Inspector Alan Jones v Dewcape Pty Ltd & Anor; Dewcape Pty Ltd & Anor v... [2008] NSWIRComm 171 | Case summary

Inspector Alan Jones v Dewcape Pty Ltd & Anor; Dewcape Pty Ltd & Anor v... [2008] NSWIRComm 171 | Case summary | Zoe

In particular: (a) At all material times the defendant was retained as 'Head Contractor' to manage, co-ordinate and supervise construction of a two storey residential premises (construction works) at the site; (b) At all material times Dewcape employed the defendant to manage, co-ordinate and supervise the construction works at the site; (c) In the course of managing the construction works, Dewcape contracted Mr Pump Pty Ltd (Mr Pump) to supply a concrete placing boom pump and crew to place concrete in footings at the site; (d) Dewcape failed to ensure that Mr Pump maintained systems of work that were safe and without risks to health; (e) Dewcape failed to ensure that Mr Pump set up and deployed the concrete placing boom pump in a manner that was safe and without risks to health; (f) Dewcape failed to properly supervise the site and in particular, to supervise the operations of the concrete placing boom pump crew; (g) Dewcape failed to conduct any or any proper risk assessment with respect to the set up and deployment of the concrete placing boom pump; (h) Dewcape required, or permitted the concrete placing boom pump to be set up in the vicinity of overhead powerlines and permitted the boom to be deployed in a manner that resulted in the boom passing within safe working limits of those overhead powerlines. 6 The individual defendant pleads guilty to the charge. 7 Mr M.P. Cahill of counsel appeared for the prosecution and Mr B.D. Hodgkinson SC appeared for the defendants. An Agreed Statement of Facts was tendered together with the following annexures: Email dated 26 November 2006 from Thuan Teh to Dewcape; Lockup Contract with Dewcape Pty Ltd dated 30 October 2002 signed on 11 November 2002; Site Specific Safety Management Plan; Certified Extract from the Bureau of Meteorology dated 3 June 2005; Investigation Report prepared by Keith Newland of Energy Australia; Fatal Shock Investigation Report dated January 2003; Police NSW photographs; Incident Factual Report dated 15 January 2003; photographs taken by Inspector Gjaltema; Safety Policy and Safe Work Method Statement of Mr Pump Pty Ltd; Code of Practice - Pumping Concrete 1 March 1994; Australian Standards 2550.15 - 1994 Cranes - Safe Use Part 15: Concrete Placing equipment and decision in Inspector Jones v Challita and Anor [2006] NSWIRComm 207. 8 The defendants relied upon an affidavit of Salwa Ishak sworn 24 July 2008 and an affidavit of Andrew Ishak sworn 24 July 2008 and attachments. 9 The Agreed Statement of Facts relevantly reads: 2. DEWCAPE PTY LTD [ACN: 003 901 460] (Dewcape) is and at all material times, was a corporation whose registered office is situated at 3 Amaroo Avenue, Strathfield, in the State of New South Wales. . . 3. The second defendant ANDREW ISHAK (Ishak) is and at all material times was a project manager of the first defendant and a person concerned in the management of the first defendant.

