DPP v Bedford & Anor [2023] VCC 1047

1. Kent Bedford, you have pleaded guilty on your own account to one charge of failing to provide and maintain a safe working environment contrary to s 21(1) and s 21(2)(e) of the Occupational Health and Safety Act 2004 (Vic) (the Act).
2. Underwater Inspections Pty Ltd, a company of which you were the sole owner, has pleaded guilty to four charges of recklessly placing a person at the workplace in danger of serious injury contrary to s 32 of the Act, and 3 charges of failing to provide and maintain a safe working environment contrary to s 21(1) and 21(2) of the Act.
3. During the course of the plea hearing conducted on 3 March 2023, Mr Ihle KC, who appeared with Mr Manning on behalf the Victorian Director of Public Prosecutions, tendered an amended Summary of Prosecution Opening for Plea dated 27 February 2023.
4. You were not legally represented at your plea hearing however, you did receive some advice from experienced counsel and brief written legal submissions were forwarded to the court by counsel on your behalf. At the plea hearing you raised a number of concerns as to the facts set out in the Summary of Prosecution Opening and I will endeavour to address those concerns later in these reasons.
5. The eight charge indictment spans the period of 16 February 2018 through until about 2 August 2018. At all times during that period you offered services, either as a sole trader, trading under the name Underwater Inspection Services, or later by the incorporated entity, Underwater Inspection Services Proprietary Limited (UIS), for underwater inspections and repairs of commercial water tanks, bridges, piers, jetties and other marine structures.
6. You have been and are the sole director and sole shareholder of UIS since it was incorporated on 9 April 2018.
7. The charge to which you have personally pleaded guilty relates to an incident that occurred on 16 February 2018 involving an employee, Amy Hill. Ms Hill provided a Victim Impact Statement to which I will refer shortly. The seven charges to which UIS has pleaded guilty relate to five separate incidents occurring between 26 May 2018 and 2 August 2018, and include incidents where three employees were placed at risk, namely, Grace Dennis, Coby Baker and Thomas Kasper Young.

1. In order to appreciate the seriousness of these charges, it is necessary to say something about the context in which the risks to safety arise and the precautions necessary to manage those risks.
2. Commercial diving, or occupational diving as it is sometimes known, is a highly specialised field that requires specialist training and qualifications. There are several patent and latent risks involved in diving or working underwater that can lead to pressure related injuries, asphyxiation, drowning and death. In light of those risks, there are a number of relevant publications related to safety in the commercial diving industry. They include a Safety Alert for Occupational Diving published by WorkSafe Victoria, Australian Standard series 2815.1 2008 relating to training and certification of occupational divers and Australian SWS5 Standard series 2299,[1] which was published in 2015,[2] relating to occupational diving operations.
3. Dealing first with the WorkSafe Victoria Safety Alert. In October 2017, before the commission of these offences, WorkSafe Victoria published a Safety Alert for occupational diving. It provided guidance on safe occupational diving operations. The alert referred to the relevant Australian Standards along with the general legislative duties of employers. It also provided a list of recommended risk control measures.
4. Australian Standard 2815 dealt with the training and certification of occupational divers. Part 1 of the Standard related to occupational self-contained underwater breathing apparatus (SCUBA) divers. Part 2 related to occupational surface supplied breathing apparatus (SSBA) divers. The Standard provided a summary of the minimum competencies of an occupational diver.
5. Australian Standard 2299 dealt with occupational diving operations, Part 1 of which related to standard operational procedures. The Standard applies to all commercial and occupational diving operations and includes specific requirements for the use of SSBA, SCUBA and what is known as Enriched Air Nitrox (EAN).
6. Key features of Australian Standard 2299 include the requirements for minimum appropriate qualifications for commercial divers, minimum training and certification of those divers, including training in first-aid and resuscitation. There is a requirement that there be a dive supervisor present at all times whilst divers are in the water. It is their role is to ensure the safe conduct of the diving operation. The Standard also includes a requirement that there be a dedicated diver's attendant trained in first aid who must be present whenever a diver is submerged.
7. In addition, a standby diver must be present whenever a diver is underwater. That standby diver must, according to the Standard, be fit to dive themselves, dressed and equipped to enable immediate entry into the water so as to be able to provide assistance to a diver should the need arise. The Standard also provides that the emergency gas supply to a SSBA must not be used as a secondary gas supply - it is only to be used in an emergency. The diving operation must be organised and planned in advance. The Standard stipulates that diving suits and related equipment should enable a comfortable body temperature during operations, including a full face mask that is to provide a watertight and gastight seal and be purgeable of water.
8. Importantly, the Standard incorporated recognised and industry approved decompression tables and associated procedures, which had to be utilised in each commercial diving operation.
9. As will be seen in the incidents described below your conduct, and through you that of UIS, fell far short of the minimum required to provide and maintain a safe working environment. In some incidents your conduct went so far as to place some of your employees in danger of serious injury.

1. You were born in March 1970 and are now 53 years of age. At the time of the offending you were between 47 and 48 years old.
2. You are a qualified commercial diver, trainer, onshore diving supervisor and saturation diver.
3. On or about 7 January 2016 you registered with the Australian Securities Investment Commission (ASIC) the trading name "Underwater Inspection Services" and traded as a sole trader under that name for a period of time. In February 2016 you received a certificate of training for your participation in an underwater bridge inspection course in the United States. The certificate indicates that you undertook 27 hours of instruction in respect of that course.
4. Around 13 October 2017 you executed a subcontract agreement with Chubb Fire and Security Pty Ltd (Chubb). That agreement required you to perform your work in accordance with all applicable legislative requirements which were defined to include the Australian Standards to which I have referred. It also required that you ensure that your employees had the appropriate skills, qualifications, licenses and experience to perform the work and that you would comply with any directions on workplace health and safety issued by any relevant authority.
5. At the time you also signed an acknowledgement which confirmed that all of your workers had been trained for the task which they were to perform and that they held the relevant qualifications.
6. On or about 18 October 2017 you created an environmental health and safety policy for UIS. That policy included express acknowledgements of the risks associated with commercial diving.
7. As I have said, UIS was incorporated on 9 April 2018 with you as its sole director and shareholder. On 13 April 2018 you executed another agreement with Wormald Australia. At that time you indicated that health and safety training was conducted at UIS consisting of both internal and external competency based training. You represented that UIS conducted formal and informal internal training, reviews after major projects and other methods as required. You stated that a record was maintained of all training and induction programs undertaken by UIS employees.
8. The employee the subject of Charge 1, Amy Hill, was contacted by you on Facebook in December 2017. Ms Hill had posted a comment that she was looking for diving work having at that stage completed a recreational Professional Association of Diving Instructors (PADI) certified dive instructor course. Ms Hill agreed to work for you and at the time she was informed that you had also employed a person by the name of Waluski, who was a qualified PADI dive instructor and Stuart Lowery as a dive tender.
9. Mr Lowery was not a trained diver. You nevertheless represented in the documentation provided to clients that you had a fully qualified commercial diving team. Ms Hill stated that you developed a training course for her, however no training was actually delivered. You often spoke with her about the need to control risks associated with commercial diving. She queried why she was not getting work and you told her that she did not have enough "tool knowledge" for the jobs and that the bridge inspections were too dangerous. You also explained that you were no longer fit enough to act as a backup diver and that you could not manage a recovery situation because of your physical ailments.
10. Those representations are relevant to the later charges involving Coby Baker and Grace Dennis. They provide evidence of yours and therefore UIS's knowledge of the risks and dangers associated with commercial diving and the need for adequate and appropriate control measures.
11. Grace Dennis was employed by UIS in May 2018 after she responded to an online advertisement. She was offered a full-time position of remote operated vehicle pilot and diver in training. She was 24 years old at the time. Ms Dennis was qualified as a recreational PADI advanced open water diver. When she indicated to you that she did not have any documentation beyond her PADI licence you told her she did not need those records. You said you would train her to become a commercial diver. At a later date however you told her that you did not need her to be a qualified commercial diver.
12. Importantly, Ms Dennis had never undertaken any first-aid training.
13. Coby Baker was employed by UIS in June 2018 as an administrative assistant. She was 24, had never worked for a diving company and had never dived. Such experience as she did have was limited to having tried snorkelling on one occasion. You told Ms Baker that you wanted to train her as a diver and indeed UIS paid for her to undertake a recreational open water dive training course through the Academy of SCUBA in Camberwell. That course was a basic introduction to diving in the ocean using a wetsuit and facemask with SCUBA equipment. During the course Ms Baker undertook three practice dives totalling two hours dive time and obtained certification on 15 July 2018.
14. Stuart Lowery met you as a result of working in the same building complex. Mr Lowery had previously been a signwriter. He had no diving experience or qualifications. He did not hold a working at heights licence.
15. When working for UIS, Mr Lowery regularly saw what he considered to be problems with the diving equipment. For example, he observed that some gear did not seem to fit the divers, including the dry suits, facemasks and the gloves. On one occasion Mr Lowery queried why you used unqualified divers and you responded by telling him that the laws in Victoria were grey and that they did not stipulate that divers must be commercial divers.
16. Thomas Kasper Young was Grace Dennis's boyfriend at the time. He also held no diving qualifications. He had never undertaken any diving training, although he had been trained in first aid at a previous job. Mr Kasper Young was employed as a labourer or assistant. His duties included setting up equipment, assisting divers into their suits and operating the communications system. On at least one occasion Mr Kasper Young performed the role of diver attendant.

