Inspector Anthony Farrell v Partridge Plumbing Pty Ltd

Industrial Relations Commission (NSW)|1994-09-09|Before: Kavanagh J, Peterson J, Mr P, Mr J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Anthony Farrell v Partridge Plumbing Pty Ltd [2003] NSWIRComm 354 Prosecutor: PARTIES : Inspector Anthony Farrell Defendant: Partridge Plumbing Pty Ltd FILE NUMBER: IRC975 of 2002 CORAM: Kavanagh J CATCHWORDS : Section 17(1) offence under the Occupational Health and Safety Act 1983 - failure to ensure safe plant - plea of guilty - small business - other company's activity affects gravity of breach - principle of parity applied - financial status of defendant relevant to penalty Occupational Health and Safety Act 1983 LEGISLATION CITED : Fines Act 1996 Crimes (Sentencing Procedure) Act 1999 WorkCover Authority of NSW v Woolworths (unreported decision of Peterson J, CT1044 of 1993, 9 September 1994) Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 CASES CITED : Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 Ferguson v Nelmac (1999) 92 IR 188 Tyler v Sydney Electricity (1993) 47 IR 1 Postiglione v The Queen (1997) 189 CLR 295 HEARING DATES: 07/21/2003; 08/13/2003; 09/15/2003 DATE OF JUDGMENT: 11/06/2003

Prosecutor: Mr P.J. Punch Solicitor Carroll & O'Dea LEGAL REPRESENTATIVES: Defendant: Mr J.A. Springthorpe of counsel Solicitors: McCabe Terrill

JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Thur 6 November 2003 IRC975 of 2002 INSPECTOR ANTHONY FARRELL v PARTRIDGE PLUMBING PTY LTD Prosecution under s17(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm354

1 This prosecution is brought by Inspector Farrell of the WorkCover Authority of NSW against Partridge Plumbing Pty Limited. The prosecution issued under the Occupational Health and Safety Act 1983 (the Act) and the charge is brought under s17(1) of the Occupational Health and Safety Act. It is alleged the defendant breached s17(1) of the Occupational Health and Safety Act 1983 in that it: . . . DID FAIL between 1993 and the 7 June 1998 to ensure that the said plant (the mixing valve) was safe and without risk to health contrary to Section 17(1) of the Occupational Health and Safety Act 1983. The defendant performed plumbing and plumbing maintenance work at The Salvation Army Woodport Retirement Village, at 120 The Entrance Road, Erina, in the State of New South Wales ("Woodport") from 1993 until the 7 June 1998 and is a person who by virtue of that contract with an obligation of any extent in relation to the safety of or the absence of risk to health arising from the plant and is by virtue of Section 17(2) of the 1983 Act a person who shall be treated for the purposes of Section 17(1) as being a person who has control of the thing, namely the plant (the mixing valve), to which the persons obligations extend.

The particulars of the charge were relevantly as follows: (j) . . . The Defendant failed to monitor the mixing valve during the period that the Defendant was performing maintenance duties at Woodport. The Defendant failed to apprise itself of information regarding the expected life span of the mixing valve and hence consequently failure to advise Woodport as to the need to replace the mixing valve when its life span had expired. Further, the Defendant failed to ensure that the mixing valve was safe and without risk to health. The Defendant failed to advise Woodport as to the steps required to properly monitor the temperature of the water from the tap connected to the mixing valve.

