the recommendations contained in the report were immediately implemented. He also stated that the defendant and TSA fully assisted WorkCover and its inspectors during the investigation of the incident and required all its employees to make themselves available at TSA's cost. He stated that although the defendant was no longer an operating company, at the time of the incident, it participated in some community engagement programs conducted by Transfield Services Ltd ("TSL").

42 During cross-examination, Mr Duckett said he was not aware whether the defendant had directors or shareholders. His evidence was that he only had knowledge of the business as an operation, not as a corporation.

43 He had not seen the profit and loss statements of the defendant apart from when he was engaged by it between March 2009 and July 2009. Since that time he has not had any dealings with the defendant. His evidence was the business name was not in operation at the present time, but the corporate person may or may not be in operation. He was unable to assist further in this regard.

Relevant principles

44 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS Act. Their Honours stated at [8] - [15]:

[8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing.

[9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above 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.'

[10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows:

'[I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. 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" ...

[11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) ("Capral") 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows:

'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27:

Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), 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.'

[12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63:

'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd [1999] 92 IR 188 (at 209 - 210) in these terms:

'... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.'

[13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" (Capral at 650; 66). On that point the Full Bench in Capral stated:

'We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).'

[14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows:

'[B]oth 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, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 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.'

[15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]:

'[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).'

Consideration

45 The primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the agreed statement of facts and the evidence.

46 The first failure by the defendant which gave rise to the risk to health and safety to persons other than its employees, was to take adequate steps to prevent the frame from being unsecured by reason of the hold down studs which had secured it, being removed before it was secured to, or attached by chains to a crane.

47 The second failure was to take adequate steps to ensure that the method used by Thomas & Coffey to remove the inner dip rail frame had been adequately risk assessed, documented and contained adequate controls.

48 The risk arose on 30 March 2009 when a dip-rail frame made of fabricated steel weighing approximately 1.7 tonnes and being approximately 2.3 metres high by 8.1 metres long was being disassembled. Informing itself of the risk by undertaking a risk assessment or enquiring as to whether one had been conducted at all was not difficult for the defendant. Although there was a JSEA in place, it did not deal, at the time of the incident, with the work sequence or control measures in respect of disassembling the dip-rail frame. After the incident the JSEA was amended to include a work sequence referring to the dip-rail frame and a control measure which stated "have qualified rigger on job, cut bolts after load rigged up, use correct gloves".

49 The purchase order from the defendant to Thomas & Coffey stated that "Work to be done under the direction of Transfield's Mr Mark Sheldon".

50 Clearly, in respect of Thomas & Coffey, the defendant was the head contractor in respect of the disassembling of the frame and therefore had control over the plant.

51 The agreed statement of facts state that under the contract the defendant was responsible for the performance of its subcontractors (including Thomas & Coffey) and the management and supervision of their activities. It was also liable for the acts and omissions of the subcontractors as if they were those of the defendant who was not, in the event that the work was subcontracted, relieved of any of its obligations under the contract.

52 The gravamen of this offence is that there were no procedural or formal requirements in place for any of the labour hire workers or Thomas & Coffey's workers to check the state of the hold down bolts prior to rigging the frames to the crane. As such, no-one from either crew checked that the hold down nuts or hold down studs were still in place before climbing onto or working in the vicinity of the dip-rail frame.

53 Mrs Thompson acknowledged that subjectively this was a serious offence.

54 Mrs Thompson submitted in mitigation of the objective seriousness of the offence that the work being conducted by the defendant was only a small part of a much larger project and that the subcontractors Thomas & Coffey, had been on the site for a significantly longer period than the defendant. This is clearly correct. Mrs Thompson also emphasised that BlueScope had a Site Safety Management Plan ("SSMP') which required all construction contractors to comply with its management procedures. Counsel also referred to the JSEA of Thomas & Coffey and the defendant.

55 Mrs Thompson accepted that the JSEA was inadequate. However, she observed that it was an attempt to set out the work sequence.