The Truck Mounted Concrete Placing Boom 12. Mr Pump Pty Ltd (Mr Pump) is and was, at all material times, a corporation with its registered office situated at 164 Parramatta Road, Camperdown in the State of New South Wales. 13. At all material times Mr Pump carried on business in the State of New South Wales as a supplier of concrete pumping and placing services, including the provision of truck-mounted concrete placing booms together with a crew to set up and operate the equipment. The equipment supplied by Mr Pump, from time to time included a truck-mounted concrete placing boom bearing NSW registration number QZV 674 (concrete placing boom). 14. At material times, Buddy Challita (Challita) was licensed to drive concrete placing boom trucks, including the concrete placing boom truck bearing NSW registration number QZV 674, and certified to undertake the safe operation of the concrete placing boom, including both the 'set up' and 'take down' of that equipment. Challita had around five (5) years experience as an operator, and at the time of the incident had held a certificate of competency to operate a truck mounted concrete placing boom for approximately three and a half years. 15. At all material times, Mr Pump employed Challita as a 'boom pump' operator. 16. At all material times, Mr Pump employed Marcel Budwee (Budwee) as a linesman/labourer, to assist Challita in the set-up and operation of the concrete placing boom. 17. In about November 2002 Mr Pump developed and introduced a Safe Working Method Statement (SWMS) and Risk Assessment for the operation of the concrete placing boom. The SWMS included three separate references to the risks presented by 'Power Lines' and nominated safe working distances for working in the vicinity of power lines, including a 3 metre safe working distance for cables carrying voltage up to 132,000 volts. 18. On 2 December 2002 Mr Pump provided Challita with training, including training with respect to the content and use of its SWMS. In particular, Challita was trained to complete the SWMS as part of the set up of the machine and instructed that he was to review the SWMS with the Site Supervisor. 19. In addition, at all material times, the concrete placing boom bore a number of warning notices relating to operation of the boom in the vicinity of power lines, including specific references to the need to avoid operation in the vicinity of overhead powerlines, the need to maintain safe working distances from overhead powerlines and the nomination of a 3 metre safe working distance for powerlines up to 132,000 volts. 20. No records were provided by Mr Pump confirming that Budwee was trained prior to 8 January 2003 in the use of the SWMS it introduced in about December 2002, and/or that Budwee was trained prior to 8 January 2003 with respect to the risks associated with the deployment of the concrete placing boom in the vicinity of overhead powerlines.

The Set-Up 21. In early January 2003, Ishak contacted Jeff Chehine-Nehmetallah (Chehine), an employee of C & A Chehine, the partnership usually retained by the defendant for concreting works on Dewcape's sites. It being early January, C & A Chehine were on holidays, however Chehine agreed to assist with the concrete works personally. 22. As Dewcape required the services of a concrete boom pump to pour concrete footings at the site, Chehine contacted Mr Pump on 7 January 2003 and arranged for Mr Pump to provide a concrete placing boom and crew at the site on 8 January 2003. Chehine ascertained from Mr Pump the minimum distances required to set up the outriggers (stabilisers) of the concrete placing boom pump. Mr Pump the minimum width of 6 - 7 metres was required. Ishak arranged an area within the boundaries of the premises, which he believed was suitable for the set up of the concrete placing boom, which had 7 metres of clearance. 23. On 8 January 2003 Challita was assigned by Mr Pump to drive and operate the concrete placing boom for the purpose of placing concrete at various construction sites, including the subject site. Budwee was assigned by Pump to assist Mr Challita. 24. After completing work at another site, Challita drove the concrete placing truck to the subject site, together with Budwee, arriving at the site between about 1.00 pm and 1.30pm that afternoon. 25. On arriving at the site, Challita parked the concrete placing boom at the front of the site, alighted from the vehicle and had a discussion with Ishak about where to set up the concrete placing boom for the pour. 26. Ishak nominated an area within the confines of the site as the area in which the concrete placing boom was to be set up for the purposes of the pour. But, Challita rejected that area as unsuitable because he could not adequately deploy the stabilisers and it was area that had been filled. Although the area had been filled, it had been compacted. 27. As an alternative, Challita nominated the driveway of the site, extending out past the front boundary of the premises as a suitable area in which to set up the concrete placing boom. This was subject only to the observation that he could not deploy the boom from that position without damaging a tree located on the site adjacent to the front boundary of the premises. 28. It appears that the boom could not be deployed in the opposite direction (that is away from the tree) because of the proximity of a telegraph pole. 29. Ishak and Challita further discussed the set-up of the concrete placing boom pump. Ishak requested a further three times that Challita set up the concrete placing boom pump at the initially nominated site within the boundaries of the premises and remote from the overhead wires referred to above. However, Challita declined. 