Charge 1 - Failing to provide and maintain a safe working environment (information, instruction and training)

1. As at 16 February 2018 Jotun Australia Pty Ltd (Jotun) owned a 240,000 litre fire water storage tank in Brooklyn. The tank was approximately nine metres in diameter and 4.8 metres deep. It had an enclosed metal access hatch on its roof and the tank was fitted with an internal access ladder. Jotun engaged Chubb to arrange inspections of the tank and Chubb in turn subcontracted the task to you and then later to UIS.
2. You prepared safety documentation which identified the risks associated with descending the ladder and from working at the top of the tank. Specifically, the documentation identified a risk of falling from the ladder. At that time Ms Hill had not undertaken formal working at heights training. Her responsibilities for this job included the operation of a remote operated vehicle (ROV) for the tank inspection. Ms Hill worked on top of the tank to deploy and retrieve the ROV and feed the cable into the tank.
3. That job was the first site Ms Hill had attended since commencing her employment with you. It involved her kneeling next to, and leaning into, the manhole on top of the tank over the course of approximately an hour. When you instructed her to perform this work you failed to provided such training to Ms Hill as was necessary to enable her to perform her work safely. Specifically, it was necessary to provide her with working at heights training.
4. I note that after this job, on 27 March 2018, you arranged for Ms Hill to in fact undertake working at heights training.

Charge 2 - Recklessly placing a person at the workplace in danger of serious injury;

Charge 3 - Failing to provide and maintain safe working environment (information, instruction and training)

1. On or about 3 May 2018, UIS completed a remote operated vehicle inspection of two fire storage tanks at the head office of Coles in Glen Iris. Each tank was 12 metres in diameter and 2.5 metres high. They were freestanding aboveground tanks and access was gained by an external ladder and a manhole at the top.
2. UIS produced an inspection report for the tanks on or about 8 May 2018. The report referred to an annual inspection being conducted in accordance with relevant Australian Standards. The representative of the company that engaged UIS telephoned you to discuss proposed further works at Coles. The representative wanted to clarify the requirements for diver qualifications since the work was outside his company's typical business profile.
3. You told the representative that your dive team was qualified to do the work and that they held those qualifications under several Standards. You said that there was nothing in the Act or regulations in Victoria relating to occupational diving and you expressly referred to Australian standards 2299 and 2815. When asked about the qualifications of the specific divers you said that you were unable to provide those details at that time because the dive team had not yet been selected.
4. The repair works at Coles were undertaken by UIS on 26 and 27 May 2018. That was Ms Dennis's first diving job for UIS. She was provided with a dry suit, commercial dive helmet and gloves. Ms Dennis stated that none of the equipment she was given fitted her, indeed before this job she had never used a dry suit. She was not given any training in its use nor was she provided with any information as to the risks associated with its use.
5. Ms Dennis had never worn a heavy face helmet and had not been trained in its safe operation. You told her it was heavy and that a level on the side regulated the airflow. That was the extent of the instruction. She was also required to wear a harness with 12 kilograms of weight and a bailout bottle. Ankle weights were attached to each of her legs weighing 12 kilograms each.
6. Ms Dennis had never used this type of harness or leg weights of this kind. Her movements were restricted by the suit, harness and weights. She could not bend down. She could not remove the ankle weights in the event of an emergency. When she raised these matters with you, you told her words to the effect that she would just get used to it.
7. Significantly, Ms Dennis had never used an SSBA. She had never used an umbilical cord system for the provision of breathing gases or communication. You told her to just come back to the surface if the communication system failed because there was no backup communication system.
8. That day, Mr Kasper Young was given the role of working as a dive tender. It was his first job for UIS and as I have indicated he had never dived himself and held no qualifications other than basic first aid.
9. Ms Dennis entered the water tank by the manhole at the top. She described the water as being pitch black and freezing. She had a torch strapped to her harness, but no backup lighting. She described feeling like she was underweight and top-heavy and that her helmet kept pushing her to one side. Her gloves began leaking and water flooded in and around her arms. Her helmet was stuck on a setting that she described as "purged" so that air was constantly flowing out of the helmet and into her face. She was very cold.
10. Ms Dennis worked her way to the bottom of the tank and held onto the bottom ladder rung. She was unable to equalise her ears due to the helmet not fitting. She was in pain and so resurfaced. At that time you were not in the water and you did not have your diving helmet on.
11. Ms Dennis explained the problems that she was having and you responded that you were not able to enter the tank because you had injured your neck and that she should just get back into the tank and do what she could. You told her that you would lose money if the job was not performed and that you were relying on her to get the job done. She felt under pressure to continue, so she did.
12. Ms Dennis re-entered the tank and began using the air tools to perform the work, but she had not been trained in how to use those tools properly. Nor had she been informed of any risks associated with the use of those tools. She later told investigators that she felt scared while she was in the cold dark tank working alone. She felt uncomfortable and in some pain, but given your injury there was no one to perform that role in the tank, and importantly, no one who could perform the role of backup diver.
13. The following day, the same dive team returned to the site to continue the job. On this occasion you did enter the tank with Ms Dennis and worked for the duration with her. You both wore facemasks instead of helmets because of the issues Ms Dennis had experienced the previous day with her helmet. Ms Dennis stated that her mask did not fit and kept filling up with water. There were also problems with communication. She was unable to communicate with you and unable to communicate with the team on the surface. In her statement she said:

"The facemask that I wore had communications issues as it squealed and as a result we could barely understand each other. I could hardly communicate with [Bedford] and I had issues with speaking with the surface team (however, they could adjust the sound by the communication box system and they could hear me okay)."

1. Ms Dennis also suffered weight issues whilst underwater. While performing the task, she used one hand to operate an air tool, whilst with her other hand she held on to you. You both performed this work for several hours.
2. Charge 2 relates to UIS recklessly engaging in the conduct described above that placed or may have placed Ms Dennis in danger of drowning. Charge 3 relates to UIS's failure to provide appropriate training to Mr Kasper Young to manage the risk of falling when accessing and egressing the top of the tanks. In particular it was necessary for UIS to provide training to Mr Kasper Young in working at heights.

Charge 4 - Recklessly placing a person at the workplace in danger of serious injury

1. In mid-2018, Stirling Fire Services (Stirling) subcontracted UIS to undertake a tank inspection at the head office of EGO Pharmaceuticals in Dandenong South. The site required a safety inspection of two fire water storage tanks. Each tank was approximately six metres in height.
2. In the lead up to that engagement a representative from Stirling spoke to you about UIS. You told that representative that you had a qualified commercial diving team to undertake the work and that it complied with WorkSafe expectations. On 1 June 2018, you attended at the EGO Pharmaceuticals site with Ms Dennis to conduct the tank inspections. Mr Lowery was also present as was one Brian Rungee. Mr Rungee had no diving experience or qualifications, nor did he have qualifications for working at heights.
3. The task involved diving into the tank, checking the bolts and weld joints for corrosion or damage, and taking photographs. One tank was inspected by you whilst at the same time the other tank was inspected by Ms Dennis. That meant there was no backup diver available for either diver. You both used dry suits with full face masks with the dive lasting approximately 10 minutes.
4. During the dive, Ms Dennis was overweighted and when she let go of the manhole, she sunk straight to the bottom of the tank. She could not equalise due to the facemask not fitting and was again in pain. In order to resurface she had to purge air into her dry suit so that it inflated and brought her to the surface. There was no internal ladder in the tanks. Entry and exit was gained using a flaxseed ladder that had been brought to the site for that purpose. It required someone to stand on the edge of the ladder to assist as the diver entered or exited.
5. You were unable to pull Ms Dennis out of the tank with her equipment on. In fact, Ms Dennis was unable to climb out on her own with the equipment on. As a result she was required to remove her harness, her facemask and the weights while she stood in the water on the ladder.
6. After this dive, UIS prepared a written quotation for later repair work which you authored. That quotation referred to the use of a commercial dive team for repairs. It indicated that personnel and equipment included "a full commercial diving team per WorkSafe standards consisting of two divers, an umbilical tender and a dive supervisor".
7. Charge 4 relates to UIS recklessly engaging in conduct which placed, or may have placed, Ms Dennis in danger of drowning.