2 The Agreed Statement of Facts is as follows: 3. At all material times the Defendant conducted a business of a plumbing contractor from 43 Arakoon Street, Kincumber, in the said State. 4. At all material times the Defendant, by contract, performed plumbing and plumbing maintenance services at the Salvation Army Woodport Retirement Village at 120 The Entrance Road, Erina, in the State of New South Wales ("Woodport") and was a person who had to any extent control of plant, namely a Rada 15BK Thermostatic mixing valve ("the mixing valve") in non-domestic premises which had been provided for the use or operation for persons at work not being the Defendant's employees. 5. Woodport was a retirement village operated by the Salvation Army which provided aged and nursing care to persons such as Ms Jill Barker. At all material times Woodport employed Mr Raphael Claverie ("Claverie") as an Assisting in Nursing. 6. The Defendant had to some extent control of plant, namely the mixing valve referred to in paragraph 11 below, in non-domestic premises namely Woodport. 7. The Defendant conducted plumbing and plumbing maintenance service at Woodport from 1993 until 7 June 1998 and, inter alia, had the responsibility to ensure that the plumbing at Woodport, including the hot water system taps and mixing valves, were appropriately maintained so that they were safe and without risk to health. 8. One such water system and mixing valves which was serviced by the Defendant related to the mixing valve which serviced the tap in the bath in bathroom 2, Wing 5 at Woodport. The bath serviced by the tap, which was serviced by the mixing valve, was available for use by employees of Woodport in the course of their employment at work at Woodport in the carrying out of aged and nursing care services. Patients and residents of Woodport, including Ms Jill Barker, would be bathed in that bath. 9. Ms Barker had been in a coma for 3 years prior to the relevant incident, having suffered hypoxic brain damage secondary to an intracerebral bleed. 10. At approximately 6.20am on 7 June 1998 at Woodport, Claverie was bathing Ms Jill Barker in the course of his employment with Woodport. Ms Barker was placed onto a bed bath in bathroom 2 of Wing 5 at Woodport. Ms Barker was placed onto the bed bath and the tap was turned on by Claverie causing the water to "pool" around Ms Barker. Claverie had noticed the water had become extremely hot and noticed that some areas of Ms Barker's skin had reddened. Claverie drained the water from the bath and then administered First Aid to Ms Barker. He then left the bathroom to telephone for emergency assistance. 11. In the subject incident Ms Barker suffered first and second degree burns to 30% to 40% of her body. 12. Ms Barker died on the 10 June 1998 of acute bilateral bronchopneumonia as a result of the effects of her first and second degree burns. 13. The tap in the bath in bathroom 2 of Wing 5 was serviced by a mixing valve. The mixing valve was a Rada 15BK Thermostatic mixing valve ("the mixing valve"). It was the responsibility of the Defendant to service and maintain the said mixing valve. 14. The mixing valve failed suddenly on 7 June 1998 as a result of deterioration of the thermoscopic element. The Defendant failed to adequately ensure the recording of the monitoring of the water temperature at the outlet from the mixing valve during the period when the Defendant was performing maintenance duties at Woodport. 15. The Defendant failed to ensure that the mixing valve was safe and without risk to health. The Defendant failed to take all necessary steps to ensure Woodport properly recorded the temperature of the water from the tap connected to the mixing valve. 16. The Defendant had regard to, and relied upon, the NSW Code of Practice governing installation, maintenance and serving of thermostatic mixing valves and the manufacturer's product manual and service instructions. It is noted that the aforementioned documents contained no information recommending the periodic replacement of the thermoscopic element nor any information as to its service life. 17. Further, on or about 30 July 1998 when the subject thermoscopic assembly was examined on behalf of Workcover by M A Martin, Mechanical Engineer, it appeared intact and undamaged. The mixing valve failed due to the leakage from the thermoscopic element of the polyeutectic compound contained within the element. Leakage occurred from two points discovered by Mr Brook Hinckley, Metallurgical Engineer, with the aid of stereo microscopic magnification. 18. An inquest in relation to Ms Barker's death took place before the Coroner on 21, 22, 23 June and 27, 28 and 29 October 1999. The Coroner delivered his finding and report on 21 February 2000. Pursuant to Section 49(4) of the 1983 Act, the Prosecutor said that the commission of an offence against Section 17(1) of the 1983 Act was apparent from the Coroner's Report and/or the proceedings at the Inquest. Proceedings were commenced within two (2) years of the date of the Coroner's Report dated 21 February 2000 pursuant to Section 49(4) of the 1983 Act. 3 Mr J.P. Phillips of counsel appeared for the prosecutor. Mr J.A. Springthorpe appeared for the defendant. An Agreed Statement of Facts was relied upon. The prosecutor tendered the industrial record of the company. There are no prior convictions. Also relied upon was Inspector Farrell's Factual Inspection Report, a number of photographs taken by the Inspector from an Expert's Report of 21 October 1999. The Report of Mr Brook Hinckley was also tendered.

