Inspector Rodney Dubois v Integral Energy Australia

Industrial Relations Commission (NSW)|1994-05-20|Before: Kavanagh J, Fisher CJ, Ms P, Dr J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Rodney Dubois v Integral Energy Australia [2002] NSWIRComm 75 PROSECUTOR: PARTIES : Inspector Rodney Dubois DEFENDANT: Integral Energy Australia FILE NUMBER: IRC1650 of 2001 CORAM: Kavanagh J CATCHWORDS : Prosecution s15(1) of the Occupational Health and Safety Act - workers exposed to risk and injured - Safety procedures in place but work method varied - no proper supervision of a task recognised as one with a risk to safety - no risk assessment of work method once established procedure varied - amended application for order attracts plea of guilty to charge - circumstances reveal first hearing day was first reasonable opportunity to enter plea - full discount allowed for utilitarian value of such a plea - Penalty Imposed. LEGISLATION CITED : Occupational Health and Safety Act 1983 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Tyler v Sydney Electricity (1993) 47 IR 1 Haynes v James Glass & Aluminium Pty Limited (unreported decision of Fisher CJ, CT91-772-775, 20 May 1994) Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610, (1999-2000) 99 IR 29 CASES CITED : Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Cameron v The Queen [2002] HCA 6 R v Thompson, R v Houlton (1999-2000) 49 NSWLR 383, (2000) 115 ACrimR 104 Channon v The Queen (1978) 20 ALR 1 WorkCover Authority of New South Wales v Develco Projects Pty Limited [2001] NSWIRComm246 Inspector Tyler v Fletcher International Exports Pty Limited (No 2) [2001] NSWIRComm228 HEARING DATES: 03/07/2002 DATE OF JUDGMENT: 04/22/2002

PROSECUTOR: Ms P.E. McDonald of counsel SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Dr J. Macken SOLICITORS: Leigh Virtue & Associates

JUDGMENT: - 15 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Mon 22 April 2002 IRC1650 of 2001 INSPECTOR RODNEY DUBOIS v INTEGRAL ENERGY AUSTRALIA Prosecution under s15(1) of the Occupational Health and Safety Act 1983

JUDGMENT [2002] NSWIRComm75 1 This Prosecution is brought by Inspector Rodney Dubois of the WorkCover Authority under the provisions of s15(1) of the Occupational Health and Safety Act 1983. The Prosecutor by consent sought leave, which was granted, to proceed by way of an amended application for order in matter No. IRC1650 of 2001 which now reads: INTEGRAL ENERGY AUSTRALIA, a statutory corporation established pursuant to s.7 of the Energy Services Corporations Act 1995 (NSW) whose principal place of business is located at 51 Huntingwood Avenue, Huntingwood in the State of New South Wales ("hereinafter referred to as the Defendant") being an employer on 26 March, 1999 at Fifteenth Avenue, Kemps Creek in the State of New South Wales DID FAIL , contrary to Section 15(1) of the Occupational Health & Safety Act 1983 (NSW): To ensure the health, safety and welfare of all of its employees and, in particular, Alan James Milsom and Adrian Ware in that the Defendant failed to provide or maintain systems of work that were safe and without risk to health and that the Defendant did fail to provide such supervision as may be necessary to ensure the health and safety at work of the employer's employees. Relevant particulars of the charge are as follows: (r) It is alleged that on 26 March 1999 the Defendant, Integral Energy Australia, being an employer at the said site, contrary to Section 15 (1) of the Occupational Health and Safety Act 1983 (NSW) failed to ensure the health, safety and welfare of all of its employees and, in particular, Alan James Milsom and Adrian Ware in that the Defendant failed to provide or maintain systems of work that were safe and without risk to health and that the Defendant did fail to provide such supervision as may be necessary to ensure the health and safety at work of the employer's employees. 2 The defendant pleaded guilty to the amended charge on the date of the hearing. The charge had not been amended until that date.

