The Set-Up
20. In early January 2003, Mr Ishak contacted Jeff Chehine-Nehmetallah (Mr Chehine), an employee of C & A Chehine, the partnership usually retained by Dewcape for concreting works on Dewcape's sites. It being early January, C & A Chehine were still on holidays, but Mr Chehine agreed to assist, personally, with the concrete works.
21. As Dewcape required the services of a concrete boom pump to pour concrete footings at the site, Mr Chehine contacted the defendant on 7 January 2003 and arranged for the defendant to provide a concrete placing boom and crew at the site on 8 January 2003.
22. On 8 January 2003 Mr Challita was assigned by the defendant to drive and operate the concrete placing boom for the purpose of placing concrete at various construction sites, including the subject site. Mr Budwee was assigned by the defendant to assist Mr Challita.
23. After completing work at another site, Mr Challita drove the concrete placing truck to the subject site, together with Mr Budwee, arriving at the site between about 1.00 pm and 1.30pm on 8 January 2003.
24. On arriving at the site, Mr Challita parked the concrete placing boom at the front of the site, alighted from the vehicle and had a discussion with Mr Ishak about where to set up the concrete placing boom for the pour.
25. Mr 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, Mr Challita rejected that area as unsuitable because he could not adequately deploy the stabilisers and also because it was area that had been filled.
26. Mr Ishak insisted that the pour proceed and asked Mr Challita to nominate an alternative set up area.
27. As an alternative, Mr 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 site was nominated 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. The boom could not be deployed in the opposite direction [ie away from the tree] because of the proximity of a telegraph pole.
28. Mr Ishak made a telephone call to Mr Teh to discuss the possibility of damage to the tree.
29. Following the telephone discussion Mr Ishak and Mr Challita agreed that the concrete placing boom be set up in the driveway of the site.
30. Mr 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 truck 'in the driveway' of the site, Mr Challita and Mr Budwee deployed the stabilisers and prepared to deploy the concrete placing boom.
31. At no time did Mr Challita consult the SWMS supplied by the defendant, a copy of which was located in the driver's cabin of the concrete placing boom.
32. At no time did Mr Ishak require Mr Challita to provide him with a SWMS.
33. At no time did Mr Ishak require Mr Challita to conduct a 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 Mr Ishak perform a risk assessment on behalf of Mr Pump.
34. However, a combination of Low Voltage, Street Lighting and High Voltage powerlines, or mains, were slung along the street frontage of the premises immediately adjacent to the front boundary of the premises, including the driveway. The Low Voltage mains (LV mains) were slung at a 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.
35. 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.
36. The concrete placing boom was 3950mm high when located at rest. Therefore, once the truck was set up in the driveway of the premises, the boom was already within the safe working distances referred to above before Mr Challita commenced deployment of the boom.
37. Once the concrete placing boom was ready for deployment, Mr Challita connected the remote control and then stood away from the machine with Mr Budwee. He progressively unfolded the boom and slewed it so that it was facing towards the rear of the site. During this operation Mr Challita encountered problems with the tree that was located in the northwest corner of the site adjacent to the driveway and Stanley Street.
38. Mr Challita then advised Mr Ishak that they were ready to pour the concrete. Approximately 20 minutes later the concrete arrived and they commenced to pump the first truckload of concrete. The first 30 cubic meters were pumped within an hour to an hour and a half then Mr Ishak ordered the next truckload of concrete.
39. During the concrete pour a storm passed through the area consisting of rain, light hail and very strong wind conditions. Attached, marked with the letter 'A', is a copy of a Certified Extract from the Bureau of Meteorology dated 3 June 2005 for that day.
40. 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 concrete delivery truck.
41. Mr Challita enquired of Mr Ishak where he could blow the concrete out of the boom and Mr Ishak said in the footings. A sponge was then placed into the lines and the lines were then blown out into the footings. After the initial procedure, Mr Challita gave Mr Budwee the sponge that came out of the line to clean so they could then blow the lines once again.