Charge 5 - Failing to provide and maintain a safe working environment (system of work)

Charge 6 - Failing to provide and maintain a safe working environment (information, instruction and training)

1. In July 2018 UIS was contracted to conduct inspections of V-Line culverts in Kerang. This was the first diving job for Coby Baker whilst working for UIS. The dive team for this job was to consist of Ms Baker, Ms Dennis and yourself. Ms Dennis recalls that they were required to inspect and dive into irrigation channel culverts under rail tracks.
2. At the site, you told Ms Baker to suit up, that is put on a dry suit, so that she would be ready to assist or to retrieve the remote operated vehicle and to ensure that it had sufficient tether. Ms Baker was unfamiliar with the dry suit, the mask and the SSBA that was attached to it. That equipment was different to that which she had used in the diving she had undertaken with her PADI course. The dry suit was too big for her and she had never been submerged in it.
3. Ms Baker wore a full facemask that was connected to an umbilical cord containing both the breathing gas, air and communication systems. She walked into muddy water to the depth of her knees and followed the remote operated vehicle. Because the breathing panel was not switched on, she quickly ran out of air. Unable to breathe, she began to panic before realising that she could simply pull the facemask off. At that stage she was standing on the bank.
4. Ms Baker had understood that her role was to act as a backup diver. She recalled that at Kerang, there was no one else in a suit that could help. Ms Dennis was the only other person in a dry suit. Ms Baker did not feel adequately trained to be able to undertake any rescue.
5. Ms Dennis put on a dry suit and went into the water with a full facemask and the SSBA attached. When she did so, she disappeared from Ms Baker's view. Ms Dennis crawled on her hands and knees into a culvert which was less than a metre in diameter and partially filled with water. She crawled through the 3.5 metres long culverts to look for cracks and take photographs and videos of the internal surfaces.
6. At one stage her umbilical cord became stuck on the outside of the culvert and she could not move. The culvert was partially filled with murky moving water. There were rats around her. She started to panic. She used the communication system to ask the team for help. No one responded. After about 15 minutes, Ms Dennis managed to emerge from the culvert, having shimmied herself backwards out of the culvert.
7. When she came out she saw that the communication box was in a car and that you and Ms Baker were about 50 metres away from it.
8. UIS's failure to provide training in relation to Charge 5 relates to the risk of death or serious injury to Ms Dennis as a result of drowning, asphyxiation from the use of the SSBA and the dry suits, and/or becoming stuck inside a culvert. It was reasonably practicable for UIS to maintain a system of work which ensured:

(a) there were emergency plans and rescue procedures specific to the task; > > (b) a documented dive plan for the task was reviewed and followed by the employees; and, > > (c) a two-way communication system with divers was monitored and maintained.

9. UIS's failure to provide training in respect of Charge 6, relates to the failure to provide such training as was necessary so that Ms Dennis and Ms Baker could perform their work safely without risk to death or serious injury from asphyxiation, from the use of the SSBA and the dry suits, and/or drowning or becoming stuck inside a culvert in relation to Ms Dennis. In particular it was necessary for UIS to provide training to Ms Dennis and Ms Baker in:

(a) the use of SSBA breathing apparatuses, emergency procedures, pre-dive preparations, acting as attendant, maintaining effective communication and operating surface supply panels; > > (b) first aid; and, > > (c) working in enclosed space.

10. After this job was completed Ms Dennis was promoted to the position of "dive operation manager". When she queried what additional duties this involved you told her there was nothing - she was just worth it. There was no additional training or documentation provided to her.

Charge 7 - Recklessly placing a person at the workplace in danger of serious injury

1. In 2017, the Phillip Island Nature Parks at Summerlands engaged Chubb for an inspection and repair of two 6 metre tall water tanks at the Penguin Parade site at Phillip Island. Chubb in turn subcontracted that work to UIS.
2. Earlier that year, UIS had provided a quote to undertake repairs to the tanks and invoiced Chubb for an earlier remote operated vehicle inspection. As in other quotes provided by UIS, this quote referred to personnel and equipment listed as a full commercial diving team per WorkSafe standards consisting of two divers, an umbilical tender, and a dive supervisor. The works were expected to take two days, one day for each tank.
3. On 24 July 2018 you along with Ms Baker, Ms Dennis and a Justin Mastini attended Phillip Island for the job. The team went for dinner the night before and during the evening both Ms Baker and Ms Dennis consumed alcohol. The following morning, you were apparently angry at Ms Dennis because she had drunk alcohol the previous night which increased the risk of decompression illness such that she was not permitted to dive.
4. You said that Ms Baker would dive in her place. You did however tell Ms Dennis that she would be the backup diver even though at no stage did she wear, or was she told to wear, a suit or equipment. In the result, Ms Dennis was not ready to enter the water if there was an emergency because her equipment was being used by Ms Baker.
5. This was Ms Baker's first submersion dive as a diver in training. She stated that she was unaware that she was going to be required to be diving until that morning. Her experience in a dry suit was confined to the work at the V-Line culverts earlier that month. The suit and facemasks were again too big for her. There was no discussion about emergency procedures and Ms Baker and Ms Dennis did not see any dive plan. Nor was Ms Baker told, instructed or trained in how to use any of the tools for the job.
6. Although Ms Baker was given a pre-prepared safety document to sign, it was not explained, reviewed or discussed with her. You told her that it was the safest dive in the world since it was controlled and she could not drift away. On top of the tank, Ms Baker was provided with the dive gear, including harness, harness weights and ankle weights. She had never used ankle weights or a harness of that type. She did not know how to get out of the ankle weights or the harness in the event of an emergency.
7. After you had entered the tank and began working, Ms Baker sat near the manhole while Ms Dennis gave her some preliminary instructions. Ms Dennis recounts that Ms Baker was very nervous and appeared as if she did not want to do the job. She seemed frightened and concerned about whether she would float or whether she would sink. Ms Dennis told her that what she needed to do was go down the ladder and walk to the other side.
8. Ms Baker understood that she was required to use a tool (which at the time of providing her statement she could not name) in order to remove rust. Ms Dennis instructed her as to how she might use the tool and that she would need to release air from the dry suit using a chest valve to enable her to sink. She was told that you had the only working torch and to follow that light once she was inside. Failing that, she was told that she should just walk around the edge of the tank until she found you. Ms Baker stated that she was required to wear two sets of gloves and was unable to feel her fingers. When she entered the tank she was in darkness and couldn't see where you were. She was unable to sink and resurfaced.
9. Ms Dennis placed some more weights under her harness and on a second attempt Ms Baker dropped to the bottom of the tank and found you. She tried to talk with you on the communication system but it did not work properly. In her statement she said:

"I could see him standing at the bottom of the ladder but because of the faulty communication systems, Bedford could not hear me at all. I was trying to talk to him. He had no idea what I was saying. Dennis and I could hear each other perfectly and I could hear Bedford, but he could not hear either of us."

"We tested the divers communication system and identified that Mr Bedford's was not really working at all due to the high pitched squealing noise. This is what we had experienced in the previous dives. Mr Bedford could not hear Baker at all. We (that is the workers on the top of the tank) could however hear Baker through our system ... Mr Bedford entered the water through the manhole and descended into the dark. He could not communicate effectively with us... Baker descended into the tank. She was communicating with us."

