37 The defendant contends that a number of other parties should also bear "some significant responsibility" for the incident and the circumstances that gave rise to it.
38 In considering the issue, regard must be had to the relevant principles formulated in this jurisdiction as to the correct approach to be taken by a court in assessing the culpability of a defendant, against the culpability of other persons, natural or corporate, who have not been prosecuted in relation to the particular incident which gave rise to the charge or charges against that defendant.
39 Some authorities which have dealt with the respective culpabilities of other responsible parties who have not been prosecuted were collected and summarised by Walton J, Vice-President, in the Department of Mineral Resources (Chief Inspector Mackenzie) v Berrima Coal Pty Ltd and Another (2001) 105 IR 348:
"[191] In Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312, a Full Bench of the Court considered that the absence of prosecution against other parties upon whom a defendant had reasonably relied meant that the sentence imposed upon the defendant gave rise to a justifiable sense of injustice (at 322-323).
[192] This contention was also raised in WorkCover Authority (NSW) (Inspector Ankucic) v McDonalds Australia Ltd (2000) 95 IR 383. In that case the defendants relied upon the Nesmat decision and Wong v Melinda Group Pty Ltd (1998) 82 IR 118. In Wong , the defendant was charged after a window cleaner died as a result of a fall from a building owned by it. Charges were only laid against the defendant, even though the deceased was not its employee and it had not been informed that the work was occurring contrary to its own policy. The Court concluded that these circumstances were relevant to the assessment of penalty. Of particular relevance was the "equality of treatment in terms of the relative seriousness of the offence". In the McDonalds case I considered that what the Court was paying regard to in Wong was the (at 437):
"... actual contribution of the defendant for the purposes of assessing penalty .. [having] regard to the fact that the defendant was virtually wholly removed from the causal factors for the incident or the work actually performed by the window cleaner and even lacked knowledge of the performance of the work actually performed ..."
[193] Further, I stated (at 437): "The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken.
This approach is consistent with the approach in Nesmat and Wong . Nothing in the decision in Nesmat warrants the adoption of the further approach contended for by the defendants that the Court should assess, in the context of the sentencing of the defendants, whether a prosecution should have been continued against Lennard and Mercer. Nor is it consistent with the principle of parity or the abovementioned decisions for the Court to embark upon an inquiry 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."
[194] I note also that this analysis of Nesmat and Wong has been affirmed by Wright J, President, in Walco (No 2) where his Honour stated (at par 31):
"... In any event, as I understand the decision of the Full Bench in Nesmat Pty Ltd it was not held that the failure to prosecute a defendant which was otherwise appropriate to be prosecuted was a matter which, of itself, would mitigate the penalty. Rather, what the Full Bench decided was that in a situation where there had been a failure, in assessing a defendant's relative culpability, to consider the inter-related culpability of another party which had not been prosecuted, and that failure resulted in an inappropriate penalty being imposed, that situation itself engendered an appropriately based sense of grievance which was in turn emphasised by the failure to prosecute the other potential defendant."
[195] And further (at par 33):
"The Court was there reflecting upon a number of considerations, both objective and subjective (but particularly the former), which it concluded had not been taken into account sufficiently at first instance. Particularly relevant was the role of the other potential defendant which had not been charged and its role, both independently and contributory, in the events which had led to the defendant's conviction. Such matters, as is clear from the second last paragraph cited, were crucial to an assessment of the culpability of the defendant. The reference to the 'justifiable sense of grievance' is also relevant to the application to the appeal principles which were applicable at the time of that appeal (for example, House v The King (1936) 55 CLR 499 and Cranssen v The King (1936) 55 CLR 509) which are different to those now applicable under s 196 of the Industrial Relations Act 1996 and, for example, Fletcher Construction Australia Ltd v WorkCover Authority (NSW) (Inspector Fisher) (1999) 91 IR 66 at 75. This analysis is consistent with the approach of Walton J, Vice-President, in WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (at 436-438).
The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. that fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them."
40 The Court proposes to apply these principles in its analysis of the respective culpabilities, if any, of other parties who were present at the site or who had some involvement in the work being undertaken at the site during the period when the work of transporting the facilities, including the shearing shed, was first devised and implemented. The first observation I would make is that the Court has before it very little evidence upon which to make an assessment of the respective contributions of other parties to the exposure of the workers to the risk to their safety posed by the presence of the overhead power lines. There is no evidence, for example, of what, if any, safety systems, procedures or training and instruction regimes were in place with regard to Mr Eslick's engagement at the site and in relation to the particular task he was undertaking with Mr Pusterla and Mr Sharp at the time of the incident. It is not enough to assert that Alpha is a labour hire company with attendant health and safety obligations under the relevant litigation. There must be shown to exist some connection between proven acts and omissions of Alpha which resulted in a risk to the safety of Mr Eslick (as well as Messrs Pusterla and Sharp), referable to the circumstances of the incident of 24 June 2003. The absence of any such evidence with regard to Alpha's role precludes the Court from undertaking an analysis of Alpha's role in the circumstances upon which the charges against the defendant were based.
41 I have already expressed a view in these sentencing reasons that Mr Sharp cannot be held responsible for the incident and the circumstances which gave rise to that incident. The defendant was responsible for devising and implementing the work method at the site, which, for reasons earlier stated, was deficient in a number of respects and directly impacted on worker safety, including the safety of Mr Sharp. Of significance, and determinative of this issue, is the fact that the Court has before it no reliable evidence upon which to assess Mr Sharp's role in the enterprise or the extent of his training, experience and qualifications in matters of safety. The Court does not know to what extent, if at all, Mr Sharp was inducted to the work site, or if he was at all familiar with the defendant's proposed work method and safety regime. There is some hearsay material concerning conversations which Mr Sharp is alleged to have had with various persons concerning the incident, which are set out in Mr Wilson's statement of 5 December 2001. It is part of the agreed facts that Mr Sharp was not shown or provided with documentation relating to the use of the crane to transport materials to the lay-down area, although he discussed the issue with Mr Pusterla and Mr Eslick. Mr Sharp was not shown or provided with a job safety analysis. Mr Sharp has not been charged in relation to the incident and he was not called to give evidence in relation to the matters in these sentence proceedings. The prosecutor conceded that Mr Sharp, in the known circumstances, could have acted with more regard to safety. The concession was made by reference to the principle that the absolute duty (to ensure safety) is a duty owed, not only to the careful and observant worker, but also to the hasty, careless, inattentive, unreasonable and, as some authorities have held, the disobedient worker. Based on the paucity of evidence as to Mr Sharp's role, the Court is unable to assess to what extent, if at all, Mr Sharp might fall into one of the above categories.
42 With regard to Mr Pusterla, the defendant has sought to rely on a passage from the Full Bench decision of Riley v Australian Grader Hire (2001) 105 IR 143, extracted from [15]:
"Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing."
43 According to the defendant Mr Pusterla, "for all purposes was representative of the company, so his negligence ultimately made the company liable". In my view, the defendant's contention is not sustainable. First, although Mr Pusterla was one of the site supervisors designated by the defendant, Mr Wilson, in his own words, had "overall responsibility" for the task the defendant had been engaged to perform at the site. The Plan proposed by the defendant for the work stated:
"[the defendant] senior management will be responsible for the overall execution of the contract, including all OHS&R responsibilities. Primarily, Rex Wilson will be responsible for the overseeing of the project works, with delegation of day-to-day on-site responsibilities to the (daily) nominated site supervisor."
44 Secondly, although Mr Wilson had formed the view that Mr Pusterla was a competent supervisor, the evidence set out in the agreed facts suggests that Mr Pusterla was not experienced to any significant degree, either as a supervisor or with regard to the task of dismantling and removing items in the vicinity of overhead power lines. According to the agreed facts, Mr Pusterla was first employed on a casual basis by the defendant in August 2002 as a pump serviceman. His employment was made permanent in February 2003. At that time, Mr Pusterla was sent a letter of employment which set out his duties:
"The position involves the carrying out of all/any pump/related works, carrying out of fabrication of steelworks as required, and including supervision of apprentices/trades assistants/lesser qualified tradesmen, organising materials, assisting with estimating and pricing where your competence is particularly relevant, accurate and prompt submission of time and materials sheets from jobs, ordering materials as required including accurate and prompt submission of paperwork, and ensuring best service for our customers."