42. Mr 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.
43. At this time, Mr Chehine and Mr Budwee were standing on the side at the rear of the concrete placing boom. Mr Chehine was hosing his boots and Mr Budwee was flushing water through lines associated with the concrete placing boom.
44. Mr 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 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.
45. As Mr Challita slewed the boom towards and into the foliage of the tree, Mr Challita saw the power lines blowing back and forth also within the foliage of the tree. Mr Challita says that at this point he became concerned about the boom coming too close to the powerlines and that he called out to Mr Budwee for his assistance. There was no answer.
46. Mr Challita then turned to his right and, out of the corner of his eye, saw Mr Budwee lying on the ground.
47. At about the time that Mr Challita called out to Mr Budwee, Mr Chehine was walking to rear of the truck when he heard a 'cracking snap noise'. Mr Chehine then turned and also saw Mr Budwee lying on the ground.
48. On observing the location of the boom in comparison to the overhead powerlines referred to above at or about the time of the incident, Mr Chehine, Mr Ishak and a number of independent witnesses all place the "end" of the boom, with the second stage still partially deployed, within the foliage of the tree and, at the same time, within the safe working distance of 3 metres from the overhead wires referred to above.
49. A post mortem conducted by Dr Johan Duflou of the Department of Forensic Medicine on 10 January 2003 revealed evidence of injuries to Mr Budwee's right hand and Mr Budwee's right foot consistent with electrical burns. Dr Duflou concluded that the cause of death was electrocution.
50. An investigation was carried out by Energy Australia which concluded, in all the circumstances, the most likely explanation for the electrocution was 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 hereto, marked with the letters 'B' and 'C' respectively, are an Investigation Report prepared by Keith Newland of Energy Australia, undated, and a Fatal Shock Investigation Report dated January 2003.
51. 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 annexed hereto and marked 'D'.
52. 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 with the letter 'E'.
53. On 9 January 2003, whilst at the site, Inspector Gjaltema took a number of photographs which are attached and marked with the letter 'F'.
14 The differences in the agreed statement of facts in respect of the first defendant were that par 31, par 36, par 37, par 45 and par 48 were deleted. I will return to consider whether the matters of fact that are in dispute have been established later in these reasons.
15 In addition to the documents annexed to the agreed statements of facts, the prosecutor tendered in its case in respect of the first defendant an incident report form of the WorkCover Authority dated 10 January 2003, prepared by the first defendant. Attached to the report form was a typewritten statement dated 10 January 2003, prepared by Mr Challita. The statement, in part, included the following:
On the 8th of January 2003 Marcel and I were working at a Job site at 10 Stanley St Putney. After finishing the job, I blew the concrete out of the pipeline. Once I did this I began to fold the boom. As I was doing this Marcel was cleaning out the back pipe with water. This is done, so when the boom is completely closed we can blow it out with a sponge and water. This is our normal routine once a job is completed.
As I was turning the boom to put it in its position, I had to pass through the branches of the tree to avoid hitting the powers (sic) lines. At this point the weather was getting worse and a strong wind had occurred. Due to the bad weather the power lines were swinging towards the boom. The tree was also blowing and the boom was shaking.
I did not see any ark (sic) nor did I hear any loud noises, which would have given me an indication that I was in any danger because I was 1-1.5 metres away from the power lines.
I then called out to Marcel so he can (sic) watch out for me, so I could fold the boom fully and not damage the tree more than I should or hit any power lines. I looked to my left and I saw Jeffrey the concreter standing behind the pump on the road. I asked him where Marcel was for I needed his help. He replied, "I don't know where he is". I then looked to my right and called out Marcel's name and there was no response.
I turned to see where he is (sic) and with the corner of my eye I witnessed Marcel on his back shaking. I put the remote control down on the oil tank and jumped off the truck to land on the floor beside Marcel. I then lifted his head up and placed his head on my lap. Jefferey came beside me and I asked him to call the Ambulance quickly.