4 Mr Springthorpe for the defendant entered a plea of guilty to the charge and relied upon the affidavit of Robert Partridge sworn 16 July 2003 as to mitigation of penalty.

5 Section 17 of the Act under which this prosecution issued is in the following terms: 17. Persons in control of workplaces, plants and substances used by non-employees to ensure health and safety (1) Each person who has, to any extent, control of: (a) non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, or the means of access thereto or egress therefrom, or (b) any plant or substance in any non-domestic premises which has been provided for the use or operation of persons at work (not being the person's employees), shall ensure that the premises, the means of access thereto or egress therefrom or the plant or substance, as the case may be, are or is safe and without risks to health. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case.

(2) Where a person has, by virtue of any contract or lease, an obligation of any extent in relation to: (a) the maintenance or repair of any premises referred to in subsection (1) (a) or any means of access thereto or egress therefrom, or (b) the safety of, or the absence of risks to health arising from, any plant or substance referred to in subsection (1) (b), that person shall be treated, for the purposes of subsection (1), as being a person who has control of the thing to which the person's obligation extends.

(3) A reference in this section to a person having control of any thing is a reference to a person having control of the thing in connection with the carrying on by the person of a trade, business or other undertaking (whether for profit or not).

6 In WorkCover Authority of NSW v Woolworths (unreported, CT1044 of 1993, 9 September 1994) Peterson J considered the scope of s17 of the Act: An analysis of s.17 of the Act demonstrates an intention to impose a duty to ensure safety and an absence of risks to health of any person who has control (to any extent) of what I might paraphrase as workplaces, plant or substances for use at work. The division of the section into premises, plant and substances seems to me to have a width which is intended to be all-embracing in the industrial context. "Plant" is not to be given a narrow meaning but one wide enough to embrace the multiplicity of machinery and equipment which may be employed at a workplace. The expression is not to be confined to machinery of a productive nature or indeed mechanised or electrical or electronic equipment only. The meaning is wide enough to embrace a chair which is employed by a person at work. Why then should it not extend to manufactured columns or columns which are available for use in a retail store? The form of these columns would permit a variety of uses including of course that which was employed in this case. The fact that they were used here for the purpose of defining the line between two workplaces does not in my opinion characterise them as the "setting" of the work in the sense employed in the tax cases. Given the context of s.17, a conclusion that the columns were part of the "setting" of the work would place them (as do the authorities in the tax areas) in the category of "premises", a result I would consider absurd and contrary to both the intention and meaning of the section. I am satisfied that they constitute "plant" within the meaning of s.17(1)(b) of the Act.

I find untenable the submission that s.17 is directed to plant and not its use. The purpose of the section seems to me to be patently obvious: it is to ensure that so far as s.17(1)(b) is concerned, the use or indeed the presence of plant or substances, will not present a danger to relevant persons at that place of work. An offence under this provision can arise when the plant is inactive or when it is in use.

7 Therefore, persons to be protected by the provision of s17 are persons who are at premises where plant is put to use for work. In the circumstance before me such a person would be the nurse and also the deceased, Ms Baker, the patient. In Woolworths the person at risk was not an employee. The obligation under the Act is on the person in control to any extent, in this case, the defendant, the plumber who was "in control" of maintenance of plant at the nursing home.

8 In consideration of penalty the Commission in Court Session must first assess the nature and quality of the offence, that is, the objective seriousness of the offence. As was held in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474): . . . in our view it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence' . . .

The defendant as to the court's assessment of the nature and quality of the offence relies upon a number of facts namely: . The Code of Practice which govern the installation and maintenance of temperature mixing valves had no requirement or warning as to the need for periodic replacement of the thermoscopic element. Such need arises according to the Code upon the failure of the valve to successfully undergo a fail safe test. Such a test is to be performed once temperature irregularities are noticed.

. The accredited course undertaken by the defendant did not speak of the need for periodic replacement of the thermoscopic unit nor did the manufacturer's product manual.

. The course recorded the thermoscopic unit "is an assembly containing a corrosion resistant flexible metal bellows . . .". (Emphasis added)

. The relevant corrosion occurred on the inside of the bellows. The subject holes were not visible to the naked eye.