45 The defendant operated its business in the areas of electrical, pumps, filtration and irrigation, although it had done general civil construction work prior to the incident. Of significance is the agreed fact that, prior to the incident, the defendant had not engaged in work involving the dismantling, removal and/or reconstruction of a shearing shed. According to Mr Wilson, Mr Pusterla had acted as a supervisor on two occasions prior to the incident. He had also completed a one-day training course for his OH&S Construction Card, as required under the OH&S regulations. In addition, Mr Pusterla held trade qualifications as a fitter and turner and had been issued a TAFE Statement of Attainment in Hydraulics in December 1991.
46 Based on the available evidence as to Mr Pusterla's training, qualifications and experience in construction work, the Court is not convinced that Mr Pusterla possessed suitable qualifications or experience in the work he was performing as a site supervisor on the day of the incident. The evidence does not disclose that Mr Pusterla had any formal qualifications as a supervisor of construction work. His on-the-job training in the role appeared to consist of only two prior occasions when he acted as a supervisor. According to the agreed facts, Mr Pusterla had no qualifications with regard to dogging and had had no training in relation to acting as a spotter. He had worked as a farmer, "all his life", and had no prior experience in the type of work he was performing at the time of the incident.
47 Thirdly, it cannot be conclusively determined on the state of the evidence that Mr Pusterla's conduct leading up to and on the day of the incident was negligent. Mr Wilson had formed a view that Mr Pusterla was a competent supervisor which tends to militate against the defendant's suggestion that he was at the same time negligent. What the evidence has disclosed on this matter is that Mr Pusterla was not appropriately trained or qualified to do the work he was performing at the site. One of the particulars of the charges to which the defendant has pleaded guilty was that it allowed Mr Pusterla to work as a site supervisor without any training, qualifications or experience as a dogman, crane chaser or spotter.
48 I find therefore that Mr Pusterla's actions did not contribute to the causative facts which led to the offences with which the defendant has been charged.
49 Other entities nominated by the defendant as having responsibilities with regard to safety matters at the site at the time of the incident were Cadia and McMichael. According to the agreed facts, Cadia was a wholly owned subsidiary of Newcrest and the owner of the site. McMichael, an agricultural specialist, engaged by Cadia, contracted the defendant to undertake the work of dismantling and removal of the shearing shed and other facilities at the site. Neither entity, the Court has been informed, has been charged with an offence in relation to the circumstances which gave rise to the incident of 24 June 2003. Nevertheless, the defendant has put to the Court that each entity should be held responsible to a significant degree for the incident and the circumstances which gave rise to that incident.
50 Mr Steele, it will be recalled, had indicated to Mr Wilson in general terms the original proposed location of the lay-down area. After this, on 26 May 2003, a meeting between Cadia representatives, including Nedra Burns and Alan Linnane, a farm agistee, produced agreement that the shearing shed would be stored near the machinery shed. This new proposed site involved passage of the disassembled shed underneath the power lines. On 29 May 2003, Mr Steele sent an email to Nedra Burns informing him that the lay-down site would be near the hay shed. This site also involved passage of the disassembled shearing shed underneath the power lines. None of this information was passed on to the defendant by either Cadia or McMichael. In addition to the change in location of the lay down area, the forklift trucks could not be utilised to transport the items because of ongoing bad weather and the decision was made to use the crane. None of these matters were brought to Mr Wilson's attention although, as I have earlier remarked, they could have been easily ascertained by the defendant before the incident occurred and preventative steps could then have been taken.
51 Cadia and McMichael were aware at least from 29 May 2003, that the transportation route for the shearing shed components would involve travelling under the power lines. Cadia, as the owner of the site, and McMichael, as Cadia's authorised representative at the site, had, in my view, obligations to ensure that the workers engaged in transporting the items under the power lines could perform the work safely. There is a paucity of evidence as to what, if any, measures were taken by either party in that regard. What is known is that Cadia purported to exercise some control over the site before the incident by undertaking site inspections and requesting, on one occasion, that scaffolders wear safety harnesses. McMichael also undertook site inspections and engaged the defendant to undertake the work of dismantling and transporting the shearing shed. It may be inferred from the degree of involvement that both parties had at the site that they at least acquiesced in the decision taken by someone, or by someone in consultation with others, to transport the items under the power lines using the crane. If so, it was incumbent on both parties to take appropriate measures to ensure the task was accomplished without exposing the workers to the dangers associated with working in the vicinity of the power lines. These factors will be taken into account in mitigation of the objective seriousness of the offences with which the defendant has been charged by reference to its culpability, with respect to those offences.
Whether corporate structure may impact on penalty