1. Despite these problems, you were adamant that the dive should continue. You hooked arms with Ms Baker and moved across the tank together. Ms Baker described struggling to stay on the bottom as she began to float. She repeatedly told you, but you did not appear to hear her. She began working under water, removing the corrosion with the tool that she could not name. The tool repeatedly blew her back from the wall due to the pressure.
2. She remained underwater for approximately 20 minutes before you realised she was using her emergency bailout air supply and not the air supply being provided by the SSBA. You indicated that she needed to switch her air supply over but she could not get it to work. You then reached over and did it for her or at least she thought so.
3. Due to the difficulties with the use of the air tools Ms Baker returned to the surface. Ms Dennis observed that it took her a very long time to find the ladder and when she had resurfaced Ms Dennis noticed that her bailout air supply gauge was empty meaning that there was no emergency air supply if the SSBA air failed. Ms Dennis took a single breath from the regulator, depleting the last remaining air supply. The backup air supply was completely exhausted.
4. You continued working under water alone for around two hours. When you resurfaced your suit had flooded and you decided that it was best to finish for the day. Ms Baker and Ms Dennis both raised their concerns with you and you responded that Ms Baker would have been fine.
5. The following day the team returned to the site. You said that the only person diving on that second day would be Ms Dennis and that was because there was only one torch and because your gear was wet. Ms Dennis put her equipment and gear on. Again it did not fit properly. She was unable to equalise as the mask was too big and experienced free-flowing air into the mask. It did not seal properly and it was done up too tightly. The dry suit inhalation valve did not function correctly. She was unable to deflate and therefore had trouble sinking. She also experienced problems with the tools. After attempting to work under water for about 30 minutes you became frustrated and the job was cancelled.
6. Charge 7 relates to UIS recklessly engaging in conduct that placed or may have placed Ms Dennis and Ms Baker in danger of drowning.

Charge 8 - Recklessly placing a person at the workplace in danger of serious injury

1. Following the remote operated vehicle inspection of 16 February 2018 at Jotun Australia in Brooklyn, the subject of Charge 1, you provided a quote to Jotun on 16 April 2018 for repairs to that tank. The quote noted that personnel and equipment supplied included:

(a) A full commercial diving team per WorkSafe standards consisting of two divers; an umbilical tender and a dive supervisor; > > (b) All diving equipment including ... full two-way radio communications; > > (c) All safety documentation and risk assessments.

2. On 1 August 2018 you, Ms Dennis and Ms Baker attended the Jotun premises to complete the underwater repairs to the tank. The relevant work permit issued by Jotun for the job noted that entering personnel were to be trained in confined space entry. The job safety analysis recorded the job as a complex one for people fit and trained for the work. Prior to arriving at the site, Ms Baker had not been made aware that she was going to be required to dive. Whilst there you told her that Ms Dennis could not do so for medical reasons. You did not explain what the medical issues were. Ms Baker was not given any additional training, she was not informed of any risks associated with the dive and was not given a dive plan. She did not have confined space training as the work permit issued by Jotun required.
3. The job proceeded over two days on 1 and 2 August 2018. During that time Ms Baker wore a dry suit with a full face mask which was again too big for her. The straps on the mask had to be pulled tightly to stop it from leaking. During the time she and you were in the water, there was no other backup diver ready to enter. After 30 to 45 minutes of diving, Ms Baker emerged from the tank with jaw pain and discomfort due to the problems she had experienced with the mask.
4. She also described experiencing communication problems whilst inside the tank. She was able to speak with the dive tender, Ms Dennis, however she could not speak with you. In her statement she stated:

"Once again, we had communication problems. I could talk to the tender but I was not able to communicate with Bedford. I don't think that the tender could speak to Bedford either."

1. Ms Dennis recalled that the communication system once again squealed. She stated that Ms Baker attempted to do the work underwater but continually surfaced to fix the problems with her mask. Eventually she got out of the tank because it was too painful to continue. You were in the water for approximately four hours in total and when you emerged you complained of being cold. You had a hole in your dry suit through which water was entering.
2. Ms Dennis believed that she was going to be the assistant or tender while you and Ms Baker dived. However on the second day, you told them that you had suffered the bends or a decompression illness from the first day and that you had been using an oxygen bottle overnight. You said that you had aches and a rash and explained that you were prone to getting the bends and suffering memory loss from your previous work as a saturation diver.
3. You said that Ms Dennis had to dive in your place. She went into the water for a period and performed underwater work alone. During that time there was no backup diver fit and ready to dive. Ms Baker recalls that Ms Dennis was able to get some work done and that she was in the water for several hours.
4. Charge 8 relates to UIS recklessly engaging in conduct that placed or may have placed Ms Dennis and Ms Baker in danger of drowning.

1. On 3 August 2018 Ms Dennis attended the Alfred Hospital hyperbaric unit. She was examined and learned that a common cause of decompression illness was a heart condition known as patent foramen ovale, or PFO. It was not at that stage clear that she had PFO, however she was advised to avoid diving until further testing but if she did, to limit activity to shallow and short dives once a day.
2. Ms Dennis says that she informed you of these restrictions and the need for further tests to be conducted. You apparently expressed some scepticism that she had PFO given the lack of previous issues. You had not been willing to pay for medical tests but said she could get a free one at the Alfred Hospital.
3. You told Ms Dennis and Ms Baker that you planned to resume the job at the Penguin Parade site at Phillip Island on 16 August 2018. You told Ms Dennis that two divers would work together before resting while the third diver worked alone. You said that given the size of the job, you would need to be part of the dive team. However, as you had been continuing to experience symptoms of decompression illness you planned to use Nitrox or EAN. You explained that they would all need to use EAN and full hard helmets.
4. You told Ms Baker and Ms Dennis that EAN was safer to use than regular air and that they would feel better for using it. Ms Baker and Ms Dennis both informed you that they would not dive alone and that they wanted you in the water with them.
5. In the lead up to the job, Ms Baker repeatedly told you that she was not comfortable using EAN. She had conducted some research online and she was aware that they needed specialised training to use it. She asked you for that training but you said it was fine and not to worry about it. Ms Baker started to become even more worried when she observed you purchasing the Nitrox gas.
6. As a result of their combined concerns, Ms Baker and Ms Dennis contacted WorkSafe and reported the upcoming job at Phillip Island.
7. On 16 August Ms Baker and Ms Dennis went back to the Penguin Parade site with you and Mr Lowery. Upon realising that some ankle weights had been left back at the factory, Mr Lowery and Ms Dennis left Phillip Island to go and get them. You sat down with Ms Baker to discuss what she would be doing. A short time later, two WorkSafe inspectors attended on-site. They spoke with you and Ms Baker.
8. You told the WorkSafe inspectors about the job. You said that Mr Lowery worked outside the tank monitoring air hoses and supplies. You also told the inspectors that Ms Baker had two years of diver training by him and that Ms Dennis was qualified to dive to 160 feet by the IMCA (International Marine Contractors Association).
9. You told Ms Baker that if the inspectors asked about the first job at the site that she needed to tell them that they went home due to bad weather. You told her not to tell them what went wrong during the dive. She queried with you why she had to lie if she had done nothing wrong and you explained that it was more of a headache if they knew everything.
10. Whilst the inspectors were at the site, you also sent text messages to Ms Dennis which in part stated "Please stay at the factory. Do not come back here". "WorkSafe are here." You also called Ms Dennis and instructed her to tell the inspectors that she held a particular qualification which she had never heard of. After the call she sent you a text message asking you to clarify and you replied "IMCA open bell diver qualified to 165 feet - you trained at the Ocean Corporation in Houston Texas in 2007- course took 16 weeks to complete."
11. You sent another message as follows: "You haven't worked offshore or anything like that just inland divking(sic) in the USA and here. Don't overstate your experience. You have worked for me since February". You also sent a message stating "They will just ask Stu (Lowery) some general questions about his role as a tender and teamwork".
12. Despite those instructions, the WorkSafe inspectors established that Mr Lowery, Ms Baker and Ms Dennis did not have the diver qualifications or training sufficient to undertake occupational diving.
13. On 30 January 2019, in response to a request from WorkSafe for UIS's diver emergency procedures you advised "rather than having a written procedure that may or may not suit the location or situation, I find it more beneficial to facilitate discussion amongst the dive team when we arrive on site as it gets everyone thinking; everyone has input; the information is fresh in everyone's mind; and it is specific to that location".
14. I note in that respect that before the jobs that were the subject of these charges there does not appear to have been any such discussion.
15. As part of the investigation of this matter, WorkSafe obtained expert reports from Mr Frank Zeigler and Dr Vanessa Haller.
16. Mr Zeigler is an experienced occupational diver who stated that occupational dive training requirements cannot be met with PADI open water or advanced open water recreational dive certificates.
17. The occupational training requirement in Australian Standard 2815 involves a minimum eight week full-time program, as opposed to the course undertaken by either Ms Baker or Ms Dennis. In Mr Zeigler's view, Mr Kasper Young and Mr Lowery's lack of training as dive tenders contravened the requirements of AS 2299 and increased the risk to all divers in the dive team to extreme as they would not have known what to do in an emergency.
18. He went on to state that the ability of the dive team to achieve diver recovery is a critical part of training and dive planning and must include both getting the diver vertically out of the water and being able to administer first aid.
19. In respect of the V-Line job (Charges 5 and 6), he observed that culverts are highly problematic in that entrapment is a high possibility with dire consequences. He observed that UIS had no extraction system in place and no continual and proper dive monitoring system. The equipment was ill suited to the purpose and there was no relevant safety documentation.
20. As for the dive at Phillip Island the subject of Charge 7, he observed that it was inherently unsafe with only one torch and no surface lighting. There was no instruction on the inflation and deflation of ill-fitting and potentially lethal dry suits. The air supplied by the bailout cylinder suggests a lack of training, lack of pre-dive checklists and the lack of a dive plan.
21. Mr Zeigler also observed generally that the use of underwater pneumatic tools by untrained divers increases risk factors. Underwater tool use requires a number of days of specific training. In his opinion it was only a matter of time before a life critical incident happened with the loss of life.
22. Dr Haller had over 30 years' experience in medicine, including diving and hyperbaric medicine.
23. Dr Haller's opinion included the following matters:
    • Commercial dive medicals need to be undertaken by a qualified diving doctor.
    • A full medical examination needs to be done under the Australian Standards, taking into account the effect of increased pressure on the body, general fitness for working underwater and under all possible conditions. Any disorder which affects a person's ability to dive may also impact upon the safety and performance of the whole occupational team.
    • A dive medical includes an examination of the cardiovascular system and whilst PFO is rarely heard on stethoscope auscultation, echocardiograms are used even though they are not always determinative. Specifically on the issue of PFO she explained that PFO is important for divers as micro emboli - nitrogen bubbles - can form during increased pressure.
    • If there is a PFO, that is what is colloquially referred to as a hole in the heart, the micro emboli can circulate to all major organs, including the brain and the heart. PFO is clinically looked for if divers suffer decompression illness. Once a diver knows they have PFO, they should be referred to an interventional cardiologist with knowledge of diving medicine.
    • Dr Haller also observed that diving in cold water with zero visibility, ill-fitting equipment and strenuous work, increases the risk of decompression illness. This increases the risk of micro emboli which could cross the PFO.
    • She also opined that the use of EAN carries risks of oxygen toxicity, miscalculation of the mix, the need for special equipment, the need for gas analysis and risks with mixing.
24. Dr Haller formed the view that the PFO was probably not a huge risk for Ms Dennis, especially because the dives were shallow and most were only for short periods. However, once detected, the PFO should have been investigated and medically managed. In Dr Haller's view, these dive conditions were extremely risky and Ms Dennis and Ms Baker were exceptionally lucky that accidents did not occur. The risk of an accident or drowning was greater than the risk of decompression illness.

