15 We also adopt, with respect, the following observations of the Chief Justice as to established sentencing practice in Regina v Way [2004] NSWCCA 131 at [121]:
The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act .
16 In considering, firstly, the nature and quality of criminal conduct in respect of which the defendant pleaded guilty, in relation to both charges under s 15(1) and s 16(1) of the Act the defendant failed to provide and maintain systems of work that were safe and without risks to health and failed to maintain its place of work in a condition that was safe and without risks to health.
17 The failure to provide and maintain safe systems of work involved a failure to ensure that a risk assessment was carried out to identify the hazards involved in performing tasks such as welding and grinding in the quadrangle, especially given the hazard posed by the oxygen and acetylene reticulation system and a failure to ensure that there was routine maintenance of the reticulation system. The failure to maintain a safe work place involved a failure to maintain the connection between the valve and the attached acetylene line so that it was not corroded.
18 In circumstances such as those that obtain under s 15(1) and s 16(1) of the Act, where an employer is required to ensure the safety of workers, a risk assessment for the purpose of identifying hazards is an essential step that must be taken by the employer, especially where the workers are to perform a task that is out of the ordinary or in a different environment to what they may have been used to. The requirement to identify hazards and undertake risk assessments has now been codified in the Occupational Health and Safety Regulation 2001 (see, for example, cll 9 and 10).
19 In Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 at [62]-[63] the Full Bench made the following observations regarding risk assessments:
62 This brings us to the summons in No 606 of 1998, which alleged a failure to conduct a risk assessment of the structural integrity of the ceiling. The appellant submitted that a risk assessment would not have revealed any risk. Given the nature of the risk, namely, construction work adversely affecting the structural integrity of the ceiling, we do not regard as adequate a risk assessment confined to testing whether ceiling panels were waterlogged and/or testing the capacity of the turnbuckles to bear extra weight. The appellant should have been aware of all of the factors that might impinge on the safety of its employees using the trafficable ceiling. This flows from the duty to "ensure" the safety of its employees at work. The appellant had a duty to make a proper and comprehensive assessment of the risks to its employees associated with using the trafficable ceiling as a walkway. It is no defence for the appellant to say it was not aware of the construction work that might adversely affect the trafficable ceiling or it was not aware that the dust wall was to be removed at a time when its employees would be using the ceiling. Proper inquiry by the appellant, certainly after the variation to its contract to remove the thermostats on the old northern wall, would have revealed the nature of the risk. But there was no inquiry. Not even the physical state of the ceiling space, which moved Kavanagh J to describe it as "appalling", prompted the appellant to investigate whether the safety of its employees might be at risk. In failing to carry out a risk assessment the appellant exposed its employees to the risk of the construction work adversely affecting the structural integrity of the trafficable ceiling. We refer to what we said about the process of risk assessment in the Mainbrace appeal ( Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) [2000] NSWIRComm 239) associated with this same incident and which is relevantly apt here:
Mr Parker submitted that properly understood the evidence of Mr Henry, in particular, showed "that it was most unlikely that examination of the ceiling space would have revealed its likelihood of collapse." Given the nature of the risk an adequate risk assessment would have encompassed much more than the ceiling space. An examination of the ceiling space would have at least revealed the presence of excessive water, with the prospect of it having been absorbed into the ceiling panels, thereby increasing the weight of those panels. To what extent might not have been evident but a risk assessment would have at least raised the issue in the mind of the assessor. Further reflection on the state of the ceiling would have led to the realisation that with the work activity in the ceiling, the weight of workers and equipment would have placed even more stress on the capacity of the ceiling to cope with the additional load. Of course, a proper risk assessment would have also focused on the work associated with the demolition and re-construction of the northern wall - including the removal of the dust wall - and how it might affect the ceiling as a means of access and egress. This would have revealed that the ceiling would, for a period of time, be detached from the northern wall and, therefore, one of the main supports of the ceiling removed. It would also have revealed that the dust wall would necessarily become load bearing. Finally, it would have highlighted the need as an elementary safety precaution to ensure that there was no person in the ceiling at the time the dust wall and acrow props were removed and that no person entered the ceiling space until such time as it had been properly inspected to determine its safety.
63 The evidence does not reveal any prohibition or constraint on the appellant that would have prevented it from conducting an adequate risk assessment. We find the offence proven.
20 In the present case, the students were undertaking welding and grinding work in the quadrangle area. No risk assessment was undertaken. A risk assessment would have revealed a trench running across the quadrangle from the area where the oxygen and acetylene was stored and where there was a warning sign prohibiting naked flames in the storage area. The trench was covered by concrete blocks and contained the pipes leading from the oxygen and acetylene bottles in the storage area to a concrete pit adjacent to the wall of the welding workshop. The pit contained the badly corroded gate valve and acetylene line. A risk assessment would have raised the question in the mind of the assessor as to what was beneath the concrete blocks (which had open slits at each end) running from the oxygen and acetylene storage area into the pit and an inspection would have revealed the oxygen and acetylene pipes.
21 In circumstances where acetylene is an extremely flammable gas it would have been essential for the assessor to ensure there was no leak from the acetylene pipe given that welding was to occur in the immediate vicinity of the pipe. An assessor following the direction of the trench would necessarily have had to inquire as to what was in the pit. That would mean lifting the lid of the pit, because a moment's reflection would have made it apparent the pit was constructed for some purpose. (I note in an affidavit of Philip Prangley attached to the affidavit of Mr Johnson, he assumed the pit "was to do with the rainwater from the roof" but apparently ignored the fact that a trench covering the oxygen and acetylene pipes led straight into the pit).