. The Code of Practice, the manufacturers instructions in the product manual and the course undertaken by the defendant all dictate the need to routinely replace a number of other parts of the temperature mixing valve in the maintenance and servicing of it. Relevantly, there was no requirement to replace the thermoscopic unit.

. Prior to the incident, the defendant had routinely serviced the valve in accordance with the Code of Practice and replaced numerous parts as required.

. The defendant suffered from a false impression created by the widely used misnomer "Fail Safe" which was variously used to describe the valve and its operation. In fact, the valve failed in such a way as to ensure the delivery of hot water, acting such as to close off or retard the supply of cold water.

. The incident would not have occurred where it not for the intermediate involvement of the nurse bathing Ms Barker.

. The thermoscopic element had no identified service life. The subject valve had been tested by the defendant on 23 February 1998 and had shown itself to be operating properly.

. There was no notification by the Salvation Army to the defendant of any temperature irregularity prior to the incident and therefore no reason for the defendant to question or test the operation of the subject valve. 9 Relying on the above facts the defendant submits the objective seriousness of the breach is low when its conduct generally and its professional performance is assessed. Further, the degree of foreseeability for the risk of injury, the hidden dangerous nature of the valve itself and the causative role of intermediate human control of the flow of water onto Ms Barker by the nurse are factors which affect the seriousness of the defendant's breach.

10 However, the defendant failed to monitor the state of the mixing valve during the period when the defendant was performing maintenance duties to Woodport. The defendant failed to apprise itself of information regarding the expected life span of the mixing valve and consequently failed to advise Woodport as to the need to replace the mixing valve when the valve's life span had expired. Further, the defendant failed to advise Woodport as to the steps required to properly monitor the temperature of the water from the tap connected to the mixing valve.

11 The defendant company on 23 February 1999 had been called out by the Salvation Army who ran the Woodport Retirement Village to carry out a temperature adjustment on the subject valve. A fail safe test was performed at that time and the subject valve passed. From that time until the date of the incident, there had been no communication to the defendant of any temperature irregularity with the valve. However, it could be implied both were on notice its malfunction was indicative of a need to regularly check.

12 In an assessment of the seriousness of the offence, the question of foreseeability is also relevant. In Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 it was stated at [81]: . . . The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice-President, in Department of Mineral Resources (NSW) (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432, the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (32 NSWLR at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at 17) and Work Cover Authority of New South Wales (Inspector Kelsey) v University of Sydney (unreported, Hill J, CT95/1280, 12 April 1997 at 16).

13 While the element of foreseeability is to be considered in the court's assessment of the nature and quality of the offence it is the foreseeability of the risk to safety, that is, the detriment to safety which must be determined.

14 The defendant's role at the nursing home was reactive to requests from it to attend. There was no ongoing maintenance contract between the Salvation Army and the defendant at the relevant time. The defendant performed service of the relevant valve when called upon to do so by the Salvation Army. It also performed reactive maintenance in response to reports of temperature irregularities reported by the Salvation Army. The defendant understood a system of routine temperature monitoring was being followed by the Salvation Army. Further, the temperature mixing valves were not installed by the defendant. The Code of Practice obliges the original plumber who commissioned the temperature mixing valves to ensure a system of monitoring and recording temperatures was in place.

15 It has been summarised thus in Lawrenson Diecasting (at 476): It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible. In the circumstances before me, I do not believe this defendant could be held responsible for a foreseeable risk of injury.

16 The gravity of the injury arising from the breach does not of itself dictate the level of penalty but the occurrence of death or serious injury can manifest a degree of seriousness to the relevant detriment to safety. As Wright J, President, said in Ferguson v Nelmac (1999) 92 IR 188 (at 204): ... where a fatal injury had occurred that is a factor to be taken into account and is often, of itself, reflective of an offence the nature and quality of which is serious.

Wright J, President, adopted the well acknowledged words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5): The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risks flowing from breach and its foreseeability are clearly relevant. . . .

17 I consider the words of the Full Bench of the Industrial Relations Commission in Capral Aluminium [at 94] are relevant to the circumstances before me: The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety.