30. When interviewed after the event, Ishak stated that he and Challita looked at the hazards in the driveway area and that Challita told him that he would have enough "clearance" to clear the powerlines and tree. Ishak also stated that he then left it up to Challita to determine the area in which the concrete placing boom pump was to be set up for the pour and Challita again nominated the driveway area. 31. Ishak proceeded to made a telephone call to Teh to discuss the possibility of damage to the tree. Following the telephone discussion Ishak agreed to Challita setting up the concrete placing boom in the driveway of the site. 32. Challita then positioned the concrete placing boom in the driveway with its rear extending beyond the front boundary of the site across the footpath to the gutter line. After positioning the concrete placing boom 'in the driveway' of the site, Challita and Budwee deployed the stabilisers and prepared to deploy the concrete placing boom. At this stage, Ishak proceed to the footings and completed the steel fixing required for the pour. By the time he turned around the boom was set up. 33. At no time did Challita consult the SWMS supplied by his employers, a copy of which was located in the driver's cabin of the concrete placing boom. 34. At no time did Ishak require Challita to provide him with a copy of the SWMS. 35. At no time did Ishak require Challita to conduct an adequate risk assessment with respect to the set-up and/or operation of the concrete placing boom pump in the driveway of the premises, nor did Ishak perform any adequate form of risk assessment with respect to the placement, set-up and/or operation of the concrete placing boom pump in the driveway of the premises. Any adequate of risk assessment would have disclosed that the driveway was an inappropriate location for the placement, set-up and operation of the concrete placing boom pump because of the proximity of the overhead electrical cables. 36. A combination of Low Voltage, Street Lighting and High Voltage powerlines ("mains") were slung immediately adjacent to the front boundary of the premises. The Low Voltage mains (LV mains) were slung at height of 6.6 metres above the footpath. The Street Lighting mains (SL mains) were slung at 7.2 metres above the footpath. The High Voltage mains (HV mains) were slung at 9.5 metres above the footpath. 37. Each of these sets of wires passed directly over the rear of the concrete placing boom once it was in place and set up in the driveway of the site ready for the boom to be deployed. 38. As the concrete placing boom was 3950mm high when located at rest, the boom was already within the safe working distances referred to above by approximately 350mm before Challita commenced deployment of the boom. 39. Once the boom had been deployed and was fully extended, and the concrete was being poured, the boom was well outside the safe working distance from the power lines. 40. Once the concrete pumping boom was ready for deployment, Challita connected the remote control and then stood away from the machine with the deceased. Challita progressively unfolded the boom and slewed it so that it was facing towards the rear of the site. During this operation Challita encountered problems with the tree that was located in the northwest corner of the site adjacent to the driveway and Stanley Street. 41. Challita then advised Ishak that they were ready to pour the concrete. Approximately 20 minutes later the concrete commenced arriving and they commenced to pump the first truckload of concrete. The first 30 cubic meters was delivered in various concrete trucks and was pumped within an hour to an hour and a half. Then Ishak continued to order the concrete a truck load at a time. 42. In total there were 50 to 60 cubic metres of concrete to be poured which equates to approximately 10 full truckloads of concrete. 43. Towards the end of the concrete pour a storm passed through the area consisting of rain, light hail and strong wind conditions. Attached marked 'D' is a copy of a Certified Extract from the Bureau of Meteorology dated 3 June 2005 for that day. 44. Also towards the end of the concrete pour, it was decided that the remaining section of the footings could be poured from the chute of the final concrete delivery truck, as there were only 1.5m3 of concrete left to be poured. Ishak informed Chaillta that he could pack up and leave. 45. Challita enquired of Ishak where he could blow the concrete out of the boom and Ishak said in the footings. Ishak then left the worksite to go to the shops. A sponge was then placed into the lines and the lines were then blown out into the footings. After the initial procedure, Challita gave Budwee the sponge that came out of the line to clean so they could then "blow the lines" once again. 46. Challita then got up into the cabin of the truck and pressed the accelerator to build up the air so he could engage the power take off (PTO) and retract the boom. 47. At this time, Chehine and Budwee were standing on the side at the rear of the concrete placing boom. Chehine was hosing his boots and Budwee was flushing water through lines associated with the concrete placing boom. 48. Challita walked around, climbed up to the area where the remote control for the boom connects to the vehicle, operated the remote so as commence to folding the boom towards its closed position and also commenced to slew the boom towards the tree adjacent to the front boundary of the site. As Challita slewed the boom towards and into the foliage of the tree, Challita saw the power lines blowing back and forth also within the foliage of the tree. Challita says that at this point he became concerned about the boom coming too close to the powerlines and that he called out to Budwee for his assistance. There was no answer. 