Inspector Jones v Supercut Concrete Service Pty Ltd

PROSECUTOR Mr B G Docking of counsel Solicitor: Ms M Simpson Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT Mr R Moore of counsel Solicitor: Mr R Collings MBA Lawyers

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Monday 5 April 2004

INSPECTOR STEVEN JONES v SUPERCUT CONCRETE SERVICES PTY LTD

Prosecution under section 15 (1) and s 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 83

1 Supercut Concrete Services Pty Ltd ("the defendant") is a small business engaged in concrete cutting. In February 2000 the defendant contracted with a plumbing contractor, T Helsby & Sons Contracting Pty Limited, to provide a concrete cutting machine and its operator to do concrete cutting work on the premises of Chubb Security Holdings Limited at 149-155 Milton Street, Ashfield in the State. The concrete cutting work was undertaken on 18 February 2000. Carbon monoxide that was emitted from the concrete cutting machine affected employees of Chubb to the extent that 17 employees were hospitalised. In total, 47 persons were affected to varying degrees as a result of exposure to carbon monoxide.

2 The defendant was prosecuted by Inspector Christopher Chadwick ("the prosecutor") of the WorkCover Authority of New South Wales under s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983. Section 15(1) provides: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

3 Section 16(1) of the Act provides: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

4 The charge under s 15(1) was that the defendant failed: [T]o ensure the health, safety and welfare of its employees at work, in particular, Shannon White. In particular, the Defendant failed: (a) to conduct an adequate risk assessment for the use of the concrete cutting machine in or about the premises; (b) to provide adequate training and instruction to employees in risk assessment procedures for the safe use of the concrete cutting machine in or about the premises; (c) to ensure that employees who were at risk of exposure to carbon monoxide were adequately warned of the risks of exposure prior to the use of the concrete cutting machine in or about the premises; (d) to provide adequate ventilation whilst the concrete cutting machine was in use at the premises; (e) to ensure that employees were adequately protected from inhaling or being otherwise exposed to carbon monoxide at the premises; (f) to fit a carbon monoxide limiting device such as a catalytic converter to the concrete cutting machine at the premises; (g) to adequately service and maintain the concrete floor cutting machine; (h) to prevent the concrete cutting machine from being used in the premises in its condition at the time.

5 The charge under s 16(1) was that the defendant failed: [T]o ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work. In particular, the Defendant failed: (a) to conduct an adequate risk assessment for the use of the concrete cutting machine in or about the premises; (b) to provide adequate training and instruction to persons not in its employment in risk assessment procedures to ensure the safe use of the concrete cutting machine in or about the premises; (c) to ensure that persons not in its employment who were at risk of exposure to carbon monoxide were adequately warned of the risks of exposure prior to the use of the concrete cutting machine in or about the premises; (d) to provide adequate ventilation whilst the concrete cutting machine was in use at the premises; (e) to ensure that persons not in its employment were adequately protected from inhaling or being otherwise exposed to carbon monoxide at the premises; (f) to evacuate persons not in its employment prior to the use of the concrete cutting machine at the premises; (g) to fit a carbon monoxide limiting device such as a catalytic converter to the concrete cutting machine at the premises; (h) to adequately service and maintain the concrete floor cutting machine; (i) to prevent the concrete cutting machine from being used in the premises in its condition at the time.

6 Initially, the defendant had pleaded not guilty to both charges. However, in the course of the trial it became apparent from evidence that the defendant had previously not had access to evidence showing that the only source of the carbon monoxide that could have affected the workers was the concrete cutting machine. The defendant thereupon changed its pleas to guilty.

7 T Helsby & Sons Contracting Pty Ltd was prosecuted in relation to the same incident in which the defendant was involved: Inspector Jones v T Helsby & Sons Contracting Pty Ltd (No 2) [2004] NSWIRComm 57. In that case, which proceeded exparte on the basis of a not guilty plea in circumstances where an administrator had been appointed, the defendant was fine an amount of $220,000.

8 The parties in the present proceedings reached agreement on a statement of facts that was tendered to the Court. Attached to the statement were: An Incident Investigation Report prepared by Mr R D Pearson of Testsafe Australia; an Injured Person's Statement by Carmel O'Neill; a Supervisor's Statement by Brian Shortall, an employee of Chubb; a response by Mr Pearson to a report by Dr George Crank for Supercut; and, Dr Crank's report on the subject incident. The statement contained the following facts: 14 On 18 February 2000, Zaccula [Frank Zaccula, supervisor for T Helsby & Sons] attended the premises and met with [Shannon] White [concrete cutting machine operator employed by the defendant], who was to operate the concrete cutting machine. At about 9:00am Zaccula left the premises before the concrete cutting operations commenced and did not return to the premises until about 3 pm. 15 White was the operator of the concrete cutting machine. Moore and 2 other persons, who were working on the refurbishment, were in and around the proposed canteen area, while White undertook the concrete cutting operations. 16 White commenced the concrete cutting operations at about 9.30am on 18 February 2000. 17 After approximately 15 minutes of cutting, White was asked to stop the concrete cutting machine by the plumber's assistant so that excess water from the concrete floor could be vacuumed up. The concrete cutting machine blade was cooled by a mechanism involving the use of water. White switched off the machine. 18 After the water was vacuumed up, White re-commenced the concrete cutting operation. White cut "another metre" of the concrete floor and had to stop the machine. The concrete cutting operations commenced again and stopped again at 10.15am for morning tea. 19 The concrete cutting operations re-commenced at 10.30am. At 11.00am the belts on the concrete cutting machine broke. White did not have a spare set and arranged to have a new set of belts delivered. The belts were delivered approximately 40 minutes later. 20 When the belts arrived, White had some difficulty fitting them to the machine. White called for assistance. White did not recommence cutting operations until about 12.30pm. At about 1.30pm White stopped the concrete cutting operations following instructions from the builder, Skyline. 21 At the time of the concrete cutting operations, employees of Chubb Security and other persons ( Chubb Security workers ) were working in an adjacent office area which included the accounts payable area of Chubb Security. Concrete cutting machine 22 An internal combustion engine powered the concrete cutting machine. The engine could be either fuelled by liquefied petroleum gas ( LPG ) or petrol. The machine had been converted such as to permit the use of LPG or petrol by MED for Supercut in about 1999. The conversion was carried out such as to permit the machine to work in an indoor environment. At all material times on 18 February 2000 the fuel was LPG. 23 The exhaust gases of the machine included carbon monoxide. 24 The concrete cutting machine was not fitted with a catalytic converter or other carbon monoxide limiting device. Events of 18 February 2000 25 There was a suspended ceiling within both the proposed canteen area and the adjacent office area, including the accounts payable area of Chubb Security. The suspended ceiling was 2.65 metres high. Above the suspended ceiling was a roof space. Within the roof space was air conditioning ducting. Within the proposed canteen area some 22 ceiling tiles had been removed from the suspended ceiling. The roof space was common as between the proposed canteen area and the adjacent office area. The concrete cutting machine at all material times was operated within the proposed canteen area but was also operated under the air conditioning ducting system and the exposed roof cavity. 26 Within the proposed canteen area there was a window with 2 openings and a door on the same side of the room. White opened the window and door prior to any cutting. Pearson in his first report expresses an opinion that "there may have been little air movement from wind induced drafts [sic]". In his second report (at page 9) Pearson makes an assumption that it may have been possible for natural ventilation causing air movement equal to the total volume of the proposed canteen area every 5 minutes. This is given in answer to criticism of his first report as made by Dr Crank and describes the extent of natural ventilation caused by external winds as "one major unknown variable". 27 Sometime between 10.50am and 12 noon a gyprock wall was constructed in the proposed canteen area by Skyline on the instructions of Peter Claydon. White understood this wall to have been constructed following complaints by Chubb about the noise. The area in which the concrete cutting machine was operating after that time was reduced. At no time prior to 1.30pm was he made aware of any complaint as to fumes. 28 The Chubb Security workers in statements to the inspector identify various times at which they experienced symptoms such as headaches, dizziness, blurred vision, shortness of breath ( symptoms ) ranging from 8.00am (Thompson) and 8.30am (Vranjkovic), 10am (O'Neill) to as late as 12noon (Cuna). Chubb Security workers were working in the accounts payable area and also in the payroll area which was located next to the accounts payable area and separated from the accounts payable area by a floor to ceiling glass wall. Vranjkovic gave evidence that Chubb Security workers working in the payroll area were affected by symptoms about half an hour after persons in the accounts payable area. 29 Some Chubb Security workers such as Vranjkovic complained to their supervisors and managers of a strong odour entering the accounts payable area. Brian Shortall Chubb Security Facilities Manager claims to have been told of fumes at approximately 11.38am by his "PA" Jacki Lawson and further claims to have inspected the area and advised Peter Claydon of Skyline Interiors "to sheet up the area to stop any fumes leaching into the department". Mr Claydon does not make any reference in his statement to any such conversation with Mr Shortall. Mr Clayton states that a complaint was made as to noise at "about 1.00-1.10pm and the major concern of inhalation of toxic substance at approximately 2.15pm". 30 Seventeen (17) Chubb Security workers were hospitalised due to carbon monoxide poisoning. In total, forty-seven (47) persons were affected to varying degrees as a result of exposure to carbon monoxide. 31 On 18 February 2000, the NSW Fire Brigade attended the site and undertook tests and recorded carbon monoxide readings of between 0 to 31 parts per million in the time period 14.51 to 15.32 (2.51pm to 3.32pm). The highest reading, 31 parts per million (0.031%) of carbon monoxide was taken at 14.56 (2.56pm). 32 On 18 February 2000 Inspector Henson issued Prohibition Notice 112910 to Skyline Interiors directing Skyline Interiors to ensure the health and welfare of persons by providing and maintaining a safety-compliant ventilation/extraction system or by other means. 33 On 18 February 2000 Inspector Henson issued Prohibition Notice 112911 to Chubb Security Holdings Limited, directing Chubb Security to ensure the health, safety and welfare by providing and maintaining a safety compliant system of extraction/ ventilation system or by other means. Failure to conduct an adequate risk assessment 34 The Defendant did not undertake an adequate risk assessment process in relation to the risks arising from the work of concrete cutting to be performed at the premises. 35 The Defendant did not carry out the concrete cutting work in a manner as would satisfy the provisions of the Code of Practice "Cutting and Drilling Concrete and other Masonry Products" ( Code ). … Specifically, the Defendant failed to conduct an adequate process of hazard identification and risk assessment at the planning and preparation stage as set out in section 3.3 of the Code. 36 Exposure to carbon monoxide from internal combustion engines is known to constitute a risk to the health and safety of persons. The Defendant failed to take appropriate steps to prevent the risk of exposure to its employees and to non-employees. Failure to provide adequate training and instruction in risk assessment procedures 37 White was aware that the work to be performed at the premises was an indoor job which meant that he had to use the LPG saw. White was aware that he had to use the LPG saw as a petrol or diesel saw could not be used because of the fumes. 38 White could not remember receiving any training on the Code. 39 White did not receive adequate training and was not aware of the Code and had not been trained and instructed in the Code. 40 The Defendant did not ensure that an inspection of the premises was undertaken before the concrete cutting operations commenced. 41 The Defendant's documented training and induction on risk assessment Training Session Plan allocated 10 minutes to the Code and concrete cutting and drilling. Mr Armstrong explained his understanding of the induction training given to employees including training in the Code … and White was able to describe the training given to him … 42 White was not adequately trained or instructed to inform or advise persons in the vicinity of the concrete cutting operations to leave the area or to warn them of the possibility of fumes from the concrete cutting machine prior to commencing the concrete cutting work. 43 White was not adequately trained or instructed to ensure adequate ventilation during the concrete cutting operations. Failure to ensure employees and other persons on the premises were adequately warned of the risk of exposure 44 White warned the plumber of the risk of fumes and told him "to leave the doors and windows open", White did not warn any other person at the premises on 18 February 2000. 45 Neither White nor any other person from the Defendant warned the Chubb Security workers about the possibility of exposure to carbon monoxide from the concrete cutting machine. 46 The Defendant did not provide any information directly to Chubb Security workers about the concrete cutting operations and the risk of harmful emissions from the concrete cutting machine, specifically carbon monoxide. Failure to provide adequate ventilation 47 There was a window with 2 medium sized openings and a door in the proposed canteen area where the concrete cutting operations were being undertaken. 48 There was no forced air ventilation or extraction system utilised for ventilation for the concrete cutting operations at the premises as installed by the Defendant or any other person on 18 February 2000. 49 The Defendant failed to ensure adequate ventilation as set out in section 4.5 of the Code whilst using a concrete cutting machine powered by an internal combustion engine. Failure to ensure employees and other persons were adequately protected from inhaling or being otherwise exposed to carbon monoxide at the premises 50 Until about 1.30pm no attempt was made by the Defendant or any other person to evacuate persons from the adjacent office area and premises prior to and during the concrete cutting operations.

Failure to evacuate non-employees prior to the use of the concrete cutting machine 51 Neither Mr White nor anyone from the Defendant arranged for Chubb Security workers to be evacuated from areas of the premises where they may be affected by fumes from the concrete cutting machine. Failing to fit a carbon monoxide limiting device to the concrete cutting machine 52 The concrete cutting machine was not fitted with a catalytic converter or other carbon monoxide limiting device to reduce the emission of carbon monoxide as at 18 February 2000. In about March 2000 a catalytic converter was installed on the concrete cutting machine by MED. Failure to adequately service and maintain the concrete cutting machine 53 At the time of the testing of the concrete cutting machine by Test Safe Australia an observation was made that when operated on LPG the cable operated cold start enrichment device was stuck in the "on" position resulting in a "rich" mixture. 54 An inspection of the concrete cutting machine by Inspector Henson on 18 February 2000 resulted in the following observation: "The exhaust manifold of the concrete saw appeared to have a hole in it and was in a state of disrepair". Inspector Henson was the only person to have made such an observation. Both White and Armstrong gave evidence that no such hole was observed by them. Nor was any such observation made by any person associated with the testing of the machine at Test Safe Australia. Failure to prevent the concrete cutting machine from being used on the premises in its condition at the time 55 The condition of the concrete cutting machine "at the time" was that it was powered by an internal combustion engine fuelled by LPG which was not fitted with a catalytic converter and may have been running "rich" increasing the level of carbon monoxide emission.

9 Other evidence tendered by the prosecutor was a certificate of prior convictions showing the defendant had no prior convictions and a letter from Mr Pearson to lawyers for the prosecutor referring to a further report of Dr Crank.

10 The evidence for the defendant in the sentencing proceedings was a supplementary report by Dr Crank, a report into the accident by Shannon White dated 21 February 2000 and an affidavit of Reginald Charles Armstrong, director and managing director of the defendant.

11 In his affidavit Mr Armstrong deposed that he held the belief that the concrete cutting saw was suitable for indoor work because it had been converted from petrol to LPG and a catalytic converter had been fitted. However, the machine did not have a catalytic converter fitted until after the incident on 18 February 2000. Mr Armstrong attached to his affidavit the defendant's tax returns for the years 1999 to 2001, the revenue statement and balance sheet for the financial year 2002/2003 and a revenue statement for the half-year ended 31 December 2003. Mr Armstrong said that total revenue expectations in 2003/2004 were in the order of $2-2.2 million and net profit after tax in the order of $140,000-$180,000.

12 Mr Pearson also gave oral evidence that related mainly to his response to the supplementary report by Dr Crank. Mr Pearson was cross-examined about the effects of carbon monoxide poisoning and the differences between his report and that of Dr Crank. The prosecution cross-examined Dr Crank about his reports, particularly regarding the effects of various levels of carbon monoxide in the blood and the risks those levels posed to humans.

13 The defendant in this case has pleaded guilty to two offences under the Occupational Health and Safety Act. The offences arise out of the same factual matrix. In assessing the objective seriousness of the offence there are a number of factors to be considered. These include the nature and quality of the offence and whether it involved obvious and foreseeable risks, whether there were simple and straightforward steps available to remedy any failures on the part of the defendant and, whether injuries sustained by an employee or person manifested the degree of seriousness of the relevant detriment to safety.

14 This was not a case where the defendant recklessly provided the saw for use indoors indifferent to whether or not the saw might cause carbon monoxide poisoning. I accept the evidence that the defendant believed the saw to be safe to be used indoors. However, a mere belief that the saw was suitable to be used indoors falls well short of meeting the defendant's obligations under the Occupational Health and Safety Act to ensure health and safety. The defendant knew of the danger of using petrol and diesel powered saws in indoor areas and was, therefore, aware of the danger of carbon monoxide emissions. The defendant had a positive duty to satisfy itself that the saw used in the subject incident would not emit carbon monoxide. Merely thinking that it had been fitted with a catalytic converter and allowing it to be used indoors was a careless assumption on the part of the defendant with serious consequences that might well have been worse.

15 The fact that the defendant did not carry out the concrete cutting work in a manner that would have satisfied the provisions of the Code of Practice for "Cutting and Drilling Concrete and Other Masonry Products" was indicative of a lack of proper regard for its obligations under the occupational health and safety legislation. Notwithstanding that the defendant believed the saw was suitable for use indoors the Code required a number of steps to be taken to ensure it was used safely. The defendant's regard for the Code was limited to warning the plumber of the risk of fumes and telling him "to leave the doors and windows open".

16 No risk assessment was undertaken by the defendant; no inspection of the premises was undertaken before the concrete cutting operations commenced; Mr White, the saw operator, had not received adequate training and was not aware of the Code and had not been trained and instructed in the Code; Mr White was not adequately trained or instructed to inform or advise persons in the vicinity of the concrete cutting operations to leave the area or to warn them of the possibility of fumes and he did not so inform or advise them; and, Mr White was not adequately trained or instructed to ensure adequate ventilation during the concrete cutting operations. The risk arising from these failures, namely, that persons could be affected by toxic carbon monoxide fumes, was obvious.

17 The defendant submitted that: The obligation to evacuate the Chubb Security employees was not solely the responsibility of the Defendant. From about 11.38am if not before Chubb was aware of the existence of fumes and took no steps to ascertain the nature of or source of such fumes or even consider evacuation. Chubb's acts and omissions exacerbated the full seriousness of the incident. The full effects of the carbon monoxide poisoning cannot be sheeted home exclusively to Supercut.

18 The prosecutor referred to what the Full Bench said in James Manassa v WorkCover Authority of New South Wales [2003] NSWIRComm 348 at [45] - [47]: 45 Counsel for Mr Manassa, on a number of occasions, referred to the fact that the other company director was not charged as being a relevant factor in the present matter. There is no evidence before this Court as to the role of the other director which would enable an assessment to be made of the culpability of Mr Manassa having regard to the activities and omissions of others. The evidence did demonstrate that the company had a full excavation and demolition certificate because of the qualifications of Mr Manassa. He was the general manager of the company and he was the overall supervisor. In WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Ltd and anor (1999) 95 IR 383, the Court dealt with a similar submission and at 437, stated: Nor is it consistent with the principle of parity or the abovementioned decisions for the Court to embark upon an enquiry in sentencing proceedings which, in substance, would require the Court to make specific findings as to the culpability of such entities under s 17 and the "nature and quality" of any offence committed by them. Embarking upon an enquiry as to whether prosecutions should have been commenced or continued against various entities, or whether those prosecutions may have been successful, would involve the Court conducting a procedure which would be, as the prosecution submitted, tantamount to conducting a trial of the other entities. In any event, the Court, would, if it adopted the contentions of approach by the defendants, be required to make unqualified adverse findings concerning an entity which had no opportunity to answer the allegations made against it.

46 Similarly, in WorkCover Authority (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316, Hungerford J, at [46] stated: As to the contribution of other persons for what occurred, so much relied upon by Mr Phillips here to reduce the culpability of the present defendant, I have to say I think counsel overstated the position and in such a way as to invite error in the sentencing process. There can be no doubt, in my view, that in determining the culpability of the defendant the role played by other parties is necessary to be considered as part of a review of the total circumstances of the case. However, it cannot, I think be used to itself reduce the culpability of the defendant in any sharing or proportionate way of an overall penalty but only as a factor assisting in the determination of the real culpability of the defendant for the offence charged.

47 In the present case there is no evidence of the actions or omissions of the other director which could properly be taken into account in assessing the culpability of the appellant, Mr Manassa.

19 In assessing the objective seriousness of the offence I have taken into account the action of Chubb employees after they became aware of fumes. However, as it is clear from WorkCover Authority (Inspector Carmody) v Consolidated Constructions Pty Ltd, this of itself does not reduce the culpability of the defendant.

20 The seriousness of an offence may be compounded by the fact that there were simple, straightforward steps available to the defendant to ensure the safety of employees but the defendant failed to take those steps. The steps available to the defendant to avoid or prevent the risk arising were simple and straightforward. These included ensuring the machine was fitted with a properly functioning catalytic converter and following the Code of Practice relating to cutting of concrete in a confined space or poorly ventilated area.

21 The gravity of an injury resulting from a breach of the Act does not of itself dictate the amount of penalty. However, the occurrence of death or serious injury may manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32] and the cases referred to therein. In this case 47 persons were affected to varying degrees as a result of exposure to carbon monoxide and of these 17 persons were hospitalised. There was some debate about the seriousness of the potential risks to persons who were subjected to the fumes. The evidence appears to suggest that carbon monoxide will affect some individuals more quickly than others; that smokers are more susceptible than non-smokers, as are persons with a heart condition. But it is generally accepted that persons with a level of 40 to 50 per cent of carboxyhaemoglobin in the blood will experience headache, confusion and collapse. A level of 80 per cent will be "rapidly fatal".

22 The fact that no person fell unconscious is no reason to suggest that the risk to health and safety in this case was not serious. Even if no person suffered to any degree from the effects of carbon monoxide poisoning the fact that persons were put at risk of such poisoning by the defendant's failures would constitute an objectively serious offence. As it was, 17 employees were hospitalised because of the effects of carbon monoxide poisoning. If the exposure to the carbon monoxide had been any longer than it was it is likely that persons would have suffered even more serious physiological symptoms than otherwise was the case.

23 In Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. In Inspector Jones v T Helsby & Sons Contracting Pty Ltd (No 2) the Court said at [12]: The use of concrete cutting machines is common throughout the building and construction industry and it would appear that such machines can be utilised in enclosed areas, although how safe that practice might be would depend on the area where the machine is to be used and the measures taken to ensure persons are not affected. It is important, in my opinion, that employers who use concrete cutting machines in enclosed areas understand that the work is to be done in a manner so as to ensure the safety of persons who might otherwise be affected by fumes from the machine and that any breach of the occupational health and safety laws in this respect may attract a heavy penalty.

24 I take the same approach to the question of general deterrence in this case. As to specific deterrence, the defendant has taken steps to avoid a re-occurrence of the incident by fitting a catalytic converter to the machine. Moreover, the defendant has been in business for many years without incident, recognises its obligations as to occupational health and safety and takes them seriously. The penalty should not reflect a significant element for specific deterrence.

25 The maximum penalty prescribed for an offence is also a consideration when assessing the objective seriousness of the offence. In this case the prosecution raised the question of whether, given there were two offences, s 51A of the Act applied. In other words, given there were two offences, is it the case that for the first offence a maximum penalty of $550,000 applies and for the second offence does a maximum of $825,000 apply? The prosecutor submitted that "at the time of imposing a sentence in respect of the second offence that the defendant's previous conviction in respect of the first offence means that s 51A is attracted." The respondent submitted the prosecutor was wrong and that there were two current offences, each attracting a maximum penalty of $550,000.

26 Section 51A of the Occupational Health and Safety Act provides as follows: 51A Additional penalty for further offence against the Act (1) A Court that convicts a person of an offence (the current offence ) against this Act may, if the person has previously been convicted of an offence against this Act (whether the same offence or another), impose as additional penalty in respect of the current offence not exceeding the following penalties: (a) if the current offence is an offence against section 15, 16, 17 or 18 of this Act - 2,500 penalty units in the case of a corporation or 250 penalty units or 2 years imprisonment, or both, in any other case, or (b) if the current offence is any other offence against this Act - 50% of the maximum penalty for the offence (that is, 50% of the maximum penalty that would apply but for this section). (2) For the purposes of section 47 (Summary procedure for offences), the maximum penalty provided in respect of an offence is, in the case of an offence to which this section applies, taken to include any additional penalty that may be imposed under this section. (3) This section applies even if the previous offence concerned was committed before the commencement of this section.

27 It was submitted for the prosecutor that: [T]he primary submission of the prosecution is that Your Honour's recording on 23 April 2003 of the pleas in relation to both matters constitutes convictions. In a defended summary hearing, the findings that each of the multiple offences is proved each constitute a finding or verdict and each is therefore a conviction. The alternative submission is that Your Honour should follow the sentencing procedure applied in, for example, Inspector Keniry v Crown in Right of the State of New South Wales (Department of Community Services) (2002) 120 IR 269 at 325 - 326 [77] - [78]. Where there are multiple offences to which guilty pleas have been entered, the Court often makes orders that convict the defendant separately of each offence charged and then imposes the fine in respect of each offence with moiety thereof to the prosecutor. Whether the primary or alternative submission is accepted, in respect of the second offence or, in other words, what will then be the current offence for the purposes of s 51A of the OHS Act 1983, this provision is invoked, so that the maximum available penalty is $825,000 rather than $550,000.

28 Mr B G Docking of counsel for the prosecutor submitted that support for the proposition that the Court should apply the higher available maximum penalty in respect of the second offence is found in the principle of totality. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality. It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflects the totality of the criminality involved. This principle, Mr Docking submitted, applies to an offender charged with two offences arising out of the same incident: Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at [45]; Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 at [21] - [29], [36] - [38]; Inspector Keniry v Crown in Right of the State of New South Wales (Department of Community Services) at [74] - [76]; and O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) [2003] NSWIRComm 303 at [177] - [180].

29 Mr Docking also relied on the judgment of Schmidt J in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245 at [23] - [24] and [29] - [31].

30 Mr R Moore of counsel for the defendant submitted: (a) At the time of the commission of the current offences the defendant had no prior convictions, that is, the defendant had not been convicted of an offence against the Act.

(b) The approach to be adopted to the construction of s 51A is "the usual approach to construction: See Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610, 99 IR 29 at [43].

(c) In the Second Reading Speech the Minister utilised the words "whether dealing with a first or repeat offence". The use of the word "repeat" is important and was used by the Full Bench in Capral : See Capral at [51] and [52].

(e) Prior to the present proceedings the defendant had no prior convictions.

(f) The offences the subject of the present proceedings arise out of the same factual matrix on the same day. On that day at the time of the commission of the offences the defendant had no prior record of conviction.

(g) To adopt the interpretation put forward by the prosecution would do violence to s 51A in terms of its clear expressed purpose, namely, to appropriately punish repeat offenders.

31 This issue is not without some difficulties. On the one hand, it hardly seems an appropriate and just outcome to impose a higher penalty in respect of an offence that could not reasonably be regarded as a repeat offence. The two offences that are the subject of these proceedings, whilst distinct, were committed simultaneously by dint of the fact that as it so happened both employees and non-employees were put at risk at the same time and in essentially the same circumstances. The underlying rationale for the additional penalty for subsequent offences, which appears to be one of extra deterrence against the prospect of a repeat offence, bears no relevance at all to a second offence committed simultaneously with the first.

32 On the other hand, if a defendant who committed simultaneous offences under s 15(1) and s 16(1) of the Act had pleaded guilty to the offences and sentencing proceedings in relation to the offence under s 15(1) were conducted first and a conviction was recorded, on its face s 51A would mean that on the later sentencing in relation to the offence under s 16(1), the conviction in relation to the s 15(1) offence would be a previous conviction and, therefore attract a higher maximum penalty.

33 I do not agree with the prosecutor's submission that the recording of the guilty pleas on 23 April 2003 constituted convictions. Whilst the Court has received pleas of guilty from the defendant in relation to the two offences with which it is charged, the Court has not yet entered a verdict of guilty and has not convicted the defendant of the charges. Before recording a conviction the Court needs to be satisfied the pleas were properly entered and only after hearing the evidence in the matter and the submissions of the parties can the Court be so satisfied. However, I note Mr Docking's reliance on the judgment of the Full Court of the Victorian Supreme Court in R v Tonks and Goss (1963) VR 121 at 127-128 where it was said that "If a trial judge does some act consistent with there being a conviction, I do not consider that he must utter some formula to make that action effective." 34 Presumably, an act that might be consistent with there being a conviction, is how the Court should approach the question of totality, namely: It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflects the totality of the criminality involved.

35 In other words, as I understand Mr Docking's submission, a conviction would have been effectively recorded if the Court, in dealing with the totality principle, determined an appropriate sentence for each offence. Once the Court had done this in relation to one of the offences it would become a previous offence for the purpose of s 51A and the other offence would attract the higher maximum penalty.

36 Mr Docking's alternative submission was that if the Court was to follow the procedure applied in Inspector Keniry v Crown in Right of the State of New South Wales (Department of Community Services) where the Court made orders that convicted the defendant separately of each offence charged and then imposed the fine in respect of each offence, whichever offence was first recorded as a conviction was to be regarded as a previous conviction under s 51A.

37 Despite the difficulties associated with interpreting s 51A of the Act I do not consider it was the legislature's intention that where: · a defendant committed simultaneous offences under s 15(1) and s 16(1) in circumstances where the defendant had no previous convictions; · the offences arose out of the same factual matrix; · there was a substantial overlap between the failures charged in the two offences; · the two offences were effectively prosecuted as one;

that whichever of the two offences was first recorded as a conviction becomes a previous conviction for the purpose of s 51A.

38 Mr Docking's reliance on R v Tonks and Goss is, I think, misplaced. Whilst the question of totality will be dealt with in the body of any judgment and indicates a guilty verdict and conviction this Court's usual practice is to formally record a guilty verdict and conviction in the making of any orders and there is no need to search for some other basis as to whether or not there is a conviction. In order to avoid any doubt and to overcome Mr Docking's contention, which I consider would lead to a most unjust outcome, I propose to record the convictions simultaneously.

39 I consider that s 51A of the Act has no application to either of the offences in these proceedings and the maximum penalties in each case are $550,000.

40 In relation to subjective factors that mitigate the seriousness of the offence, I have already referred to the steps taken by the defendant to avoid a re-occurrence of the incident; I accept the defendant is a good corporate citizen and that it is genuinely contrite. The defendant is not entitled to a full discount for the utilitarian value of its guilty plea. However, I am prepared to discount any penalty by 15 per cent for this factor. The other subjective factors mean that a further discount of 10 per cent is appropriate.

41 The defendant submitted that in fixing any penalty I should have regard to s 6 of the Fines Act 1996, which provides: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

42 As Mr Moore properly conceded the defendant is a "small but profitable company". At the time of the incident it employed some 15 employees and continues to employ about that number. The defendant is not one of those corporations that relies on the personal exertions of its owner and which might, therefore, attract special consideration. Moreover, as it was observed by Wright J, President in Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [27]: [A] consideration of the means of the defendant with the conclusion that a heavy fine may be a burden on the defendant and its financial resources does not necessarily preclude the imposition of a heavy penalty: Ferguson v Nelmac Pty Limited at 209; Department of Mineral Resources of NSW v AM Hoipo & Sons Pty Ltd [2000] NSWIRComm 16 at 51. See also R v Rahme at 86 - 87 and R v Sgroi at 201.

43 I do not intend to give much weight to the defendant's evidence regarding its financial position as being a proper basis for not imposing a fine that is commensurate with the seriousness of the offence.

44 As noted earlier in this judgment, T Helsby & Sons Contracting Pty Ltd was fined $220,000 in relation to the same incident that constituted the basis for the charge against the defendant. When one considers the objective seriousness of the offences committed by these two defendants it may be said that the culpability of Supercut is not significantly less than that of Helsby. Whilst the defendant in this case did not knowingly put persons at risk, neither did Helsby because it relied on statements by Supercut employees that the machine was suitable for indoor work. It is, therefore, necessary that there is some consistency in sentencing between the two defendants.

45 The principle of totality was considered in some depth by the Full Bench in (Wright J, President, Walton J, Vice President, Hungerford J) in Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan (2001) 105 IR 181 at 192-197; [2001] NSWIRComm 106 at [21]-[38]. At [36] to [37] the Full Bench stated: 36 This review of the authorities establishes that in determining penalties for multiple offences under the Occupational Health and Safety Act the Court is required to determine separately an appropriate penalty for each offence. Having done so, the Court should then consider what the appropriate penalty should be by applying the principle of totality. Where the multiple offences contain common elements, the principle of totality must, for that reason alone, be applied to ensure that the defendant is not punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if that occurred. The principle must also be applied for the reasons stated in Pearce and Mill . 37 We should emphasise that the principle that a defendant is not to be punished more than once for the common elements of the offences does not require that a single penalty only should be imposed for the multiple offences. The Court is required to determine a separate penalty for each offence before applying the principle of totality. It will then usually be appropriate to fix separate penalties for each offence. It is in applying the principle of totality - which requires the consideration of the overall criminality involved in the offences - that regard should be had to the principle that a defendant is not to be punished more than once for elements which are common to the offences as well as ensuring the aggregate sentence or penalty is just and appropriate.

46 The defendant's failures in this case were very serious and the consequences could easily have been worse than what they were if persons, because of their condition, had been more susceptible to the carbon monoxide fumes than other persons in a normal state of health. A large number of persons were put at risk because the defendant simply believed the concrete cutting machine was suitable for indoor work but took no positive steps to satisfy itself that carbon monoxide emissions would not create a risk to health and safety.

47 In light of the objective seriousness of the offences with which the defendant is charged under s 15(1) and s 16(1) of the Act I consider that the appropriate penalty is $200,000 for each offence. These should be discounted by 25 per cent to take into account relevant subjective factors. This results in a penalty of $150,000 for each offence.

48 On the basis of the foregoing, the total penalty would be $300,000. However, there is a very considerable overlap in the failures charged in the two offences. Applying the totality principle, I consider that the total fine should be $150,000 with the penalty for each offence being $75,000.

49 The Court makes the following orders: 1 The offences with which the defendant is charged are proven and verdicts of guilty are entered; the defendant is convicted of the respective charges. 2 In respect of the offence in Matter No. IRC 896 of 2002 the defendant is fined an amount of $75,000. 3 In respect of Matter No. IRC 898 of 2002 the defendant is fined an amount of $75,000. 4 The prosecutor is to have a moiety of each of the fines. 5 The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to any of the parties to approach the Court for final orders as to costs.

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