16 A statement of Mr G McDowell, a resident of 2 Stanley Street, Putney, who observed the scene shortly after the accident was tendered. Mr McDowell's evidence was directed to his estimate of the distance of the boom of the concrete pump from the overhead electric wires. Mr McDowell also gave his opinion of the weather on 8 January 2003. Mr McDowell's stated that there were "extreme winds" and that the boom was approximately 6ft from the overhead electric cables. Mr McDowell was not called to give evidence and it is not clear whether his reference to the electric cables is to the low voltage lines or the high voltage lines.
17 A statement was also tendered of Mr Darryl McIntosh. Mr McIntosh's evidence was that he arrived after the accident had occurred and estimated that the boom of the concrete pump was between 600mm and 900mm away from the wire, but there was a fair bit of movement in the wire due to the weather. Mr McIntosh clarified his reference to the "wire" to be a reference to the low voltage wire.
18 A statement was also tendered of Mr J Chehine-Nehmetallah. Mr Chehine-Nehmetallah was working for another employer at the site on the day of the accident. A photograph, together with two sketch diagrams indicating various dimensions and operations of the pump truck were also tendered. Extracts of an electronic record of interview conducted by the New South Wales Police with the first defendant on 7 February 2003 were tendered.
19 The prosecutor also provided to the Court a victim impact statement of Jacquelyn Budwee, the sister of Mr Marcel Budwee.
20 Mr L Abboud solicitor, who appeared on behalf of the first defendant, tendered an affidavit of Mr B C Challita sworn 31 August 2005. The first defendant deposed to the circumstances surrounding his attendance at the site on 8 January 2003.
21 Mr Challita stated that upon arriving at the site he spoke to Mr Ishak, the Project Manager and Site Supervisor, who was employed by Dewcape Pty Limited and the following conversation took place:
Mr Challita: "I am Buddy. Where did you plan for us to park the pump?
Mr Ishak: "Over here".
whilst pointing to a site that was comprised of land fill.
Mr Challita: "There is no way was (sic) can park the truck there, it will sink and there is no room for the outriggers to open."
Mr Ishak: "Why?"
Mr Challita: "We cannot do the job. You will need to get a line pump."
Mr Ishak: "Please, I have to pour the job today because we are running behind. It should have been done before Christmas".
Mr Challita: "This is not my problem", as I proceeded to walk away towards the truck.
Mr Ishak: "Please, please, you have to help me".
Mr Challita: "I can only possibly do the job if I can park it on the driveway and to do that I have to break the fence and hit the tree".
Mr Ishak: "We can't touch the tree, there is a bond on it. Let me call the architect".
Mr Challita: "Don't worry about it. We're leaving".
Then Mr Ishak rang someone and said:
Mr Ishak: "It is alright you can hit the tree, the concrete is more important".
Mr Challita: "The tree is your responsibility and don't order the concrete until I have actually opened the boom and confirmed the job can be done safely".
22 Mr Challita stated that he parked the truck on the driveway and opened the four outriggers and stabilised them on timber. He then looked up above the boom and saw that he was about 3m away from the low voltage lines. Mr Challita's evidence was that he did not think to physically measure the distance, but to his experienced eye, the low voltage lines were about three metres above the boom. He believed that if he pulled the boom into place, he would be able to pull it out level and not get any closer to the low voltage lines.
23 Mr Challita stated the boom was always going to be 6m to 7m away from the high voltage lines. Mr Challita opened the boom, and as he anticipated, it brushed through the tree without damaging any branches, or causing any destruction. He stated that the tree was his only concern as he did not want to damage it. Mr Challita's evidence was that the test opening was successful and he knew that he could retract the boom using the same course and get the job done.
24 He deposed that at this stage of the operation, he did not have any concern regarding the power lines as he believed he was at least 3m away from the low voltage lines and some 6m to 7m from the high voltage lines. Mr Challita's evidence was that the storm hit suddenly at about 5.00 pm and it was quite ferocious. At that time, the boom was fully extended and at least 20m from any power lines. Mr Challita commenced to blow the concrete out of the line using a sponge. Mr Challita then gave Mr Budwee the sponge to clean and fill the pipeline with water so it could be cleaned thoroughly and began to retract the boom.