49. Challita then turned to his right and, out of the corner of his eye, saw Budwee lying on the ground. 50. At about the time that Challita called out to Budwee, Chehine was walking to rear of the truck when he heard a 'cracking snap noise'. Chehine then turned and also saw Budwee lying on the ground. Shortly, thereafter, Ishak returned to the work site and became aware of the incident. 51. On observing the location of the boom in comparison to the overhead powerlines referred to above at or about the time of the incident, Chehine, Ishak and a number of independent witnesses all describe the boom with the second stage still partially deployed, well within the safe working distance of 3 metres from the overhead wires referred to above. 52. A post mortem conducted by Dr Johan Duflou of the Department of Forensic Medicine on 10 January 2003 revealed evidence of injuries to Budwee's right hand and Budwee's right foot consistent with electrical burns. Duflou concluded that the cause of death was electrocution. 53. An investigation was carried out by Energy Australia which concluded, in all the circumstances, the most likely explanation for the electrocution was a contact with, or a flashover from, the 11kV, or HV, mains, running adjacent to the front boundary of the site as the boom was being slewed through the foliage and/or branches of the tree referred to above. Attached and marked 'E' and 'F' respectively, are an Investigation Report prepared by Keith Newland of Energy Australia, undated and a Fatal Shock Investigation Report dated January 2003. 54. On 8 January 2003, officers from the New South Wales Police -Forensic Services Group, Chatswood Crime Scene Section attended the site and took a number of photographs. Copies of those photographs are attached and marked 'G'. 55. On 9 January 2003, Inspector John Gjaltema attended the site and made observations contained in an Incident Factual Report dated 15 January 2003 which is attached and marked 'H'. 56. On 9 January 2003,whilst at the site Inspector Gjaltema took a number of photographs which are attached and marked 'I'. 57. No proper precautions were taken by Dewcape and Ishak with respect to setting up and/or deployment of the concrete placing boom within the vicinity of the overhead powerlines. 58. No precautions were taken by Dewcape and Ishak with respect to operating the concrete placing boom in windy conditions and in particular the operation of the boom in proximity to overhead powerlines in those conditions. 59. Dewcape has no prior criminal convictions. 60. Mr Ishak has no prior criminal convictions. Relevant Principles 10 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8(2) and s26(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor. The court could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea).

11 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand and the need to avoid a mathematical approach on the other. Such an approach involves the sentencing court to engage in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 12 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying: [57] The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 13 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. Of particular relevance is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia: . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, . . . (g) the offender is unlikely to re-offend, . . . (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . .

Consideration 14 In consideration of penalty, the Court must examine the objective seriousness of the offence or, as has been said "the nature and quality of the offence" (see Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474)). The agreed facts reveal the principle contractor, Dewcape Pty Ltd, was employed in November 2002 by Thuan Teh to construct a house, swimming pool and garden to lock-up stage at a property in Putney. Dewcape acted as head contractor and Andrew Ishak acted as Project Manager and Site Supervisor for Dewcape in carrying out the construction on the site. The contract allowed for three months for the construction work. Dewcape was responsible for all works at the site. Dewcape contracted with Mr Pump Pty Ltd to supply a concrete pumping truck for the concrete footings. 15 On 8 January 2003, a concrete pumping truck of the "boom" variety arrived at the construction site in Putney between 1pm and 1.30pm. It was driven by an employee of Mr Pump Pty Ltd, Mr Challita. Accompanying the driver, as linesman, was Mr Budwee. Mr Ishak had a discussion with Mr Challita regarding where the truck should be placed on the site. Mr Ishak said he wanted the truck placed in an area of open space on the site but Mr Challita objected that he could not properly deploy the truck stabilisers because that area had been back-filled. He was worried about the ground giving way under the weight of the truck. After further discussions, Mr Ishak allowed Mr Challita to park the truck in the driveway to the property. In this position, the back of the truck extended outside the site and across the footpath. 16 The placement of the truck in the driveway of the property was to prove decisive. To one side of the truck lay a telegraph pole and to the other side, a tree. The boom was on the top and to the rear of the truck and could not be easily deployed. Mr Challita thought he had enough clearance to set up the concrete placing boom. In evidence, Mr Ishak said he was concerned about the tree, which was subject of a bond between the property's owner and the council. He made a telephone call to Mr Teh regarding potential damage to the tree because of the placement of the pumping truck. 17 In the applicable WorkCover Code of Practice for concrete pumping it was relevantly stated: 3.3 Setting up near powerlines or electrical equipment The precautions listed below should be strictly observed when setting up near powerlines. a. Minimum distances. Under the Construction Safety Act , 1912, Section 133(a) boom pumps must observe the following minimum distance requirement from powerlines: · 3m up to 132,000 volts · 6m from 132,000 to 330,000 volts · 8m over 330,000 volts · 8m where the voltage is not identified

