Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Christensen v Lend Lease Engineering Pty Limited (formerly Abigroup Contractors Pty Limited) [2014] NSWIRComm 42
• Hearing dates: 7 May 2014 and note re costs 19 August 2014
• Decision date: 22 August 2014
• Jurisdiction: Industrial Court of NSW
• Before: Walton J, President

Decision

1) In Matter Number IRC 279 of 2014, the defendant is convicted of the offence charged under s 8(2) of the Occupational Health and Safety Act 2000;

2) In Matter Number IRC 279 of 2011, the defendant is fined in the sum of $200,000 with a moiety to the prosecutor;

3) In Matter Numbers IRC 278 and 279 of 2011, the parties shall pay their own costs of the proceedings.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - fatal incident - prosecutions against two defendants - pleas of not guilty - Abigroup Contractors Pty Limited convicted of offence under s 8(2) Occupational Health and Safety Act 2000 - sentencing - Abigroup now known as Lend Lease Engineering Pty Limited - name of defendant altered in proceedings - objective factors - risk of being struck by a rail panel or components of a rail panel - failure to undertake a fresh risk assessment when method of work changed - contribution of other entities to risk - risk foreseeable - systems in place prior to incident - systems inadequately implemented at the site - simple remedial measures available - maximum penalty - general deterrence - specific deterrence - offence serious - subjective factors - financial assistance to family of deceased worker - counselling assistance to injured workers - expression of regret - cooperation with WorkCover - prior offences - parity - penalty imposed - moiety
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Fines Act 1996; Occupational Health and Safety Act 1983; Occupational Health and Safety Act 2000
• Cases Cited: Abigroup Contractors Pty Limited v WorkCover Authority of NSW (Inspector Maltby) [2004] NSWIRComm 270; (2004) 135 IR 317; Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99; Camilleri's Stock Feeds Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21; Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 99 IR 29; (2000) 99 IR 29; Charara v New South Wales Director of Public Prosecutions [2001] NSWCA 140; (2001) 120 A Crim R 225; Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159; Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432; Griffiths v The Queen (1977) 137 CLR 293; (1977) 15 ALR 1; (1977) 51 ALJR 749; Haynes v CI & D Manufacturing Pty Ltd and another (No. 2) (1995) 60 IR 455; Inspector Barbosa v McDonalds Australia Limited [2003] NSWIRComm 196; (2003) 125 IR 270; Inspector Christensen v Abigroup Contractors Pty Limited and Anor [2013] NSWIRComm 111; Inspector Christensen v Boom Logistics Ltd [2012] NSWIRComm 95; Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31; Inspector Christensen v MVM Rail Pty Ltd [2013] NSWIRComm 89; Inspector Colin West v Abigroup Contractors Pty Ltd. [2007] NSWIRComm 88; Inspector Dall v Ullrich [2012] NSWIRComm 87; Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125; Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78; (2008) 172 IR 210; Inspector Martin v Abigroup Contractors Pty Ltd [2009] NSWIRComm 110; Inspector Middleton v Cafe C Pty Ltd [2012] NSWIRComm 131; Inspector Nicholson v Gallagher [2012] NSWIRComm 121; JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; (2008) 184 IR 1; Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364; Morrison v Powercoal Pty Ltd & Another [2004] NSWIRComm 297; (2004) 137 IR 253; Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61; (2005) 147 IR 117; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; (1998) 156 ALR 684; Regina v Gardener [2003] NSWCCA 2; Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465; (1988) 77 ALR 385; WorkCover Authority (NSW) (Inspector Jones) v Challita [2006] NSWIRComm 207; (2006) 153 IR 409; WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313; (2001) 112 IR 1; WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363; WorkCover Authority of New South Wales (Insector Petar Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 277; Workcover Authority of New South Wales (Insp Robert Stobo) v State Rail Authority of New South Wales [2002] NSWIRComm 72; (2002) 115 IR 130; WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd [2000] NSWIRComm 40; (2000) 99 IR 196; WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Industrial Relations Commission, NSW, Matter No. CT 1280 of 1995, Hill J, 2 April 1997); WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante [2003] NSWIRComm 201; (2003) 128 IR 204
• Category: Sentence
• Parties: Inspector Madeline Christensen (Prosecutor); Lend Lease Engineering Pty Limited (Defendant)
• Representation: S Crawshaw SC with A M Mitchelmore of counsel (Prosecutor); B D Hodgkinson SC with R J Ranken of counsel (Defendant); WorkCover Authority of New South Wales (Prosecutor); Norton Rose Fulbright Australia (Defendant)
• File Number(s): IRC 278 of 2011; IRC 279 of 2011

Judgment

1 By applications for order filed 23 March 2012, Inspector Madeline Christensen ("the prosecutor") initiated prosecutions against Abigroup Contractors Pty Limited ("Abigroup"), for one breach of s 8(1) and one breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"), and GTE Workplace Management Pty Ltd ("GTE") for a breach of s 8(1) of the Act (the applications with respect to Abigroup were later amended by consent).

2 In consequence of Abigroup having changed its name to Lend Lease Engineering Pty Limited ("Lend Lease") on 1 August 2013, the corporate defendant in these proceedings (being the same legal entity) shall be renamed as Lend Lease. For convenience, that name shall be used universally to describe the corporate entity whether reference is made to occurrences, evidence or submissions before or after the trial (except when a contrary usage appears in quotations). The title of the proceedings shall be adjusted accordingly.

3 In the trial with respect to liability Lend Lease and GTE were found not guilty of the offences charged under s 8(1) (in Matter Nos IRC 278 and 285 of 2011 respectively): Inspector Christensen v Abigroup Contractors Pty Limited and Anor [2013] NSWIRComm 111 ("Abigroup").

4 The Court found the offence, as charged, against Lend Lease under s 8(2) of the Act to be proven with respect to particular (b) (Matter No IRC 279 of 2011). Accordingly, Lend Lease was found to have contravened s 8(2) of the Act.

5 The s 8(2) charge against Lend Lease was set out in full in Abigroup, however, for convenience, it is included again as follows:

I, INSPECTOR MADELINE CHRISTENSEN of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter allege that ABIGROUP CONTRACTORS PTY LTD [ACN 000 201 516] a corporation with its registered address at 'Level 20 The Zenith Tower' Basement 821 Pacific Highway Chatswood in the State of New South Wales ("the defendant"), being an employer, on 24 March 2009, at a construction site located upon the northern New South Wales rail corridor near Trevor Street, Telarah in the State of New South Wales (identified as 194.385 km north of No.1 platform at Sydney Central Station) ("the site"),

FAILED TO

Ensure, by its acts or omissions as particularised below, that persons not in its employment, and in particular, Mr Agamalu Iosefa, Mr Robert Dixon, Mr Mark McDonnell, Mr Kyle Ward and Mr Adam O'Sullivan, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while at the defendant's place of work contrary to s 8(2) of the Occupational Health and Safety Act 2000.

The particulars of the risk are that:

(a) Persons other than the defendant's employees, and in particular, Messrs Iosefa, Dixon, McDonnell, Ward and O'Sullivan, were put at risk of injury from being struck by a rail panel, or components of a rail panel, whilst installing rail panels at the site.

The particulars of the acts or omissions of the defendant in failing to eliminate the risk are:

(b) The defendant failed to conduct a risk assessment, or ensure that a risk assessment was conducted with respect to the task of rectifying a panel misalignment at the site before work commenced to rectify the misalignment, which:

(i) identified the risk of injury arising from the task of removing Pandrol clips from rail forming part of a panel that was attached to a crane and, accordingly, was potentially under weight, and

(ii) determined how that risk could be eliminated or controlled.

(c) The defendant failed to provide and maintain a safe system of work in relation to the tasks of lifting and installing rail panels, in that it failed to:

(i) ensure that there was an adequate system of communication in place between the subcontractors it had engaged at the site, in particular between Boom Logistics and Taylor Railtrack with respect to the movement of loads by mobile crane at the site and the identification of risks arising from that work;

(ii) ensure that its subcontractors maintained and enforced a method of work which required that all persons working in the vicinity of a crane be clear of the range in which they could be struck by a load (exclusion zone) whilst the crane was in operation and/or the load was still under weight;

(iii) ensure that the workers employed by, or otherwise subcontracted to its subcontractors, did not access or walk on a load that was still under weight; and

(iv) ensure that its subcontractors confirmed that a rail panel was not under weight before allowing and/or instructing workers to perform work on a panel and, in particular, work that involved removing Pandrol clips from rails forming part of a panel.

As a result of the defendant's failures, persons other than its employees, were placed at risk of injury. Further, and as a consequence of the failures set out above, Mr Agamalu Iosefa suffered fatal injuries and Messrs Dixon, McDonnell, Ward and O'Sullivan suffered injuries.

6 A sentencing hearing occurred in relation to Matter No IRC 279 of 2011 on 7 May 2014. This judgment deals with the question of the appropriate penalty to be imposed for the offence in that matter and the question of costs in Matters Nos IRC 278 and 279 of 2011.

7 The prosecutions arose out of a fatal incident ("the incident") which occurred on 24 March 2009 on a construction site situated on a rail corridor near Telarah (approximately 194 kilometres north of Central Railway Station) in the State of New South Wales ("the site").

8 There were a number of entities involved in work at the site on the date of the incident. The nature of the entities and their interrelationship was discussed at length in Abigroup at [5] to [44] and [200] to [207]. For convenience, some notable parts of that judgment, in this respect, shall be extracted here:

...

Abigroup

8 Abigroup was a national contractor and infrastructure provider which supplied services to the building, road, rail work, mining, tunnel, bridge, telecommunications and energy industries. Originally established in 1961 as Abignano Pty Limited, Abigroup was acquired by Bilginger Berger SE in 2004 before becoming part of the Lend Lease Group in 2011. It is now a business unit of Lend Lease's Australian construction business which focusses on engineering, infrastructure construction, building and infrastructure services.

9 On or about 23 October 2008, ARTC entered into a "Construction Contract No NSW-TC-1735" with Abigroup in relation to the project ("the Abigroup contract"). The Abigroup contract particulars noted that Mr Paul Harris was Abigroup's nominated representative under the contract.

10 Pursuant to that contract, Abigroup was appointed as the "principal contractor". Clause 7.9 of the contract provided the following: ...

...

13 The Abigroup contract particulars listed Taylor Railtrack Pty Ltd ("Taylor Railtrack"), Boom Logistics Ltd ("Boom Logistics") and Track Australia as nominated subcontractors. At the time of the incident, Abigroup had contracted two companies to assist in the work being conducted at the site under the Abigroup contract, namely, Boom Logistics and Taylor Railtrack.

...

Boom Logistics

18 Boom Logistics is a national company which was incorporated in December 2000. Originally named 'The Australian Crane Company', Boom Logistics supplied cranes and lifting equipment, travel towers and access equipment, heavy haulage and engineering services to Australian industry.

19 By an 'External Plant Hire Agreement' dated 12 November 2008, Abigroup contracted Boom Logistics for the provision of mobile crane hire at the site.

...

Taylor Railtrack

22 Taylor Railtrack (now operating under the name 'Taylor Rail Australia Pty Ltd') operated a business undertaking railway construction and maintenance work.

23 Abigroup entered into a 'Minor Works Agreement' with Taylor Railtrack dated 17 November 2008. That Agreement provided a description of the subcontract works as follows:

Remove existing plain line track from Down lines and set aside for re-use.

Earthworks & formation works (by others)

Install existing plain line

Weld new panels together

Place top ballast and regulate

Lift & Line tracks to design alignment

Certify installation

...

MVM Rail

32 MVM Rail Pty Limited ("MVM Rail") was founded in 1992 and was a provider of railway track construction, maintenance, associated building and civil infrastructure.

33 Taylor Railtrack engaged MVM Rail to provide labour for the installation works occurring at the site as part of the project. In particular, Taylor Railtrack, in a purchase order dated 16 March 2009 and signed by Mr Tim Horan, Construction Manager with Taylor Railtrack, requested MVM Rail provide one site supervisor for night shifts, five track workers for day shifts (and another five track workers for night shifts), and one welding crew for day shifts (and a further crew for night shifts). That purchase order was marked to the attention of Mr Jade Begley and Mr Adam O'Sullivan of MVM Rail. Mr Begley was employed as a Superintendent for MVM Rail.

GTE

34 GTE was established in 1995 as a recruitment management consultancy and labour hire company which provided workers to a range of sectors including rail, construction, traffic management and control, retail, hospitality and medical.

35 Mr Brian Lucas, New South Wales Rail Manager of GTE at the time of the incident, was contacted by Mr Begley, on behalf of MVM Rail, to provide additional installation labour hire workers at the site (it can be noted that, whilst the evidence did not disclose the precise date upon which that contact was by Mr Begley, it may be inferred that it occurred at a date prior to the incident). Mr Lucas gave evidence that there was an arrangement between MVM Rail and GTE whereby Mr Begley of MVM Rail would contact GTE "for a top-up of labour resources".

...

Relevant Personnel

...