25 Mr Challita stated that he had retracted stage two and three of the boom into the closed position and slowly started to turn the boom towards the tree. His evidence was he stopped when he saw the high voltage lines swing too fast because of the wind. He was about three metres from the high voltage lines when he stopped. Mr Challita called Mr Budwee to assist him but there was no answer. His evidence was he looked over his left and right shoulder and saw Mr Budwee "lying on the floor" (sic).
26 Mr Challita rushed to his assistance and found Mr Budwee shaking. He was breathing heavily and looked like he was having a fit. An ambulance arrived within five minutes.
27 Mr Challita deposed that he then looked up at the boom and noticed it was still far away from the power lines, some 3m away, stating that the position of the boom at that time was the closest he got to the high voltage lines.
28 Mr Challita was not aware of how Mr Budwee died until about a week after the accident. He felt quite depressed and upset at the death of Mr Budwee and still has nightmares and flashbacks of seeing him shaking on the ground.
29 Since the accident Mr Budwee has not done any concrete pumping work either using a line pump or a boom pump. His evidence was he changed his line of work to train to do fencing which has resulted in less income for him and his family and the work is more physical and demanding.
30 Mr Challita stated he could never go back to pumping concrete.
31 Mr Challita's evidence was that he had a disposable income of about $500 - $600 per week. He assists his wife with a mortgage by contributing $250 per week. The remainder of his income is spent on food and clothing for his family. Mr Challita annexed his 2005 income tax return.
32 Mr Abboud asked Mr Challita some additional questions relating to a record of interview provided to the Police. Mr Challita clarified his evidence in respect of the distance between the boom and the electric wires to be a reference to the low voltage wires, which were the first set of wires closest to the boom.
33 During cross-examination, Mr Challita agreed that he had operated as a licensed concrete pumping truck operator for in excess of five years and was aware of the code of practice in relation to the operation of pump trucks. He agreed that the code of practice establishes a safe working distance of three metres up to 132,000 volts.
34 It was further acknowledged by Mr Challita that his employer had provided him with a safe working method statement which contained a requirement for a risk assessment and set out the safe working distances with respect to electricity cables. The truck also carried a warning sign which stated that it was unlawful to operate the equipment within 3m of power lines. Mr Challita acknowledged that he was familiar with the sign prior to the accident and that the truck also carried a sticker setting out safe working distances, nominating "3m up to 132,000 volts". The truck also carried warning signs setting out an electrocution hazard and to be aware of overhead electrical cables.
35 Mr Challita agreed that these were minimum safe working distances because of the danger that electricity could arc or be conducted through the arm down into the body of the truck and affect persons on the ground.
36 Mr Challita agreed that the truck was 3,950mm high from road level to the top of the arm of the boom and the cables were located at 6.6m above the ground. Mr Challita further agreed that if 3,950mm is deducted from 6.6m, you would be within the three metre range by about 350mm. It was further agreed by Mr Challita that the moment the truck was parked under the wires, it was within the three metres safe working distance.
37 Mr Challita also agreed that in order to operate the boom, he was required to lift it out of its cradle to enable it to be slewed sideways. This first step of opening the arm further breached the minimum safety standards. Mr Challita's evidence was that he undertook a risk assessment before he moved the arm, but it was not written and he decided to proceed a further 50mm within the safe working area, despite having undertaken that risk assessment.
38 Mr Challita agreed that after he had completed the job and was bringing the boom back, the wind was blowing so strongly that he had to hold on to the truck. The boom arc was swinging around in the air as were the cables.
39 Mr Challita was referred to the statement he provided to the WorkCover Authority in which he indicated that the boom was one to 1.5m away from the power lines and agreed that this was contrary to what was contained in his affidavit. However, he stated that this was when the wind was blowing. He agreed that both the cables and the arm of the boom were swinging and that he was sure there was an apparent danger. He agreed that there was nothing to prevent him from leaving the arm extended until the weather conditions settled, nor from ringing Energy Australia and seeking a power outage. Mr Challita further agreed that there was nothing to preclude him from ringing his employer to seek advice once it became apparent that there were power lines and he was unable to park inside the confines of the property.