3 meters was identified as the safe working distance from powerlines up to 132,000 volts. 18 Low voltage and high voltage powerlines passed directly over the rear of the boom once the truck was parked. Therefore, before the boom was deployed the truck was already within the minimum allowable safe working distance to powerlines by 350mm as defined in the Australian Standard. During deployment it was raised by further 35mm, bringing it further within the safe working distance. By remote control Mr Challita deployed the boom. He raised, unfolded and slewed the arm of the boom so it was facing the rear of the property. 19 Towards the end of the concrete pour a storm passed through the area. Mr Ishak told Mr Challita he could pack up and leave. Mr Ishak gave evidence that he left the site while the concrete boom was being cleaned in preparation for its retraction. 20 During the process of retracting the boom arm of the pumping truck, Mr Challita noticed the power lines blowing back and forth in the wind and was concerned about the proximity of the boom arm to the tree. He called out for Mr Budwee's help. It was at this stage he saw Mr Budwee lying on the ground near the rear of the truck. Mr Budwee had been at the rear of the truck flushing water through the lines. Another employee on site nearby the truck, Mr Chehine, said at the time he heard Mr Challita calling out to Mr Budwee he heard a "crackling snap noise". Mr Budwee was fatally electrocuted. 21 An investigation by Energy Australia concluded the most likely explanation for the electrocution was a contact with, or flashover from, the high voltage main wires to the boom arm and to the ground. 22 In evidence Mr Ishak maintained he relied upon the expertise and experience of Mr Challita in the placement of the truck too close to the powerlines. While I accept Mr Ishak's proposition that as a manager he was not an expert and necessarily had to rely upon the specialist knowledge of others, the duties imposed by the Act are non-delegable. There is an absolute obligation imposed upon a contractor under the Act to ensure safe working at its worksite and reliance upon sub-contractors to perform specialist work cannot lead to a delegation of that contractor's corporate duty under the relevant statutory provisions. As Walton J, Vice-President said in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 at [99]: What was the failure of the respondent in this case? The answer is plain. The respondent's system of work did not ensure that there was a safe work method established by the person to whom it had delegated that task; nor did it ensure that a safe work method was adopted on site. The Act stipulates that it is the employer who is to ensure that a safe workplace is provided. Whilst it is trite the company can only meet that obligation through the actions of natural persons, it can only delegate the authority to make it happen, it cannot delegate the responsibility imposed by the Act upon it to ensure that it is done. (See also: Kirk Group Holdings Pty Ltd and another v WorkCover Authority of New South Wales [2007] NSWIRComm 86 at [53]-[56]). 23 Dewcape's reliance upon sub-contractors to perform work on this worksite does not avoid its obligation to ensure safe working on its site and to ensure its sub-contractors conform to the safe work practices required. Mr Ishak acknowledges he was overseeing the work. He agreed he was aware of the minimum safe working distance from powerlines. However he said that at the time he did not realise the truck was in breach of that distance. Dewcape, through Mr Ishak, was under a statutory obligation to ensure the concrete pumping truck operated within the safety guidelines respecting the required distance from live powerlines. Haylen J recently considered a corporate defendant's responsibility for the failure of contractors to ensure compliance with safe work practices in Robert William Regan v Anglo Coal (Kayuga Management) Pty Ltd [2007] NSWIRC 12. He enunciated the relevant test saying at [26]: . . . The thrust of the charge was not to require the defendant to become an expert in crane and lifting operations but required the defendant to ensure that employees of . . . were provided with or had maintained a safe system of work in respect of the conduct of the lifts and that they would be provided with or had maintained a proper system in relation to the assessment of risk associated with the conduct of lifts to be performed in the site. . . . 24 In the application of this principle, Mr Ishak for the defendant company had to ensure the safety of the contractor's employees by rigorously ensuring compliance with recognised safety standards. As to the criminal responsibility of the individual defendant, Mr Ishak, Starke J in Millner v Raith (1942) 66 CLR 1 said of a provision similar to s8(1) and s26(1) (at 5): They make a director or person concerned in the management of a body corporate responsible as a principal for any act or fact specified in those sections merely because of his relation to the body corporate.