22 Not being able to see what was in the pit because the lid was too heavy (apparently its mass was 200kg) the assessor would have been left with no alternative than to either arrange for some lifting equipment, test for leaks or not allow the welding to proceed. Testing for leaks may have revealed the leak. Lifting the lid would have revealed a badly corroded pipe and gate valve, and preventing the welding would have avoided any risk from a gas explosion.
23 Now, if this seems onerous, unrealistic or idealistic, what was at stake was the health and safety of persons using welding equipment in close proximity to pipes carrying highly inflammable acetylene gas. Given the obligation on the defendant to ensure that persons were not subject to risk there was a duty on the defendant to do all that was reasonably practicable to prevent exposure to the risk of an explosion. In failing to carry out a risk assessment, the defendant merely assumed there was no risk. It did not actively search for the presence of risk. In the result, a student was very badly injured and could easily have been killed.
24 I note in affidavits of Allan Phipps and Graeme Miller attached to the affidavit of Mr Johnson, they depose that risks assessments were carried out yet the defendant has pleaded guilty to the charge. The prosecutor placed no particular reliance on these two affidavits so I do not propose to give them any weight on this aspect.
25 The second failure was a failure to carry out routine maintenance of the reticulation system. That failure meant that, because of the original builder's failure to provide for a drain in the pit, over a number of years water that collected from time to time in the pit covered the gate valve and pipe and caused corrosion that went unnoticed. There was no issue that there was no system in place for programmed maintenance of the reticulation system in accordance with Australian Standard 4289:1995 between 1997 and 28 February 2001. That Standard provides, amongst other things, that inspections should be carried out at intervals not exceeding six months and particular attention be given to valves and connections to ensure no leaks are present. At twelve monthly intervals, leak testing of all piping at the designated pressure should be carried out with particular attention being given to places where corrosion has occurred.
26 The failure to comply with the Standard is not an element of the offence but Standard 4289:1995 provides readily available guidance as to what is acceptable practice in relation to the maintenance of oxygen and acetylene reticulation systems.
27 The defendant was obviously aware of the existence of the reticulation system and from time to time arranged for maintenance and repair work to be undertaken in respect of it. It appears from the evidence that some form of maintenance was carried out pre-1997 on the reticulation system but it is unlikely, in my opinion, given the corroded state of the gate valve and pipe that any checking was done in the pit, probably because of the effort required to remove the lid. After 1997 Dillon's Plumbing Pty Ltd, a local plumbing and licensed gasfitter, was contracted to do work on the reticulation system. During 2000 Dillon's carried out a number of jobs on the system in the nature of repairs and maintenance, including in June 2000 testing for leaks. No leaks were found. This work was done on an ad hoc basis and could not be said to constitute routine maintenance of the type described in the relevant Australian Standard.
28 In my opinion, Dillon's could not have opened the pit and checked the state of the pipe and gate valve in 2000 because it would have been obvious that it was in urgent need of repair. But on the evidence of Mr Johnson, Dillon's were not required to check the system for evidence of corrosion.
29 The thrust of the defendant's case was that it was simply unaware of what was in the pit but if it had it would have properly attended to the requirement for repair and maintenance. It was probably the case that the defendant did not know what was in the pit because it never took the trouble to look and, unfortunately, neither did any of those persons who undertook maintenance and repair work in relation to the reticulation system. If the defendant had arranged for routine maintenance of the system, which according to the Australian Standard required inspection of the piping to ensure that the surface condition had not deteriorated and required particular attention to be given to areas of corrosion, the risk to health and safety that arose on 28 February 2001 would have been avoided.
30 The inference is readily available that at least from 1997 no inspections were carried out of the piping. If inspections had been carried out of the piping in accordance with the requirements of 6.3.2 of AS 4289:1995 it would inevitably have led to a discovery of what was in the pit. I accept that the defendant's failure to carry out routine maintenance was not in deliberate disregard of its obligations under the Occupational Health and Safety Act but I do consider it was negligent in that respect. The failure over a number of years to ensure routine maintenance was conducted of a system that contained highly inflammable gas, including inspection of the pipes with particular attention being given to areas of corrosion, was a serious omission by the defendant.
31 The third failure was a failure to maintain the connection between the gate valve and attached acetylene line so that it was not corroded. There is a significant duplication between the failure particularised in particular 1(b) (failure to ensure routine maintenance) of the charges and the failure in particular 2(a) and the prosecutor conceded as much.
32 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that is relevant to the assessment of the gravity of an offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 at [81]-[82]; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 at [87].
33 It was foreseeable that in the absence of providing and maintaining a safe system of work by carrying out a risk assessment and ensuring routine maintenance of the reticulation system was undertaken, the system might leak or might develop a leak and give rise to the possibility of an explosion thereby endangering students and staff at the campus.
34 Another factor to be taken into account in assessing the objective seriousness of the offence is whether death or serious injury occurred: Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [31]-[33]. Further, s 21A of the Crimes (Sentencing Procedure) Act provides:
(2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
…
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,