18 While not on a contract to maintain the valves the defendant, once on notice of its malfunction, should have ensured safe practice. There was a serious consequence to this failure.

19 In the circumstances I find the offence falls within mid-range.

20 Elements as to deterrence are also to be given consideration. In this respect, I bear in mind what was said by the Full Bench in Capral at [74]: The ... Court should take [into account] 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. . . . 21 As to specific deterrence the defendant was immediately reactive. Mr Partridge reveals in his affidavit: 58. I continue to service and maintain the TMVs at Woodport. Following the Incident, Woodport and the Salvation Army have completely upgraded the hot and cold water supply systems at Woodport. Immediately following the Incident all of the showers at Woodport which use RADA 15 TMVs were closed. Woodport retained the Company to replace all RADA 15 TMVs with a different brand known as HANSA. 59. As part of the upgrade Woodport commissioned and installed a Datalogger and temperature technology software. The Datalogger is a small analogue computer which continuously monitors water temperature over a test period of seven days. Using the software supplied, the temperature data is down loaded. This procedure ensures that the hot water supply is set at the optimum temperature. This procedure has also resulted in Woodport monitoring the temperature readings in greater detail than before the Incident. 60. I am also aware that since the Incident, Woodport have implemented education programs for all nursing staff in respect of TMVs. As a result of the evidence and investigations relating to the Coronial Inquest into the Incident it became apparent that the system of monitoring temperature fluctuations at Woodport was dependent upon the nursing staff notifying Mr Berry of any problem they experienced in their day to day duties. 61. I service a number of health care facilities in the Central Coast region that use TMVs. Since the Incident I have recommended to these facilities and undertaking replacement of a total of approximately forty (40) RADA 15 TMVs in the following facilities: Wyoming Aged Care, Henry Kendall Nursing Home at Wyoming and Brisbane Waters Private Hospital at Woy Woy.

22 The defendant's reaction as to specific deterrence has been most thorough. It has addressed not only the immediate adjustments as revealed through the breach but assisted in a general way to raise awareness in the industry.

23 A number of subjective elements to the breach have been placed before the court in mitigation as to penalty. The defendant has had no breaches of the Occupational Health and Safety Act 1983 since its inception and had operated a safe working environment since 1976. The defendant is effectively Mr Partridge and his wife, Peta. There are no employees.

24 The court has before it the financial records of the defendant. The recording of a conviction and fining of the defendant is likely to have a significant effect on the viability of the business. The defendant submitted this is a matter which falls within the extraordinary and highly exceptional category which would warrant the court's application of the provisions of s10 of the Crimes (Sentencing Procedure) Act 1999.

25 Section 10 of the Crimes (Sentencing Procedure) Act 1999 has application in circumstances which are "extraordinary and highly exceptional". I am unable to accept this offence can be regarded as trivial or there were extenuating circumstances in which the offence was committed.

26 The defendant did not identify the need to regularly monitor and record temperatures, particularly variations in temperature of taps where the mixing valve was used. It had once been asked to check the valve but this did not alert it to express concern. In such circumstances the failure to so advise the Salvation Army was not "trivial" and as a consequence cannot fall into those rare, exceptional circumstances which could justify the application of s10 of the Crimes (Sentencing Procedure) Act 1999.

27 Relevantly, at the time of this offence, the maximum fine was $550,00 for a corporation although the defendant submits there is discretionary scope to allow the corporation to be treated as if it were an individual.

28 There is evidence the defendant showed appropriate concern for the well being of the husband of Ms Barker. I accept Mr Partridge has suffered considerable emotional trauma himself as a result of the death of Ms Barker.

29 The defendant relies on s6 of the Fines Act 1996 to submit a fine should not be imposed which is beyond the capacity of the defendant to pay. I accept the punitive effect of even a very minor fine will be heavy on this defendant.

30 The financial records of the company are before me and it is a small company with a good turnover of around $100,000 per year on average. It does however run at a loss. I do not accept the company should stand in the individual's shoes nor do I accept it cannot meet the burden of some fine.