While this document was available on the day of the incident, Mr Ishak did not request to see it. It clearly makes reference to the safe working distance required from power lines. That may well have served as a reminder to him as to the safe placement of concrete truck. His system of work required him to endorse the contractor's safe working plan. 28 The applicable Australian Standard (AS2550.15-1994 - Cranes-Safe use - Part 15: Concrete placing equipment) for concrete pumping gave the following precautions as to overhead powerlines: 7.7 OPERATION NEAR AERIAL CONDUCTORS (OVERHEAD POWERLINES) 7.7.1 Precautions When operating concrete placing equipment in close proximity to aerial conductors, the following precautions shall be observed by the operator and other persons working with the concrete placing equipment: . . . (c) Do not allow any part of the equipment to approach within the distance shown in figure 7.1 of any live aerial conductors. 29 Further, there were numerous warning signs on the rear of the truck near the pump control box that warned of the need to maintain safe working distances from overhead powerlines and nominating three meters as a safe working distance up to 132,000 volts. The three meter distance required was known by Mr Ishak. The risk posed to employees on site by the truck being in such close proximity to powerlines was obvious, the risk was clearly identified on the truck and was a risk within the knowledge not just of its operators but also Mr Ishak. 30 The risk was therefore foreseeable which makes the offence more serious. In WorkCover Authority of New South Wales (Inspector Barossa) v McDonald's Australia Ltd (2003) 125 IR 270, the Court addressed the issue of risks that are not only foreseeable, but are foreseen (at [109]): It is well settled that the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature (see Capral Aluminium (2000) 99 IR 29 at [81] - [82]). The fact that the risk to safety as particularised in a given prosecution has actually been foreseen by a defendant will, in my view, have the effect of further aggravating the nature and seriousness of an offence under the Act. This observation must, of course, be tempered by a recognition of all the circumstances of the particular case. 31 There were simple, straight forward steps which could and should have been taken to avoid the risk (Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [82]). The distance requirements were outlined in the Mr Pump's Safe Work Method Statement, which Mr Ishak failed to inspect. 32 A level of deterrence must be factored into a consideration as to penalty. The Full Bench in Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 said at [74]: . . . the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . .

A plea of guilty was entered by both defendants on 3 January 2008. This was over 3 years from the date the Application for Order was filed on 23 December 2004. The delay in entry of the plea of guilty was because the defendant pursued a number of interlocutory matters which went on appeal to the Full Bench (see Inspector Jones v Dewcape Pty Ltd and Another [2006] NSWIRComm 361 and on appeal Dewcape Pty Ltd v WorkCover Authority of New South Wales (Insp Jones) [2007] NSWIRComm 212). The defendants are entitled to pursue their legal rights. When those rights were defined the defendants shortly entered a plea of guilty. I accept that according to the principles outlined in R v Thomson; R v Houlton (2000) 49 NSWLR 383 a discount in the penalty can be given for a plea of guilty. The defendants, therefore, are entitled to a deduction for the utilitarian value of the plea despite the court time expended on interlocutory matters. In the circumstances there shall be a 10 per cent discount allowed on penalty for both offenders. 35 Other subjective features warrant mitigation as to penalty. The defendants co-operated with WorkCover Authority. 36 Evidence reveals that Mr Ishak has re-educated himself as to the requirements under the Occupational Health and Safety Act. He has re-developed his work practices and requires an adequate risk assessment of each task. He has undertaken extensive and on-going management education. I accept Mr Ishak has expressed contrition and remorse for the incident on behalf of the defendant company and on his own behalf for his part in the incident. I accept Mr Ishak is now in a better position than in 2003 to shoulder the responsibilities and burdens placed upon management under the Act. 37 Consistency in the penalty has been raised. I take guidance from the analysis of Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited & Anor (2000) 95 IR 383 (at 433-435) as to the authorities outlining the relevant consideration (see Griffiths v The Queen (1977) 137 CLR 293 (at 326 327), Postiglione v The Queen (1997) 189 CLR 295 per Kirby J (at 341), Dawson and Gaudron JJ (at 301-302) and also Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 (at 341)). 38 Other defendants in other proceedings have been charged and sentenced for breaches of the Act emanating from the same factual scenario. In Inspector Jones v Buddy Charbel Challita; Inspector Jones v Mr Pump Pty Ltd [2005] NSWIRComm 385, a penalty on the sub-contractor company and Mr Challita was imposed. On appeal to the Full Bench as to inadequacy of each sentence (Inspector Jones v Challita and Anor [2006] NSWIRComm 207) the court accepted the individual employee defendant's fine of $600 from a maximum penalty of $3000 as appropriate but the corporate defendant had its fine increased from $65,000 to $75,000 from a maximum of $550,000. 39 Considerations of consistency require an examination of the respective culpabilities for the breach of the Act as apportioned between the co-defendants. While I accept Mr Pump and its employee, Mr Challita, were responsible for the unsafe positioning of the pumping truck, Mr Ishak bore the burden of overall site safety and agreed to the positioning of the truck in a different place to the one he had originally intended. I am of the view Dewcape and Mr Pump had overlapping responsibility and equal criminality, as do Mr Ishak with Mr Challita, for the risk to safety that materialised in the fatal electrocution of Mr Budwee. Therefore, the respective culpabilities are approximately equal. 40 It is also of relevance to consider the effect of the deeming provision of the Act (s26(1)) through which the charge is laid against the individual defendant. As Wright J, President observed in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd and Anor (No 2) (2000) 99 IR 163 at [38] of a similar provision in the 1983 Act: . . . The construction and implications of s50 are relevantly these. First, the level of culpability of a personal defendant who is deemed to have committed the offence by virtue of s50(1) cannot be greater than that of the corporation who has been convicted or otherwise assumed to be guilty for the purposes of the operation of the section. . . . It is not, in my view, a question of considering their relative contribution but assuming that the purpose of the provision is to make an individual who is responsible to an extent for the management of the corporation similarly responsible and culpable for the acts or omissions of the corporation .

On the view of Wright J, President, the deeming provision of s26(1) requires a penalty imposed against an individual be not greater when compared with the penalty imposed against a company. It is in his role as a person involved in the management of a company that Mr Ishak is brought before the court. Mr Challita was charged and convicted of an offence against the Act as an employee of the company Mr Pump Pty Ltd. 41 I accept the submission of the defendant that the Act directs itself primarily, but not exclusively, to the obligation on employers to ensure safety on worksites. However, I would think it strange, or perhaps against the purposes of the Act, if all things being equal, the head contractor on a construction site would have lesser culpability for such a breach of the Act than the subcontractor who was the employer (see WorkCover Authority of New South Wales (Inspector Mansell) v Ove Arup Pty Ltd [2006] NSWIRComm 240 at [214]). I, therefore, determine Dewcape and Mr Pump carry equal culpability for the offence as do Mr Challita and Mr Ishak. 42 However, I must take into account the financial status both of the defendant company and the individual defendant in my consideration of penalty. I do so in the context that I have found these breaches to be most serious offences. Neither Mr Ishak nor the company ask for consideration as to their pecuniary status as was the case in the prosecution against Mr Pump and Mr Challita. I do not find this is an appropriate matter for the application of s10 of the Crimes (Sentencing Procedure) Act 1999 for either defendant. 43 The maximum penalty for a breach brought under s8(2) of the Act against the defendant company is $550,000 and the maximum penalty against the individual defendant for a breach is $55,000. 44 I take into account the subjective features of the offence but give weight to the objective seriousness of the offence. I find the defendant company and the individual defendant (by virtue of s26(1)) guilty of breaches of s8(2) of the Occupational Health and Safety Act 2000. 45 In Matter No. IRC7539 of 2004 for the breach of s8(2) of the Act, the defendant company is fined in the sum of $75,000. 46 In Matter No. IRC7540 of 2004 for the breach of s26(1) of the Act, the individual defendant is fined in the sum of $15,000. 47 The prosecution shall have one order as to costs.

Inspector Alan Jones v Dewcape Pty Ltd & Anor; Dewcape Pty Ltd & Anor v Inspector Alan Jones

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Cases Cited (22)