56 In accordance with BlueScope's SSMP, the defendant was required to be reviewed by BlueScope at the time that an AWP was issued. Reference was made in the JSEA to "set up crane" and under work sequence: "Rig Outer Dip Rail for lifting" and "Break Outer Dip Rail Panel Bolted Connections" and "lift outer Dip Rail Panel and land on dunnage".

57 Under the headings "potential hazards" and "risk", reference was made to mobile equipment, crane movement and working at heights with the risk category including fall from heights and crush injuries.

58 As Mr Reitano observed, there was no reference to the lifting of the frames and the work in respect of the panels and rails (being different parts of the structure) had earlier been completed. Although the methodology may well have been the same, the description of the work sequence was deficient in not referring to the frames. It appears to be directed to the work involving the crane and then work involving the hold down bolts.

59 Backman J in Inspector Cobbin v Thomas & Coffey Limited (ACN 000 263 678) [2012] NSWIRComm 46 found that the work sequence did not fully address the risks that arose in respect of the removal of the dip-rail panel. The defendant made a concession to this effect during the proceedings.

60 Relevantly, the JSEA was signed by Scott Rodgers, a leading hand boilermaker, Joseph Zappia and Frank Kerr, fitters and Alan Neves, a rigger. They formed part of the Thomas & Coffey work crew, and were involved in the disassembly of the cooler system.

61 Mrs Thompson also referred to paragraph 32 of the agreed statement of facts which provided that around 11.00am Mr Peter Reichardt, a supervisor employed by Thomas & Coffey requested that a load be re-slung as he was not happy with it. He also instructed the fitters to replace the bolts while a dogman re-slung the load. This job was completed successfully without incident. At 1.00pm there was a discussion between the boilermakers, fitters and riggers after which Mr Rodgers gave instructions to Mr Neves and Mr Wormleaton to sling the top beams. He requested that once this had been done that the fitters were to remove the bolts on the top beams and then the riggers were to remove the beams.

62 As I have already observed, the risk assessment did not identify all the steps or require the crane riggers to check that the bolts were still in place when the crane was engaged. As I have already observed, the JSEA of that day contains the signatures of Mr Zappia and Mr Kerr, the two riggers who made the unilateral decision to remove the hold down studs before the frame was secured contrary to the verbal instruction given by Mr Scott Rodgers.

63 A further oversight as I have observed was that the JSEA made no specific reference to the lifting of frames. There should have been specific reference to the frames.

64 I have earlier referred to the principle of foreseeability as a factor in determining the objective seriousness of an offence. See Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 - 63. The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being considered to be more serious in nature: Capral at 81 - 82; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27; Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 79.

65 Clearly, it was reasonably foreseeable that if the bolts that secured the frame were removed prior to the crane taking the weight of the frame then the frame was likely to fall. The risk of serious injury and indeed death was obvious in such circumstances.

66 It will also be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken. As I have indicated simple and effective measures were available which would have identified or otherwise reduced the risk to the workers' health and safety.

67 The measures that the defendant has implemented since the offence also demonstrate the availability of steps that could have been taken to eliminate, or to reduce the risk.

68 In my view and I find, when an assessment of the foreseeability of the risk is taken into account together with the ease with which measures to control it, or eliminate it, could have been taken, as well as the consequences of the defendant's failings, being the serious injury to Mr Wormleaton, this is an objectively serious offence which lies in the mid-range of seriousness.

General deterrence

69 Both counsel accepted that there would be a need for general and specific deterrence to be included in any penalty.

70 I consider it is appropriate to once again draw attention to the need for employers and contractors in industries where cranes are required to be utilised for lifting services involving disassembly work, to be constantly vigilant of the need to ensure that employees and non employees are not exposed to risks to their health and safety when cranes are operating.