31 I do however take into account the financial circumstances of the defendant and its capacity to pay a fine. The defendant's capacity to pay arises for consideration both pursuant to the general principles of sentencing and by virtue of s6 of the Fines Act 1996. I reject that in mitigation the defendant is essentially a "one man company" and the penalty will be effectively met by he and his wife. The company has for a long time enjoyed the benefits of corporation.

32 Shortly after receipt of the full prosecution brief in the matter the defendant entered its plea of guilty. I accept the defendant's plea has the substantial quality of facilitating the administration of justice. Since R v Sharma (2002) 54 NSWLR 300 the principles of R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; and (2000) 115 A Crim R 104 continue to have application in this State. I allow a reduction of penalty of 25 per cent. Parity 33 On 29 July 2003, Haylen J delivered judgment in a related matter of Inspector Farrell v The Salvation Army (NSW) Property Trust [2003] NSWIRComm229 (published 29 July 2003). That prosecution was brought against the Salvation Army who conducted the aged and nursing care service at Woodport. Haylen J found the offence a serious offence and imposed penalty.

34 The defendant makes initially a submission that the disproportionate degrees of culpability and different circumstances of the breaches of the defendant and the Salvation Army are such that the parity principle has, in the defendant's submission, no application. In such circumstances, it submits there is no need for due proportion between the sentences as referred to by the High Court in Postiglione v The Queen (1997) 189 CLR 295. The defendant submitted it cannot be ignored it was the Salvation Army who failed to detect any relevant temperature variations in circumstances where it knew of the need for and had been testing the temperatures over a number of years. Further taking into account the independent careless act of the nursing staff of the Salvation Army, there is a very significant distinction between the respective failures of the current defendant and the Salvation Army it is submitted.

35 If however the court was of the view the respective breaches of the defendant and the Salvation Army are sufficiently similar, the defendant then submits the size of the defendant company, the fact that the Salvation Army faced a maximum penalty of $825,000 given a prior conviction and the financial resources of the Salvation Army are all matters which would distinguish this defendant from the Salvation Army and give it positive consideration.

36 The issue of parity of sentencing was considered by the High Court in Postiglione v The Queen (1997) 189 CLR 295. Dawson and Gaudron JJ at 301 OR (at 411-412) said: The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them [ Lowe -v- R (1984) 154 CLR 606 at 610-11 per Mason J]. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error [ Lowe at 617-18 per Brennan J]. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe -v- R , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to `a justifiable sense of grievance' [ Lowe especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J]. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. 37 The principle of parity has been considered by this court when dealing with prosecutions under the Act (see Warman v WorkCover Authority of NSW (1998) 80 IR 326 at 339-340; WorkCover Authority of NSW (Inspector Martin) v Byrne Civil Engineering Constructions Pty Ltd (No 2) [2001] NSWIRComm 264; WorkCover Authority of NSW (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312 at [70-71]; and WorkCover Authority of NSW (Inspector Mansell) v Orica Australia Ltd (2001) 116 IR 158 at [91-92]).

38 From the Agreed Statement of Facts and an examination of the decision of Haylen J in Inspector Farrell v The Salvation Army, I accept the respective defendants although not guilty of the same breaches, had shared but not equal responsibilities in relation to the events leading up to the catastrophic failure of the mixing valve. Although different, the culpabilities of the two respective defendants contributed to the events which led to the breaches of the Act of which both had been charged and of which both had pleaded guilty.

39 In the circumstances, so as not to present the sense of grievance referred to in Postiglione and to ensure there be equal justice it is appropriate, I find, to apply the principle of parity.

40 The penalty to be imposed on Partridge Plumbing, the defendant, is however in relation to its act in breach of the relevant safety legislation. I regard its breach at a lower level of criminality than that of the Salvation Army.

41 The nature of the offence found and the particular subjective features placed before the court, including the co-operation of the defendant, its early plea, its expressed contrition and considering the due proportion between penalties I find this defendant should receive a markedly lower sentence than that imposed on The Salvation Army (NSW) Property Trust.

42 In Matter No. 975 of 2002: 1. I find the defendant guilty.

The defendant is fined in the sum of $30,000 with a moiety to the WorkCover Authority.

The defendant is to pay the prosecution's costs. Leave to apply as to orders for costs.

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