1. Amy Hill provided a victim impact statement of 24 February 2023.
2. It is to be recalled that Ms Hill was the employee the subject of Charge 1 and she had been instructed to deploy and retrieve a remote operated vehicle from the top of a 4.8 metre tall tank. She had not been given appropriate training in working at heights.
3. Ms Hill's victim impact statement generally deals with the disappointment she experienced when working for you. Her statement however, it is not specific to the circumstances of Charge 1.
4. Section 8L(1) of the Sentencing Act 1991 stipulates that a victim impact statement should contain particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence. Mindful of that statutory limitation, I have endeavoured to take a practical approach to the matters raised by Ms Hill in her victim impact statement. Whilst I have had regard to those matters, the weight that can be attached to them must be confined to the offence for which you have pleaded guilty.
5. Although it has been some years since she worked for you, Ms Hill still experiences an adverse reaction every time she sees a fire water storage tank. She looks back on her employment with you as essentially a bad chapter in her life.
6. Coby Baker, provided a victim impact statement of 22 February 2023. Ms Baker was one of the employees the subject of Charges 6, 7 and 8. She has been told that she suffers from anxiety and post-traumatic stress disorder as a result of her experiences in working for you. She says that she is plagued with flashbacks of being inside dark and cold water tanks and has been receiving extensive therapy to deal with intrusive symptoms. Although she states that she is much stronger now, she continues to experience anger and apprehension particularly in a work setting.
7. Ms Dennis did not provide a victim impact statement.

1. At the plea hearing, after Senior Counsel for the prosecution had completed summarising the circumstances of yours and UIS's offending, you raised a number of matters regarding what should constitute the appropriate factual basis for sentence. For example, you suggested you were not aware of the WorkSafe Alert issued in October 2017.
2. Among other matters, you suggested that the dry suit worn by Grace Dennis had been custom made or at least specifically made for her and on that basis you took issue with the assertion that it did not fit her properly.
3. You suggested in respect of Charge 2 that Ms Dennis only worked alone for about the last five minutes or so. You disputed whether Ms Dennis had been stuck in a culvert for a period of 15 minutes which was the subject of Charge 5.
4. You suggested that Ms Dennis was wrong or mistaken when she asserted that Ms Baker's bailout air supply gauge indicated that she had no emergency air supply left when she surfaced at the time of undertaking the work at Phillip Island, the subject of Charge 7. Contrary to the observations of investigators, you suggested that there was no nitrox present at the time of the last occasion you returned to Phillip Island on 16 August 2018.
5. After further discussion on the plea as to whether it would be necessary to call evidence to resolve some of these issues you stated the following with respect to Ms Baker and the issue associated with the exhaustion of her emergency air supply in respect of Charge 7:

"I was very alarmed when I saw her witness statement. And I have absolutely no desire to have her come in here and recount those events again because I don't think that would be good for her mental status your honour so I am simply going to withdraw my challenge on that because her well-being, in my mind, is more important than what is in dispute...."

1. Mr Ihle KC accepted that it was not accurate to describe Ms Dennis as having been stuck in the culvert for a period of 15 minutes in respect of Charge 5. In fact, it was more accurate to state that Ms Dennis was in the culvert for 15 minutes and for some of that time, which was not an insignificant period of time, she got stuck.
2. Ultimately, you did not persist in putting the Crown to its proof with respect to the balance of the circumstances with which you expressed concern. Essentially, I was urged to take a practical approach taking into account the matters you raised and I shall do so.

1. As I have indicated the charges on this indictment span the period 16 February 2018 to 2 August 2018. The charges were originally issued on 29 January 2020. You were committed to this court on 15 June 2021 at what is known as a Hand-Up committal where no witnesses were cross-examined. Thereafter there were a number of delays caused by the pandemic during which you determined to represent yourself and UIS.
2. Eventually the matter came on for trial on 20 February 2023 and the following day you pleaded guilty to Charges 1 and 3 on the indictment. After some further negotiation you pleaded guilty to the balance of the indictment on 27 February 2023. The plea hearing took place on 3 March 2023.