Specific deterrence

71 I accept, in light of the evidence given by Mr Duckett, that this is not a case which calls for the imposition of some additional significant punishment aimed at deterring the defendant from further offending against the OHS Act and/or for the purpose of compelling the defendant's attention to occupational health and safety issues, so that persons are not exposed to risks to their health and safety. The attitude of the defendant to workplace safety and the procedures that it had in place prior to the incident (a JSEA), are relevant to specific deterrence. I include a component in the penalty for specific deterrence.

Subjective factors

72 The defendant has no prior convictions although it operates in an inherently dangerous industry.

73 Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 provides for mitigating factors to be taken into account in determining the appropriate sentence. Relevant for these proceedings are the following subparagraphs:

(f) the offender was a person of good character;

(g) the offender is unlikely to re-offend;

(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise;

(i) the remorse shown by the offender for the offence;

(j) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or any other manner,

(k) the plea of guilty by the offender;

(m) assistance by the offender to law enforcement authorities (as provided by section 23).

74 The occupational health and safety systems referred to in the evidence of Mr Duckett and the changes that occurred after the incident demonstrate, in my view, that the defendant has a history of good industrial citizenship, which I take into account.

75 Although inadequate, an occupational health and safety system was in operation at the time of the incident. I also accept that the defendant is a good community citizen. I further agree with the observations of Kavanagh J in Inspector Olive v Transfield Pty Limited [2001] NSWIRComm 295 at [23] that a court can give positive consideration to the corporate reputation and personal reputation of its directors and find that it has probitive force to allow a measure of mitigation of penalty.

76 I find that the defendant for the reasons already outlined in this judgment is unlikely to reoffend.

77 I also find that the defendant has shown remorse for the offence, responded to the incident with concern, and formally expressed that concern and remorse to the court through Mr Duckett.

78 The Full Bench in Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 stressed the importance of taking into account good industrial citizenship and the compassionate steps taken in respect of the injured worker. Their Honours observed at [17]:

We do not consider that the history of good industrial citizenship of the appellant, having regard to its prior record and the long period of operation of its business, was sufficiently taken into account. We also refer to the careful and compassionate steps taken by the appellant as to the welfare, rehabilitation and continuing employment of the injured worker. The reason we have made specific reference to that latter matter is that it does not seem to have been often referred to in other judgments in this area.

79 The defendant formally entered a plea of guilty to the amended charge at the earliest opportunity. Mr Reitano conceded that the defendant was entitled to a discount for its plea and the saving in time, cost and convenience resulting from its plea. Counsel submitted that "the authorities in this court suggest that given the amended application for order, the plea should be regarded (even though it was only mooted two weeks before a trial that was set down for two weeks) as an early plea".

80 The authorities that counsel no doubt had in mind would include those to which I now refer.

81 The High Court of Australia in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, per Gaudron, Gummow, and Callinan JJ, stated:

[23] Although the original charge specified the elements of the offence charged, it was not reasonable to expect the appellant to plead to an offence which wrongly particularised the substance to which the charge related. And that is so even if the identity of the substance would not have affected sentence. In this regard, it should not be assumed that the appellant knew that the sentence would be the same regardless of the nature of the substance.

[24] More importantly, the appellant should not have been expected to acquiesce in procedures which might result in error in the court record or, indeed, in his own criminal record. At the very least, a plea of guilty to a charge wrongly particularising the substance he had in his possession would not necessarily provide the basis for a plea of autrefois acquit to a subsequent charge specifying the correct substance.

Kirby J further stated at [75]:

... The test is not the time when theoretically or physically a prisoner might have pleaded. The test is when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced. That question is to be answered in a reasonable way, not mechanically or inflexibly.

And at [77]:

... It is unreasonable to penalise an accused person for failing to plead guilty earlier to an incorrectly particularised charge.

82 In the Court of Criminal Appeal's guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, the Court held at [160]:

...

(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

83 Spigelman CJ, with whom other members of the Court agreed, said at [155]:

The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.

84 Wood CJ at CL said at [163]:

... I consider these guidelines to properly reflect the mitigating circumstance associated with the utilitarian value of a guilty plea. Adherence to them, in the absence of compelling reason to the contrary, can only assist to secure greater certainty and equity in sentencing practice.