40 Mr Challita confirmed that his income for the last financial year was $14,713. He also stated that he had no interest in the family home, it being owned by his wife. It had a value of approximately $700,000 - $800,000 with a mortgage of $500,000.
41 In re-examination, Mr Challita agreed that the correct distance between the cables and truck was 2.65m.
42 The second defendant tendered an affidavit of Isaac Tohme, the sole Director of the second defendant. Mr Tohme stated he bought his first boom pump in 1997. The business grew steadily. In 2000 he started a new company under the name of the second defendant. Mr Challita was employed as a boom pump operator in July 2002. He was licensed to drive the concrete placing boom. Mr Tohme supervised Mr Challita for one week before he was employed. At the same time, he decided to employ Mr Budwee as linesman. Mr Tohme had known Mr Budwee since he was a little boy and as he was unemployed, offered him the position.
43 Mr Tohme deposed that in October 2002, he decided to review his occupational health and safety procedures. He conferred with others in the industry and then developed his own Safe Work Method Statements ("SWMS"). In November 2002, Mr Tohme developed a SWMS and risk assessment for the operation of the concrete boom. The SWMS outlined a procedure to be followed in steps and also made provision for potential hazards to be identified. The SWMS identified risks presented by power lines and outlined safe working distances for working in the vicinity of power lines including a 3m safe working distance for cables carrying voltage of up to 132,000 volts, 6m for above 132,000 volts and 8m for above 330,000 volts. Copies of the SWMS were kept in the cabin of the pump truck and the first defendant was instructed to complete an SWMS at each job with the site supervisor prior to the commencement of work. A copy of the SWMS statement was annexed to Mr Tohme's affidavit.
44 Mr Tohme stated that on 2 December 2002, he went through the company's safety policy with Mr Challita. A copy of the company's safety policy signed by Mr Tohme and Mr Challita was annexed to his affidavit. On the same day, Mr Tohme also went through the SWMS with Mr Challita. Mr Challita advised Mr Tohme that he was familiar with everything discussed both in the safety policy and the SWMS. In addition to the SWMS, Mr Tohme used another SWMS to train Mr Challita. Mr Challita and Mr Tohme wrote down all the possible hazards that could occur in each step of the procedure. This SWMS was not signed by Mr Challita or Mr Tohme, but was used in training exercises to demonstrate the potential hazards. A copy of this document was also annexed to Mr Tohme's affidavit.
45 Mr Tohme also instructed Mr Challita that when he arrived at a particular job site, he was to give the foreman, the site supervisor, or the builder a copy of the SWMS that had been signed by himself and Mr Budwee, as well as insurance papers and monthly log books.
46 Mr Budwee was also trained in occupational health and safety in December 2002. His training was even more detailed than that of Mr Challita because he did not have the same years of experience in the industry as had Mr Challita.
47 On 30 September 2002, Mr Challita and Mr Budwee were sent by the second defendant to undertake an occupational health and safety construction and induction course with an organisation called "Training with Clout".
48 Mr Tohme stated that he placed a number of warning notices on the concrete boom relating to the operations of the boom near power lines, with the specific reference of the need to avoid operation in the vicinity of overhead power lines, the need to maintain safe working distances from overhead power lines and the nomination of a 3m safe working distance for power lines up to 132,000 volts. He also discussed with both Mr Challita and Mr Budwee, at regular intervals, the potential risks associated with each job. Discussion also took place prior to the commencement of each new job, particularly in respect of any safety considerations arising as a result of the job, its location or the location of the work site. Both employees were advised to contact Mr Tohme if they encountered any problems on a job site which had not been foreseen. This occurred from time to time and Mr Tohme's practice was to leave where he was working and travel to the site of the job to give them instructions as to how the work was to be conducted in general terms and with particular consideration to their safety.
49 Mr Tohme deposed to the conversation that took place in respect of the job at Putney which was as follows:
Mr Chehine-Nehmetallah:
"Would you be able to do a job for me tomorrow in Putney? They are pouring the footings of the house."