1. You were born in March 1970 and are now 53 years of age. You were aged between 47 and 48 years at the time of the offending. You have no prior convictions. UIS has no prior convictions.
2. During the course of the plea you explained that you grew up in a small coastal town in Tasmania and that you had been involved in commercial diving and underwater inspections for the last 25 or so years.. You said that you hold Masters degrees in subsea inspection and in structural engineering.
3. You are a qualified commercial diver and commercial diving supervisor. You were trained in the United States and for many years worked in that country conducting thousands of underwater inspections. As a measure of your standing in that field you told the court that in late 2018 you were asked to become a member of UNESCO's expert advisory panel with respect to the preservation and maintenance of bridges on the World Heritage List.
4. You also indicated, by way of example as to the level of your skill, that whilst conducting an underwater inspection near a large bridge here in Melbourne you happened to notice a serious defect that had evidently not been detected. You alerted authorities, the defect was confirmed and rectified. Had the defect not been identified, the potential consequences were grave.
5. After living and working overseas for many years you said that you decided to return to Australia in 2015. You worked for 12 months or so as an engineer at Frankston Hospital whilst at the same time setting about building an underwater inspection business.
6. You explained that the system for qualifying divers in the United States is quite different to this jurisdiction. There the emphasis is on on-the-job training whereas at the relevant time you say there was a paucity of adequate training facilities in Australia for this specialised area. You say that you could not find the inspection divers who had the qualities you needed and so your aim was to train some divers yourself. During the plea you stated:

"My aim was to train some divers and pass on the knowledge that I'd gained. Unfortunately it didn't end up that way. Were we perfect? No, absolutely not. Obviously the prosecution's job is to make us look like an ongoing train wreck however a lot of steps were already being taken to improve things before WorkSafe came on site on 16 August."[3]

1. You say you had planned to send Ms Baker and Ms Dennis on specialised courses, but after 16 August 2018 you gave up on the plan of trying to train up underwater bridge inspectors and UIS hired construction divers together with a dive supervisor. You said that you have since conducted hundreds of inspections.
2. You expressed considerable remorse that Ms Baker should have been impacted in the way she described in her victim impact statement. You also accepted that the other employees were likely to have been similarly affected. In effect, you suggest you now have much greater insight.
3. In the wake of the pandemic you explained that you thought it best given your health and age to "step away from diving for a while". You are currently living in Tasmania with your parents. You say that you suspect that you will end up seeking some work in your local area.
4. So far as UIS is concerned, you said that you would reinvest the money earnt back into the company - but that it has not operated for some time. It is essentially a shell company at the moment, although some of its assets have been hired out to a company in Queensland.
5. In the written submissions filed on your behalf, it was argued that an adjourned undertaking without conviction would constitute an appropriate penalty in respect of Charge 1.
6. In respect of Charges 2 and 4 - 8, it was suggested that the attitude to safety displayed by the company whilst of concern, was better characterised as highly naïve and overconfident rather than cavalier.
7. It was submitted that the suggestion by one of the experts, Mr Zeigler, that it was exceptional luck that no loss of life occurred amounted to an exaggerated view of what the evidence demonstrated overall.
8. There was of course the possibility of a tragic outcome and some luck was involved. And it was acknowledged that there were occasions which would have been frightening and potentially dangerous for the employees involved. However, it was submitted that there were always numerous persons about, you had first aid training and on most occasions so did others nearby. On most occasions you were also, it was said, in a position to provide immediate assistance.
9. Finally, emphasis was placed on the high utilitarian value of the plea which would justify a substantial reduction in the sentence that would otherwise be imposed.
10. In light of those matters it was submitted that you should be placed on an adjourned undertaking without conviction in respect of Charge 1.
11. In respect of UIS, it was accepted that it was appropriate to record convictions. Specific deterrence, was of some relevance in the balance of sentencing purposes, but given the company is not operating now and there are no current employees, there was no need to emphasise it.

1. In its written submissions the Crown emphasised the primacy of general deterrence in sentencing for offences against this Act. The sentences imposed must make clear to employers that failure to eliminate or mitigate safety risks will result in significant punishment.
2. That general principle, it was contended, is particularly apt to the circumstances of this case. Occupational diving is a specialised field in which reliance is placed upon highly qualified and trained companies. Given that much of the work is performed underwater, the consequences of any breach can easily involve death. If a risk materialises the consequences for any employer will essentially be economic. However the risk to which an employee will be exposed will directly affect their physical and/or mental well-being or even their life.
3. Moreover this offending is difficult to detect and only came to light once Ms Dennis and Ms Baker contacted WorkSafe. That fact further underlines the need to emphasise general deterrence.
4. I will address some of the submissions specific to the charges in the discussion below. However, whilst it was acknowledged that you and UIS have no previous convictions, it was suggested that specific deterrence still had some role to play given the "...protracted and multifaceted nature of the offending by the company..."[4]
5. The subjective considerations acknowledged in yours and UIS's favour included previous good character, delay and the plea of guilty, although it was suggested that there was no evidence of remorse. No issue was taken with the submission as to an adjourned undertaking in respect of Charge 1.
6. As to the charges faced by UIS, it was submitted that as cogent as some of the subjective considerations were, they ought not be permitted to produce a sentence which fails to adequately reflect the seriousness of that offending.

1. In assessing the seriousness of this offending, I should commence by saying something of the objects and principles of the legislation that creates these offences.
2. The Occupational, Health and Safety Act 2004 is generally directed towards securing the health, safety and welfare of employees and other persons at work, eliminating risks to their health, safety or welfare and ensuring that the health and safety of members of the public is not placed at risk by the conduct of undertakings or businesses of employers or self-employed persons.[5]
3. The objects of the legislation are further underpinned by the overarching principles of health and safety protection which are identified in s 4 of the Act. Those principles, which for example require that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances, are directed to focusing employers on an approach that is proactive to health and safety.
4. That is to say that employers should take such steps as are reasonably practicable to provide and maintain a safe working environment, including an active imaginative and flexible approach to potential dangers, in the knowledge that human frailty is an ever present reality.
5. Those considerations are essentially about valuing and prioritising workplace health and safety and provide the setting against which your contravention and those of UIS must be assessed.

The section 21 offences - Charges 1, 3, 5 and 6

1. The maximum penalty for Charge 1, the offence of failing to provide and maintain a safe working environment (information, instruction and training) contrary to s 21(1) and (2)(e) of the Act, for an individual is 1,800 penalty units which represents $285,426 at the time of the offending.
2. The maximum penalty for Charges 3 and 6, the offence of failing to provide and maintain a safe working environment (information, instruction and training) contrary to s 21(1) and (2)(e) of the Act, for a body corporate is 9,000 penalty units. In respect of Charge 3 that amounts to $1,427,130, and in respect of Charge 6 that amounts to $1,450,710
3. The maximum penalty for Charge 5, failing to provide and maintain a safe working environment (system of work) contrary to s 21(1) and (2)(a) of the Act, for a body corporate is 9,000 penalty units which represents $1,450,710 at the time of the offending.
4. In Frewstal,[6] Priest JA and Kaye JA provided some guidance as to assessing the seriousness of offending under s 21 of the Act. An offender is to be punished according to the gravity of the breach owed under the Act, not according to the consequences of any breach of duty under the Act. The gravity of a breach should be measured by reference to the seriousness of the breach itself (that is the extent to which the defendant departed from their statutory duty) and, the extent of the risk of death or serious injury which might result from the breach.
5. In assessing the extent of the risk itself, there must be consideration of the likelihood of the occurrence of an event as a result of the breach and the potential gravity of the consequence of such an event.
6. In respect of Charge 1, the obligation to ensure adequate training is a fundamental duty owed to employees and the failure to provide working at heights training to Amy Hill exposed her to the risk of serious injury or death. This was an obvious risk that ought to have been readily apparent. The likelihood of that risk materialising was by no means remote.
7. I note that you did in fact pay to have Ms Hill undergo such training on 27 March 2018. UIS also arranged the same training for Ms Dennis. Even so, UIS, in carrying out the work for Coles Group on 26 and 27 May 2018, required Thomas Kasper Young to work on top of 2.5 metre tall water tanks without providing him with the necessary training in working at heights. In consequence, he was exposed to the risk of falling when accessing and egressing the top of those tanks.
8. I accept the prosecution's submission given that you were the controlling mind of the company, that its moral culpability in respect of Charge 3, was informed by the fact that by May 2018 you were clearly conscious of the need for employees to have working at heights training in order to perform such tasks. It follows that this contravention by UIS whist similar to that of Charge 1 should be regarded as being more serious.
9. Charges 5 and 6 relate to the work carried out in inspecting irrigation channel culverts under the V-Line train tracks in July 2018. As Mr Zeigler pointed out, there was a clear risk of entrapment there was no extraction system in place, no adequate monitoring, the equipment was ill suited to the purpose and there was no relevant safety documentation.
10. In my view, there was a clear failure to provide a safe system of work for Grace Dennis when she conducted the inspection with a remote operated vehicle (Charge 5). There was also a clear failure to provide adequate training to Grace Dennis and Coby Baker to enable them to safely perform that task (Charge 6). As a consequence, they were each exposed to the risk of death or serious injury as a result of drowning, asphyxiation and/or becoming stuck inside a culvert.
11. Both employees each separately experienced panic in carrying out these tasks which underlines the seriousness of each breach. It does not require much imagination to sense how frightening these experiences must have been for both Ms Dennis and Ms Baker.
12. As I have indicated, the company represented that it was compliant with occupational health and safety standards, yet the failure to ensure there was an emergency plan and rescue procedures specific to the task with adequate communication in the case of Charge 5, and adequate training in the use of equipment such as SSBA in the case of Charge 6, created obvious and serious risks.
13. I regard the breaches of s 21 constituted by Charges 5 and 6, as serious breaches of the Act.