85 In R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326 Sperling J, with whom Beazley JA and Carruthers AJ agreed, after referring to the abovementioned passage from the Chief Justice and Wood CJ at CL in R v Thomson; R v Houlton stated at [64]:

In my view, where an offender pleads guilty immediately upon charges being reduced by the Crown, that is "an exceptional case" justifying a discount at or close to the top of the range, notwithstanding that the proceedings have long since been set down for trial. To hold otherwise would offend against considerations of equity to which Wood CJ at CL referred. In addition to the saving in the cost of a trial, the fact that the complainant was spared the stress of giving evidence was also a relevant consideration.

86 In Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189 (at [47]), Boland J held that where the amendments led to a material change in the nature of the charge, as was the case here, a plea entered promptly after those amendments should attract the maximum 25 per cent discount for the utilitarian value of the plea.

87 In accordance with the principles found in these authorities, I find that the defendant is entitled to a discount of 25 per cent as a result of the utilitarian benefits offered by the plea.

88 I find that the defendant co-operated with the WorkCover Authority of New South Wales during its investigation of the incident.

89 Backman J in Inspector Cobbin v Thomas & Coffey senctenced the co-defendant, Thomas & Coffey. Her Honour imposed a fine of $120,000 in respect of a prosecution brought pursuant to s 8(1) of the OHS Act and a fine of $150,000 in respect of a prosecution brought pursuant to s 8(2) of the OHS Act. The principle of parity therefore arises and is applicable in this matter. It requires the court to consider whether there are any appreciable differences in the culpability of the defendants: Inspector Ching v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73; WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd t/a Transfield Maintenance (No 2) [2001] NSWIRComm 289; (2001) 110 IR 160.

90 Consistent with the parity principle, it is therefore appropriate for the court in this matter to make reference to the different roles and responsibilities of the offenders. In R v Sukkar [2011] NSWCCA 140, it was observed at [36]:

To the extent that the grounds do not raise the parity principle they seem only to deal with the proper approach to sentencing for a joint criminal enterprise particularly where the co-offenders have different roles in the enterprise. Although the starting point is that the offenders were parties to the same joint criminal enterprise, and that should not be lost sight of, (Johnson & Ors v R; Moody v R at [4]), and that one should not identify the differences in the roles with any precision (R v Hoschke [2001] NSWCCA 317 at [18], R v JW [2010] NSWCCA 49 at [161], Johnson v R; Moody v R at [11]), it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced (R v JW at [161], and see Johnson v R; Moody v R at [4] and [94], Regina v Darwiche [2006] NSWSC 1167 at [74], Regina v Rick Barry Swan [2006] NSWCCA 47 at [72] and [74]).

91 I agree with the submission of the prosecutor that it is important to bear in mind that the substance of the relationship between the defendant and Thomas & Coffey was that of principal and subcontractor. The defendant had a real and effective presence at the place where the work was being carried out through its supervisor Mr Sheldon. It had a contract with Thomas & Coffey that gave it effective control over what work Thomas & Coffey were undertaking. Although Mrs Thompson submitted that the culpability of Thomas & Coffey should have been greater because of its longer presence on the site, in my view, the culpability of both defendants was equal. This defendant and Thomas & Coffey had the same expertise in respect of the work that was being carried out at the site.

92 I note that Thomas & Coffey was sentenced as a second offender. Therefore, its sentences for the s 8(1) and s 8(2) offences were assessed against the higher maximum penalty of $825,000.

93 The maximum penalty in respect of this defendant is $550,000. Taking into account the seriousness of the offence, the subjective factors referred to earlier, and applying the principles of parity, I impose a fine of $100,000.

94 The prosecutor seeks a moiety and costs, which I propose to grant.

Orders

95 I make the following orders:

1. The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence, as charged.

3. The defendant is fined an amount of $100,000 with a moiety thereof to the prosecutor.

4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or, if agreement cannot be reached, as assessed.

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Decision last updated: 30 April 2013