Mr Tohme:
"I can get the machine there, but it would be at about 1.00pm or 1.30pm. But Putney is a difficult area, it's very hilly and it might be hard to set up the machine."
Mr Chehine-Nehmetallah:
"It's no problem, you drive into the site, you don't have to park on the street."
Mr Tohme:
If the machine is parked inside, is the ground level?"
Mr Chehine-Nehmetallah:
"Yes it is."
Mr Tohme:
"Is there 6 or 7 metres of space to open the outriggers?"
Mr Chehine-Nehmetallah:
"Yeah you've got plenty of room."
Mr Tohme:
"If the machine is parked inside, is there any overhead power lines to worry about?"
Mr Chehine-Nehmetallah:
"No".
Mr Tohme:
"Have you seen the site?"
Mr Chehine-Nehmetallah:
"Yes I have."
Mr Tohme:
"I can do it, the machine will be freed about 1.00pm, I can get it over there then."
Mr Chehine-Nehmetallah:
"That's good."
50 Mr Tohme stated that he engaged Mr Challita and Mr Budwee to carry out the job at Putney. He attended the site upon receiving a phone call from Mr Challita at about 6.00 pm on 8 January 2003 after the accident.
51 Mr Tohme attached to his affidavit the second defendant's tax returns for the financial years ended 2002, 2003 and 2004 respectively. He stated that he receives a salary of $1,100 gross per week from the second defendant.
52 Mr Tohme deposed that at the time of the accident, the second defendant had four employees including himself. The second defendant now only employs his wife to do bookkeeping and himself. Mr Tohme stated that any fine imposed upon the second defendant would have a significant effect upon him as business has slowed down in the last six months due to the downturn in the building industry. Mr Tohme has a mortgage of $500,000 with the Commonwealth Bank on a factory in Belfield and $80,000 on vehicle loan expenses.
53 In oral evidence, Mr Tohme stated that, as a result of the accident, he finds it very hard to sleep as he keeps thinking about the young boy that died.
54 During cross-examination Mr Tohme acknowledged that there was nothing to preclude him from asking for a site plan to be provided in respect of the work at Putney showing the services in safe areas. However, Mr Tohme said there was no such document that would show where the truck was to be parked.
55 Mr Tohme stated that the company no longer has any employees apart from himself and does not engage contractors. He now operates the truck solely on his own.
Submissions of the Prosecutor
56 Mr M Cahill of counsel, who appeared for the prosecutor, helpfully provided a detailed written outline of submissions. In relation to the first defendant, counsel submitted that I would be satisfied, beyond reasonable doubt, indeed without a doubt, on the basis of the evidence and in particular on the contents of the typewritten statement provided by Mr Challita on 10 January 2003 that the contention that he never passed closer than 3m to power lines was incorrect.
57 Mr Cahill submitted that the decision in Markarian v R (2005) 215 ALR 213 does not require this Court to depart from the settled jurisprudence of this jurisdiction regarding sentencing for offences against the OH&S Act reflected in leading authorities such as Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 and Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326. Counsel submitted the underlying principles remain that, in determining sentence, a judge must find a balance between the objective seriousness of the offence and subjective factors favourable to the defendant such that the ultimate penalty, whilst not oppressive "… ensure(s) that the allowance afforded for subjective factors does not produce a sentence which failed to take account of the objective gravity of the offence": Lawrenson Diecasting.
58 In respect of the first defendant, it was submitted that the present case falls within the most serious category of breaches of s 20(1) of the OH&S Act because the first defendant knew the existences of the wires and the gravity of the risk that they constituted. The first defendant was also aware of the weather conditions prevailing at the time of the accident. Counsel submitted that there was a need for general and specific deterrence: Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [71] - [80].