3 The agreed statement of facts states: 1. The Prosecutor is and was at all material times an Inspector:- (a) duly appointed under Division 4 of Part 3 of the Occupational Health & Safety Act 1983 (NSW) ("the 1983 Act"); (b) taken to be appointed as an Inspector under the Occupational Health & Safety Act 2000 ("the 2000 Act") by virtue of Clause 11 of Schedule 3 to the 2000 Act; and (c) empowered under s.106 of the 2000 Act, as extended by Clause 13 of Schedule 3 to that Act to institute proceedings in the within matter . 2. At all material times the Defendant, Integral Energy Australia, was a statutory corporation established pursuant to s.7 of the Energy Services Corporations Act 1995 (NSW) and is empowered pursuant to that Act to distribute and retail electricity in New South Wales ("the undertaking"). 3. Consistent with this purpose, employees of the Defendant were undertaking duties involving the replacement of low voltage conductors at the site on 26 March, 1999. 4. At all material times the Defendant's principal place of business was located at 51 Huntingwood Avenue, Huntingwood in the State of New South Wales. 5. At all material times the Defendant was an employer at a site located at Fifteenth Avenue, Kemps Creek in the State of New South Wales ("the site"). 6. At all material times the site was the Defendant's place of work. 7. The Defendant at all material times employed Alan James Milsom as a Linesman and Adrian Ware as an Electrical Fitter/Mechanic. Messrs Milsom and Ware were at work at the site 26 March, 1999 performing a procedure known as a low voltage augmentation of three (3) bays of redundant conductor. 8. During the untying and lowering of the conductors at the said site, Messrs Milsom and Ware suffered severe electrical burns when the low voltage conductor came into contact with a roadside phase of the live high voltage conductor which was within two (2) metres of the low voltage conductor that the men were removing. The high voltage conductor was an 11,000 volt conductor. 9. Following the accident both Milsom and Ware were treated by paramedics at the site and transported by ambulance by Liverpool Hospital in serious but stable conditions. The injuries sustained by Ware were as follows: . Loss of his right arm to the mid forearm; . Burns between his left thumb and finger which removed the webbing on his left hand; . Loss of the ring finger on the left hand; . Severe burns across the chest up to the neck and burns to both shoulders and back; . Loss of large portions of his deltoid muscle in his left shoulder; . Severe burns on his left leg and . Loss of 70% of his quad muscle and a burn to his right calf. Milsom suffered substantial injuries to his left hand and left wrist in addition to having his right arm and abdomen blown apart.

The Defendant failed to provide or maintain a system of work that was safe and without risk to health in that persons were working underneath live high voltage conductors in circumstances where there was a risk unknown to the Defendant of uplift causing isolated conductors to become live. 11. Further, the Defendant failed to provide supervision as was necessary to ensure the health and safety at work of the Defendant's employees and, in particular, Messrs Milsom and Ware. There was no site co-ordinator for the augmentation process and persons in the crews in particular, Ware and Milsom, were not given any supervision by way of a site co-ordinator. 12. The Defendant failed to have a safe system in that, during the augmentation process, the Defendant had three separate crews carrying out work at the site. No site co-ordinator had been allocated to the site. 13. The Risk Assessment was carried out by Mr Di Maio who was acting leading hand on the date of the accident. 14. The Defendant had no written procedures at the site for the augmentation task to be performed. 15. Neil Spendlove, one of the Defendant's leading hand line workers, did not instruct persons at the site on how the augmentation task was to be performed or provide any direction or instruction to either Ron Dixon or Grant Figg. Further, Mr Spendlove was absent from the site at the time of the accident. 16. Following the accident the Defendant carried out an internal accident investigation which was reduced to writing and entitled "Accident Investigation Report" dated 23 April 1999. Section 6 heading "Causes and Possible Contributing Factors" states the following at 6.2.1 as possible contributing factors: "6.2.1 Project Management . Who was in charge? It appears that the three leading hands all had input into the organisation of the job. A site co-ordinator for the job was not appointed. . Job Sequence There appears to be discrepancy between the work crews for the planned job and the job actually performed and the order in which the tasks were to performed. A centralised co-ordination meeting of all staff at the same time was not performed. . Pressures and Time Constraints Crews had the opportunity to attend a stop work meeting at Appin Dog Track at 1.00pm that day. The accident occurred at approximately 9.55am. . Crews from two different locations were working together. The investigation revealed that there was variation in the way that the different crews took to carrying out the task. . Communication Sequence Changes An adjustment was made to the sequencing and not all parties were made aware of the changes. The sequencing was not revisited to determine the effect of this local change to the entire job. . Training Demolition and Construction of Mains There are some concerns about the application of "looping" over mains and details of demolition in manuals, especially when working under live mains. 16. At Section 8 of that report the Defendant listed a number of recommendations including the following: 1. Review the process of appointing a site co-ordinator (example, training and procedure formulation for the appointment of a site co-ordinator); 2. Review work practices for the replacement of mains under live high voltage (tensions, clearances, pole loadings, job sequencing and simultaneous construction and demolition); 3. Investigate how to merge work practices to reduce variances between work groups and implement results; 4. Improve the accessibility of up to date training and qualifications information; 5. Provide further reinforcement to highlight the importance of maintaining adequate clearances associated with rescue under live 11 kV situations. 17. Appendix C to that report quotes the IE Electrical Safety Guidelines which state: "5.36 Working on poles carrying live electrical apparatus - "Extreme care should be exercised when it is necessary to work on electrical apparatus on poles in joint use with other electrical apparatus which is alive. Special attention should be paid to the possibility of uplift occurring on the conductors being replaced or erected. Where this possibility exists, care should be taken to prevent the conductor being worked on coming into contact with the live electrical apparatus". The report also quotes the IE Overhead Line work - Module 11 - Course Book (Second Edition 1997 at pages 15 - 4): "There are times when it is necessary to string conductors underneath energised mains. Special precautions have to be taken to ensure the conductor being run does not come into contact with the live mains". In addition to this: "A safety observer should be appointed to ensure the work is carried out in a safe manner. Specifically this duty is to ensure that no risks are taken and safe clearance are maintained". 18. Following the accident, the Ministry of Energy and Utilities released an Electrical Safety Bulletin No. 57 in April 1999 which stated that: "All network operators should promptly implement any necessary changes to their safety and operating plan following their review of: . procedures for removing, installing and augmenting overhead conductors, particularly underneath live conductors; . training of staff involved in this work; . the Safety Management System to ensure approved procedures are followed."

In a record of interview with Senior Inspector Rodney DuBois on 16 September 1999, Mr Terry Bourke, Manager of Construction with Integral Energy Contracting, a division of the Defendant confirmed: 1. He was authorised to speak on behalf of the Defendant; 2. The low voltage conductor at the site had been isolated according to the Defendant's outage procedures; 3. The high voltage conductor was not isolated because the job was surveyed by Phil Williams and Brian Berrell, who determined that it was safe to do the work without it being isolated. On the day of the job this decision was reviewed by the Workplace Hazard and Risk Assessment process and it was concluded that the job could be safely done; 4. There appeared to be a change in the sequence of how the job was to be performed and a staff member took it upon himself to change the sequence in contravention of standard operating procedures without authorisation of the leading hands on site. 4 In consideration of penalty the court must first assess the nature and quality of the offence, that is, the objective seriousness of the offence. As was held in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474): . . . in our view it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence' . . .

The Full Bench further commented (at 476): . . . the proper approach is to first consider the gravity of the offence viewed objectively. 5 The defendant, a supplier of electricity, has pleaded guilty to having failed to provide or maintain a safe system of work and failing to properly supervise two of its employees. These failures led to the two young employees, who were working on live power lines performing a maintenance and service activity, to suffer serious electrical burns resulting in ongoing serious injury. One worker suffered an amputation of his right arm to the mid forearm; the other suffered serious internal injuries. Both employees have returned to work in the employ of Integral Energy. One, the evidence revealed, has been rehabilitated and had a significant and most successful career change.

6 Ms P.E. McDonald, of counsel, appeared for the prosecution. Mr J. Macken, of counsel, appeared for the defendant. The prosecutor tendered an independent factual report of the accident prepared by Mr Bruce Dowling of A.P.I. Construction, Parramatta, dated 26 March 1999. Also relied upon was an accident investigation report also dated 26 March 1999 prepared by Integral Energy, which report examined the circumstances of the accident, the causes and the contributing factors to the accident. The Integral Energy report proceeded to recommendations. Colour photographs taken on the day of the accident were also tendered.

7 In consideration of the objective seriousness of this offence, the prosecution relies upon evidence to prove the defendant's neglect of: the obvious risks involved in the performance of the task; the obligation on it to positively inform itself of safe working; the simple remedial steps the defendant could have taken to avoid the breach.

8 The employees of the defendant were performing a procedure known as the low voltage augmentation of three bays of redundant conductors. The workers were replacing conductors on low voltage electricity wires strung along electricity poles. The electricity lines were strung in the following way: the low voltage lines were strung in parallel with high voltage wires but at a lower level than high voltage wires. In order to replace the conductor attached to the low voltage wire, two workers, Mr Ware and Mr Milsom were following procedures which had been outlined in an IEC Line Work Manual. To change the conductor the defined work method required the low voltage power line to be restrained by a stringing rope or block attached to the power line. When the conductor on the pole was then removed the upward load of the conductor would not release the tension on the line.

9 In the performance of the task, while the conductor was being removed from an inside pole, sufficient tension had not been placed on the low voltage electricity line strung between two poles to ensure that it did not flick up, attach itself to the high voltage line and become live. That is what occurred in this incident. On contact, the high voltage line charged the disconnected low voltage line. The two electrical workers performing this maintenance task suffered serious electrical burns and other severe injuries as a result of their electrocution.

10 The internal investigation of the incident revealed a site co-ordinator had not been appointed prior to the performance of this maintenance task; there had been no meeting to co-ordinate the various roles required for the performance of the task; the two crews involved in the task came from different areas and each performed the work with variation. The crews had not been trained to co-ordinate their work method. Further, the sequencing of the task was altered for local reasons but there had been no assessment as to any risk to safety arising from the variation of work procedure.

11 The prosecutor submits there was a foreseeable risk of injury to employees in the circumstances in which this work was conducted. The existing Integral Energy guidelines for the conduct of this operation at the time of the incident noted the following: IE Electrical Safety Guidelines 5.36 Working on poles carrying live electrical apparatus: Extreme care should be exercised when it is necessary to work on electrical apparatus on poles in joint use with other electrical apparatus which is alive. Special attention should be paid to the possibility of up lift occurring on the conductors being replaced or erected.

Where this possibility exists, care shall be taken to prevent the conductor being worked on coming into contact with the live electrical apparatus. . . . 7.8 Work on Overhead Lines: [To] prevent the line in the course of erection from becoming energised and safe guard employees against hazardous electrical occurrences or effects. 12

IE Overhead Line Work Module 11 - Course Book (2nd edition) 1997 (p15-4): Stringing under live mains There are times when it is necessary to string conductors underneath energised mains. Special precautions have to be taken to ensure the conductor being run does not come into contact with the live mains.

A safety observer should be appointed to ensure the work is carried out in a safe manner. Specifically this duty is to ensure that no risk are (sic) taken and safe clearance are maintained."

13 The court is persuaded there was an obvious and foreseeable risk to injury in relation to this work. The work method devised to meet this risk may have provided safe working but it was not followed. The supervision required was designed to ensure safe clearance was maintained. The work method was varied for local reasons and potential risks arising from these variations were not assessed. The workers were not trained as a co-ordinated crew. There was no supervision provided. The lack of supervision by the defendant is particularly relevant to this charge. Specifically the guidelines enunciated the importance of the role of the safety observer such as "to ensure that no risk are (sic) taken and safe clearance are maintained." There was no foreman supervising this task on 26 March 1999.

14 Given the circumstances revealed to the court as to the injuries suffered arising from this breach of the Occupational Health and Safety Act, the view of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5) is relevant when considering the objective seriousness of this offence: The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant . . .

15 I find this was a most serious breach of an employer's obligation under the Occupational Health and Safety Act 1983.

16 There are a number of subjective considerations placed before the court in its consideration as to the penalty. The Full Bench in Lawrenson Diecasting stated (at 474): It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence.

The Full Bench cited (at 474) with approval the passage of the judgment of Fisher CJ in Haynes v James Glass & Aluminium Pty Limited (unreported, CT91-772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce."

17 The recommendations arising from the Integral review of the work method read as follows: 8. Recommendations 1. Review the process of appointing a site coordinator (e.g. training and procedure formulation for the appointment of a site coordinator). 2. Review work practices for the replacement of mains under live high voltage (tensions, clearances, pole loadings, job sequencing and simultaneous construction and demolition.) 3. Review the checking and approval process for design drawings. 4. Carry out a 'needs analysis' to match skills, competencies and experience to roles and tasks. 4. Investigate how to merge work practices to variances between work groups and implement results. 6. Investigate further whether or not all vehicles require the GRN facility. 7. Clarify the procedures for appointing an incident controller, internal communications representative and investigation controller. 8. Impose the accessibility of up-to-date training and qualifications information. 9. Provide further reinforcement to highlight the importance of maintaining adequate clearances associated with rescue under live 11kV situations.

Integral Energy has implemented all of the above recommendations except for that related to the use of the Government telephonic system. It finds because that system is used by all emergency Government organisations (e.g. Police and Fire) and also because Integral Energy works in various places where that telecommunications system suffers "black spot" interference, these workers are best organised with mobile telephones.

18 The new Integral Energy Line Work Manual, post dating the accident and published on 1 November 1999, also places greater emphasis on the need for strainers to hold the power lines. Before any similar work starts a task specific work method statement has to be prepared; a work site and hazardous risk assessment, specifically task related, has to be carried out and all ropes and captive rollers and strainers have to be attached before the lowering or raising of conductors.

19 The court is satisfied the revised work method adopted by Integral Energy on 1 November 1999, is rigorous, detailed and task specific. I am further satisfied there has been a proper review of the risks to safety in the performance of this task by the defendant and there is now in place further protections to avoid such risks.

20 In further mitigation of penalty it was submitted the defendant is a self-insurer and has expended significant sums of money for the medical assistance and rehabilitation of the injured employees. It provided support in terms of salaries and comfort to the relatives of the seriously injured workers. I am not persuaded the fact that this company is a self-insurer should affect any consideration as to the level of penalty for the breach but I am persuaded the care and attention provided by an employer to the injured workers and their families is a relevant consideration in mitigation as to penalty and a true reflection of contrition from the defendant.

21 There must be consideration when weighing penalty of a level of both general and specific deterrence to compel the defendant's attention to site safety. As was held in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610; (1999-2000) 99 IR 29 [at 74]) the Court should take into account in relation to the question of deterrence: . . . both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm39 at 40-43) we would expect such cases to be very rare . . . In Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 (at 388), this principle was applied in a consideration of breaches under the Occupational Health and Safety Act , 1983 by Hungerford J who stated: I . . . would only echo what I see to be the fundamental duty of the Court in this important area of public concern, that 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. At the same time, the Court has a corresponding duty insofar as a defendant is concerned not to impose such a penalty as would be oppressively high. Again, I echo Cullen J in Walco (at pp 15-16) in referring to what was observed by Smithers J in Trade Practices Commission v Stihl Chainsaws (Australia) Pty Limited [1978] ATPR 40-091 at 17,896 as adopted by Forster J in Trade Practices Commission v Lois (Australia) Pty Ltd [1986] ATPR at 47,225, as follows: The penalty should constitute a real punishment proportionate to the deliberation upon which the defendant contravenes the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrents of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive.

22 I am satisfied the defendant has expended significant endeavours to address the problems revealed in the work method followed at the time of this breach. The defendant company has also expended significant moneys in the re-designing of these tasks and in the retraining of its employees particularly emphasising the severe obligations it now places on the supervisors.

23 The company has 1800 employees throughout New South Wales. It supplies electricity services to the Illawarra, Prospect and southern regions of the cities of Sydney and Wollongong. It operates in a high risk industry. The prior industrial history of the company becomes relevant. It was submitted that the old Illawarra and Prospect County Councils merged and operated as one entity from the 1960s. The chronological statutory history of the defendant, Integral Energy Australia is as follows: on 12 October 1956 Prospect County Council was incorporated; on 3 July 1957 the incorporation of the areas of the City of Lithgow and the Shires of Blaxland, Rylstone and the Hartley County Council; on 1 March 1958 the Illawarra County was incorporated; on 18 December 1979 the alteration of the boundaries of Prospect County Council to include Hartley County Council; on 1 July 1993 the re-incorporation of Prospect County Council as Prospect Electricity and the re-incorporation of the Illawarra County as Illawarra Electricity; on 1 October 1995 the incorporation of Met-South Energy County and associated dissolution of Prospect Electricity and Illawarra Electricity and transfer of assets of Prospect Electricity and Illawarra Electricity to Met-South Energy; on 1 March 1996 Met-South Energy constituted as a state owned corporation and on 24 May 1996 there was a change of name from Met-South Energy to Integral Energy Australia. The defendant has therefore been operating in the distribution of electricity since 12 October 1956.

24 Throughout the history of the defendant's operations the only prior conviction under the Occupational Health and Safety Legislation is that recorded on 3 September 2001 for a breach under s15(1) of the Act. The charge was pursued by the WorkCover Authority of NSW before the Chief Industrial Magistrate. A penalty of $22,500 was applied to that breach. Notwithstanding that clear breach of its obligations, this must be perceived as a fine industrial record for an organisation operating with a large number of employees over a long period of time in a high risk occupation.

25 The defendant further submits in mitigation as to penalty it entered an early plea of guilty to this charge. The judgment of the High Court in Cameron v The Queen [2002] HCA 6 (14 February 2002) affects the guideline judgment of R v Thompson; R v Houlton (1999-2000) 49 NSWLR 383; (2000) 115 ACrimR 104. In Thompson, the Court of Criminal Appeal held (at 418) that the top of the appropriate range for a discount for the utilitarian value of an early plea of guilty would be restricted to pleas entered at the earliest opportunity and should rarely be given after a matter has been set down for trial. In Cameron, the High Court held [at 22] that when a defendant accepts responsibility for a crime and shows a willingness to facilitate the course of justice, the Court in the assessment of the value of such a circumstance must consider: . . . whether the plea was entered at the first reasonable opportunity. The maximum discount can therefore be given even after trial dates have been set in particular circumstances.

26 The prosecutor submits the maximum penalty under the Act for this breach is $825,000 as the prior conviction brings into effect s51A of the Act which provides for the imposition of an additional penalty after a prior offence has been recorded against a defendant. The prosecutor submits the circumstances in which this defendant entered its plea of guilty should not be perceived by the court as an early plea of guilty such as to attract the benefit given to the utilitarian value of an early plea in accordance with the guidelines in Thompson.

27 This charge was laid on 14 March 2001. The first mention of the matter came before the court on 20 March 2001. Time was allowed for the defendant to consider its plea. On 29 May 2001 the matter was listed for hearing on 7, 8, 14 and 15 March 2002. On 1 March 2002 the court was informed a guilty plea could be entered but there was still no agreement finalised. In accordance with the parties' estimate of time the matter should take and the possible change of plea, two of the four dates set for the hearing were vacated. The hearing was therefore listed on 7 and 8 March 2002.

28 It is a question of fact for the court to determine from the circumstances when was the first reasonable opportunity to enter a plea. While four days for hearing was originally set in this matter, the listing was reduced to two days when the defendant notified the court of a possible shortening of the litigation. The plea of guilty was not entered before the court until the prosecutor filed an Amended Application for Order on the first day of the hearing. This provided the first opportunity for the defendant to enter its plea of guilty. Even though the matter had been listed for hearing, the defendant had no opportunity to change its plea until the prosecution amended the orders sought. I find the Amended Application for Order brought a different charge even though it involved the deletion of specific elements of the original charge. The defendant would not enter such a plea on the original application. I find the defendant entered its plea of guilty at the first reasonable opportunity. Accordingly, I find the defendant should have the benefit of the full discount of 25 per cent for the utilitarian value of a plea (see R v Greenhalgh [2001] NSWSC272 (published 30 March 2001).

29 While the industrial record of the company in the past has to be viewed as a good industrial record, the community demands rigorous adherence to occupational health and safety standards from its employers. The legislature has expressly reflected the community's demand with the obligations it has imposed on employers through the Occupational Health and Safety Act 1983. The company proffers, and the court accepts, this corporation's commitment to safe working. That commitment has been reflected in a pre-existing, now revised and fully documented work safe procedure. The commitment to safe working is also reflected in the corporation's annual report which places great emphasis on safe working. The corporation, within the electricity supply industry, has played a positive role in advancing the need for safety awareness and assisted in the training and education of other employers operating within its industry.

30 However, the nature and quality of this offence was most serious and as was said by Deane J in Channon v The Queen (1978) 20 ALR 1 at 18: In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances. 31 I find the defendant guilty.

32 I take into account the objective seriousness of the offence and the above subjective features and include the discount allowed in my finding as to penalty. The defendant is fined in the sum of $160,000 with a moiety to the WorkCover Authority.

33 Costs are to be agreed or assessed with leave to approach the court for consideration as to final orders within 28 days (see WorkCover Authority of New South Wales v Develco Projects Pty Limited [2001] NSWIRComm246 (published 12 October 2001 [at 50]; Inspector Tyler v Fletcher International Exports Pty Limited (No 2) [2001] NSWIRComm228 [at 25] (published 29 August 2001).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Safety Act 1983(NSW)

Occupational Health and Safety Act 1983(NSW)

At a glance

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Judgment (41 paragraphs)

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