Inspector Jones v Challita and Anor

Inspector Jones v Challita and Anor - [2006] NSWIRComm 207 - NSWIRComm 2006 case summary — Zoe

[15]

1 These proceedings involve appeals under s 196 of the Industrial Relations Act 1996 and s 5D of the Criminal Appeal Act 1912 against the inadequacy of sentences imposed by Staff J on 26 October 2005 in relation to the prosecutions of Buddy Charbel Challita under s 20 of the Occupational Health and Safety Act 2000 and Mr Pump Pty Ltd under s 8(1) of the 2000 Act: Inspector Jones v Buddy Charbel Challita; Inspector Alan Jones v Mr Pump Pty Ltd [2005] NSWIRComm 385. 2 The sentences were imposed by his Honour on the respondents following pleas of guilty to both charges. The first respondent, Mr Challita, was fined $600 and the second respondent, Mr Pump Pty Ltd, was fined $65,000. 3 The offences arose in circumstances where on 7 January 2003 the second respondent, described in the Agreed Statement of Facts as a supplier of concrete pumping and placing services, was contacted to provide a concrete placing boom and crew at a work site on the following day, 8 January 2003. On 8 January, the first respondent, a boom pump operator and employee of the second respondent, was assigned by the second respondent to operate a concrete placing boom for the purpose of placing concrete at the work site. A second employee of the second respondent, Marcel Budwee, was assigned to assist the first respondent as a linesman. The concrete placing boom was mounted on a truck. The first respondent was licensed to drive the truck and was certified to set up and take down the concrete placing boom. 4 The first respondent and Mr Budwee arrived at the work site between about 1.00 pm and 1.30 pm. The truck was parked at the front of the site and the first respondent spoke to Mr Ishak, the Project Manager and Site Supervisor. Mr Ishak nominated an area within the site in which the concrete placing boom could be set up but that was deemed unsuitable by the first respondent because he could not adequately deploy the stabilisers on the boom as the area had been previously filled. After further discussion the first respondent parked the truck in the driveway with the back of the truck extending outside the site across the footpath to the gutter line. To the left of the truck in the north west corner in front of the worksite stood a tree approximately nine metres tall. In addition a combination of high voltage powerlines (11kV), low voltage mains and street lighting were slung along the street frontage of the site immediately adjacent to the front boundary. The high voltage powerlines were slung about 9.5 metres above the footpath, the low voltage mains were slung about 6.6 metres above the footpath and the street lighting was slung about 7.2 metres above the footpath. Each set of wires passed directly over the rear of the truck mounted concrete placing boom as it was set up in the driveway. 5 The boom was 3950mm high when at rest. It was an agreed fact in the second respondent's case that the safe working distance for electricity mains up to 132kV (132000 volts) was 3 metres. A label stuck near the rear of the truck contained the following warning:

[17]

It was also agreed in the second respondent's case that once the truck was set up in the driveway the boom was already within the safe working distance of 3 metres before it was deployed. 6 Deployment of the boom (which was performed by the first respondent) involved unfolding it and slewing it so that it faced the rear of the site. About 20 minutes after the boom was deployed the first truckload of concrete was poured. As this was in progress a storm passed through the area consisting of rain, light hail, and very strong winds. In the final stages of the concrete pour the first respondent directed Mr Budwee to clear the lines with a sponge. Mr Budwee went to the rear side of the boom in order to complete the task. Standing nearby was another worker, Mr Chehine. The first respondent at the same time proceeded to retract the boom. As the boom was being folded the first respondent slewed it toward and into the foliage of the tree which was adjacent to the front boundary of the site. At that point he saw the power lines blowing back and forth within the foliage of the tree. He became concerned that the boom was too close to the power lines and called to Mr Budwee to assist him. There was no answer. The first respondent turned to his right and saw Mr Budwee lying on the ground. A post mortem conducted on 10 January 2003 revealed injuries to Mr Budwee consistent with electrocution. 7 Mr Chehine said that, at about the same time as the first respondent had called out to Mr Budwee for assistance, he heard a "crackling snap noise". He then turned and saw Mr Budwee lying on the ground. Mr Chehine, Mr Ishak and other independent witnesses all said that at the time of the incident the end of the boom was within the foliage of the tree. 8 The first respondent gave evidence during the sentence proceedings and conceded that he was aware of the Code of Practice (which was not further identified) which established a safe working distance of 3 metres up to 132,000 volts. He also conceded that on the day of the incident he was in possession of a safe work method statement provided to him by the second respondent. He agreed that this document contained a requirement for a written risk assessment to be undertaken and another requirement to ensure the maintenance of safe distances from power lines with specific reference to a safe working distance within 3 metres for up to 132,000 volt powerlines and a possible hazard being electrocution. He also agreed with a number of propositions that were put to him in cross-examination which may be conveniently set out in point form as: · the truck when parked at the worksite was 3950mm above road level to the top of the arm; · power lines were located 6.6m above the ground; · when the truck was parked under the powerlines it was within three metres of the safe working distance; · once the boom arm was raised (during deployment) it penetrated further into the 3 metre minimum safe working distance; · the powerlines were swinging (in the wind) to within 1.5 metres of the top of the boom arm; · the danger from the powerlines blowing back and forth in the wind was apparent and was the reason why he stopped folding or retracting the boom. Judgment at first instance

[19]

The first defendant no longer works as a boom pump operator, having left that industry. He now works as a fencer. In my view, this is an unusual case where I am satisfied the risk of re-offending is non-existent because the offender will not have the opportunity to commit a similar offence in the future. I therefore determine that there should be no element of specific deterrence reflected in the penalty. 11 A number of subjective factors were also taken into account in the sentencing remarks. The plea of guilty was taken into account both as to the utilitarian benefit derived from the fact of the plea (for which his Honour applied a discount of 25 per cent) and, as to the contrition reflective of the plea. Cooperation and remorse were also considered in the first respondent's favour as was the fact that the first respondent had no prior convictions. 12 His Honour then directed his attention to the first respondent's capacity to pay a fine and after an examination of the evidence and the relevant authorities proposed to take the first respondent's financial circumstances into account. A submission made on behalf of the first respondent on the application of s 10 of the Crimes (Sentencing Procedure) Act 1999 was rejected. 13 His Honour then turned to an assessment of the factors relevant to the second respondent. The risks associated with the operation of the boom in proximity to the powerlines, his Honour found, were obvious, well known and carried with them the potential for "grave, if not, fatal injury". These risks were for example both reflected in the SWMS provided by the second respondent to the first respondent and by various warning notices which appeared on the boom and on the truck. The evidence on sentence had disclosed that the first respondent did not complete the SWMS and that the second respondent relied on information given to him by Mr Chehine on 7 January 2003 about the site including information (which we interpolate turned out to be incorrect) that there were no powerlines to worry about if the truck was parked inside the site. 14 The fact that the second respondent did not undertake an inspection of its own prompted his Honour to refer to the well known principle set out in WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 which emphasised the need for employers to exercise constant vigilance to ensure safety in the workplace and adopt a pro-active approach in the search for and detection of risks to safety. Observations as to the objective seriousness of the offence made by his Honour in relation to the first respondent were adopted in relation to the second respondent. These included the gravity of the risk which was manifested by the death of Mr Budwee in accordance with the principle laid down in Tyler v Sydney Electricity (1993) 47 IR 1 and the finding that the relevant risk could have been obviated by means of a number of simple, available steps. 15 The issue of the contribution of the parties towards the offence was also examined by reference to the evidence and to the relevant authorities. On the evidence, Dewcape Pty Ltd, the head contractor, was retained to supervise sub-contractors and monitor their activities which included the requirement that sub-contractors submit SWMS. Mr Ishak, the Project Manager, had not, however, required the first defendant to provide him with a SWMS or to conduct a risk assessment. Nor was the first defendant supervised by Mr Ishak. Given these circumstances his Honour found that it was appropriate to assess the nature and seriousness of the offence alleged against the second respondent "by reference to the contribution of the second respondent to the relevant risk". 16 His Honour also took into account the principles of general and specific deterrence. In relation to specific deterrence his Honour said:

[42]

25 Having read his Honour's sentencing remarks it seems reasonably clear that the particulars set out in grounds 2 to 5 in the Notice of Appeal conform to both the evidence before his Honour in the sentencing proceedings and his Honour's conclusions. The submissions of the appellant in relation to these issues appear to suggest that, as a result of the direct knowledge of the first respondent in relation to certain matters (set out in grounds 2-5), the evidence clearly did not involve inadvertence, a momentary departure from safe practices or ignorance of the rules. It followed from this conclusion that the offence in the appellant's words, was, "objectively most serious and called for the imposition of condign punishment". 26 The error which the appellant seeks to make good in relation to these issues concerns his Honour's assessment of the objective seriousness of the offence as falling within the mid range. In other words it appears to us that grounds 1-5 at least, rely, in the absence of identification of any specific error, on an assertion of manifest inadequacy as a conclusion that some error in the sentencing process has been made. Reliance on the conclusion that the sentence is manifestly inadequate does not preclude an appellate Court from intervening in the sentencing process at first instance: WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Limited (2003) 127 IR 60 at [62]; Inspector Green v Camilleri Properties Pty Limited and Anor [2006] NSWIRComm 90 at [25]. 27 Nevertheless prosecution appeals which rely on the contention that the sentence is manifestly inadequate in the absence of specific errors as the foundation for that conclusion, should be approached with great caution by appellate courts in deciding whether to interfere with the sentencing discretion at first instance. 28 This observation (which is uncontroversial and well-known) finds support in a number of authorities. For present purposes we will refer briefly to two such authorities. The first is R v Hallocoglu (1992) 29 NSWLR 67 where Hunt CJ at CL (with whom Grove and Sharpe JJ agreed) observed (at 78):

[46]

In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46. 34 We do not suggest that the passage referred to above requires that in all cases the sentencing judge is obliged to give weight to specific deterrence. Nevertheless the passage clearly sets the parameters in which the principle should be applied and limits considerably those circumstances where the principle may not be invoked in the context of occupational health and safety offences by a sentencing judge without falling into error. We would emphasise, however, that the expression of the principle and its breadth of application as suggested in Capral Aluminium in the passage at [77], is not confined to those offenders under the occupational health and safety legislation who are also employers. Specific deterrence is applicable to any offender under the 2000 Act as the deterrence is for avoidance of crimes generally under that Act and the various classes of offenders relating thereto. 35 In our view his Honour fell into error in holding that the principle had no application to the circumstances of the first respondent. While the first respondent continues to operate as a fencer, a trade associated with the building industry, it cannot be said that the first respondent will not have an opportunity to commit further occupational health and safety offences. 36 Notwithstanding our conclusion that his Honour erred in relation to the applicability of specific deterrence we decline to intervene in order to re-sentence the first respondent. We have already expressed our view that the penalty imposed on the first respondent was not manifestly inadequate. The identification of a specific material error in the sentencing reasons does not in this instance alter that view. The discretion of an appellate Court not to interfere even where error has been shown has never been in doubt in this jurisdiction. In WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor Co Ltd (1999) 92 IR 392 Wright J, President, (who was in the minority) discussed the correct approach to be taken to the principles on Crown appeals by reference to the Court of Criminal Appeal judgment in R v Allpass (1993) 72 ACrimR 561. In R v Allpass the Full Court detailed the circumstances in which an appellate Court may exercise its discretion to intervene to re-sentence an offender in the event of a successful Crown appeal, and added:

[52]

The risks associated with the operation of the concrete placing boom in proximity to overhead electrical mains was an obvious and well known risk that carried with it the clear potential for grave, if not fatal, injury. The subject risks were actually known to the defendant and clearly reflected in the SWMS provided by the second defendant to the first defendant and by warning notices, regarding safe working distances posted on the concrete boom and the truck itself. 44 It is obvious from the above passage that his Honour had regard to the relevant risks which were expressly acknowledged as both known and previously identified. His Honour also recognised the seriousness of the risks when his Honour observed that those risks had the potential to result in a fatal injury. Given these findings there is no basis upon which we should conclude that his Honour did not give appropriate weight to those risks. 45 The appellant also contended that inappropriate weight was given to the availability of simple, inexpensive steps which would have ensured the safety of Mr Budwee and others but were not implemented. His Honour however (at [112] of the judgment) expressly adopted against the second respondent the readily available measures which were found against the first respondent (at [86] of the judgment) and which his Honour recognised would have obviated or at least reduced the risk. There is nothing in his Honour's reasons or findings in relation to this objective criterion which could justify a conclusion that inappropriate weight was attributed to this particular criterion. 46 A third objective criterion upon which the appellant relies to make good the assertion of inappropriate weight concerns the detriment to safety which carried with it a significant risk of injury, including a "substantial risk" of electrocution. His Honour, however, recognised and took into account that the risks had the potential for, "grave if not fatal injury". His Honour also noted that the second respondent expressly conceded that the seriousness of the risk reflected in the potential for fatal injury was relevant as a measure of gravity of the breach (at [107]). This is in accordance with established principle. His Honour also expressly referred to and took into account as relevant to the seriousness of the risk, the fourth criterion upon which the appellant relies to make good the assertion of inappropriate weight, namely, that the serious "detriment to safety" manifested itself in Mr Budwee's electrocution. At [111] of the judgment his Honour said:

[56]

[110] In respect of this accident, the first defendant did not complete a SWMS. Management has a positive obligation of not only informing itself of proper and safe working methods but also of ensuring that proper safe working methods are followed by those persons for whom they are responsible. The second defendant relied on information provided to him regarding the site without undertaking an inspection. In my view, proceeding with the job in circumstances where the first defendant had significant reservations about the risk was indicative of a lack of proper training and supervision. This was compounded with the "take down" of the boom during high wind conditions at the time of the subject accident. 50 At [134] and [135] set out earlier in these reasons, his Honour recorded his findings as to the second respondent's system by expressing first the view that the system was "elaborate", and then, after qualifying the system on the basis that it had lacked "a secondary layer of safety", describing the system as "impressive". 51 It is apparent to us from the extract of his Honour's reasons at [134] and [135] that the second respondent had created and implemented a system designed to ensure the safety of its employees which was in operation prior to the offence. The system was reasonably comprehensive particularly having regard to the size of the second respondent's operations and part of that system was specifically tailored to the prevention of the identified risks associated with powerlines and working in the vicinity of powerlines. His Honour recognised that the procedures which were in place were not supported by a "secondary level of safety" such as the provision of a SWMS to the second respondent in respect of each job undertaken. Nevertheless in our view this did not preclude his Honour from describing the system as "elaborate". His Honour, we note, later described the system as "impressive", after the comment that the "elaborate" system was otherwise qualified by the absence of a secondary layer of safety. Given these considerations we perceive no error on his Honour's part in so describing the system. Failure to give sufficient weight to the particulars of the offence

[61]

57 This leads us to a consideration of whether or not in all the circumstances the penalty imposed against the second respondent was manifestly inadequate. In our view the penalty was below what was appropriate in the circumstances and was so manifestly inadequate that the inference may be drawn that there has been a failure to properly exercise the sentencing discretion at first instance: see Dinsdale v The Queen (2000) 202 CLR 321 at 340. In addition, the reasons and findings at first instance concerning his Honour's treatment of the principle of specific deterrence and the second respondent's capacity to pay a fine, demonstrate material errors. The existence of these errors and the inadequacy of the penalty justify in our view the exercise of our discretion to intervene and resentence the second respondent: WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd. 58 In assessing the appropriate penalty against the second respondent we consider that the offence was serious although we recognise as his Honour did at first instance, that the second respondent's systems of safety which were in place and in operation prior to the offence mitigated the objective seriousness of the offence. We also take into account a number of subjective factors which his Honour at first instance also acknowledged in the second respondent's favour including the early plea of guilty which warrants a discount of 25 per cent, the absence of any prior convictions, as well as the contrition, remorse and the cooperation with WorkCover. The respective contributions of other parties to the risk to safety add the context in which to consider the true contribution of the second respondent to that risk, and we agree with his Honour's analysis in that regard. In addition to the discount of penalty awarded by reason of the subjective factors referred to above we are mindful of the principle of double jeopardy which requires an appellate Court in resentencing in relation to Crown appeals to impose a penalty at the lower end of the scale, bearing in mind the maximum penalty here which is $550,000. We consider therefore the appropriate penalty in the circumstances should be $75,000. 59 We accordingly order:

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