59 In respect of the second defendant, counsel submitted as to the objective seriousness of the offence, this is a case where there was not only a foreseeable risk but the risk was known to the second defendant. It was a risk that involved the potential for serious injury. The prosecutor conceded that the accident occurred in circumstances where the second defendant had taken some steps towards putting in place safe work methods and supervision but contended such steps were inadequate. In respect of the second defendant, Mr Cahill submitted that it was incumbent upon the Court in sentencing the second defendant to have regard to the "notorious reputation" of the building industry with respect to breaches of the OH&S Act, submitting that general deterrence was a matter of some significance.
60 In respect of specific deterrence, Mr Cahill contended that the Court could not be satisfied that the second defendant was not utilising sub-contractors and that there should be an element in respect of specific deterrence. Mr Cahill acknowledged that there were clear expressions of remorse by Mr Tohme on behalf of the second defendant. In respect of the financial circumstances of the second defendant, counsel submitted that, in view of the lack of clarity in the documents and the evidence of Mr Tohme, there must remain some significant doubt as to what value the company's income tax returns provided and therefore what conclusions the Court could draw as to the real financial circumstances of the corporation.
61 Mr Cahill observed that the onus is on a defendant who seeks the benefits of any discretion pursuant to s 6 of the Fines Act 1996 ("the Fines Act") to put before the Court clear and adequate evidence to enable the Court to draw the conclusions the defendant seeks. Mr Cahill also observed that the second defendant had failed to conduct any meaningful audit or obtain site diagrams with services marked upon them with clear directions as to where, for example, trucks could have been set up and directions given about what steps were to be taken if such diagrams could not be complied with.
62 It was acknowledged that each defendant is entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the subject offence which included co-operation with the WorkCover Authority of New South Wales. It was submitted in the present case that the first defendant has shown little insight into the seriousness of his breaches of safety and little contrition or remorse. The prosecutor acknowledged that the each defendant had entered a plea at an early stage and were entitled to a discount for the utilitarian benefits of the plea. Mr Cahill also conceded that neither defendant was previously recorded and that the Court was entitled to take this matter into account in their favour. The prosecutor sought that each defendant pay the costs of the proceedings together with a moiety.
Submissions of the First Defendant
63 Mr Abboud commenced his submissions by strongly submitting that the first defendant had shown remorse and contrition. Mr Abboud referred to the first defendant's evidence that he still has nightmares and flashbacks of the accident and that he gave up his position as a pump operator.
64 Mr Abboud submitted that the family of the first defendant were present in Court and that the first defendant had attended the funeral of Mr Budwee and then attended the home to offer his sincere apologies and condolences for the accident.
65 Mr Abboud submitted that the job was delayed by the requirement for further concrete to be brought to the site in order to finish the job and this resulted in the job not being concluded before the storm hit. Mr Abboud submitted that the first defendant, as he was retracting the boom, realised the serious threat to safety posed by the electrical wires and stopped the procedure to get help. Mr Abboud observed that there was no professional builder on the site whilst the work was being carried out as it was an owner/builder site. It was contended that the pump operator is usually under the direction of a builder. Mr Abboud submitted that the first defendant's wife had been married previously and owned the family home prior to the marriage with the first defendant. The first defendant contributes to the mortgage. Mr Abboud observed that the first defendant has now left the industry and that he should receive a discount for the utilitarian value of the plea.
66 Finally, Mr Abboud submitted, taking all of the factors into account, I should give consideration to utilising s 10 of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act").
Submissions of the Second Defendant
67 Mr B Cross of counsel, who appeared for the second defendant, made the following submissions:
(a) The primary factor to be considered in determining the appropriate sentence is the objective seriousness of the offence charged: Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61. Consideration of the objective seriousness of the offence involves an objective assessment of the nature and quality of the offence: Lawrenson Diecasting Pty Ltd as applied in WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23; Inspector O'Neil v Amway of Australia [2005] NSWIRComm 295.
(b) It was submitted the risk to safety was identified by the second defendant and safety procedures and instructions were developed to address the risk. The second defendant reviewed his occupational health and safety procedures and developed his own SWMS which identified the risk presented by power lines and outlined safe working distances for working in the vicinity of power lines including a three metre safe working distance for cables carrying voltage of up to 132,000 volts, 6m for above 132,000 volts and 8m for above 330,000 volts.
