70 The extent of the defendant's culpability as an indicator of the seriousness of the offence must be measured in the context of the culpability, if any, of the specialist contractors.
71 The prosecutor when addressing the Court referred to the principle of parity. (This was in the context of an explanation proffered by the prosecutor as to why certain contractors were not prosecuted for their respective roles leading up to and including the incident). The defendant also referred to the principle of parity as relevant when making submissions as to the respective responsibilities of the contractors and the defendant.
72 The parity principle is generally relied upon when complaint is made that there are deficiencies in the sentencing of co-offenders, or, different offenders who have been found guilty of the same or similar conduct. The issue here is more correctly characterised as the contribution, if any, of the various parties to the risk to safety, and the identification of which party should bear the greater responsibility, in circumstances where the defendant seeks to establish that an injustice has resulted because of the failure to prosecute other responsible parties: WorkCover Authority of New South Wales (Inspector Ankucic) v Mc Donald's Australia Limited and Another (1999) 95 IR 383 at 433 to 438 per Walton J, Vice-President.
73 The authorities which have dealt with the respective culpabilities of other responsible parties who have not been prosecuted have been collected and analysed by Walton J, in Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Another (2001) 105 IR 348 at [191] to [195]:
"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).
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 ..."
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." 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." And further (at paragraph 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."
74 The foregoing analysis emphasises the relevance of assessing the culpability of the defendant by reference to the roles and responsibilities of the parties who have not been prosecuted, to establish whether the defendant has a justifiable sense of grievance which may, in turn, affect the penalty imposed on it. This does not mean, however, engaging in an inquiry which would require specific findings, as to culpability to be made against the other parties. Those other parties are not before the Court and have not had an opportunity to place material before the Court.
75 The defendant placed much emphasis on the fact that AGI fabricated and supplied the hoods complete with temporary lifting lugs which were never designed to life the weight of a fully assembled hood, and, which should have been removed (by AGI) prior to installation. According to the defendant, despite the evidence that AGI knew the capacity of the temporary lifting lugs and the purpose for which they were designed, and, Mr Irwin was aware that the lugs were not suitable for lifting the anode furnace hoods, this information was not disclosed to the defendant, although there was ample opportunity to do so, though, for example, the forum of daily and weekly meetings which were attended by the defendant, as well as by the contractors.
76 The defendant also contended that D&D Services, a labour hire company, was also culpable because the responsibility for employing the rigging crew lay with D&D Services, not the defendant.
77 The evidence before the Court on sentence does not point to a defendant virtually wholly removed from the causal factors surrounding the accident (cf Wong v Melinda Group Pty Ltd (1998) 82 IR 118). What the evidence does disclose is that the defendant was overall in charge of the shutdown programme, having installed Mr Ian Peter Wilson as general manager of operations. The installation and alignment of the hood took place at the defendant's premises. The installation of the hoods on the furnaces was part of capital works. The defendant's project engineering group, of which Mr Milevski was a member, was responsible for the co-ordination and planning of the capital works. The defendant formulated the shutdown programme which included safety measures to be implemented such as the JSEA documents, as part of the programme. The defendant's employee, Mr Milevski, was placed in charge of supervising the alignment operation, shortly before Mr Pop's accident, having assumed Mr Irwin's responsibilities which included the supervision of the installation of the west anode furnace hood.
78 I am of the view that the defendant's culpability in relation to the circumstances described above is of a higher degree than that of the other parties. The defendant was in overall control of the alignment operation which was taking place at the its premises. The workforce at the defendant's premises, engaged in the shutdown programme, consisted in part of non-employees unfamiliar with the defendant's workplace environment. The defendant devised and implemented comprehensive safety procedures aimed at the smooth progress of the shutdown programme. It did not, however, devise any safe system for the realignment procedure or undertake any assessment of any risks associated with that procedure.
79 A defendant, guilty of an offence under the occupational health and safety legislation cannot deflect responsibility for its actions. The duty to ensure safety rests on all employers. Here, the defendant was responsible for operations taking place in a workplace with large size plant and equipment in use and with workers operating at heights. In such circumstances, and in line with well established principles, the defendant's obligation of informing itself of safe working necessarily entailed formulating a safe work procedure for the realignment of the west anode furnace hood.
80 Nevertheless, part of the responsibility for devising a safe work method for the alignment of the hood, and, for supervising relevant personnel associated with the task of alignment must lie with the other parties, notably, AGI, Mr Irwin and D & D Services. I take this consideration into account when fixing penalty: see Inspector Yeung v Donald Wilson trading as Wilson's Tree Service (2004) NSWIRComm 346 per Boland J at [43] (currently on appeal to the Full Bench).
General and specific deterrence