Charges 2, 4, 7 and 8 - Reckless endangerment offences

1. The maximum penalty for recklessly placing a person at the workplace in danger of serious injury contrary to s 32 of the Act for a body corporate is 20,000 penalty units which represents $3,171,400 at the time of the offending in Charges 2 and 4 and $3,223,800 at the time of the offending in Charges 7 and 8.
2. In Orbit Drilling[7] a case decided in 2012, the Court of Appeal suggested that it was a 'anomalous' that at that time an offence under s 32 carried the same maximum penalty as s 21, given that the former was a 'high culpability offence'.[8] In 2016, the maximum penalty for a body corporate convicted of an offence under s 32 was increased from 9000 penalty units to 20,000 penalty units.[9] In the second reading speech to the amending legislation, the minister indicated that the offence of reckless endangerment required a far greater degree of culpability than an offence under s 21. Where the accused is a natural person, the maximum penalty includes a term of imprisonment of 5 years.
3. Indeed the minister stated that the offence should be treated as the most serious offence under the Act, albeit that the more serious offence of workplace manslaughter has been subsequently introduced. Even so, the endangerment offence remains a particularly serious contravention under this Act. It involves the commission of an offence at the point at which an employee is knowingly and recklessly exposed to the risk of serious injury.
4. The dangers of occupational diving were obvious to UIS and well-recognised. It is a highly specialised undertaking, requiring intensive training and experience which utilises specific technical equipment. Undoubtedly you were an experienced and qualified commercial diver. You, and through you the company, appreciated the high-risk nature of commercial diving and the consequent need to adopt rigorous safety standards.
5. In October 2017 you created an environmental health and safety policy that acknowledged as much. Further, in the company's dealings with clients, it represented it would perform work in compliance with Australian Standards, and ensure personnel had the appropriate skills, qualifications, licenses and experience to carry out the work. That was not so.
6. In each of the contraventions of s 32 of the Act on the indictment (Charges 2, 4, 7 and 8) there was a danger that an employee would drown. As the prosecution submitted, and I accept, that danger was derived from a concerning combination of factors including:
   • An absence of adequate training and qualifications in both diving and the use of diving equipment (Charges 2, 4, 7 and 8);
   • The provision of equipment which was inadequate or not fit for purpose, for example ill-fitting dry suits (Charges 2, 7, 8), ill-fitting helmets (Charge 2), ill-fitting facemasks (Charges 4, 7, 8), leaking gloves (Charge 2), only one working torch (Charge 7), and communication problems (Charges 2, 7, 8).
   • The inability to remove leg weights and harnesses in emergencies (Charges 2, 4, 7 and 8);
   • The failure for all employees to be trained in first aid;[10]
   • The failure to ensure that employees knew and understood rescue procedures or emergency plans (Charges 2, 4, 7 and 8);
   • Employees working alone (Charges 2 and 8);
   • Employees working without a fit, qualified and trained backup diver available and ready at all times (Charges 2, 7 and 8);
   • An absence of qualified or trained dive attendant (Charges 2, 7 and 8); and,
   • An absence of a qualified or trained land-based supervisor at all times (Charges 7 and 8).
7. In essence Grace Dennis was placed in danger of drowning on four separate occasions (Charges 2, 4, 7 and 8) whilst Coby Baker was placed in danger of drowning on two separate occasions (Charges 7 and 8).
8. It is true that you had first aid training and you were generally on hand to provide assistance should something have gone wrong, but that was so only on an informal and ad-hoc basis. The reality was that such provision and planning for emergencies as was made fell a long way short of the minimum required by Australian Standard 2299.
9. It seems to me that the company's departure from its statutory duties was particularly serious in the case of Coby Baker. Before her employment with the company she had never dived before. By the time of the offending in Charges 7 and 8 her experience was limited to a PADI open water diver training course which was a basic introduction to diving in the ocean with a face mask and scuba equipment. She had never used a dry suit, SSBA, harness, air tools or weights.
10. Likewise, the scepticism you expressed when informed of the possibility that Grace Dennis may have a PFO is the antithesis of the sort of proactive approach to safety that the Act seeks to engender. That is so despite Dr Haller's opinion that the risk of decompression illness was not as great as other identified risks.
11. By its plea UIS has admitted that your reckless conduct was the conduct of the company and that in respect of each of the four jobs the subject of the reckless endangerment offences that is Coles (Charge 2), EGO Pharmaceuticals (Charge 4), Penguin Parade (Charge 7), and Jotun (Charge 8) it was aware that requiring the employees to perform these dives would probably place them in danger of serious injury. In other words, the company knowingly exposed inadequately trained employees to the danger of serious injury reckless as to the consequences of doing so.
12. Most notably as to UIS's awareness of the degree of departure from the appropriate safety standards, you lied about Ms Dennis's and Ms Baker's experience and training to WorkSafe investigators on 16 August 2018. To make matters worse you also instructed each of them to lie to investigators. I regard that conduct as particularly aggravating.
13. I do not accept that you were highly naïve rather than cavalier, as was contended by counsel who provided short written submissions on your behalf. You were very experienced and well understood the nature of the risks posed in performing these jobs. It appears you thought you could, to a large extent, train these employees yourself on the job. There may have been an element of overconfidence in your capacity to manage the risks, but the reality was that at critical times in these operations, your employees experienced fear, panic, and distress. Those experiences highlight the precariousness of their safety when performing the tasks you required of them.
14. In my view during the time you, and through you the company, committed these offences you were indeed cavalier in your attitude towards employee safety. It is also important to emphasise that the fact that the risks did not actually materialise does not diminish the gravity of the contraventions.
15. You say that you were not aware of the WorkSafe safety alert because although you subscribed to such alerts this particular Alert was published in a category to which you had not subscribed. Even so, you were well aware of the Australian Standards, particularly AS 2815 that required the rigorous training that would no doubt have helped instil the sort of confidence and competence your employees lacked. On that basis I accept that specific deterrence has some role to play in the formulation of UIS's sentence.
16. Whether or not there were suitable schools/facilities available to obtain training, there can be no excuse for recklessly exposing your employees to the danger of serious injury. These were, I accept, serious breaches of the company's statutory duty to its employees.

1. On the other hand, I must give full weight to the fact that you in the case of Charge 1, and the company in the case of Charges 2 to 8, have no previous or subsequent convictions. You have pleaded guilty and you have done so in circumstances where the court is still endeavouring to manage a large number of cases delayed by the pandemic. The trial itself would have taken perhaps four weeks or longer with quite complex issues and expert evidence. All of those resources have been saved by the plea and accordingly I accept that its utilitarian value is very high.
2. The prosecution accept that your plea can be taken as having been entered at a relatively early stage given that there were lengthy negotiations as to appropriate charges and the factual basis for the resolution of the matter. I note also that no witnesses were cross-examined either at committal or on the plea.
3. In all of those circumstances your plea of guilty and the plea of guilty of UIS have facilitated the course of justice and justify a substantial reduction in the sentence that would have otherwise been imposed.
4. I note also that although these matters were detected on or about 16 August 2018 charges were not filed until January 2020. Thereafter there was a significant delay caused by the pandemic. That delay is relevant in that it has meant that you and the company have been left in a state of uncertainty over the last five or so years. It is also relevant insofar as it appears that neither you nor the company have reoffended.
5. You say that you took steps to ensure further such breaches do not occur. In that respect you indicated in the course of discussion on the plea that subsequent to these matters coming to light you engaged an experienced supervisor to ensure that future underwater inspection work was compliant with health and safety requirements.
6. Although the prosecution's written submissions refer to a lack of evidence of remorse - that is not the view that I have formed of your present attitude to what you did. That is so first, because you and UIS did plead guilty and therefore took responsibility for these serious failures. Second, in the end, you desisted from pursuing factual issues on the plea, you said, and I accept, because you did not want to cause further distress to your former employees.
7. Third, it appears from what you have said, that you and UIS responded to the WorkSafe investigation by changing your systems of work to ensure they were compliant with the Australian Standards.
8. Finally, in my exchanges with you in the various hearings dealing with this matter you have conducted yourself in such a way that suggests that over time you have developed insight and have come to more fully appreciate how important it is to prioritise workplace safety. For those reasons I am prepared to accept that you, and by extension UIS, are genuinely remorseful for creating the risks to safety as identified in these operations.
9. It follows from those findings that yours and UIS's prospects for rehabilitation should be assessed as being very good.

1. In sentencing both you and UIS I am bound to take into account current sentencing practice,[11] albeit that practice does not define the available sentencing range or control the sentence to be imposed. It is but one of the myriad factors to be taken into account.
2. The comparative cases provided by the prosecution for Charge 1 involving a natural person[12] are taken from Magistrates' Court cases, dealing with employees working on roofs where the safety protection utilised was inadequate. Whilst those cases are of limited utility they provide some sense as to the range of penalty consistently imposed. Nothing about those cases dissuades me from the view that the defence submission as to an undertaking in respect of charge 1, is not open.
3. Comparative cases with respect to s 32 of the Act are difficult to come by. The prosecution could only provide three instances for offending against that provision. The first was Orbit Drilling, the other two Briggs and Jackson related to Magistrates' Court matters where the accused was a natural person.[13]
4. In Orbit Drilling the sentencing judge had imposed penalty on the more culpable basis that serious injury would probably result rather, than on the basis that it had probably placed a worker in danger of serious injury. Nevertheless, the fine of $750,000 when the relevant maximum penalty was, in monetary terms $966,870, (i.e. in excess of 75% of the maximum) was not manifestly excessive.[14] That was so even though Orbit Drilling was a first offender and had pleaded guilty.
5. That offence arose from a single incident. It was a bad instance of a very serious offence where the company had knowingly exposed a newly-recruited and untrained employee to a grave risk where there was a high likelihood it would materialise. In the event, the risk did materialise and exposed the offence. The degree of departure from the standard required appears to have been at the very high end of the range.
6. By contrast here, UIS engaged in a course of conduct over some months where the risks to safety were serious and not by any means to be downplayed, however I do not regard those risks to be as culpable as that which was present in Orbit Drilling. That is so even though some parallel might be drawn between the predicament of the worker in Orbit Drilling and the way in which Ms Dennis and Ms Baker were each asked to undertake work for which they had not been properly trained.
7. As I will explain below, the number of charges, the need to distinctly recognise these offences and the inability to aggregate penalties whilst accommodating totality, requires a different approach to sentence.

1. In formulating the penalty to be imposed on UIS, I need to take into account its financial circumstances as best that can be discerned from the evidence. I also need to be conscious of the fact that you were the sole director and shareholder of UIS and the potential for a financial penalty imposed on UIS to impact you personally.
2. You say you will "step away from diving for a while" and that UIS is dormant save for it hiring out some of its equipment to a company in Queensland. Given those circumstances it seems to me I have to treat UIS as potentially an ongoing enterprise, with some capacity to meet such penalties as may be imposed. Albeit that capacity appears to have been markedly reduced in comparison with the time at which these offences were committed in 2018.

1. In many respects it would be convenient to impose an aggregate fine on UIS for the four charges of reckless endangerment and a separate aggregate fine for Charges 5 and 6 in relation to failing to provide and maintain a safe working environment. Superficially, s 51 of the Sentencing Act 1991, the threshold requirements being satisfied, would permit such a course.
2. Nevertheless, I take on board what was said by Maxwell P in Frewstal to the effect that each failure/contravention should in circumstances such as this be distinctly recognised.[15] Despite some overlap, the conduct the subject of these charges was engaged in on different days, concerned risks to different employees and arose from different circumstances. I do not therefore think it is appropriate to impose aggregate penalties and I accept the prosecution submissions on this point.
3. Accepting that it so, the principle of totality in sentencing must be applied to ensure the total effective sentence is just and appropriate. In other words -

"... the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."[16]

1. The written submissions made on your behalf contend that there was overlap both within and between the various charges such that care was required to avoid double punishment. Moreover, the individual sentences needed to be reduced to some degree to accommodate totality. I accept that submission.
2. Generally speaking, it is wrong in principle to impose lower individual sentences than would be otherwise justified to tailor a total effective sentence.[17] Ordinarily, the proper approach is to impose separate appropriate sentences and accommodate totality through orders for concurrency. In this case, where as I have determined, aggregation of fines is not possible, it will be necessary to take a practical approach and reduce the individual sentences imposed to achieve an overall sentence that is just and appropriate.
3. Accordingly, the penalties to now be imposed will distinctly recognise each contravention, however those individual penalties will be reduced to reflect a degree of overlap between the charges and the need to ensure that the overall sentence imposed is proportionate.
4. That said, the primary objective of the total effective sentence imposed must serve to "...ensure a level of penalty ... as will compel attention to occupational, health and safety issues so that persons are not exposed to risks to their health and safety in the workplace."[18] It is my intention to now impose such a sentence.

1. Taking all relevant matters into account you will be sentenced in respect of Charge 1 as follows:
2. Without conviction you will be placed on an undertaking to be of good behaviour for a period of 12 months.
3. UIS will be sentenced as follows:
4. On Charge 2, UIS will be convicted and ordered to pay a fine of $150,000
5. On Charge 3, UIS will be convicted and ordered to pay a fine of $10,000
6. On Charge 4, UIS will be convicted and ordered to pay a fine of $150,000
7. On Charge 5, UIS will be convicted and ordered to pay a fine of $60,000
8. On Charge 6, UIS will be convicted and ordered to pay a fine of $60,000
9. On Charge 7, UIS will be convicted and ordered to pay a fine of $150,000
10. On Charge 8, UIS will be convicted and ordered to pay a fine of $150,000.
11. The total fines imposed on UIS amount to $730,000.
12. I will declare pursuant to section 6AAA of the Sentencing Act 1991, but for the pleas of guilty UIS would have been ordered to pay fines in respect of Charges 2 to 8 totalling $1.05 million.

[1]Joint Technical Committee SF-017, Occupational Diving, AS/NZS 2299.1:2015 Occupational Diving Operations Standard Operational Practice, (Standard, 21 December 2015).

[2] Occupational Diving, AS/NZS 2299.1:2015. Note that Earlier iterations date back to 1965.

[3] Transcript of proceedings, DPP v Bedford (County Court of Victoria), CR-21-01272, CR-21-01273, 3 March 2023), 113.

[4] Director of Public Prosecutions, "Submissions on Plea", DPP v Bedford Underwater Inspection Service Pty Ltd, 28 February 2023, 41.

[5] Occupational Health and Safety Act 2004 (Vic) s 2.

[6] DPP v Frewstal [2015] VSCA 266, 127.

[7] Orbit Drilling v The Queen [2012] VSCA 82.

[9] Treasury and Finance Legislation Amendment Act 2016 (Vic) s 5.

[10]I note that in respect of Charge 2 Thomas Kasper Young did have first aid training from a previous job.

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

[12] Director of Public Prosecutions, 'Submissions on Plea', DPP v Bedford Underwater Inspection Service Pty Ltd, 28 February 2023, Table A: Table of Comparative Cases for Charge 1.

[13] Director of Public Prosecutions, 'Submissions on Plea', DPP v Bedford Underwater Inspection Service Pty Ltd, 28 February 2023, Table B: Table of Comparative Cases for Charges 2, 4, 7 and 8.

[14] Orbit Drilling Pty Ltd v R [2012] VSCA 82; (2012) 35 VR 399 [64].

[15] DPP v Frewstal [2015] VSCA 266 [35]-[45], at [39] in particular.

[16] David A Thomas, Principles of Sentencing, (Heinemann, 2nd ed, 1979) 56-7.

[17] DPP v Grabovac [1998] VR 683 per Ormiston JA at pp 683-684.

[18]Orbit Drilling at [60] citing Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388.