39 Mr Harris was employed by Abigroup as the New South Wales Rail Manager and was, at the time of the incident, working as the construction manager/overall site supervisor of the project and an acting shift manager (he was also, as mentioned, Abigroup's nominated representative under its contract with ARTC and the "Contractor's Project Manager" under the Taylor Railtrack Minor Works Agreement). Mr Drewe was a project engineer who was part of the "management process". He reported to Mr Harris (and assisted him in "planning and executing the job"). (Mr Drewe also reported to another Abigroup employee, Mr Scott Carlin, who was not present at the site as part of Abigroup's undertaking on the date of the incident.) Mr Cini was a safety coordinator, and also reported to Mr Harris and Mr Carlin. Mr Cini's work included conducting site inspections, observations and inductions. Mr Green worked at the site as a safety officer/adviser/coordinator.

40 The Boom Logistics employees (collectively referred to as the "crane crew") working at the site at the time of the incident were Mr Edward Jones, the crane operator, Mr Kim Ford, a rigger/dogman, and Mr Michael Fetherston, also a rigger/dogman.

41 A number of Taylor Railtrack employees were working at the site at the time of the incident. These included, relevantly: Mr Tim Horan, construction manager; Mr Gordon Yates, a team leader who was acting, at the time of the incident, in the capacity of a labourer; and Mr Kyle Ward, a railway labourer. Whilst working at the site, Mr Horan reported to Mr Harris of Abigroup.

42 Mr Adam O'Sullivan was working at the site as an employee of MVM Rail in the position of a supervisor. His role was to supervise, or be a "leading hand" to, the group of labourers made up of MVM Rail and GTE employees. Mr O'Sullivan reported to Mr Horan of Taylor Railtrack.

43 It was conceded by senior counsel for GTE that GTE had two employees working at the site as part of its undertaking at the time of the incident. Those employees were Mr Agamalu Iosefa and Mr Mark McDonnell. It was alleged in the charge against GTE (which shall be set out in full below) that Mr Robert Dixon, who was working as a labourer at the site at the time of the incident, was also an employee of GTE. It may be presently noted that the issue of whether Mr Dixon was, in fact, employed by GTE at the time of the incident was a matter of contention between the prosecutor and GTE. That issue shall be further discussed and resolved below in the section of this judgment headed "Resolution of Factual Issues".

...

207 It is clear, from the employment of Mr McDonnell and Mr Iosefa, that there was an arrangement between MVM Rail (in particular, Mr Begley) and GTE (in particular, but not limited to, Mr Lucas), whereby Mr Begley, on behalf of MVM Rail, was authorised to engage employees on GTE's books. Clearly, as indicated by the employment of Mr Iosefa, Mr Lucas did not necessarily need to be consulted in that process. Furthermore, I am satisfied that the email sent by Ms Winkler containing the contact details of Mr Dixon (in response to a WorkCover request for employee information) amounted to an admission that Mr Dixon was an employee of GTE. On the basis of those facts, a conclusion must be reached that Mr Dixon was, in law, at the time of the incident, contracted to work for GTE under Mr Begley's authority to so employ people on behalf of GTE.

9 The incident occurred during the course of work involving the installation of rail panels at the site. A number of findings of fact were made at trial in Abigroup in relation to the incident which are relevant to the question of sentencing and which were relied upon in the submissions of the parties during the sentencing hearing. Those findings will be set out below after a summary of the parties' submissions. However, in order to contextualise those findings and the submissions of the parties, it will be useful to first provide a brief factual background to the circumstances leading up to the incident and the incident itself which were set out in detail in Abigroup. The most pertinent excerpts from that judgment, in this respect, are as follows:

3 Under the contract between ARTC and Abigroup, the work to be performed by Abigroup on the project involved construction and upgrade works on the "Main Line North" of the rail corridor and, in particular, the installation of two new crossovers (a crossover being a pair of switch tracks or turnouts that connect two parallel rail tracks allowing a train on one track to cross over to the other) between the "Up and Down Main" at Farley on the Main Line North (between 194.100 km and 194.800 km north of No. 1 platform at Sydney Central Station), and the removal and replacement of existing formation materials under the new crossover positions. The construction activities for the project described in the contract between ARTC and Abigroup commenced in March 2009. (Work had earlier commenced as part of a related project at Allandale (approximately 204 km north of No. 1 platform at Sydney Central Station) in October/November 2008.)

...

20 A 'Lift Study/Plan' ("the Lift Study/Plan") was created by Boom Logistics in relation to the work for which the crane was to be used at the site. In that respect, the Plan noted (under the heading "Craneage Requirements") that a "200 tonne truck mounted hydraulic slew crane" was required for (under the heading "Job Specifics") the "[i]nstallation of 9 rail sections @ FARLEY rail crossover for ABIGROUP". The Plan also noted that "[d]uring the installation process the 200 tonne crane will have to relocate 5 times to ensure the correct lifting capacities @ radius are achieved". The Plan also noted the following in terms of lift procedure:

... On completion of the required rigging the 200 tonne crane, under guidance of the nominated rigger in charge will gradually take the weight of the rail section (load) whilst monitoring the cranes [sic] respective load cell for correct weights @ radius, on confirmation of correct weights @ radius the load will be lifted clear of the ground surface (approx 1m) and held their [sic] until all rigging is secondarily checked. Once the rigger in charge has confirmed that the lift points and slinging arrangement comply with the required task, the load, at the discression [sic] of the rigger in charge can be relocated to the set-down point.

...

28 Taylor Railtrack had several SWMSs for the project. Those SWMSs identified the "possible hazards" associated with various "procedures". In relation to the "lifting out of track panels", the possible hazards were identified as "struck by plant or panels" and "sprains and strains". The "safety controls" in relation to those hazards were, respectively, as follows: ...

29 In relation to the procedure of "panel installation", the possible hazards were identified as "strains", "struck by plant" and "safe working load". The safety controls in relation to those hazards were, respectively, as follows: ...

30 In relation to the procedure "move rails/components into position", the possible hazards were identified as "struck by plant", "struck by rail" and "exceed safe working load". The safety controls in relation to those hazards were, respectively, as follows: ...

31 In relation to "Pandrol clip removal using sledgehammer/Gauge bar removal", the possible hazards were identified as "slips and trips", "strains", "struck by flying objects" and "struck by plant". The safety controls in relation to those hazards were, respectively, as follows: ...

...

Site Inductions

45 Prior to the incident, on 23 March 2009, a "Pre-Possession Brief" was held by Abigroup at a bowling club in close proximity to the site. The purpose of that Brief was to discuss safety, programming and environmental aspects involved with the upcoming possession of the site. A "Pre-Possession Brief Attendance Record" was signed by, relevantly, Mr Carlin, Mr Green, Mr Harris, Mr Cini, Mr Drewe, Mr Horan, Mr O'Sullivan and Mr Stewart.

46 Site inductions were conducted by Mr Cini of Abigroup on 6 and 23 March 2009. Those inductions occurred at the site in one of the site sheds. Workers were inducted to the site and taken through the overarching Abigroup SWMS entitled "Working within the Rail Corridor". That SWMS required, inter alia, the following:

JHA and Protection Officers risk assessment to be used to identify and control hazards that arise as a result of change to the process or hazards that are identified during the course of the work and not covered in this SWMS.

47 Mr Cini delivered, at each site induction, a PowerPoint presentation which indicated the emergency and assembly points, emergency procedures, first aiders and site hazards. "Toolbox Meeting Training Records" were filled out by the workers present on each occasion. The Toolbox Meeting Training Record of 6 March 2009 was signed by, relevantly, Mr O'Sullivan, Mr Dixon, Mr McDonnell, Mr Fetherston, Mr Stewart and Mr Green. The Toolbox Meeting Training Record of 23 March 2009 was signed by, relevantly, Mr Ward, Mr Dixon, Mr McDonnell and Mr O'Sullivan. Mr Jones and Mr Ford gave evidence that they were not required to attend the site induction on 23 March 2009 because they had already worked at the Allandale site and had previously been inducted.

48 Individual Abigroup "Workplace Induction Records" were completed in respect of the following workers: Mr Drewe (dated 27 October 2008); Mr Green (dated 24 March 2009); Mr Harris (dated 27 October 2008); Mr Cini (no specified date); Mr Dixon (date illegible); Mr O'Sullivan (dated 23 March 2009); Mr Ward (dated 23 March 2009); Mr McDonnell (dated 23 March 2009); and Mr Iosefa (dated 23 March 2009). Those Records contained, amongst other things, personal and next of kin information, details as to qualifications and checklists indicating that the workers had received general induction training, were aware of their employers' SWMSs and had been advised of relevant site safety rules and occupational health and safety policies. (It may be noted that, whilst Mr Iosefa signed a Workplace Induction Record on 23 March 2009, his signature was absent from the Toolbox Meeting Training Record of the same date. During cross-examination, Mr Cini said that he was not in a position to remember everyone who was at the 23 March 2009 meeting, but the fact that Mr Iosefa's name was not on the record did not mean he did not attend.)

49 Various workers signed onto a "Pre-work Briefing", which was an ARTC document. The issue date for that document was 25 March 2009, however it was a record of briefings which had occurred on "Tues night", being 24 March 2009 (the evening of the incident). The document indicated that the following workers (relevantly) had been present for a briefing at 7pm that evening: Mr McDonnell, Mr O'Sullivan, Mr Dixon and Mr Iosefa. Mr Jones, Mr Ford and Mr Fetherston also signed that document, however the time of their briefings was not specified. By signing onto that document, workers indicated that, amongst other things, they had been inducted onto the site and briefed on the SWMSs for the job.

50 A toolbox talk was also conducted by Mr Horan on behalf of Taylor Railtrack on 24 March 2009. That talk addressed Taylor Railtrack's SWMSs. Mr Horan gave evidence that, during that talk, he explained that the workers on the night shift would be loading panels onto the ground using overhead cranes and that safe distances from panels being lifted into place should be maintained by the workers. Those workers who were present signed off on their attendance. They included, relevantly, Mr Yates, Mr Dixon, Mr O'Sullivan, Mr McDonnell, Mr Ward and Mr Iosefa. Each of the crane crew gave evidence they also attended the talk, although their names do not appear on the sign off sheet.

51 Each of the crane crew also gave evidence that, prior to commencing the night shift on 24 March 2009, they had a handover with the day shift and conducted their own toolbox talk, where they went through the Boom Logistics job safety analysis ("the Boom Logistics JSA") which was the crane crew SWMS for the work they were to carry out that evening.

...

Events leading up to the Incident

54 One of the dogmen, Mr Ford, controlled movement of the load by giving instructions to the crane operator by means of radio communication. The same means of communication was available to the crane operator, that is, the crane operator could contact Mr Ford and, through him, those outside the crane cabin. During the evening of the incident, the crane operator, Mr Jones, received instructions in relation to the lifts exclusively from Mr Ford. Mr Fetherston, the other Boom Logistics dogman/rigger at the site, gave evidence to the effect that he did not give directions to the crane operator that night and that Mr Ford was undertaking that role. Mr Fetherston gave further evidence that he only received instructions, on the night of the incident, in relation to the lifting operation, from Mr Ford and no other person.

55 Communications between the crane crew and other workers engaged in labouring and the like were effected by the Mr Ford.

...

57 The Lift Study/Plan required that only authorised persons could be in the "lift area". The Boom Logistics JSA identified, as a hazard associated with lifting and lowering loads, that a load may "[c]rush hand or part of body". The risk in relation to that hazard was specified in that JSA as "high". The control measure to eliminate that hazard when a load was being lifted was specified as follows:

Body & Limbs clear of load & lifting gear prior to lift.

Authorised people only in lift areas.

Dogman / Rigger directs lift & informs Operator.

...

63 Between 8.30pm and 9.30pm, the crane crew proceeded to carry out two lifts of rail sections referred to in the Lift Study/Plan as sections "1-3" and "1-4". Those lifts were conducted without issue. In other words, the lifts were carried out in accordance with the Lift Study/Plan which provided for the panels to be lifted, slewed and lowered in a single motion (albeit with scope for some slight adjustments to be made to the panel by hand in order for it to be manoeuvred into the correct position).

64 At approximately 9.30pm, the crane crew relocated to the next designated area and set the crane up to lift the rail section referred to in the Lift Study/Plan as section "1-5". (That panel was commonly referred to throughout proceedings as "panel five" or, occasionally, during the oral evidence, as "panel three" or "the third panel". That panel has been and will hereafter be referred to in this judgment as "panel five".)

65 Panel five was a "switch track" which had been assembled on the site. It consisted of six standard railway lines, each measuring approximately 12.4 metres in length. The railway lines were mounted in the form of a rail crossover across 21 concrete railway sleepers, which measured approximately 7.1 metres in length, 300 millimetres in height and 250 millimetres in width. In total, panel five weighed approximately 33 tonnes. Mr Jones gave evidence that, with the crane hook and lifting gear in addition to the panel, the load weighed approximately 34.7 tonnes.

66 The railway lines were connected to the sleepers by the use of 'Pandrol' clips. The Pandrol clips consisted of a flat plate (195 millimetres long, 165 millimetres wide and 5 millimetres thick), two side plates (110 millimetres long, 55 millimetres wide and 15 millimetres thick) and two round rod metal "pig tail" shaped securing pins (20 millimetres in diameter and 100 millimetres long).

...

68 At approximately 10.30pm, the crane crew commenced lifting panel five from the lay down area into its designated position on the track. After completing a test lift of the panel, the panel was lifted, slewed and lowered into a position abutting the previously installed panel (panel "1-4" in the Lift Study/Plan). This was the first lift of panel five. The panel was rested on the ground at this point, with no weight remaining on the crane.

69 When panel five was in position and butted up against previously installed panel "1-4" during the first lift, it was discovered that it did not line up with panel "1-4" in that one rail on panel five was longer than the others and, while that rail butted up with the corresponding rail on panel "1-4", there was a gap between the remaining rails on each panel of about 50 to 60 millimetres.

...

71 According to the evidence of Mr Harris, Mr Drewe and Mr Horan, a group discussion as to how to rectify the misalignment then occurred. That conversation lasted for approximately 10 to 15 minutes. Whilst none of the participants in that discussion could recall its exact terms, it was common ground that a decision was taken to move panel five away, unclip the protruding rail and use an excavator to move it forward.

72 Panel five was lifted, slewed and lowered to a location a couple of metres to the side of its intended position (its intended position being the place where it abutted against panel "1-4") where the adjustments could be made. This was the second lift of panel five which, at its cessation, resulted in the panel being placed on the ground without weight.

73 After the labourers undertook the various adjustments to panel five, the panel was lifted, slewed and lowered for the third time. This was the final lift of panel five before the incident. The exact instruction given by Mr Ford to Mr Jones in relation to the third lift was a highly contentious matter, and shall be discussed below under the heading "Resolution of Factual Issues".

74 As a result of the third lift, panel five was placed into a position butting up against panel "1-4". However, the panel once again did not align. (It is unclear in what sense the panel did not align following the third lift, including whether the issue of the single protruding rail which had become apparent following the first lift had simply not been rectified or whether additional problems had arisen. The evidence of Mr Ford was that the panel was, at this stage, "out of whack".)

75 The load was winched down to approximately 30 tonnes. This meant that the load was still "under weight". It may be noted that, despite evidence given by Mr Dixon to the contrary, it was agreed between the prosecutor and senior counsel for Abigroup and GTE that panel five remained on the ground, but under weight, after the third lift (and remained so up to and including the time of the incident). Mr Dixon's evidence was that, following the third lift and lowering of panel five, he observed that the "platform was in the air, you know, and off the ground" and that he " had to step up on to it ... probably half a metre or something." Mr Dixon's evidence was inconsistent with that of Mr Horan, Mr Fetherston, Mr Yates, Mr Stewart and Mr Harris, each of whom observed the panel to be in contact with or touching the ground (leaving aside the question of weight) at this stage. Mr Dixon's evidence also conflicted with the general notion, as earlier mentioned, appearing in the evidence of Mr Yates, Mr McDonnell, Mr Horan and Mr O'Sullivan, that a load was not to be accessed whilst ever it was suspended above the ground (or under weight) and that they would not do so whilst a load was in that state.

...

78 Following the lowering of panel five after the third lift, another discussion took place regarding the making of further adjustments to the panel to correct the misalignment ("the second discussion"). That discussion occurred during the 15 to 20 minute period between the third lift of panel five and the incident (although the precise timing and duration of the discussion is unclear). The discussion involved Mr Harris, Mr Horan, Mr Stewart and, briefly, Mr O'Sullivan (for convenience, these men shall, where appropriate, be referred to collectively hereafter in this judgment as "the supervisors"). None of the supervisors could recall the exact terms of the discussion. However, it was common ground that a decision was taken to again unclip rails (Mr Stewart gave evidence that "one or two" rails would be unclipped and moved into position and Mr Horan gave evidence that a decision was made to unclip further rails and "shunt the rails forward to correct the misalignment"). There was an issue regarding particular suggestions made by Mr Harris in the course of the second discussion, and agreements reached, in respect of the way in which the work was to be carried out, namely, whether the work would occur before or after the crane was detached from the panel and moved on. I shall return to this matter below under the heading "Resolution of Factual Issues". There was, however, no issue taken by any party with the evidence of Mr Horan, Mr Harris and Mr Stewart that there was no discussion amongst the supervisors during the second discussion of the risks associated with the work (the same may be said of the first discussion).

79 The supervisors each gave evidence that, during the course of the second discussion, they stepped on the panel to inspect the problem.

...

81 A number of the labourers then began to assist with the task of removing Pandrol clips from the rails, including Mr Iosefa, Mr Ward, Mr O'Sullivan, Mr Dixon and Mr McDonnell. The instruction to do so was, on the evidence (other than Mr Dixon's evidence, which I do not accept) given by Mr O'Sullivan (perhaps in conjunction with Mr Horan).

...

83 As the labourers were in the process of removing Pandrol clips, whilst the load remained under weight, some clips which were directly under the load of the chain were removed. The incident occurred when a number of rail lines suddenly sprang free from the panel and struck Mr Iosefa, Mr Ward, Mr Dixon, Mr McDonnell and Mr O'Sullivan.

84 Mr Isoefa sustained fatal injuries as a result.

85 Mr Ward suffered multiple fractures to his right foot and cuts and bruising. Mr Dixon sustained a broken right leg. Mr McDonnell received a laceration to the head, a broken shoulder, a broken ankle and injuries to his calf muscle. Mr O'Sullivan sustained a severe crush injury to his forearm which ultimately required amputation above the elbow. (It may be noted the fact of Mr Iosefa's death and the injuries to Mr Ward, Mr Dixon, Mr McDonnell and Mr O'Sullivan were accepted by both senior counsel for Abigroup and GTE.)

Submissions

Submissions for the Prosecutor

10 Mr S Crawshaw SC who, together with Ms A M Mitchelmore of counsel, appeared on behalf of the prosecutor, made oral and written submissions, which, taken together, are summarised as follows:

(1) The objective features of the offence call for the imposition of a substantial penalty. The offence is serious. There has been a significant contravention of s 8(2) of the Act;

(2) The defendant was an employer whose place of work was the site and the persons specified in the charge were working at the site as part of its undertaking;

(3) The defendant was the principal contractor with respect to the project being conducted at the site, including the works that were being undertaken at the time of the offence, it had control over its subcontractors' activities and safety issues at the site, and it was obliged to ensure all subcontractors complied with their obligations under the Act;

(4) There was a changed method of work during the course of the installation of a rail panel know as panel five which was not the subject of the original risk assessments prepared by Boom Logistics and Taylor Railtrack. The prosecutor relied, in this respect, upon the finding in Abigroup at [357] in respect of the Boom Logistics Lift Study/Plan;

(5) The new method of rectifying the misalignment presented the possibility of new or further risks or the actuation of a risk which had been quiescent. No consideration of the risks associated with rectifying the misalignment while the panel was still attached to the crane was part of the discussion which occurred before the new method was used. The prosecutor relied, in this respect, on the findings made in Abigroup at [358], [359] and [362];

(6) The offence involved obvious and foreseeable risks against which appropriate measures were not taken, even though such measures were available and feasible;

(7) The failure to conduct a further risk assessment or require one be conducted was causally related to the particularised risk because if either of these had been done it would have directed questions to, or caused the prompting of Boom Logistics' head rigger/dogman, Mr Kim Ford, as to the status of panel five in circumstances where he knew the panel was under weight. The prosecutor relied, in this respect, on paragraphs [369] and [256] to [285] of Abigroup and particularly those findings as to what a properly conducted risk assessment would have directed attention to including the prompting of Mr Ford;

(8) The risk assessments of Boom Logistics and Taylor Railtrack did not specifically contemplate the arrangements which were in fact entered into in order to rectify the panel misalignment nor include a provision that such changed circumstances would require a further risk assessment. This was contrary to the requirement in the defendant's own Integrated Quality, Safety and Training Plan and overarching Safe Work Method Statement ("SWMS");

(9) The prosecutor relied upon the findings in Abigroup at [363] to submit that the defendant's failure to require the risk assessments of Boom Logistics and Taylor Railtrack to stipulate that a change to the process would require a further risk assessment was contrary to the requirement in its own Integrated Quality, Safety and Training Plan. The defendant's overarching SWMS did not relieve it of the obligation to superintend the risk assessments for the subcontractors or to ensure that the subcontractors performed the work safely by having new and further risk assessments undertaken, where necessary, to remove or obviate the dangers at the workplace including those arising from the changed circumstance;

(10) The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being considered to be more serious: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 99 IR 29; (2000) 99 IR 29 ("Capral Aluminium") at [81] to [82] and Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 ("Kembla Coal and Coke");

(11) Although the defendant could not foresee what, in fact, occurred on site, it was not the accident itself that constituted an offence under s 8(2) but rather the failure of the employer to ensure that persons at its workplace were not exposed to risks while at work: Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452. It was reasonably foreseeable that, by reason of the failure to carry out a risk assessment or direct that one be carried out, those in the vicinity of the panel would be exposed to risk;

(12) Given the prior convictions of the defendant under the Act, the maximum penalty available is $825,000 in respect of the offence;

(13) The penalty should reflect both general and specific deterrence;

(14) Given the nature of the defendant's activities in a dangerous industry, there is an ongoing risk of its failure to conduct adequate risk management and this is compounded by the defendant's previous conviction in Inspector Martin v Abigroup Contractors Pty Ltd [2009] NSWIRComm 110 ("Martin v Abigroup") for a risk assessment failure;

(15) The death of Mr Iosefa and the serious nature of the injuries sustained by Mr O'Sullivan, Mr Dixon, Mr McDonnell and Mr Ward may be taken into account as per Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [31] to [33]. Mr Ward suffered multiple fractures to his right foot and cuts and bruising. Mr Dixon sustained a broken right leg. Mr McDonnell received a laceration to the head, a broken shoulder, a broken ankle and injuries to his calf muscle. Mr O'Sullivan sustained a severe crush injury to his forearm which ultimately required amputation above the elbow. The risk of serious injury is an aggravating factor pursuant to s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act");

(16) There were subjective features of the matter both favourable and adverse to the defendant;

(17) The defendant co-operated with Work Cover during the investigation of the offence;

(18) Changes in safety policy were implemented by the defendant following the incident. However, these were not expressly directed at the offence, which was the defendant's failure to implement its existing safety policy. That policy required, at the time of the incident, a further risk assessment in the event of a change in work method;

(19) Although Mr Reymond expressed regret for the incident and the impact of the incident on the deceased's family, neither he nor the defendant has provided evidence that the defendant accepted responsibility for its actions which constituted the actual offence as required for the satisfaction of s 21A(3)(i) of the CSP Act;

(20) The defendant's prior convictions constituted an aggravating factor and indicated that the offence the subject of these proceedings was not an aberration. The defendant has been convicted on a number of occasions for breaches of ss 15(1) and 16(1) of the Occupational Health and Safety Act 1983 ("the 1983 Act") in respect of which it was fined between $7,500 and $300,000. The defendant also has convictions for a breach of s 8(1) of the Act, for which it was fined $80,000, and a prior conviction for a breach of s 8(2) of the Act, for which it was fined $300,000;

(21) Three other entities working at the site, namely, Boom Logistics, Taylor Railtrack and MVM Rail, were also convicted and fined for offences charged in relation to the incident. Those are as follows:

(a) Boom Logistics was fined $100,000 (with a maximum possible penalty of $550,000) for a breach of s 8(2) of the Act in Inspector Christensen v Boom Logistics Ltd [2012] NSWIRComm 95 ("Inspector Christensen v Boom Logistics"). Staff J observed at [70] as the follows:

The maximum penalty in respect of the 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. I observe that absent the defendant's impressive approach to occupational health and safety, together with the additional steps it took after the incident, including that it endeavours to be a leader in its industry, the penalty would have been greater.

(b) Taylor Railtrack was fined $125,000 for a breach of s 8(1) and $175,000 for a breach of s 8(2) of the Act, but in applying the principle of totality, the Court (per Boland J) imposed penalties of $83,000 and $117,000 respectively: Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31 ("Inspector Christensen v Taylor Railtrack"); and

(c) MVM Rail was fined $100,000 for a breach of s 8(1) and $140,000 for a breach of s 8(2) of the Act, however, taking into account the totality principle, the Court (per Boland J) found that a penalty of $160,000 appropriately reflected the total criminality involved and ultimately imposed a fine of $66,000 in respect of the s 8(1) offence and $94,000 in respect of the s 8(2) offence: Inspector Christensen v MVM Rail Pty Ltd [2013] NSWIRComm 89 ("Inspector Christensen v MVM Rail").

(22) Given that the roles of Boom Logistics, Taylor Railtrack and MVM Rail differed, it follows that entities should be apportioned differing levels of criminality. The defendant's role was overarching. It was in control of both of its subcontractors and the overall occupational health and safety on the site. It follows that the penalty imposed against the defendant should reflect the larger ambit of its role and its failure to take steps to avoid the incident;

(23) Given that defendant did not plead guilty it is not entitled to a discount on penalty;

(24) The prosecutor sought an order under s 122(2) of the Fines Act 1996 that the defendant pays to the prosecutor one half of any fine imposed by the Court.

Submissions for the Defendant

11 Mr B D Hodgkinson SC, with whom Mr R J Rankin of counsel appeared for Abigroup, made oral submissions which are summarised as follows:

(1) It was accepted that the objective seriousness of an offence is a matter of primary significance in sentencing and that subjective matters are subsidiary;

(2) The Court should approach the question of the seriousness of the offence in line with the approach taken by Staff J in Martin v Abigroup (at [54]);

(3) Prior to the commencement of the project there had been extensive planning on the part of the defendant with Taylor Railtrack and Boom Logistics. This planning included risk assessments, a SWMS review, consideration of the Boom Logistics Lift Study/Plan, pre-work briefings and site inductions;

(4) Although the defendant's role can be characterised as that of the principal contractor, its culpability and criminality is affected by the roles played by the other corporate participants who also failed to undertake fresh risk assessments. The defendant did maintain a supervisory role. However, Taylor Railtrack retained a contractual role to undertake the supervision of the actual work and the workers associated with that work which included Boom Logistics' employees. Indeed, Taylor Railtrack was directly supervising Boom Logistics at the time of the incident;

(5) The safety management system adopted by the defendant on this site involved the hand-over to the Boom Logistics employees (referred to collectively as the "crane crew") of any load that was being lifted. They took control and could (and, in fact, did) exclude people from the area in which the lift was to take place. The control for the lift which gave rise to the incident remained with the crane crew until the panel was safely on the ground;

(6) In Abigroup it was found that Mr Ford and the crane operator, Mr Edward Jones, were the only two people who knew that the panel was under weight. Mr Ford and Mr Jones did not inform their supervisors and those working on the panel that it was under weight (or about the risks associated therewith) despite having been handed control of the lift and the area in which the lift was being undertaken. This abrogation of responsibilities was compounded by their disobedience of an instruction from Taylor Railtrack. These matters reflected on the criminality of the defendant because it demonstrated that the defendant was not ignoring a risk;

(7) The defendant noted, as to Mr Ford and Mr Jones, that:

Your Honour was comfortably able to come to the view that there had been an abrogation of duty. Of course, had Mr Ford complied with this very simple duty, then the fact that the panel was underweight would have been made known. Your Honour found, notwithstanding his evidence, that he did not make that known to anybody. ...

...Again, Mr Jones, one of only two people at that site at that time who knew this panel was underweight because of the position it would appear to be in, it appeared to be on the ground, takes no step, does not call out, doesn't saying anything, even to Mr Ford, about that. Another abrogation of responsibility or duty. ...

...

Your Honour found that Mr Horan had, in fact, issued an instruction to drop it on the ground. So that what follows from that is, not only did they abrogate their duty as they knew it, but they disobeyed an instruction from a person, a supervisor from Taylor Rail, which instruction they should have complied with or, at very least said, we can't, or we are not going to, or whatever. ...

(8) Each of Boom Logistics, Taylor Railtrack and MVM Rail pleaded guilty and those pleas were tantamount to an acceptance that they failed to fulfil their supervisory and risk assessment obligations under their contractual arrangements with the defendant. The contracts required those three parties, because of their expertise in the particular work they were doing, to undertake risk assessments of their work;

(9) The subcontractors had co-responsibility for risk assessment. Both Boom Logistics and Taylor Railtrack had produced risk assessments for the site. It was submitted:

... Your Honour dealt with the contracts. The contracts required, not only Abigroup to undertake steps in terms of risk assessment, but required the parties because of their expertise in a particular work they were doing, to undertake risk assessment of their work.

When one looks at that, that, again, reflects on the criminality of Abigroup. Here is Abigroup contractually not exculpating itself from obligations, but reminding, would be an appropriate term, or imposing contractually, an obligation that these contractors had under the Occupational Health and Safety Act for those very fundamental matters being the basis upon which the risk assessment matter, being the basis of your Honour's finding in relation to this additional risk assessment that your Honour has found ought to have been undertaken by Abigroup, or as the charge, or they could have commissioned somebody else to do it.

(10) Although there was a failure by the defendant, to "re-risk assess" to ensure additional risk assessment was undertaken in relation to the third lift, the adequacy of the steps taken by the defendant, up to that point in time, "reflect a lower level of criminality";

(11) This was not a case where there was no risk assessment carried out by the defendant. Rather, it is one in which an additional risk assessment was not carried out. The risk was identified as dealing with the panel whilst it was under weight. Further, a relevant measure to safely eliminate the risk had also been identified earlier in the evening in relation to lifts 1 and 2. That safety measure was to put the panel on the ground;

(12) At the time of the incident, the defendant had an extensive occupational health and safety system which included an Integrated Quality, Safety and Training Plan. Further, there were procedures in place for monitoring and reviewing that Plan;

(13) All these factors are relevant to the assessment of criminality of the defendant;

(14) There are also relevant subjective factors in favour of the defendant;

(15) The defendant co-operated at all times with the WorkCover Authority's investigations and that co-operation flowed through to the way in which the trial was conducted by the defendant;

(16) There has been a change in the defendant's corporate perspective as to safety on its projects. It has taken particular steps to deal with the failure to risk assess through a revised safety programme. These were identified as follows:

(a) Notwithstanding that cranes are still commonly used in industry practice, the defendant now constructs the rail turnout in situ without using cranes to lift pre-fabricated panels and has completed 30 rail turn outs since the incident;

(b) The manner in which panels are slung by a dogman has been changed so that the sling is around the individual rail, not the panel itself. This avoids the previously existing latent energy problem which had caused pressure on the rails and had forced them in towards the middle when a panel was under weight;

(c) A national review process of cranage practices has been undertaken by the defendant which resulted in the development of a document known as AR618, out of which arose a PowerPoint training presentation;

(d) A new position of "NSW Cranage Adviser" was established;

(e) The defendant has updated its safety risk management system in a number of respects;

(f) The risk assessment process and the identification of control are set out step-by-step;

(g) It identifies what is expected in relation to assessment processes and identifies hazards and risks needed to be eliminated, or, if not eliminated, controlled, and it identifies what is expected in relation to assessment;

(h) There are risk assessment procedures at the management, supervisory and employee levels of the defendant's corporate structure;

(i) All areas of the workforce are instructed to undertake initial risk assessments and to then reassess risk. Importantly the reassessment is mandated when there is change in, inter alia, "the people, environment, plant work and tasks";

(17) The updated requirements implemented by Lend Lease redress any risk assessment inadequacy as found in Abigroup and are effective in the prevention of any recurrence of the risk to safety which led to the incident the subject of the liability judgment;

(18) The defendant has introduced a more comprehensive behavioural safety training course;

(19) The defendant is continuing to develop risk management processes in a responsible way;

(20) The defendant accepted that it had a role in the incident and has expressed that it very much regretted the incident. The defendant's expression of regret is serious and sincere and this is demonstrated by the steps it has taken to address the matters of risk assessment;

(21) The defendant accepts that the expression (contained in the affidavit of Mr Gavin Reymond) that the defendant regrets the incident and its impact does not carry with it the measure of remorse or contrition of the kind the authorities refer to. The word "incident" was used by the defendant in the broad sense. The expression of regret was made in an affidavit and was solely directed at the question of sentencing for the breach. The expression of regret was made not as a mere observer or spectator who might have simply regretted that the incidence occurred. This is because a mere observer would have moved on, whereas the actions the defendant has taken since the incident showed that its expression of regret was sincere. When one takes Mr Reymond's words in the context of the purpose for which the affidavit was produced and balances it with the actual steps taken by the defendant, they are words attributable to contrition in the legal sense. Further, the defendant has recognised the impact of the incident on the victims, families and other persons;

(22) The defendant made an ex gratia payment to Mr Iosefa's family, including his ex-wife and his partner, at the time of the incident;

(23) The defendant did not wish to be heard on the questions of moiety or costs.

Relevant Findings Below

12 As earlier noted, a number of findings of fact were made at trial in Abigroup in relation to the incident (at [105] to [311] and [341] to [397]) which are relevant to the question of sentencing and which were relied upon in the submissions of the parties during the sentencing hearing. For convenience, those findings may be extracted from Abigroup as follows:

Mr Ford's communication to a "young supervisor"

221 I agree with the submissions put by the parties that the evidence of Mr Ford as to his communication with a young supervisor regarding panel five being under weight should be rejected. I am of the view that, whilst it is probable Mr Ford had a conversation with a supervisor, it did not contain the communication he described. To the extent he deposed that communication occurred, his evidence was inaccurate.

222 The evidence forms part of an account which, as I have described above, was unsatisfactory and unreliable, and which ultimately undermined Mr Ford's credibility. The significance of this particular piece of evidence is that it represents one of the components of Mr Ford's evidence designed to extricate himself from blame, under his thesis that, notwithstanding he was aware that panel five remained under weight following the third lift, he did not breach his obligations either because he did not make any observation requiring him to act or, as in the present instance, he had put in place precautions.

...

Mr Horan's Evidence that he Instructed that the Panel be "dropped"

224 As to Mr Horan's evidence that he had instructed the panel be "dropped", I accept the contentions of the defendants that the evidence should be accepted. It is quite clear that, in giving this evidence, Mr Horan was referring to this instruction being given to Mr Ford, because Mr Ford was the head dogman on site and handled communications between the crane crew and other supervisors. Whilst it was not corroborated (I note that no cross-examination was undertaken of Mr Ford in this respect), I consider Mr Horan to be a witness of credit who should be believed in his account that he instructed a dogman that to "drop" the panel. I formed a favourable opinion of his evidence. He presented as a frank and confident witness. There was, in submissions, no challenge to any other part of Mr Horan's evidence by any party. Further, his evidence, in this respect, confirmed a statement he had made in his WorkCover Statement of Interview conducted in close proximity to the date of the incident.

225 Further, Mr Horan's evidence, in this respect, conforms with some objective factors. Whilst there is no evidence Mr Horan ordered panel five be dropped without weight during the first and second lifts, the evidence reveals they were, in fact, dropped. No explanation has been proffered as to why a different approach was adopted for the third lift and, as I will later discuss in relation to Mr Ford's evidence, common sense would dictate that, if further work was to be performed on panel five, it would have been lowered to the ground without weight on the crane.

The Crane Crew's Observations of the Panel

...

235 It follows from this discussion that I do not accept Mr Ford's evidence that he did not observe the supervisors standing on panel five between the lowering of the panel to the ground after the third lift and the incident. Nor do I accept his evidence that he did not observe the labourers standing and conducting work on the panel until the actual point of the incident.

...

241 Having regard to these factors, I accept the evidence of Mr Jones that he observed supervisors walking on panel five following the third lift.

...

246 The view will be reached below that Mr Fetherston did not know that panel five remained under weight following the third lift. That conclusion would provide an explanation for why Mr Fetherston would not react to seeing the labourers going onto the panel to perform work by taking some preventative action. Given the conclusion I shall, as noted, reach as to Mr Fetherston's state of knowledge of the panel being under weight, it is strictly unnecessary to determine whether he did or did not see the labourers move onto the panel (although, it may be noted, it is more probable, given the analysis above, that he did).

Did Messrs Ford, Jones and Fetherston know that panel five was under weight during the period from the lowering of the panel on the third lift until the incident?

...

260 A further factor is Mr Fetherston's state of knowledge. There was no challenge to Mr Fetherston's evidence that he did not know the panel was under weight and such a conclusion is abundantly available on the evidence. The fact that he was not told and, thereby, did not know the panel was under weight is another factor pointing against Mr Ford's evidence that he knew the panel was under weight because it might be expected that, in the ordinary course, if Mr Ford did know he would have informed Mr Fetherston of that fact.

...

282 On balance, I consider that the evidence of Mr Ford, as corroborated by the evidence of Mr Jones, that an instruction was given by Mr Ford, in the third lift, to lower panel five under weight should be accepted. Whilst there are some countervailing considerations which I have discussed, I do not consider that they warrant rejection of Mr Ford's or Mr Jones' evidence or outweigh the various factors I have discussed in favour of finding an instruction was given by Mr Ford to lower the panel under weight.

...

297 I find that Mr Ford knew the panel was under weight from the giving of his instruction to Mr Jones to effect that condition until the incident and that, in failing to prevent the supervisors and the labourers entering and working upon the panel, he acted in contravention of his duties as a dogman/rigger.

...

307 Ultimately, the evidence only properly permits a conclusion that Mr Jones maintained a distracted, casual or neglectful approach to his duties from the time of the third lift or his observations of the supervisors until the incident. So much is amply demonstrated by the fact that he actually spilled the cup of coffee he was holding whilst reaching for the luff lever in an attempt to avert the incident.

308 I accept Mr Jones' evidence that he knew panel five was under weight from the lowering of the panel until the incident.

Mr Harris' recollection of being asked whether the panel was right to get on and his suggestion in the course of the second discussion that the crane be moved prior to work commencing on panel five

...

310 First, I do not accept Mr Harris' evidence that a question was raised as to whether it was safe to mount the panel. There are a number of reasons for this conclusion:

(1) The evidence was unsatisfactory. Mr Harris initially stated in examination in chief that no one had asked the crane crew if the panel was under weight, adding that "we wouldn't have stepped on the panel if we knew it was", but nonetheless went on to state, later in examination in chief, that an unnamed person asked if it was right to get on. Hence, the evidence, in this respect, was inconsistent, and attended by considerable uncertainty, particularly as to the author of the statement;

(2) Neither Mr Horan nor the crane crew (or, for that matter, any other witness) could recall anyone asking about the state of the panel or whether it was safe to get on.

311 Secondly, I do not accept the evidence of Mr Harris to the effect that, upon his departure from the second discussion, it was agreed, upon his suggestion, that the misalignment of panel five following the third lift would be resolved by work occurring on the panel after the crane had been moved on. The following factors result in that conclusion:

(1) Mr Harris' evidence in this respect was inconsistent, and, ultimately, vague and uncertain. Mr Harris initially stated, in examination in chief, that he had made a suggestion, which he understood had been agreed to by the other supervisors present, "that we could realign the bearers and the rail using an excavator at a later time", being a time "after the crane moved on". However, when cross-examined by the prosecutor on this issue, Mr Harris could not recall who had suggested that an excavator would be used, nor could he recall who had used the word "later". When asked who suggested that the work could be undertaken using an excavator after the crane had moved on, Mr Harris answered that "it would have been a general discussion between myself, Tim Horan and I think there was another supervisor there";

(2) Mr Harris' evidence was not corroborated by any other witness, either as to the notion of work being undertaken after the crane had moved on or as to the existence of an agreement to that effect. Mr Horan gave evidence that "there was no discussion to move the crane, I don't remember". Mr Stewart, whilst not asked directly, gave no indication in his evidence of a suggestion that the work would be undertaken at a time after the crane had moved. When asked whether there had been any discussion about the crane being moved prior to work commencing on the panel, Mr O'Sullivan answered "[n]o, no". It is one thing for recollections to differ over a proposal for rectification and another again for there to be no acceptance or recollection or an agreement to that effect;

(3) The evidence was self-serving and would, if accepted, tend to exculpate Mr Harris from blame in relation to his role, as supervisor representing the head contractor at the site, in allowing the work to be performed on the panel whilst it was still under the weight of the crane;

(4) Notwithstanding Mr Harris' role as the representative of the head contractor, and contrary to his suggestion of an agreement between himself and supervisors of relevant subcontractors, the work went ahead, immediately after he had left, entirely out of conformity with the agreement he said was reached. Such an outcome is unlikely given that, accepting he did not exercise direct control over any of the workers employed by Abigroup's subcontractors, Mr Harris was able to direct the work which occurred at the site by instructing the relevant supervisor of a particular workgroup to undertake a particular task.

...

Abigroup - s 8(2) charge

...

Risk Assessment

...

346 When refined by the submissions of the prosecutor, this charge essentially concerned an alleged failure by Abigroup to undertake a fresh or further risk assessment or require any subcontractor to perform a fresh or further risk assessment following the change in the method of work in the panel installation which, subject to further elaboration below, consisted of the rectification of a panel misalignment via the removal of Pandrol clips after the second and third lifts of panel five. Particular (b) of the charge shall be examined in that light.

...

357 The Lift/Study Plan did not contemplate a multiple lift sequence which facilitated or acted as an adjunct to rectification work on panel five (the lifts, as I will discuss below, were essentially being treated as completed so as to facilitate the successive steps in the rectification process). Nor did those safety measures contemplate that the chains of the crane would be attached to the panel whilst rectification work was undertaken.

358 Essentially the same difficulty confronts the second tranche of Mr Hodgkinson's argument. It is true that the safety measures and controls operating with respect to the crane operations explicitly prohibited persons, other than the crane crew, from being in the immediate vicinity of the panel (and, it must follow, from stepping on the panel) whilst the crane was lifting, slewing or lowering the panel. In other words, they prohibited access to the panel until the lift was completed and control of the panel handed over to the construction operations. However, the very nature of the rectification procedure established for panel five on 24 March 2009 was that, in the course of the execution of the lifting arrangements designated for panel five, there were intermediate steps during which the panel was released, under the supervision of Abigroup and Taylor Railtrack, from the control of the crane crew to construction, or construction related, operations after two successive lifts not contemplated by the Lift Study/Plan.

359 Whatever may be the proper description of rectification works undertaken after the second and third lifts, they were, as noted, not part of the crane operations as defined by the Lift Study/Plan and represented an interruption to the lifting operations in order to carry out, as I have identified, construction or construction related work falling within the province of Taylor Railtrack and MVM Rail. The safety measures for the crane operations depended, for their effectiveness, upon the maintenance of a continuous control over the panel during the lifting operations which, in this case, was disrupted by what I have described as intermediate steps.

361 A change in work method emerged after the second lift and continued through the third lift and the ensuing work on the panel until the incident. It consisted of the rectification of the misalignment of panel five by use of the crane in conjunction with construction operations. The resultant process consisted of the employment of the crane to facilitate the rectification work by means of undertaking lifts of a different frequency and to a different location than contemplated in the Lift/Study Plan and the holding over of the attachment of the crane to panel five for the purpose of positioning panel five after construction crews had undertaken rectification work; a procedure actually adopted after the second lift.

362 It follows from this analysis that there was a changed method of work during the course of the installation of panel five which was not the subject of the original risk assessments prepared by Boom Logistics and Taylor Railtrack. Neither of those original risk assessments contemplated, specifically, the arrangements which were, in fact, entered into for the rectification of the misalignment of panel five and, further, as already noted, none included a provision that such changed circumstances would require a further risk assessment. The new method presented the possibility of new or further risks or the actuation of a risk which had been quiescent.

363 Contrary to the requirement in its own Integrated Quality, Safety and Training Plan that subcontractors develop SWMSs compatible with Abigroup's health and safety policies, Abigroup did not require the risk assessments for Boom Logistics and Taylor Railtrack to stipulate, as a condition of their SWMSs, that "a change to the process" would require a further risk assessment. Abigroup's supervisor, Mr Harris, did not incorporate, in the discussion which occurred after the third lift (the second discussion) nor, it may be inferred, in the discussion which occurred after the first lift, a consideration of the risks associated with rectifying the misalignment whilst the panel was attached to the crane or the subject of multiple lifts. (Mr Harris was the overall site supervisor and was also acting as the shift manager during those discussions.) Whilst Abigroup did have an overarching SWMS, this did not relieve it of the obligation to superintend the risk assessments for the subcontractors or to ensure that the subcontractors performed the work safely by having new and further risk assessments undertaken, where necessary, to remove or obviate dangers at the workplace including those arising from changed circumstances.

...

367 I have no hesitation in finding that the failure by Abigroup to conduct a further risk assessment or to require one be undertaken by its subcontractors after the third lift of panel five and the decision to undertake rectification works thereon, was causally related to the particularised risk. To borrow from the approach in Mainbrace, at [72], a proper and comprehensive assessment of the task of rectifying the misalignment of the panel at the site (including crane operations associated therewith) before the commencement of the removal of Pandrol clips after the third lift would have resulted in the risk being discovered and remedial action taken. That is because the risk avoidance measures operating at the site drew attention, in a general way, to the risks associated with crane operations and the evidence disclosed, as earlier noted, that workers would not mount the panel if it was known (or found) to be under weight.

...

369 Abigroup contended that a further risk assessment would not have averted the risk, or that there was no causal connection between the failure to conduct a risk assessment and the risk, because Mr Ford did not have knowledge that the panel was under weight after the third lift. That submission is, however, predicated upon a factual contention which has been rejected by the Court and must, therefore, fail.

...

Conclusion: particular (b)

376 In the result, particular (b) of the charge is proven beyond reasonable doubt.

The Evidence

13 The prosecutor tendered a prior convictions statement for "Abigroup Contractors Pty Limited". That document indicated that the defendant had been convicted and fined for 10 breaches of the 1983 Act and two breach of the Act as follows:

(1) On 4 April 2000, the defendant was convicted and fined, by the Industrial Relations Commission in Court Session, $125,000 for a breach of s 15(1) of the 1983 Act;

(2) On 14 June 2001, the defendant was convicted and fined, by the Chief Industrial Magistrate's Court, $12,500 for a breach of s 16(1) of the 1983 Act (in relation to an incident which occurred on 5 July 1999);

(3) On 26 November 2001, the defendant was convicted and fined, by the Chief Industrial Magistrate's Court, $7,500 for one breach of s 15(1) and $7,500 for one breach of s 16(1) of the 1983 Act;

(4) On 14 January 2002, the defendant was convicted and fined, by the Chief Industrial Magistrate's Court, $25,000 for a breach of s 15(1) of the 1983 Act (in relation to an incident which occurred on 17 March 2000);

(5) On 24 September 2004, the defendant was convicted and fined, by the Industrial Relations Commission in Court Session, $175,000 and $225,000 respectively for two breaches of s 15(1) and $175,000 and $225,000 and $300,000 respectively for three breaches of s 16(1) of the 1983 Act (in relation to an incident which occurred on 4 December 1995). (An individual defendant was also convicted and fined for an offence under s 19(a) of the 1983 Act in the same proceedings.);

(6) On 11 April 2007, the defendant was convicted and fined, by this Court, $80,000 for a breach of s 8(1) of the Act (in relation to an incident which occurred on 7 May 2005); and

(7) On 10 July 2009, the defendant was convicted and fined, by this Court, $300,000 for a breach of s 8(2) of the Act (in relation to an incident which occurred on 10 October 2006).

14 The defendant relied upon the affidavit evidence of Mr Gavin Reymond sworn 5 May 2014 (Mr Reymond was not required for cross-examination by the prosecutor). Mr Reymond was the Civil Manager of Lend Lease for New South Wales and the Australian Capital Territory. He was appointed to that position in September 2013 having worked for Lend Lease from July 2007. Mr Reymond deposed that, in his role as Civil Manager, he had responsibility for the operational delivery (including the safety performance) of all engineering projects in those regions.

15 Mr Reymond gave the following evidence in regard to the occupational health and safety management systems which Lend Lease had in place at the time of the incident:

16. At the time of the Incident, the Defendant had a substantial OHS management system, specifically an Integrated Management System. This Integrated Management System covered both business and project activities at the Site and comprised three distinct but interrelated documents:

(1) the Management System Manual, which:

(a) described how the management system was structured;

(b) set out management roles and responsibilities; and

(c) summarised the application of other documents;

(2) the Management System Procedures (the Procedures), which provided detailed procedures on which all the Defendant's employees and others were to follow; and

(3) an Integrated Quality, Safety & Training Plan (the IQSTP), which was developed by the Defendant for the Project. The IQSTP, amongst other things, set out how the Procedures applied to the Project. Shown to me at the time of swearing this affidavit is a copy of the IQSTP, which was Exhibit 14, Tab 12 in the Proceedings.

Site Safety Rules

17. Additionally, the Defendant developed Site Safety Rules for the Project, which were prominently displayed around the Site during the Works. A true copy of the Site Safety Rules is exhibited in Tab 2 of Exhibit GR1.

Procedures

18. Relevantly, the following procedures of the Defendant were in place at the time of the Incident as part of its OHS management system and were made available at the Site office:

(1) AR601 Safety Risk Management;

(2) AR602 Emergency Preparedness;

(3) AR603 Safety Inspections/observations; and

(4) AR604 Incident (Injury/Non-injury) reporting and investigations.

16 Mr Reymond deposed that Lend Lease had undertaken extensive planning prior to work commencing at the site. That planning included conducting site walks with representatives of Boom Logistics and Taylor Railtrack, pre-work briefings and site inductions, undertaking a risk assessment and developing a SWMS and reviewing the SWMSs of Taylor Railtrack and the Boom Logistics Lift Study/Plan.

17 Evidence was given by Mr Reymond as to the assistance provided by Lend Lease to the family of the deceased worker, Mr Iosefa, and the other workers who were injured as a result of the incident as follows:

Immediate response

30. The Defendant sincerely regrets the Incident and the impact of the Incident on the family of Mr Agamalu Iosefa, Mr Adam O'Sullivan, Mr Mark McDonnell, Mr Robert Dixon and Mr Kyle Ward.

31. Following the Incident, assistance was offered to all employees involved in the Incident, including immediate and ongoing counselling assistance.

32. An ex gratia payment was made to Mr Iosefa's family, including his ex-wife and his partner at the time of the Incident.

18 Mr Reymond also gave evidence as to the changes which were made to Lend Lease's occupational health and safety systems following the incident, which evidence may be extracted, relevantly, as follows:

34. On 25 March 2009, the Defendant directed Boom to revise its Boom Lift Study/Plans to provide for an alternative method of slinging the rail panels during the lifts, as opposed to the 'basket slinging method', which was used in the lifts involved in the Incident. The 'basket slinging method' meant that the chains were run through the outside rails of the panel with the greatest energy being concentrated on those rails.

...

36. Also on 25 March 2009, the Defendant engaged Tinni Management Consulting to undertake an independent analysis and evaluation of the system of panel lifting at the Farley Rail Crossover. A true copy of Tinni Management's evaluation letter is exhibited in Tab 6 of Exhibit GR1.

...

Cranage practices

39. In or around 2009, the Defendant formed the National Crane Committee made up of the National Safety Manager, the Regional Safety Managers and subject matter experts to review cranage practices across the Defendant's operations and to review current procedures.

40. The National Crane Committee undertook an extensive review of the Defendant's procedures and, in around 2010 following extensive consultation with a number of safety and engineering experts, introduced Procedure AR618, Cranes and Lifting (AR618). A true copy of the current version of AR618 is exhibited in Tab 9 of Exhibit GR1.

...

42. In August 2011, the Defendant introduced the position of NSW Crane Adviser (the Crane Adviser). Mr Tom Gabris is currently the Crane Adviser and is qualified as an OHS Trainer for Managers, Advanced Rigger and has an open ticket to operate any crane. The Crane Adviser is responsible for:

(1) delivering training to workers on AR618;

(2) attending the Defendant's projects to assist in the planning and supervision of lifts, including audits against systems and procedures; and

(3) engaging with crane contractors to ensure compliance with the Defendant's policies and procedures.

Method of installing rail turnouts

43. Following the Incident, the Defendant suspended the use of cranes for the installation of rail turnout panels and investigated alternative methodologies for constructing rail turnouts.

44. Notwithstanding that the use of cranes to install rail track sections is still common practice within the industry, the Defendant's preference in installing rail turnouts is now constructing the rail turnout in situ without using cranes to lift pre-fabricated panels.

45. Since the Incident, the Defendant has successfully installed approximately 30 rail turnouts in NSW without lifting in pre-fabricated rail panels with a crane.

46. Additionally, in September 2011, the Defendant invested approximately $70,000 on the manufacture of equipment that would allow for the installation of rail turnouts using rails and rollers to directly slide in rail panels.

Risk assessment

47. In August 2013, the Defendant updated AR601 Safety Risk Management (Version 14). A true copy of Version 14 is exhibited in Tab 11 of Exhibit GR1. A guidance note on the operation of Version 14 is contained in a document entitled, ENGR-SOP-AR601 Engineering Health & Safety Risk Management, a true copy of which is exhibited in Tab 12 of Exhibit GR1.

...

Construction Global Minimum Requirements

49. In December 2011, the Defendant introduced Environmental Health and Safety standards entitled, Construction Global Minimum Requirements (GMRs). The GMRs set out, amongst other things, minimum health and safety standards designed to control the risks associated with both asset and construction operations. The GMRs apply to all the Defendant's operations. A true copy of the GMRs is exhibited in Tab 16 of Exhibit GR1.

Behavioural based safety training

50. From August 2009 to January 2013, the Defendant introduced a behavioural safety training course, called 'PULSE'. PULSE involved a two-day course, with a third day for coursework. This course was developed by Safety Dimensions, an independent training organisation, where participants are taught to identify and challenge unsafe behaviours. It was designed to further improve the Defendant's safety performance by providing supervisors, managers, and every employee with the skills and knowledge to work safely every day. A true copy of the course outline for PULSE is exhibited in Tab 17 of Exhibit GR1.

Relevant Principles

19 The general principles for sentencing in this jurisdiction were discussed in some detail in Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 ("Cross City Tunnel") and, more recently, in Inspector Dall v Ullrich [2012] NSWIRComm 87 ("Ullrich") and Inspector Middleton v Cafe C Pty Ltd [2012] NSWIRComm 131. I adopt those principles for the purposes of this judgment, without repetition, except to add some points of emphasis below.

Consideration

Objective Features

20 The Court must first, and primarily, consider the objective seriousness of an offence when sentencing under occupational health and safety legislation. I discussed the principles applicable to a consideration of the objective seriousness of an offence in Ullrich at [43] to [45].

21 The assessment of the gravity of an offence under s 8 of the Act requires attention to be focused upon the risk to safety and, viewing it objectively, the seriousness of the act or omission giving rise to the risk. This approach derives from the nature of the duties imposed by s 8 of the Act which are "directed to obviating actual risk to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk": Morrison v Powercoal Pty Ltd & Another [2004] NSWIRComm 297; (2004) 137 IR 253 at [100] and Cross City Tunnel at [195].

22 The s 8(2) charge brought against Lend Lease was set out in full above. When constrained by the particulars of the charge, the relevant risk in the present matter was the risk of injury to persons other than Lend Lease's employees "from being struck by a rail panel, or components of a rail panel, whilst installing rail panels at the site." The workers exposed to that risk were specified in the charge as being Mr Agamalu Iosefa, Mr Robert Dixon, Mr Mark McDonnell, Mr Kyle Ward and Mr Adam O'Sullivan.

23 As earlier noted, Lend Lease was found, in Abigroup, to have contravened s 8(2) of the Act with respect only to particular (b) of the charge brought against it. That particular concerned a failure by Lend Lease "to conduct a risk assessment, or ensure that a risk assessment was conducted with respect to the task of rectifying a panel misalignment at the site before work commenced to rectify the misalignment", which risk assessment would have "identified the risk of injury arising from the task of removing Pandrol clips from rail forming part of a panel that was attached to a crane and, accordingly, was potentially under weight" (see particular (b)(i)).

24 It follows that the assessment of the objective seriousness of the offence in this matter must be confined to the failures set out in particular (b) of the charge. It will be necessary, in so assessing, to examine the nature of that failure, any aggravating or mitigating factors and all of the relevant circumstances surrounding the offence.

25 The relevant findings of the Court at trial with respect to the offence in this matter have been extracted above. At a most general level, Lend Lease failed to conduct a further risk assessment, or ensure a further risk assessment was conducted by its subcontractors, when the method of work changed at the site during the course of the evening on which the incident occurred.

26 The Court found that each of the workers named in the charge were exposed to the risk (in particular, the risk of injury from being struck by "components of a rail panel") when, in order to address a misalignment, they undertook the work of removing Pandrol clips from a rail panel (known as panel five) whilst that panel remained under the weight of the crane (see [345] of Abigroup). That particular work, it was found, constituted a change in the work process or method from that which had been anticipated in the Boom Logistics Lift Study/Plan and "presented the possibility of new or further risks or the actuation of a risk which had been quiescent" [see [362] of Abigroup). That change in the method of work occurred, specifically, when, after the same panel had first been lifted into its intended position (at which time the misalignment was discovered), the panel was then lifted back out to a position adjacent to its intended position (at which time it was rested completely on the ground and work was undertaken on it in an attempt to address the misalignment). The panel was then lifted, for a third time, and placed back into its intended position but left under weight and the work of removing Pandrol clips commenced in a further attempt to address the misalignment which had not been cured by the work conducted after the second lift. (Whilst it was found, in Abigroup, that the work method changed when the panel was lifted for the second and third times out of its intended position and work was performed on it, it was also found that the risk as particularised only arose after the third lift when the panel was left under weight.)

27 To the extent the submission of the defendant that it failed to "re-risk assess" is reflective of a view, on the part of Lend Lease, that what it was required to do was to 're-do' or 'double up' on the risk assessment it had already undertaken for the work which had been anticipated, it is misplaced. The failure, as particularised, was the failure to conduct a separate and further risk assessment of the new work (which had not been previously anticipated let alone risk assessed) which commenced after the second lift of panel five.

28 The failure by Lend Lease to conduct a further risk assessment when the work method changed, or to require a further risk assessment be undertaken by its subcontractors, was found to have been causally related to the particular risk. A further risk assessment, properly conducted, would have involved the questioning of Mr Ford (given that, as Boom Logistics' head dogman, he remained in control of the panel whilst ever it was attached to the crane), who, as the Court found, was aware that the panel remained under weight. The Court found that "there was nothing about the conduct of Mr Ford, even if it was grossly negligent, as would suggest that an enquiry of Mr Ford, deriving from a risk assessment, would not have discovered the panel was under weight" (see Abigroup at [372]). Further, even if Mr Ford had not known that the panel remained under weight, it "would not necessarily, in this case, have resulted in the conclusion that there was no causal connection between the failure to conduct a risk assessment and the particularised risk because an enquiry of Mr Jones could well have resulted in a discovery of the risk".

29 Had a risk assessment been undertaken and the fact of the panel being under weight become known, the risk would have been discovered and remedial action taken. That was because the risk avoidance measures which were in operation at the site drew attention, in a general way, to the risks associated with the crane operations and the evidence disclosed that workers would not mount the panel if it was known (or found) to be under weight (see Abigroup at [367]).

30 The failure to conduct a further risk assessment was contrary to the overarching SWMS Lend Lease itself had developed for work at the site (entitled "Working Within the Rail Corridor"), which SWMS directed that fresh risk assessments be undertaken "to identify and control hazards that arise as a result of change to the process or hazards that are identified during the course of the work".

31 However, it was submitted by Lend Lease that its culpability and criminality were lessened by the role played by other entities involved in work at the site who also failed to undertake fresh risk assessments.

32 There is ample authority for the proposition that the contribution of another entity to a risk to safety may be considered, in a particular context, in mitigation in the assessment of penalty for a breach of the Act. The Court discussed the principles emerging from those authorities in Cross City Tunnel as follows (at [242]):

The common thread running through this line of authorities is the principle that where it may be contended that an entity, other than a defendant, has contributed to a detriment to safety (either by advice or common enterprise), the question remains, in assessing penalty, what are the specific culpabilities of the defendant, the statutory obligations placed upon the defendant not having been diminished by the notion that other entities may have contributed to the risk to safety (see, for example, Morrison v Waratah at [46]). The contribution of the other entity is only relevant to the extent that its contribution casts light upon the real level of culpability of the defendant: Morrison v Waratah at [46] and McDonald's at 437. Such an analysis may assist in understanding the reasonableness of the defendants' actions, and may include an assessment of systems which were operating at the time of an incident giving rise to the prosecution. However, in sentencing, a factor, such as a lack of control by a defendant employer engaged on a multi-employer worksite, will normally not result in a significant diminution in the objective seriousness of an offence: Morrison v Waratah at [46]. It will be plain from the foregoing discussion that it would be wrong, in law and principle, to approach such considerations as if some apportioning of the overall penalty between the defendant and the other entity was being undertaken by the Court (see Morrison v Waratah at [46] and Morrison v Powercoal (2005) at [123] and [124]).

33 As required under the Minor Works Agreement entered into by Lend Lease with Taylor Railtrack, Taylor Railtrack produced several SWMSs for the work being undertaken by its workers at the site. As set out in Abigroup, Taylor Railtrack subcontracted with MVM Rail and GTE to provide extra labour at the site. Mr Tim Horan, a construction manager with Taylor Railtrack, supervised a group of labourers made up of Taylor Railtrack, MVM Rail and GTE employees (which group of labourers included all of the workers who were named in the charge as having been exposed to the risk). Mr Horan was involved in the decision to undertake the work of removing Pandrol clips from panel five to correct the misalignment. However, despite its supervisory and decision-making role at the site, Taylor Railtrack, via Mr Horan, did not raise for discussion potential risks, nor conduct a further risk assessment, prior to the commencement of the new work.

34 Boom Logistics, as required by an External Plant Hire Agreement entered into with Lend Lease, developed a Lift Study/Plan and a Job Safety Analysis ("JSA") which identified the work to be performed by its employees at the site and the risks associated therewith. As discussed in Abigroup at [59], the effect of the Boom Logistics JSA was as follows:

The effect of the Boom Logistics JSA, therefore, was that the crane crew was responsible for ensuring the area of operation of the crane was clear and free of any workers (other than the crane crew), who had not been otherwise authorised to be in that area, at all times during the lifting, slewing and lowering operations of the crane.

35 The crane crew was in charge of any load whilst a lift was in process (including while a load was on the ground but remained under weight) and could (and, in fact, did) exclude people from the area in which a lift was to take place. However, despite panel five remaining under weight when workers mounted it and commenced the work of removing Pandrol clips, the crane crew failed, on that occasion, to exclude workers from the vicinity of the panel. Despite both the head rigger/dogman and the crane operator (Mr Ford and Mr Jones, respectively) being aware that the panel remained under weight at that time, neither of those men informed any other person at the site of that fact. Their failure to do so and the failure of the crane crew to exclude people from the vicinity of the panel whilst it remained under weight constituted an abrogation of their responsibilities which was compounded by the fact, as found by the Court in Abigroup, that an instruction had been given to Mr Ford (and passed on by him to Mr Jones) by Mr Horan of Taylor Railtrack to "drop" the weight of the panel (which instruction was not, for reasons unexplained, complied with by Mr Jones). It must be accepted that, had Boom Logistics' employees complied with their own risk assessments (in the form of the JSA and the Lift Study/Plan), the risk would have been ameliorated and the incident may have been avoided.

36 It was also contended by Lend Lease that the fact that Boom Logistics, Taylor Railtrack and MVM Rail each pleaded guilty (in separate proceedings) to the various charges brought against them in relation to the same incident was tantamount to an acceptance by those entities of a failure to fulfill their supervisory and risk assessment obligations under their various contractual arrangements with the defendant.

37 Whilst I accept that other entities, in particular Boom Logistics, contributed to the detriment to safety which arose at the site on the date of the incident, those considerations (which will be taken into account in favour of the defendant) must be counterbalanced against the fact that Lend Lease was the principal contractor on the site. Whilst it was permitted to subcontract construction work, it remained fully responsible for carrying out the construction activities specified in its contract with Australian Rail Track Corporation and for all safety issues at the site, had control over all aspects of the execution of its subcontractor's activities and was obliged to ensure all subcontractors complied with their obligations under the Act.

38 Whilst, as already noted, the risk may not have arisen had Boom Logistics' employees acted in compliance with their own safety systems, it remains that Lend Lease, as principal contractor, failed to act in accordance with its own overarching SWMS by not conducting a further risk assessment when the work method changed. Further, the failure by Lend Lease to require that its subcontractors stipulated as a condition of their own risk assessments (which, as mentioned, constituted two SWMSs in the case of Taylor Railtrack and a JSA and Lift Study/Plan in the case of Boom Logistics) that a "change to the process" would require a fresh risk assessment (despite having reviewed those risk assessments prior to work commencing at the site), was contrary to its own Integrated Quality, Safety and Training Plan developed for work on the site which required its subcontractors to prepare "SWMS's compatible with [Lend Lease's] health and safety policies". Had Lend Lease complied with its own policies and ensured a further risk assessment was carried out by it or its subcontractors, the risk would have been avoided (for reasons already stated), notwithstanding the failures by Boom Logistics.

39 The role of other entities at the site in contributing to the detriments to safety herein under consideration should result in the conclusion that Lend Lease's culpability is lessened to the effect that the offence in this matter should be assessed as being serious, but not falling within the most severe category.

40 Further, this is not a case where no risk assessment was carried out by the defendant but, rather, it is one in which the existing systems were inadequate (or inadequately implemented) in an important respect. In addition to the Integrated Quality, Safety and Training Program and overarching SWMS developed for work at the site by Lend Lease, the corporation also reviewed, as noted, the risk assessments prepared by Taylor Railtrack and Boom Logistics, conducted site walks with representatives of its subcontractors and held pre-work briefings and site inductions prior to work commencing at the site. Lend Lease should be credited with the establishment of extensive safety systems, albeit systems which they failed to apply for the reasons earlier outlined.

41 Lend Lease will receive a moderate reduction in the penalty which might otherwise have been imposed by the Court because of the systems it had in place prior to the incident (the existence of which systems shows that it had endeavoured to deal with risks associated with work being conducted at the site).

42 There are a number of factors which increase the objective seriousness of the offence in this matter.

43 First, the occurrence of death and serious injury in this case does manifest the seriousness of the relevant detriment to safety (Capral Aluminium at [94]). Whilst the death of Mr Iosefa and the serious injuries to Mr Dixon, Mr McDonnell, Mr Ward and Mr O'Sullivan do not, of themselves, dictate the seriousness of the offence or penalty, a breach where, as in this case, there was every prospect of serious consequences will be assessed on a different basis to a breach unlikely to have had such consequences. In this case, the occurrence of the death of Mr Iosefa and the serious injuries to the other named workers manifested the degree of seriousness of the relevant detriment to safety arising from Lend Lease's failure to undertake a further risk assessment when the work method changed.

44 Secondly, the risk to safety was foreseeable. It was reasonably foreseeable that a failure to conduct a further risk assessment when the planned work method changed, in circumstances where that work involved the maneuvering of large rail panels by crane, would give rise to risks to the safety of workers. This is true as a general proposition. However, the position is a fortiori when regard is had to the fact that Lend Lease had itself identified, in the overarching SWMS it had developed for work at the site, the need to reassess risk in such a situation.

45 Thirdly, simple remedial measures were available. As already mentioned, the risk would have been averted had Lend Lease complied with the requirement which already existed in its own SWMS to undertake a fresh risk assessment when a change in the work process occurred. That measure was entirely within the control of the defendant.

46 It may also be mentioned, at this juncture, that, immediately following the incident, Lend Lease directed Boom Logistics to develop an alternative method of slinging rail panels during lifts to avoid energy being concentrated on the rails. It formed a National Crane Committee to review cranage practices across its operations and implement a new procedure and appointed a "Crane Adviser" responsible for delivering training as to the new procedure, conduct site visits and assist in the planning and supervision of lifts and engage with crane contractors to ensure compliance with its policies and procedures. Lend Lease no longer uses cranes to install rail track sections (despite this being common practice within the industry), but prefers to construct rail turnouts in situ. It has invested approximately $70,000 on the manufacture of equipment allowing for the installation of rail turnouts using rails and rollers to directly slide in rail panels.

47 Whilst these responses by the defendant following the incident are laudable, the steps taken were such as to reveal in clear terms the simple and decisive remedial steps which may have been taken by the defendant to abate the risk prior to it arising. In such circumstances, the steps taken by the defendant after the incident are also demonstrative of flaws which existed in its previous systems: WorkCover Authority of New South Wales (Insector Petar Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 277 ("McDonald's") at [225] and [226] (citing Kembla Coal & Coke at 36, WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Industrial Relations Commission, NSW, Matter No. CT 1280 of 1995, Hill J, 2 April 1997) at 21 and 22 and Inspector Nicholson v Gallagher [2012] NSWIRComm 121 at [50].

48 When taken in combination with the foreseeability of the risk to safety to which I have earlier referred, the fact that simple and straightforward remedial measures were available to the defendant prior to the incident will increase the gravity of the offence.

49 There are two other considerations relevant to the objective seriousness of the offence. The first is the maximum penalty for the offence (see Cross City Tunnel at [192(i)]). The maximum penalty for the offence, the defendant having had prior offences, is $825,000.

50 The second consideration is deterrence. There can be no question that general deterrence is applicable in relation to this offence. It is necessary to ensure that the penalty properly reflects the need for general deterrence so as to draw attention to those operating in the construction industry, particularly those engaged in the construction of railway lines using heavy machinery, of the necessity to engage in practices which conform with all the requirements of the Act and, in particular, the necessity to be proactive in reassessing the risks of the work being undertaken when a change to a planned work process occurs. General deterrence is a significant factor in this matter.

51 Specific deterrence should also feature in the determination of the appropriate penalty for this offence. Whilst I accept there were systems in place prior to the incident and there have been further steps taken by Lend Lease since the incident to ensure the safety of workers, specific deterrence must be a relevant factor in sentencing given the defendant continues to be a major employer in its undertakings including in the construction and maintenance of railways. The defendant had, as at 2009, some 2400 employees nationally. I also accept the submission of the prosecutor that specific deterrence should have more significance in this matter given Lend Lease's prior convictions (to which I will return below), and, in particular, a previous conviction for a risk assessment failure (although, it should be noted, the purpose of taking into account previous convictions in this manner is not to re-punish the defendant for past offending). In such circumstances, in accordance with the principles stated in Cross City Tunnel (at [193]), specific deterrence will be factored into any penalty imposed upon the defendant.

52 The defendant must be sentenced having regard to the offence for which it is convicted. Even when confined to particular (b) of the charge, and the particular failures of the defendant contained therein, and making due allowance for mitigating factors and the contribution of other entities at the site, the offence in this matter must be considered, on balance and when viewed objectively, as serious.

Subjective Features

53 I will now turn to the subjective features of the matter.

54 The steps taken by the defendant following the incident are a relevant factor in mitigation: Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78 ("Rexma"); (2008) 172 IR 210 at [24] and JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; (2008) 184 IR 1 at [107]. I have already outlined the steps taken by the defendant since the incident to reform its occupational health and safety systems, particularly with regard to its cranage and rail installation practices, and to ensure the safety of its workers. I accept Lend Lease has demonstrated, by having adopted those additional measures, a strong commitment to workplace safety. That is a factor which will be taken into account in its favour in sentencing: Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61; (2005) 147 IR 117 ("Morrison v Powercoal (No. 3)") at [109].

55 Demonstrations of remorse and contrition by a defendant is a further factor which may be taken into account in mitigation of penalty : Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 at (107) and (108); Morrison v Powercoal (No. 3) at [111]; WorkCover Authority (NSW) (Inspector Jones) v Challita [2006] NSWIRComm 207; (2006) 153 IR 409 ("Challita") at [39]; McDonald's at [454] and Rexma at [53]. Section 21A(3)(i) of the CSP Act also provides that "remorse" may be taken into account as a mitigating factor by the Court in certain circumstances, provided there is evidence before it capable of satisfying the provision and that the remorse, so demonstrated, is genuine.

56 The prosecutor conceded that there was some evidence of remorse and contrition on the part of Lend Lease demonstrated by Mr Reymond's evidence that the corporation "sincerely regrets the incident and the impact of the incident" on the family of Mr Iosefa and the other workers involved. It was submitted by the prosecutor, however, that the affidavit evidence of Mr Reymond fell short of an acknowledgment, on behalf of Lend Lease, of responsibility for its actions as required for the satisfaction of s 21(3)(i) of the CSP Act.

57 Whilst it was conceded by the defendant that Mr Reymond's expression of regret did not carry with it the measure of remorse or contrition of the kind referred to in the relevant authorities, it was submitted that the Court should balance that expression with the steps taken by the defendant following the incident (both in terms of the assistances it provided to the family of Mr Iosefa and the injured workers and in the review and redevelopment of its occupational health and safety systems with respect to the use of cranes and rail installation).

58 I accept the submission of the prosecutor that the statement of regret proffered by Mr Reymond does not represent full contrition and remorse by Lend Lease as it is accompanied by equivocation or reservation. However, this may be partially counterbalanced by two factors. First, the assistance rendered to an injured worker and their family, including steps taken by a defendant in relation to their welfare, rehabilitation and continuing employment, provides tangible confirmation of contrition and is a relevant factor in mitigation: Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 at [17] and Morrison v Powercoal (No. 3) at [112] and [114]. I am satisfied Lend Lease provided an ex gratia payment to Mr Iosefa's family, including his ex-wife and his partner at the time of the incident, and offered assistance to all of the employees involved in the incident in the form of immediate and ongoing counselling. Secondly, as previously mentioned, the steps taken by Lend Lease after the incident in respect of its safety systems are acts of contrition.

59 I am of the view that, in balancing those factors, the defendant should be entitled to a modest benefit from the statement of regret as a demonstration of its remorse and contrition.

60 A related consideration is the co-operation by the defendant with the WorkCover Authority of New South Wales: WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363 at [30]; Challita at [39] and Rexma at [53]. I accept that Lend Lease co-operated with WorkCover in its investigation and should, accordingly, be entitled to a discount in that respect.

61 I accept the submission of the prosecutor that no discount is available to Lend Lease by virtue of a guilty plea (although the defendant may not be penalised for having pleaded not guilty).

Prior offences

62 Prior convictions may be taken into account in sentencing: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465; (1988) 77 ALR 385 at 477, WorkCover Authority of New South Wales (Insector Petar Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 277 at [241] and Camilleri's Stock Feeds Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21at 700.

63 I discussed the use to which a defendant's criminal record may be put in the sentencing process in Inspector Barbosa v McDonalds Australia Limited [2003] NSWIRComm 196; (2003) 125 IR 270, in particular, at [117] and [119], where it was stated:

117 I note that, since the decision in this matter was initially reserved, I have had occasion to reflect on similar submissions in Workcover Authority of New South Wales (Insp Robert Stobo) v State Rail Authority of New South Wales (2002) 115 IR 130 (at [62] - [72]). Having observed that "it is well settled that the antecedent criminal history of a defendant may be relevant to the determination of an appropriate sentence, provided it does not result in a penalty that is otherwise disproportionate to the objective seriousness of the offence" and having referred to the judgment of the Full Bench of this Court in Lawrenson Diecasting (at 477), the New South Wales Court of Criminal Appeal in R v Boney, the judgment of the Court of Appeal in Charara v New South Wales Director of Public Prosecutions [2001] NSWCA 140 and the text of Mr Ivan Potas entitled "Sentencing Manual: Law, Principles and Practice in New South Wales" (Judicial Commission of New South Wales, Lawbook Co. 2001), the Court stated (at [69] - [72]):

69 Whilst it may arguably be thought there exists some tension in the position stated in the authorities cited, as indeed the submissions here of Mr Agius may have suggested, it is strictly unnecessary for present purposes to definitely resolve the issue. If one has regard to the table of previous convictions set out at paragraph [15] of this judgment, it can be seen that the defendant had a not inconsiderable number of convictions for offences under s15 of the Act prior to the occurrence of the present offence. At least one of those would appear to have been a substantial offence warranting a fine of $40,000 which reflected a significant percentage of the maximum penalty for such an offence at the relevant time. In any case, the relevance in the sentencing process of convictions for offences committed after the subject offence must be seen as long settled: see Boney as citing The King v Withers (1789) 3 TR 428 and Reg v Hutchens (1957) 75 WN (NSW) 75. I consider no reason exists to depart from the approach so laid down for offences under the Act. In the result, all of the convictions against the defendant, as set out above (at [15]) may permissibly be taken into account in sentencing the defendant for the present offence by tempering the leniency or mitigation which the defendant might otherwise attract in subjective terms, but not so as to increase the appropriate penalty based on the objective seriousness of the instant offence.

...

71 I agree with the observations of Wright J, President in WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales (at [47]), and the submission of the defendant in this matter, that the defendant's criminal record must be examined in the context of the whole of the circumstances in which it finds itself. This should include the fact that the defendant previously employed a significantly larger workforce on a considerably broader range of operations than is now the case: WorkCover Authority of New South Wales (Inspector Gordon) v State Rail Authority (unreported, Marks J, 27 March 1997, at 6 - 7).

72 This is not to suggest that the size of the organisation is in some way to be considered justification for a failure by a defendant to meet its obligations or for having a lengthy record of convictions under the Act. Such a notion is untenable given that the abject purpose of the Act is to provide a safe work environment for the workforce of this State: see WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25 and the cases cited therein. However, the Court will take into account the size and extent of the operations of the defendant when considering a prior record: WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales and WorkCover Authority of NSW (Insp Lyons) v Warman International Ltd (2001) 105 IR 236. The existence of a lengthy criminal history is an aggravating feature when considering the penalty to be imposed for a particular defendant. It is not that the nature and size of the organisation can permit the Court to disregard those prior convictions as aggravating features of an offence. In my view, the nature and size of the organisation ought reflect on the degree to which the defendant's criminal history can be considered an aggravating feature of an offence. The practical reality is that the larger and more diverse the workforce, the greater the opportunity for accidents.