(c) The safety procedure was not a "paper system" that was not implemented and maintained in daily operations. Copies of the SWMS were kept in the cabin of the pump truck and the first defendant was instructed to complete a SWMS at each job with the site supervisor prior to the commencement of the work.
(d) The second defendant seriously questioned Mr Chehine-Nehmetallah about the safety of the site and whether there were overhead power lines. This information was conveyed to the first defendant.
(e) The second defendant should receive some recognition when the objective seriousness of the offence is assessed in that a number of other parties played a significant part in the offence: WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284. As part of its obligations as head contractor, Dewcape Pty Ltd was required to retain and supervise subcontractors required to undertake construction work. Dewcape's Project Manager, Mr Ishak, was required to monitor the activities of subcontractors to ensure that the subcontractors met relevant occupational health and safety requirements including the provision and utilisation of adequate SWMS or plans.
(f) The nature of the company and its financial means should be considered in mitigation of penalty: WorkCover Authority of New South Wales (Inspector Farrell) v Schrader; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284.
(g) The Court is obliged to consider other subjective factors that may mitigate the seriousness of the offences committed by the second defendant pursuant to s 21A(3) of the CSP Act, in particular, s 21A(3)(e), s 21A(3)(f), s 21A(3)(h), s 21A(3)(i) and s 21A(3)(m) which provide:
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
…
(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
(i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner,
…
(m) assistance by the offender to law enforcement authorities (as provided by section 23).
(h) The second defendant has a good industrial record and no previous convictions, has demonstrated a strong commitment to workplace safety and has accepted responsibility for the accident and the injuries suffered by its employee. It has ceased employing anyone other than Mr Tohme and his wife. The second defendant entered an early plea of guilty and co-operated fully with WorkCover and Energy Australia.
(i) The second defendant is entitled to a discount for the utilitarian value of the plea pursuant to s 22 of the CSP Act.
Relevant Principles
68 The process of sentencing has been recently reviewed by the High Court in Markarian. In a joint judgment, the majority, consisting of Gleeson CJ, Gummow, Hayne and Callinan JJ, and McHugh J, in a separate judgment, held that the "instinctive synthesis" approach to sentencing is the general approach that should be adopted. This view accords with the view expressed by the New South Wales Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [57] and in R v Sharma (2002) 54 NSWLR 300.
69 The joint judgment and the judgment of McHugh J counselled against the adoption of a rigid mathematical "two-tier approach to sentencing". However, the decision in Markarian does not disapprove of the adoption of a "two stage approach" to sentencing where there is express legislative provision for a matter to be taken into account on sentence and a clear intention that it be specifically reflected in the sentencing process, for example, a discount for the utilitarian benefit of a plea: Markarian at [27].
70 The decision of the High Court in Markarian does not change the law regarding the significance of the "objective seriousness of the offence" in the sentencing process.
71 In my view, the decision in Markarian does not require this Court to depart from the settled jurisprudence of this jurisdiction regarding sentencing for offences against the OH&S Act reflected in leading authorities such as Lawrenson Diecasting Pty Limited; Warman International Limited v WorkCover Authority of New South Wales and Morrison v Powercoal Pty Ltd & Anor (No 3).
72 The Court should consider the maximum penalty and then assess the various objective and subjective factors against the maximum in making its assessment of the appropriate penalty to be imposed. In R v Moon (2000) 117 A Crim R 497 Howie J, with whom Fitzgerald JA agreed, Whealy J dissenting observed at [70]:
The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.
73 The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered and affirmed by the Full Bench in Capral Aluminium Ltd v WorkCover Authority of New South Wales at 646 where the Full Bench stated:
The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms:
"... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation…"
74 It is also necessary to consider the damage and injuries suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries suffered, or which may have been suffered, and the gravity of the offence": Capral at 650.
75 The issues of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken is set out in Capral at [71] - [80] where the Full Bench in particular endorsed the remarks of Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388:
"…the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace."