Crown v Accused

1. Nordic Elevators Pty Ltd ('NE') builds and installs lifts including car elevators. A related company, Nordic Elevator Services Pty Ltd ('NES'), services lifts. On 22 March 2021, Mr Adam Pasek died when he was attempting to repair a car elevator at premises in West Melbourne, Victoria. He was doing so pursuant to his employment with NE, although the work itself was for the benefit of NES. He was electrocuted while in the process of changing a circuit board on a switchboard. He had not isolated the switchboard prior to his attempting to change the equipment. He was a 21 year-old 4th year apprentice electrician and was working alone.
2. NE and NES have pleaded guilty to charges brought under the Occupational Health and Safety Act 2004 and under the Electricity Safety Act 1998 and the regulations made thereunder. Underlying the various charges is the contention, accepted by NE and NES, that electrical work of the type under consideration should only be carried out by licensed electricians. These reasons set out the fines that I have decided to impose following those pleas.

1. As noted above, NE installs new lifts and carries out lift upgrades, while NES services and repairs lifts.
2. I was informed, and accept, that:

(a) At the time of the offending, and still, 9,000 of the 20,000 of the shares in NE were and are owned by deceased Mr Pasek's father, Johan Pasek, whom I will refer to as Mr Pasek senior. His intimate partner, Ms Ann Sandberg, who is also the deceased's mother, also owned 9,000 shares. Mr Pasek senior was the sole director, and was the guiding mind, of NE;

(b) At the time of the offending, NE held 1,200 ordinary shares in NES, and a trust associated with Mr Torbjorn Soderlund, Lyonnaise Pty Ltd, held one A class share. The effect of this was that NE held a '50% economic interest' in NES. Since the offending, NE's shares in NES have been transferred to a company beneficially owned by Ms Sandberg. At the time of the offending, Mr Pasek senior and Mr Soderlund were directors of NES. Mr Soderlund has since relinquished his directorship and Mr Pasek senior is now the only director; and

(c) At the time of the offending, NE employed 14 people, and NES employed six people, but employees would work for either entity 'as required from time to time'.

1. NES performed regular services but also had a call-out service. Sometimes mechanical problems with lifts would arise that did not require electrical expertise. For example, sensors might need cleaning, or some metal work might need some reshaping. Other times, problems would arise that did require electrical expertise and that the employee assigned be an electrician. Some of NES's employees were qualified electricians, but some, including Mr Paul Somerville and Mr Samuel Johnson, although experienced and capable workers, were not electricians.
2. NES used a software system called 'TradeCloud' to log, record and assign repair jobs. Customers of NES who were seeking urgent repair services contacted a call centre engaged by NES who then logged the calls on the TradeCloud system, which automatically assigned the repair job to a member of the NES service team listed on a 'call-out roster'. Although formally employed by NE, from at least 20 March 2020 and up until his death, Mr Pasek was included in the call-out roster, along with, among others, Mr Somerville and Mr Johnson. The TradeCloud system did not distinguish in its allocation of work between jobs that required electrical expertise and jobs that did not. In this way, each of Mr Pasek, Mr Somerville and Mr Johnson were required or permitted by NES, using the TradeCloud allocation system, to carry out work including electrical work despite not being licensed to do so. The reality of the situation, I am satisfied, was that NES in practice left it up to the individual workers then to decide whether they felt comfortable to perform the work allocated to them. For example, Mr Johnson said:

When attending to my allocated rounds, I would perform disconnect/reconnect of electrical components that mainly focused on door locks and swapping of buttons and plugs. I performed electrical work throughout my time in the service team. I understand I don't hold any electrical qualifications, but I guess it was just expected of me to do the work. [Mr Pasek senior] and [Mr Soderlund] never instructed me to not do the work, that's why I feel it was just expected of me to do it. If I attended to a job and it was a major breakdown of the electrical system, I would call [Mr Soderlund], [Mr Vella], [Mr Nicolaou] and [Mr Ericsson] and discuss the job. If I felt comfortable in performing the task safely I would go ahead and complete [the] work. This included electrical work. If the job was out of my scope and knowledge, I would wait for assistance from one of the other members of the team. This included [Mr Pasek].

1. Mr Pasek senior, Mr Soderlund, Mr Vella, Mr Nicolaou and Mr Ericsson were qualified electricians and, I assume, licensed.
2. This system of work was in place over the relevant periods. It is clear that a system where people who are not licensed electricians are sent to workplaces to diagnose and, if possible, to fix electrical problems, fails to provide, so far as reasonably practicable, a working environment that is safe and without risks to the health of employees, and fails, so far is reasonably practicable, to ensure that persons other than employees engaged in that work are not exposed to risks to their health or safety. An appropriate system of work would have either required a licensed electrician to be present, or at the least, required clear instructions to persons who were not electricians as to when they ought not attempt to diagnose or repair an electrical problem.
3. Accordingly:

(a) NES was in breach of the duties owed by it under the Occupational Health and Safety Act 2004 to its employees Mr Somerville and Mr Johnson who were not electricians;

(b) NE was in breach of the duties owed by it under the Occupational Health and Safety Act 2004 to its employee Mr Pasek, who was included in the NES call out-roster; and

(c) NES was in breach of the duties owed by it under the Occupational Health and Safety Act 2004 to Mr Pasek as a person (employed by someone else) performing work for it.

1. So much was recognised by NE and NES by their pleas of guilty to the charges set out in more detail below.
2. Also, I note that NE and NES had safety documents titled 'Safe Work Procedures: Electrical Safety' and 'Service Work Method Statement for Lifts' that contained directives to the effect that electrical work was to be carried out by a licensed technician only. They provided that 'work on electrical circuits must be carried out by a licensed electrician only', being a person who is a licensed A Grade electrician. Further, 'work immediately around exposed equipment [was] to be [carried out] by qualified electricians' and circuit breakers were 'to be isolated, locked & tagged when working on electrical equipment'. Unfortunately, those written directions were not implemented.

C. The circumstances leading to Mr Pasek's death

1. On 22 March 2021, a repair job at 33-41 Batman Street in West Melbourne ('the West Melbourne job') was allocated through TradeCloud to Mr Somerville, who was not a licensed electrician. It concerned a malfunctioning car lift. The car lift was familiar to Mr Somerville and general maintenance of the lift was normally attended to by him. Mr Somerville was unable to leave the repair job he was currently working on in Bulleen. He then contacted Mr Soderlund via the messaging software 'WhatsApp'. The service team used WhatsApp to communicate with each other to announce when they had arrived or departed the premises where a repair job was located, discuss issues with repair jobs and communicate if a service technician needed assistance. Mr Somerville suggested that Mr Soderlund or Mr Pasek attend the West Melbourne job. Mr Soderlund could not leave the repair job he was working on so Mr Pasek attended.
2. Mr Pasek then called Mr Somerville and asked some questions about the repair job. Mr Somerville instructed him to 'fault find', which involves a visual inspection of the elevator and its mechanical components. Mr Somerville told Mr Pasek, he said, not to touch anything electrical. Mr Pasek called Mr Somerville again to report on his fault find and it was concluded that the door detector power unit of the lift had failed. The door detector power unit is powered by a 240 volt AC power circuit. Mr Pasek travelled to a supplier in Bundoora to collect a replacement. Upon returning, it appears that Mr Pasek commenced to replace the door detector power unit. He did not isolate the power to the control panel before doing so, and died by electrocution. Isolating the power to the control panel could easily have been done and the replacement of the door detector power unit did not need to be carried out while the control panel was energised. It was, nonetheless, work that should only have been performed by a licensed electrician.
3. Mr Pasek was found later that day by his father after he failed to return to work or to answer calls.
4. I will first consider the indictable offences, and then the summary offences.

1. NE is charged with, between 1 March 2020 and 22 March 2021, breaching the duty it owed under ss 21(1) and 21(2)(e) of the Occupational Health and Safety Act 2004 by failing to provide and maintain, so far as was reasonably practicable, a working environment for its employees that was safe and without risks to health, in that it failed to provide such supervision to employees as was necessary to enable those persons to perform their work in a way that was safe and without risks to health (indictable charge 1). The particulars indicate that the alleged failure arose from its failure to provide Mr Pasek with effective, on-site supervision by a licensed electrician.
2. NES is charged with:

(a) Between 1 March 2020 and 22 March 2021, breaching the duty it owed under s 23(1) of the Occupational Health and Safety Act 2004 by failing, so far as was reasonably practicable, to ensure that persons other than its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking (indictable charge 2). The particulars indicate that the alleged failure was its failure to provide and to maintain a system of work whereby electrical work was only carried out by persons who were licensed electricians (and note that Mr Pasek was a non-employee who carried out electrical work); and

(b) Between 1 August 2020 and 22 March 2021, breaching the duty it owed under ss 21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004 by failing to provide and maintain, so far as was reasonably practicable, a working environment for its employees that was safe and without risks to health, in that it failed to provide such supervision to employees as was necessary to enable those persons to perform their work in a way that was safe and without risks to health (indictable charge 3). The particulars indicate that the alleged failure was its failure to provide and to maintain a system of work where electrical work was only carried out by persons who were licensed electricians (and note that two of its employees, Mr Somerville and Mr Johnson, were not licensed electricians but carried out electrical work).

1. NE and NES were initially charged with workplace manslaughter, that is, breaches of s 39G(1) of the Occupational Health and Safety Act 2004, but those charges were not pursued. Although Mr Pasek's death was a consequence of the breaches to which NE and NES have pled guilty, the breaches relate to the creation of an unacceptable risk of injury and are complete whether or not injury eventuates and it must be borne in mind that neither company is charged with an offence of causing Mr Pasek's death: they are 'risk-based' offences, not 'outcome-based' offences.[1] Accordingly, my focus must be on the objective seriousness of the breach or breaches, that is, the gravity of the breaches as measured by the extent to which there has been a departure from the statutory duty and the extent of the risk of death or serious injury which might result, rather than the result or consequences of the breaches.[2] The fact that Mr Pasek died informs an assessment of the risk to health and safety associated with the breaches, but the offences would still have been committed, and same risks of injury or death still created, even if he had not died.[3]
2. An offence against s 21(1) of the Occupational Health and Safety Act 2004 carries a maximum penalty of 9,000 penalty units for a body corporate, exposing NE and NES to maximum fines of $1,486,980 for each of indictable charges 1 and 3. An offence against s 23(1) of the Occupational Health and Safety Act 2004 also carries a maximum penalty of 9,000 penalty units for a body corporate, exposing NES to a maximum fine of $1,486,980 for indictable charge 2. As noted above, NE and NES have pleaded guilty to these charges.
3. The offences are serious examples of the offences. The risk of unqualified persons undertaking electrical work that should only be performed by an electrician is obvious: the risk is of death. Leaving it to unqualified persons to determine whether or not they should perform that work is no answer, because unqualified people are unable safely to make those decisions. The failures were easily recognisable and the unnecessary risk of injury continued for eight and 12 months. Employees had raised concerns about a lack of qualifications and the risk of electrical shocks associated with work on poorly installed elevators and these concerns went unheeded. The breaches reflected an ongoing systemic failure designed or permitted by management, rather than a failure on the part of employees to comply with an appropriate system.[4] Although NE and NES employed capable and experienced tradespeople who were, on other occasions, able safely to navigate the risks through use of their own commonsense and by seeking help from others, and so the likelihood of injury being sustained was moderated, the gravity of any injury that might be sustained was very great, as events demonstrated. As noted above, there had been at least two occasions when employees had raised concerns about the risk of electric shock when servicing elevators due to poor initial electrical installation, so both companies were, or should have been, alert to the danger of unqualified persons performing electrical work or electrical diagnoses. In particular, about five months before Mr Pasek's death, an employee electrician of NE reported to Mr Pasek senior, and others, that he had received a mild electrical shock when attending to a flooded lift, which he assessed as being a result of poor installation of electrical devices including the emergency stop button in the lift which had allowed those devices to fill with water. There was simply no proper explanation, beyond a simple failure to take the care required, for why it was that unqualified people, however experienced, were asked or permitted to perform electrical repair work.
4. The ongoing nature of the breaches is revealed by the fact that the TradeCloud records indicate that over the relevant period:

(a) Mr Pasek attended some 75 to 78 jobs in which he was exposed to live equipment;

(b) Mr Somerville attended at least five jobs that would have involved electrical work; and

(c) Mr Johnson attended at least nine jobs that would have involved electrical work.

1. Further, it is no answer to the failures that Mr Pasek was, by the time of his death, a 4th year apprentice electrician. I accept that he had been instructed in the course of his training that he should isolate switchboards before working on them and that he should have done so on this occasion, and if he had done so then his death would have been avoided. In this respect, he failed to take proper care for his own safety. But, as the material put before me made clear, apprentice electricians require supervision by a licensed electrician, even if they have the relevant safety knowledge, because apprentice electricians, due to their inexperience, may be more likely to overlook or ignore the safety precautions they have been taught. It is the risk of their being careless or taking short cuts that must be guarded against, not just the risk of their engaging in work with insufficient knowledge.
2. Notwithstanding the observations made in paragraph 20 above, the breaches did result in Mr Pasek's death. He was the primary victim. In addition, Mr Somerville and Ms Zoe Walker, who was Mr Pasek's partner, have prepared victim impact statements to which I must have regard.[5] I will not set out the details of those statements at length, but the death of Mr Pasek has had a profound impact on Mr Somerville and Ms Walker. Ms Walker was in a relationship with Mr Pasek for approximately two years prior to his death. The two of them had been living together for over a year and had plans to purchase property and to build a home together, to marry and to start a family. Ms Walker says the death of Mr Pasek has caused her to defer her studies in the field of community services and move back to Queensland where her family lives and can provide support. Since Mr Pasek's death, she describes suffering paranoia of loved ones being involved in accidents and has sought psychological counselling. Two medical reports attached to her victim impact statement detail what Ms Walker describes as the 'long-term, permanent impact' Mr Pasek's death has had on her. Mr Somerville is no longer able to work due to what he describes as the 'deterioration' of his mental health, which in turn has affected his physical health. Mr Somerville describes the offending as having had 'an enormous impact on [his] relationships with friends and family and [his] partner', and states that he has suffered 'severe (sic) financial losses' as he now receives compensation through WorkCover, rather than income from employment.
3. Mr Pasek's death was also distressing to the rest of the service team. I note that on 30 March 2021, eight days after Mr Pasek's death, his name on TradeCloud was changed to 'service technician' because the other employees were distressed when seeing his name on the TradeCloud system.
4. The effect of his son's death on Mr Pasek senior has been profound. He has, according to a report from his treating psychologist, which I accept, a post-traumatic stress disorder and is 'sub-threshold for a major depressive disorder'. He has largely withdrawn from sports and social activities. He has consumed alcohol to excess as a way of managing his grief and disengaged from his work. He suffers from intense grief and guilt and somatic symptoms such as tremors and agitation.
5. NE and NES are companies of good character with no prior convictions. They have both since introduced systems of work in order to ensure that only licensed electricians perform electrical work. Further, Mr Pasek senior is now the sole director of both companies. In these circumstances, I consider that NE and NES are genuinely and deeply remorseful. There is little to no need to place weight on specific deterrence in my sentencing considerations.[6]
6. Further, NE and NES offered to plead guilty to the indictable charges on 27 June 2023, which was before the s 198B examinations took place, if the workplace manslaughter charges were withdrawn. The workplace manslaughter charges were, ultimately, withdrawn, and so NE and NES later pleaded guilty in accordance with that earlier indication. I treat this as an early plea. Not only does this confirm my conclusion that both companies are remorseful, but their pleas have also meant that the costs and inconvenience of a trial have been avoided and this too is to be taken into account in their favour.
7. It is tempting to consider that imposing a fine will serve no real purpose because the person who died was the son of the controlling mind of the two companies, and because that person has suffered enormously from both the death and his role in the death of his son. As noted above, I accept this line of reasoning insofar as it means that there is little to no need for specific deterrence. However, as with most breaches of the laws to do with industrial safety, general deterrence is the most significant sentencing consideration.[7] It remains necessary to impose fines of a level that deter other persons from committing crimes of the same or similar character, that reflect the objective seriousness of the breaches, and that manifest the denunciation by the court of the actions or inactions of NE and NES that exposed their employees and other persons to unnecessary risk of injury or death.[8] As stated in DPP v Vibro-Pile (Aust), '[t]he sentences imposed need to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.'[9] It must also be borne in mind that NE and NES are separate legal entities to Mr Pasek senior. Nonetheless, in my view the fact that the person who died was the son of the person in control of the companies operates to moderate the level of sanction that might otherwise be required in order to achieve an appropriate degree of general deterrence. This is because other employers or entities, when considering these breaches and the fines imposed, must be assumed to know of the facts of this case including the identity of the person who died, and the fact that the victim was a close and loved family member of the decision-maker, would operate as a deterring factor independently of the amount of the fine imposed.[10] I also consider that because the emotional impact on Mr Pasek senior has affected markedly his ability to manage NE and NES, both NE and NES have experienced a degree of extra-curial punishment.
8. I must have regard, as best I can, also to 'current sentencing practices'.[11] Counsel for the Director referred me to DPP v Marshall Lethlean Industries,[12] DPP v Pipecon Pty Ltd[13] and DPP v Energy Australia Yallourn Pty Ltd.[14] In DPP v Marshall Lethlean Industries, a fine of $600,000 was imposed on a company whose employee asphyxiated in a tank as a result of leaking argon from defective welding equipment left in the tank. In DPP v Pipecon Pty Ltd, a fine of $700,000 was imposed on a company whose two employees died when a trench collapsed on them. In DPP v Energy Australia Yallourn Pty Ltd fines of $700,000, $300,000 and $500,000 were imposed on a company whose employee died while working on a switchboard, the panels of which had not been properly installed and moved, causing the employee to come into contact with live parts of the circuit. Energy Australia Yallourn Pty Ltd is, of course, a very large company. These cases are comparable in the sense that they each involved the death of an employee, and thus the relevant failures involved a risk of death, but, as noted above, these are risk-based offences and so the outcome is not the key determinant of the sentence. They confirm, however, that substantial fines are warranted.
9. Other cases include:

(a) DPP v Coates Hire Operations Pty Ltd,[15] where the Court of Appeal imposed a fine of $500,000 on a large company with prior convictions that permitted people to drive equipment onto a truck rather than use a winch which resulted in the driver's death. At that time, the maximum penalty was $966,870 for each charge, so the fine was just over half that amount. Coates Hire Operations Pty Ltd had pled guilty;

(b) Dotmar EPP Pty Ltd v The Queen, where the Court of Appeal ruled that fines totalling $375,000 were 'within the realms of sound discretionary judgment'[16] when Dotmar EPP Pty Ltd contended that they were manifestly excessive. Dotmar EPP Pty Ltd had removed safety mechanisms from a lathe, as a result of which an employee had suffered significant injuries (but not died, although it appears that its conduct created a real risk of death). At that time, the maximum penalty was $1,051,380 for each charge so the fines totalled just over one third of that figure. Dotmar EPP Pty Ltd had pled guilty;

(c) DPP v Frewstal Pty Ltd,[17] where a delivery driver unloading livestock from his truck died when some of the abattoir's plant failed due to failures with its design and maintenance. The trial judge imposed an aggregate fine of $250,000. The maximum available was $1,299,240 for each charge. The Director contended that this was manifestly inadequate. Frewstal Pty Ltd had pled guilty. A majority of the Court of Appeal said that it was not, but was influenced by the way in which the matter had been argued before the trial judge where the Director had accepted (wrongly, it seems) that the 'upper range' was around $400,000. The President dissented and expressed his view that the fine was 'outside the range reasonably open in the circumstances';[18]

(d) DPP v Vibro-Pile (Aust) Pty Ltd,[19] where, a section of a piling rig collapsed at a construction site causing the death of an employee of Vibro-Pile (Aust) Pty Ltd. The piling rig was owned by another company, Frankipile Australia Pty Ltd. The deceased worker assisted in erecting the machine, but otherwise that was done by Frankipile Australia Pty Ltd. The collapse arose because it was inadequately erected. Frankipile Australia Pty Ltd was fined a total of $350,000 and Vibro-Pile (Aust) Pty Ltd was fined $100,000. The maximum at the time was $1,075,050. The Director appealed on the grounds that both sentences were manifestly inadequate. The Court of Appeal agreed and resentenced each company to fines amounting to $750,000 ($250,000 for, in general terms, failing to identify the risk of collapse and $500,000 for, in general terms, failing to provide sufficient information and instructions). Neither company had pled guilty; and

(e) Midfield Meat International Pty Ltd v The King,[20] where the Court of Appeal ruled that a fine of $400,000 was 'well within the available range' when Midfield Meat International Pty Ltd contended that it was manifestly excessive. An employee of Midfield Meat International Pty Ltd was killed by a stag[21] when collecting some cattle from some yards. The employee was experienced but was, in breach of the duty owed to him, working alone where the presence of a second person would have reduced the risk of death or serious injury. The maximum fine available was then $1,427,130. This fine was imposed in circumstances where Midfield Meat International Pty Ltd did not plead guilty, the trial judge determined that the likelihood of the risk materialising was 'relatively rare', it could not be concluded that the breach had in fact resulted in the death, and where Midfield Meat International Pty Ltd had some prior convictions albeit not related to animal handling. The charge related to only the events of that one day.

1. These cases are all instructive and indicate that substantial fines are required, but ultimately, of course, every case is different and turns on its own facts. Also, it must be borne in mind that I am sentencing for the risk of injury or death that was created or tolerated, not for the effects of that risk.
2. I am required by s 52 of the Sentencing Act 1991 to take into account, so far as practicable, the financial circumstances of NE and NES and the nature of the burden that the fine will impose. In the 2021 financial year, according to their tax returns, NE had a total income of $4,800,163 resulting in a taxable income of $341,601, and NES had a total income of $2,129,592 resulting in a taxable income of $470,617. According to their balances sheets, as at 30 June 2021 NE had net assets of $1,195,955, and NES had net assets of $1,134,400.[22] They are or were, therefore, successful business with substantial assets but also businesses of a size likely be to very much impacted, or even ruined, by any fines imposed. That, again, is something that is relevant to the question of general deterrence because other companies may be expected to be aware of the financial impact or likely financial impact of the fines on the offending companies.
3. The two charges against NES are founded on the same facts and are offences of the same or similar character, as both involve allowing a system of work whereby unlicensed persons (employees of it and an employee of NE) were required or allowed to perform electrical work, albeit indictable charge 2 relates to a period of 12 months whereas indictable charge 3 relates to a period of eight months. Accordingly, I may, and it is appropriate that I do, impose an aggregate fine on NES for both charges.[23]
4. The relationship between NE and NES should be considered. NES was half-owned by NE. Mr Pasek senior was responsible for the management decisions of both NE and NES. The relevant work being performed, being call-out maintenance work, was for the benefit of NES, but the arrangement between the two companies was that Mr Pasek, an employee of NE, would be on the call-out roster for that work along with employees of NES. The charges against both companies arise out of the same conduct and management decisions (or omissions) by the same person acting in his capacity as both director of NE and director of NES. Both companies are culpable because they both permitted the same unsafe system whereby unqualified people were sent to jobs that required electrical work. NES, for whom the work was being performed and who employed most of the people performing that work and who, it may be assumed, thereby designed the system, is more culpable than NE who permitted its employee to work under NES's system (or to do so without supervision).
5. I note that if Mr Pasek were employed at the relevant time by NES instead of NE (as Mr Somerville and Mr Johnson were), NE would not have been charged. However, corporations are separate legal entities and I may not sentence NE and NES as if they formed a single corporate entity.[24] Further, two related legal entities who have both breached duties do not, conceptually, get an appropriate penalty somehow divided between them. Their existence as separate legal entities, with their own duties and their own breaches, must be recognised and the penalty for each must reflect their own legal culpability. As Schmidt J pointed out in Nash v Glennies Creek Coal Management Pty Ltd; Nash v Integra Coal Operations Pty Ltd (No 9),[25] to reduce a penalty otherwise properly imposed on a corporate defendant that failed to meet its obligations under the statutory scheme because another closely related corporate defendant did the same is inconsistent with the purpose of the legislation.[26]
6. That said, and although for this reason each fine must adequately reflect the sentencing purposes in light of each company's individual culpability, in my view the relationship between the companies and the breaches is such that I ought to have regard to the total sentence imposed when determining the individual sentences in order to avoid a risk of penalties that are not just and proportionate in all the circumstances. In particular, for the purpose of general deterrence, other companies may be expected to be aware of the relationship between NE and NES and to the fact that fines were imposed on both and thus to the total of the two fines, as well as the fact that the person who died was the son of the guiding mind of both companies.

1. As noted above, both companies also had charges filed against them in the Magistrates' Court of Victoria by Energy Safe Victoria for offences against the Electricity Safety Act 1998 and the Electricity Safety (General) Regulations 2019.
2. NE is charged with, on 22 March 2021:

(a) Breaching s 36(1) of the Electricity Safety Act 1998 by employing Mr Pasek to carry out a prescribed class of electrical installation work in circumstances where Mr Pasek was not a licensed electrical installation worker (summary charge 1);

(b) Breaching s 37 of the Electricity Safety Act 1998 by, as a registered electrical contractor, permitting or directing Mr Pasek to carry out electrical installation works that did not comply with the Electricity Safety Act 1998 or the Electricity Safety (General) Regulations 2019. The particulars identified that the allegation was that the work did not comply with the regulations because Mr Pasek was not effectively supervised while performing it, and the work was carried out on 'energised electrical equipment without a permitted reason' (summary charge 2);

(c) Breaching r 507(1) of the Electricity Safety (General) Regulations 2019 by, having employed Mr Pasek as an apprentice, failing to ensure that any electrical installation work carried out by Mr Pasek was done under effective supervision as required under the 'Apprentice Supervision Requirements'. The particulars identified that the allegation was that NE did not take steps to ensure that a licensed electrical supervisor was present while Mr Pasek was carrying out the electrical installation works (summary charge 3);

(d) Breaching r 509(1) of the Electricity Safety (General) Regulations 2019 by failing to ensure that electrical installation work was not carried out on energised electrical equipment (that is, 'live' equipment) without a permitted reason. The particulars identified that the allegation was that, again, NE did not take steps to ensure that Mr Pasek was directly supervised, leading to its failure to ensure that Mr Pasek did not carry out electrical installation work on energised equipment for which there was no permitted reason (summary charge 4);

(e) Breaching r 510(1) of the Electricity Safety (General) Regulations 2019 by failing to ensure that 'the required preliminary steps' were completed before electrical installation work was carried out on energised electrical equipment. The particulars identified that the allegation was that the required preliminary steps were the undertaking of a risk assessment by a properly qualified person (summary charge 5); and

(f) Breaching r 511(1) of the Electricity Safety (General) Regulations 2019 by failing to ensure that electrical installation work was carried out on energised equipment by a competent person with tools, testing equipment and personal protective equipment that were suitable, properly tested and maintained in a good working order, and that the work was performed in accordance with a safe work method statement prepared for that work (summary charge 6).

(a) Breaching s 30 of the Electricity Safety Act 1998 by carrying on a prescribed class of electrical contracting when it was not registered as an electrical contractor in respect of electrical contracting of that class and did not hold the prescribed insurance. The particulars identified that this was for performing the electrical maintenance work that Mr Pasek was endeavouring to perform (summary charge 1);

(b) Breaching r 509(1) of the Electricity Safety (General) Regulations 2019 by failing to ensure that electrical installation work was not carried out on energised electrical equipment without a permitted reason. The particulars identified that the allegation was that, again, NES did not take steps to ensure that Mr Pasek was directly supervised, leading to its failure to ensure that Mr Pasek did not carry out electrical installation work on energised equipment for which there was no permitted reason (summary charge 2);

(c) Breaching r 510(1) of the Electricity Safety (General) Regulations 2019 by failing to ensure that 'the required preliminary steps' were completed before electrical installation work was carried out on energised electrical equipment. The particulars identified that the allegation was that the required preliminary steps were the undertaking of a risk assessment by a properly qualified person (summary charge 3); and

(d) Breaching r 511(1) of the Electricity Safety (General) Regulations 2019 by failing to ensure that electrical installation work was carried out on energised equipment by a competent person with tools, testing equipment and personal protective equipment that were suitable, properly tested and maintained in a good working order, and that the work was performed in accordance with a safe work method statement prepared for that work (summary charge 4).

1. Offences against ss 30, 36(1) and 37 of the Electricity Safety Act 1998 each carry a maximum penalty of 250 penalty units for a body corporate, being a fine of $41,305. Offences against rr 507(1), 509(1), 510(1) and 511(1) of the Electricity Safety (General) Regulations 2019 each carry a maximum penalty of 20 penalty units for a body corporate, being a fine of $3,304.40.
2. The Electricity Safety Act 1998 is concerned with 'the safety of electricity supply and use.'[27] The objectives of the Electricity Safety (General) Regulations 2019 include the prescription of methods to be followed in carrying out electrical work and to provide for the protection of persons from risk associated with the use of electricity.[28] The work Mr Pasek was performing was work of a type that was a 'prescribed class of electrical installation work' under those regulations.
3. The charges against each company are founded on the same facts and are offences of the same or similar character. Accordingly, I may, and it is appropriate that I do, impose an aggregate fine on each of NE and NES for all the summary charges against them.[29]
4. Unlike the indictable offences, which were for months of offending, these charges are limited to the events on a single day.
5. It is relevant particularly to these charges that Mr Pasek was a 4th year apprentice electrician at the time of the offending. Although the companies were in breach by having him perform this electrical work unsupervised, the breaches are not as egregious as would be the case if they had someone with less or no electrical training perform that work. There is also, in my view, considerable overlap between the different charges in the sense that most of the charges arise from the fact that Mr Pasek worked unsupervised. Had he been properly supervised by a licensed electrician, then, it may be assumed, there would have been a risk assessment performed by a properly qualified person and the switchboard would have been isolated and so Mr Pasek would not have been working on 'energised electrical equipment' and a safe work method statement, of some type, would have been prepared. The exception is the first charge against NES, which relates to the fact that it did not have the required licences and insurance to engage in electrical contracting work (although, I assume, NE did have those licences and insurance).
6. The accused companies tendered a 2024 report prepared by the Sentencing Advisory Council on sentencing statistics under the Occupational Health and Safety Act 2004. While this document affirmed that it conforms with current sentencing practices to impose an aggregate fine, insofar as it is not unusual, each case will turn on its particular facts and data of sentences imposed divorced from the circumstances of individual cases offers limited insight. The more general discussion set out above in relation to the sentencing principles for the indictable offences otherwise applies to these offences as well. To the extent that the fines for the summary offences operate as a general deterrent, it is significant that the companies have also been fined for the indictable offences: any company considering the fines imposed for the summary offences will be aware that the companies had received more substantial fines for the indictable offences.

1. Having regard to and synthesising the various considerations referred to above, including the facts that the common circumstances mean that general deterrence will be influenced significantly by the total fine across both companies and by the fact that the person who died was the son of the guiding mind of the two companies, I will impose the following sentences for the indictable offences:

(a) NES is to be convicted and fined the aggregate sum of $580,000 on indictable charges 2 and 3;

(b) NE is to be convicted and fined the sum of $300,000 on indictable charge 1.

1. I declare for the purposes of s 6AAA(1) of the Sentencing Act 1991 that but for the pleas of guilty I would have imposed a fine of $800,000 on NES and $400,000 on NE.
2. Having regard to and synthesising the various considerations referred to above, I will impose the following sentences for the summary offences:

(a) NES is to be convicted and fined the aggregate sum of $30,000 on summary charges 1 to 4;

(b) NE is to be convicted and fined the aggregate sum of $20,000 on summary charges 1 to 6.

1. I declare for the purposes of s 6AAA(1) of the Sentencing Act 1991 that but for the pleas of guilty I would have imposed a fine of $40,000 on NES and $27,000 on NE.
2. I emphasise that these fines are not to be seen, in any way, as putting a value on the life of Mr Pasek. The amounts are arrived at having regard to the fact that the offences are 'risk-based' not 'outcome-based' and, as noted, following a synthesis of all the other matters referred to in the body of these reasons.

[1] See, eg, DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; (2016) 49 VR 676, 682 [3], [6], 703 [99] (Maxwell P, Redlich and Whelan JJA).

[2] See, eg, DPP v Frewstal Pty Ltd [2015] VSCA 266; (2015) 47 VR 660, 686 [127]; Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; (2005) 11 VR 557, 565 [35]; Midfield Meat International Pty Ltd v The King [2023] VSCA 106, 37 [174] (Walker and Macaulay JJA, Kidd AJA).

[3] Dotmar EPP Pty Ltd v The Queen [2015] VSCA 241, [22]; see also R v De Simoni (1981) 35 ALR 265, 271 (Gibbs CJ).

[4] Cf R v Commercial Industrial Construction Pty Ltd [2006] VSCA 181; (2006) 14 VR 321, 328 [31].

[5] Sentencing Act 1991 (Vic), s 5(2)(daa)-(da).

[6] The majority accepted without criticism findings by the trial judge that the remorse of a director may be attributed to a corporate accused in Director of Public Prosecutions v LH Holding Management Pty Ltd [2025] VSCA 75.

[7] See, eg, R v FRH Victoria Pty Ltd [2010] VSCA 18, [76] (Neave JA).

[8] See, eg, Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; (2005) 11 VR 557, 565 [35]; Dotmar EPP Pty Ltd v The Queen [2015] VSCA 241, [22].

[9] DPP v Vibro-Pile (Aust ) Pty Ltd [2016] VSCA 55; (2016) 49 VR 676, 731 [233] (Maxwell P, Redlich and Whelan JJA).

[10] Cf my dissent in Director of Public Prosecutions v LH Holding Management Pty Ltd [2025] VSCA 75, [104].

[11] Sentencing Act 1991 (Vic), s 5(2)(b).

[12] [2022] VCC 945.

[13] [2021] VCC 1808.

[14] [2023] VCC 185.

[15] [2012] VSCA 131.

[16] [2015] VSCA 241, [30].

[17] [2015] VSCA 266; (2015) 47 VR 660.

[19] [2016] VSCA 55; (2016) 49 VR 676.

[20] [2023] VSCA 106.

[21] An animal castrated after maturation of the sex organs.

[22] I was informed that the financial position of both companies has deteriorated since this time, with NE and NES having profits before tax in the 2024 financial year of $89,987 and $261,897 respectively. However, counsel for NE and NES accepted that the fines imposed would likely 'wipe out' both companies and accepted, citing Dennis Jones Engineering Pty Ltd v The King [2025] VSCA 76 at [48]- [50], that the fines should be fixed at an amount which would have been appropriate as if the companies had remained as thriving as it appeared they were as at the date of the offence.

[23] Sentencing Act 1991 (Vic), s 51.

[24] See, eg, the discussion by Keogh J in Director of Public Prosecutions v Hazelwood Pacific Pty Ltd & Ors (Sentence) [2020] VSC 279 at [129]- [145].

[25] [2015] NSWIC 15; (2015) 91 NSWLR 368.

[27] Electricity Safety Act 1998 (Vic), s 1(a).

[28] Electricity Safety (General) Regulations 2019 (Vic), r 101(a), (f).

[29] Sentencing Act 1991 (Vic), s 51.