...

119 I consider these observations entirely consistent with the observations from the majority reasons in Veen (No.2) where, having discussed what was referred to as "the principle of proportionality", the Court discussed two "subsidiary principles", as follows:

14. There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties. (Emphasis added)

64 I accept the submission of the prosecutor that the existence of a lengthy criminal history is an aggravating factor when considering the penalty to be imposed. So much is reflected in s 21A(2)(d) of the CSP Act. In any event, whilst "sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision" (per McHugh J in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; (1998) 156 ALR 684 at 624), in my view, in taking "appropriate regard" (see Capral Aluminium at [86]) of a defendant's antecedent convictions, a substantial criminal history has the effect of aggravating an offence and in particular that aspect of penalty that can be seen as a reflection of a need for specific deterrence (I have already found, above, that specific deterrence will feature significantly, in this context, in the penalty imposed on Lend Lease in this case given, inter alia, its prior convictions for offences under occupational health and safety legislation). Past offences may also be taken into account in sentencing by "tempering the leniency or mitigation which the defendant might otherwise attract in subjective terms, but not so as to increase the appropriate penalty based on the objective seriousness of the instant offence": see McDonald's at [117] citing Charara v New South Wales Director of Public Prosecutions [2001] NSWCA 140; (2001) 120 A Crim R 225 at [69].

65 I would also note my agreement with what was stated by Hulme J in Regina v Gardener [2003] NSWCCA 2 that "to recognise [the defendant] is a recidivist is not, of course, to punish [the defendant] again for past offending".

66 Lend Lease has a not inconsiderable number of prior convictions under ss 15(1) and 16(1) of the 1983 Act and ss 8(1) and 8(2) of the Act. Those offences have been described above at [13] of this judgment. Many of those offences were substantial, warranting, in some instances, fines of $125,000, $225,000 and $300,000.

67 Between 14 June 2001 and 14 January 2002, Lend Lease was convicted and fined $7,500 and $12,500 for breaches of s 16(1) and $7,500 and $25,000 for breaches of s 15(1) of the 1983 Act in the Chief Industrial Magistrate's Court.

68 Lend Lease has also been the subject of four proceedings which have taken place in this Court.

69 On 4 April 2000, Lend Lease was convicted and fined $125,000 for a breach of s 15(1) of the 1983 Act: WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd [2000] NSWIRComm 40; (2000) 99 IR 196 (per Wright J, President). The prosecution in that matter arose as the result of a fatal incident which occurred on the M2 Motorway, North Ryde, New South Wales. The incident occurred when an employee of Lend Lease, which company had been subcontracted to construct part of the Motorway, was crushed when a concrete paving machine collapsed on to him without warning. Lend Lease pleaded guilty to the s 15(1) charge which alleged, in particular, that the defendant had failed to provide and enforce a safe procedure with respect to the machine in question. The maximum penalty for the offence in that matter was $500,000.

70 Lend Lease was charged with two breaches of s 15(1) and three breaches of s 16(1) of the 1983 Act in relation to an incident on 4 December 1995 involving two gas explosions which occurred near Kogarah Railway Station during the undertaking of upgrade works. (An individual defendant was also charged with two breaches of s 19(a) of the 1983 Act in relation to the same incident.) As a result of the first explosion, two Lend Lease employees sustained fatal injuries and 16 others (including members of the public) sustained burn injuries. Lend Lease (and the individual defendant) contested the charges brought against it which alleged, in particular, that the defendant had failed to provide a safe system of work. The defendant was convicted and fined $250,000 and $300,000 for two breaches of s 15(1) and $250,000, $300,000 and $400,000 respectively for three breaches of s 16(1) of the 1983 Act: WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante [2003] NSWIRComm 201; (2003) 128 IR 204 (per Kavanagh J). Ultimately those penalties were reduced on appeal (on the basis that the trial judge had incorrectly applied the principal of totality) to $175,000 and $225,000 respectively for two breaches of s 15(1) and $175,000, $225,000 and $300,000 respectively for three breaches of s 16(1) of the 1983 Act: Abigroup Contractors Pty Limited v WorkCover Authority of NSW (Inspector Maltby) [2004] NSWIRComm 270; (2004) 135 IR 317 (per Wright J, President, Walton J, Vice-President and Staunton J). (The individual defendant was ultimately convicted and fined for one breach of s 19(a) of the 1983 Act.) The maximum penalty for each breach of the 1983 Act with respect to Lend Lease was $500,000.

71 On 11 April 2007, Lend Lease was convicted and fined $80,000 for a breach of s 8(1) of the Act: Inspector Colin West v Abigroup Contractors Pty Ltd. [2007] NSWIRComm 88 (per Haylen J). The prosecution in that matter arose as the result of an incident which occurred during the construction of a bridge near Taree when, in the course of dismantling a work platform, the platform collapsed and a Lend Lease employee was injured when he fell to the ground from the platform. Lend Lease pleaded guilty to the charge which alleged, in particular, that the defendant had failed to provide a safe system of work with respect to the work of dismantling the platform. The maximum penalty for the offence in that matter was $825,000.

72 Most recently, on 10 July 2009, Lend Lease was convicted and fined $300,000 for a breach of s 8(2) of the Act: Martin v Abigroup (per Staff J). The prosecution in that matter arose from an incident which occurred at a construction site on the Albury Wodonga Hume Freeway when an employee of one of the defendant's subcontractors sustained fatal injuries when he was crushed between the tailgate and tipper tray of his truck and a concrete placer-spreader machine. Lend Lease pleaded guilty to the charge which alleged, in particular, that the defendant had failed to provide a safe system of work and conduct an adequate risk assessment in relation to the movement of mobile plant at the construction site. The maximum penalty for the offence in that matter was $825,000.

73 Lend Lease has operated, since its original incarnation as Abignano Pty Limited, since 1961 and, as earlier mentioned, had, as at 2009, a sizable workforce of some 2400 employees nationally. Whilst it must be emphasised that the size and nature of a corporation's workforce is in no way to be seen as an excuse for a failure to comply with occupational health and safety legislation (see: Workcover Authority of New South Wales (Insp Robert Stobo) v State Rail Authority of New South Wales [2002] NSWIRComm 72; (2002) 115 IR 130 at [72]), Lend Lease's prior convictions may be assessed, in the sentencing process, in light of its size, length of operation and the dangerous industry in which it operates: Cross City Tunnel at [270], Haynes v CI & D Manufacturing Pty Ltd and another (No. 2) (1995) 60 IR 455 at 456 - 457 and WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of State of New South Wales (Department of Education and Training) [2001] NSWIRComm 313; (2001) 112 IR 1 at [61].

74 I also observe that Lend Lease has further refined its safety procedures since the incident the subject of these proceedings and, as I have already found, those actions, which are commendable and in accordance with the defendant's obligations under the Act, will receive due recognition in mitigation of penalty. Further, Lend Lease's prior offences may be distinguished, in two respects, from the offence the subject of the present matter. First, they did not arise from incidents which occurred during the course of railway construction. Secondly, with the exception of Martin v Abigroup, they did not involve risk assessment failures (however, with respect to the latter point, it is worth noting that the prior offence which did allege a risk assessment failure was the most recent and resulted in a substantial penalty).

75 In balancing the size and length of the defendant's undertakings against the fairly substantial criminal record of the defendant (albeit for offences which, in the most part, did not involve risk assessment failures), I accept the submission of the prosecutor that the prior convictions constitute an aggravating factor and indicate that the offence in the present matter was not an "uncharacteristic aberration". Applying the principle set out in McDonald's at [117], the prior convictions of the defendant will have the effect of tempering the mitigation which it has otherwise attracted in subjective terms.

Parity

76 I turn now to consider the principle of parity.

77 The principle of parity is important to the administration of justice as its operation ensures that disparity in sentencing does not occur: McDonalds at [147] (citing Griffiths v The Queen (1977) 137 CLR 293; (1977) 15 ALR 1; (1977) 51 ALJR 749 at 326 to 327). I have previously considered the principle in detail in Cross City Tunnel at [283] as follows:

The defendants should be sentenced in accordance with the relevant principles of parity and consistency as applied in this jurisdiction. The principles were considered in Capral Aluminium as follows (at [62] - [63]):

62 It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and thus is not relevant in this matter. However, as Walton J, Vice-President, observed in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, IRC98/1104 and IRC98/1106, 4 February 2000 at 103):

Whilst the principle of parity normally operates in relation to co-offenders or across the range of those convicted of the offence in question (see Signato v R (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which "shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe v The Queen" where there exists common factual circumstances giving rise to the charges. It should also be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour.

Hence, the decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, shall be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606 ...

63 When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range...

78 It is also important to bear in mind the observation made by the Court in McDonald's at [152] where it stated as follows:

Nevertheless, the principle of parity only operates to the extent of comparing like with like. Differences in sentencing arising from different circumstances will not violate the principle. These factors will include, in the case of the defendants, differences in the maximum penalty for the offence: Signato v R (1998) 73 ALJR 162 at 170.

79 I have already discussed the contribution of Boom Logistics and Taylor Railtrack to the relevant risk to safety in this matter in the context of the consideration of the objective seriousness of the offence against Lend Lease.

80 On 18 April 2012, Taylor Railtrack was convicted and fined $83,000 for a breach of s 8(1) and $117,000 for a breach of s 8(2) of the Act in relation to the incident the subject of these proceedings: Inspector Christensen v Taylor Railtrack (per Boland J). Taylor Railtrack pleaded guilty to the charges (and received, for those pleas, discounts of 25 per cent on the respective sentences for both charges) which alleged, in particular, that that defendant failed to conduct an adequate risk assessment and provide a safe system of work and adequate training and supervision to its employees and persons not in its employment. The maximum penalty for each offence, being first offences for Taylor Railtrack, was $550,000.

81 On 30 August 2012, Boom Logistics was convicted and fined $100,000 for a breach of s 8(2) of the Act in relation to the same incident: Inspector Christensen v Boom Logistics (per Staff J). Boom Logistics pleaded guilty to the charge (and received a discount on sentence of 25 per cent) which alleged, in particular, that that defendant had failed to provide and maintain a safe system of work and to ensure that persons working in the vicinity of the load were instructed that only authorised personnel were permitted to work in that area. The maximum penalty for the offence in that matter, Boom Logistics being a first offender, was $550,000.

82 On 10 October 2013, MVM Rail was convicted and fined $66,000 for a breach of s 8(1) and $94,000 for a breach of s 8(2) of the Act: Inspector Christensen v MVM Rail (per Boland J). MVM Rail pleaded guilty to the charges (and received, for those pleas, discounts of 15 per cent on the respective sentences for both charges) which alleged, in particular, that that defendant had failed to provide adequate supervision to its employees and persons not in its employment and to undertake a risk assessment. The maximum penalty for the offence in that matter, MVM Rail being a first offender, was $550,000.

83 The sentencing of Boom Logistics, Taylor Railtrack and MVM Rail resulted from prosecutions arising from the same incident the subject of these proceedings. Those three entities were convicted of charges under both ss 8(1) and 8(2) of the Act, which charges included, inter alia, system of work failures. Taylor Railtrack was also convicted of a charge concerning a failure to undertake an adequate risk assessment. Nonetheless, in accordance with Capral Aluminium, principles of parity and consistency should be applied having regard to objective and subjective considerations, subject to any relevant differences in that respect.

84 There are three material differences, relevant to sentencing, between the present matter and the cases concerning Boom Logistics, Taylor Railtrack and MVM Rail. The first concerns the relative culpability of the defendant. I accept the submission of the prosecutor, in this respect, that the culpability of Lend Lease is greater (however, not significantly so given the contributions to the risk made by Boom Logistics and Taylor Railtrack) given its overarching role both in terms of the control it had over its subcontractors and for overall occupational health and safety at the site. Secondly, Boom Logistics, Taylor Railtrack and MVM Rail were first offenders whereas Lend Lease is a previous offender (of the character I have already described). Thirdly, there were subjective features distinguishing Boom Logistics and Taylor Railtrack from Lend Lease including the discount those entities received on sentence for the utilitarian value of their pleas.

The Penalty

85 In assessing penalty, I have taken into account the objective features of the offence including the relevant factors in aggravation and mitigation. I have also taken into account the contribution of other entities, including Boom Logistics and Taylor Railtrack, and Lend Lease's prior convictions in the manner earlier discussed. The matters raised in mitigation going to the subjective factors have also been given weight. I have applied the principle of parity in the manner discussed.

86 On balance, I consider an appropriate penalty for the offence under s 8(2) of the Act to be a fine of $200,000.

Costs

87 The Court received a communication from the WorkCover Authority on 19 August 2014 indicating that the parties in Matter Numbers IRC 278 and 279 of 2011 sought an order, by consent, that each party pay its own costs.

88 I propose to make that order.

Orders

89 The Court makes the following orders:

(1) In Matter Number IRC 279 of 2014, the defendant is convicted of the offence charged under s 8(2) of the Occupational Health and Safety Act 2000;

(2) In Matter Number IRC 279 of 2011, the defendant is fined in the sum of $200,000 with a moiety to the prosecutor;

(3) In Matter Numbers IRC 278 and 279 of 2011, the parties shall pay their own costs of the proceedings.

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Decision last updated: 22 August 2014