Inspector Stewart v Siemans Dematic Pty Ltd - [2003] NSWIRComm 45 - NSWIRComm 2001 case summary — Zoe

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Inspector Stewart v Siemans Dematic Pty Ltd

[2003] NSWIRComm 45

Industrial Relations Commission (NSW)|2001-02-10|Before: Haylen J

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Court

Industrial Relations Commission (NSW)

Decision date

2001-02-10

Before

Haylen J

Source

Original judgment source is linked above.

Judgment (143 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Stewart v Siemans Dematic Pty Ltd (formerly Mannesman Dematic Colby Pty Ltd ) No 2 [2003] NSWIRComm 45 PROSECUTOR: Inspector Fiona Stewart PARTIES : DEFENDANT: Siemans Dematic Pty Ltd (formerly Mannesman Dematic Colby Pty Ltd) No 2 FILE NUMBER: IRC 163 of 2001 CORAM: Haylen J Occupational Health and Safety Act 1983 - s 16(1) - plea of guilty after interlocutory proceedings - amended summons - whether, in circumstances, there was an early plea - objective seriousness of offence - risk foreseeable and simple steps available to overcome a risk known to exist - culpability of defendant in circumstances where other parties play a role in detriment to safety - reference of defendant's reliance on specialist contractors and sub-contractors - whether agreed payment of costs by defendant relevant to consideration of mitigating factors - fine imposed CATCHWORDS : Crime (Sentencing Procedure) Act 1999 - s 10 - width of consideration able to be taken into account - discretion available only in rare case - relevance of purpose of statutory scheme to protect persons at a place of work - application to exercise discretion refused. Occupational Health and Safety Act 1983 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s 10 Marine Pollution Act 1987 Capral Aluminium v WorkCover Authority (2000) 49 NSWLR 610 Haynes v C I & D Manufacturing (1994) 60 IR 149 Hunter WaterBoard v State Rail Authority NSW (No 2) Latoudis v Casey (1990) 170 CLR 534 at 542 McCarthy v Sell and Parker Pty Ltd (1999-2000) 102 IR 355 at 357 R v Rushby (1997) 1 NSWLR 594 at 597 Shultz v Tamworth City Council (1995) 58 IR 221 at 229 Thorneloe v Filipowski (2001) 52 NSWLR 60) CASES CITED : Wong v Melinda Group Pty Ltd (1998) 82 IR 118 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 at 70) WorkCover Authority of New South Wales (Inspector McMartin v Transfield Pty Ltd [No 2] NSWIRComm 289 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 258) WorkCover Authority of New South Wales v Waugh and anor 59 IR 89 at 101

[8]

1 This prosecution under s 16(1) of the Occupational Health and Safety Act 1983 has already been the subject of an interlocutory judgment (see (2001) 111 IR 362). In that judgment, the circumstances leading to the prosecution were described as follows: (6) … the particulars of the charge alleged that the defendant had contracted BMP Electrical Pty Ltd to carry out electrical work at its factory at Belrose. BMP had employed Shaileshkumar Patel who was engaged on 14 January 1999 to work on the main electrical switchboard in the switchboard room of the defendant's factory. BMP had been contracted to supply and install the necessary electrical works during the building phase of the project. BMP had in turn sub-contracted the design component of that electrical work to another company, Enginuity Pty Ltd. In early December 1998 the new factory together with its office complex had been completed but BMP continued to work on the site under a separate contractual arrangement with the defendant which required BMP to carry out additional electrical work including the relocation and commission of machinery and equipment at the site. (7) On 14 January 1999 the General Manager of BMP, Mr Lucanus, a site manager, attended a site meeting called by the defendant's management. Following that meeting Mr Lucanus instructed Mr S Patel to assist him in performing three jobs at the factory: (i) the installation of two exit lights; (ii) the installation of two new outlets; (iii) the installation of a single-phase circuit breaker on the factory main switchboard. Because of the lack of necessary cable for the other jobs it was decided to commence by installing the single-phase circuit breaker on the main electrical switchboard which was located in the main factory switchroom. Mr Lucanus instructed Mr S Patel to take the cover off the switchboard and to get the circuit breaker and associated gear ready for the task of installation. Mr Lucanus left Mr Patel alone in the switchroom while taking a call on his mobile phone outside the room. While Mr Lucanus was absent an explosion took place. Mr Patel was seen running out of the internal switchroom into the factory with his body and clothing on fire. He sustained severe burns to 60% of his body and subsequently died as a result of those burns on 21 January 1999 in Royal North Shore Hospital. The explosion caused extensive heat and fire damage to the factory's main switchboard and the contents of the switchroom.

[14]

7 The prosecutor submitted as follows: Primary Factor - Nature and quality of the offence (1) The primary factor to be considered when determining the appropriate sentence to impose is the objective seriousness of the offence charged. In the case of prosecutions under the OHS Act , this proposition has been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" : Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (1999) 90 IR 464 at 474.4 & 745.7. (2) Particularly in cases involving a serious breach of the OHS Act , subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself: Lawrenson Diecasting at 475.6; and WorkCover Authority of New South Wales (Inspector Martin) v Byrne Civil Engineering Constructions Pty Ltd (No 2) (2001) 109 IR 347 in par 19. Objective Circumstances (3) Turning to the objective circumstances relied upon by the prosecutor. First, the maximum penalty prescribed by Parliament for the offence of $550,000 as it reflects the public expression by parliament of the seriousness of the offence. In Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698 Kirby P (with whom Campbell and James JJ agreed) referred to a number of relevant general principles of sentencing including: 1. While it is the function of the Court itself to assess the seriousness of the offence in question, the maximum penalty available for an offence reflects the 'public expression' by parliament about the seriousness of the offence: R v H (1983) 3 A Crim R 53 at 65. Here, the maximum penalty is $125,000. Such a large penalty indicates the gravity of the offence as perceived by the community: see also the comments of the Hon T J Moore in New South Wales Parliamentary Debates (Legislative Assembly), 20 November 1990, 10037 at 10038. The task of the court is to assess the relative seriousness of the offender's particular offence in relation to a worst case for which the maximum penalty is provided. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalty set by the legislature from zero to the maximum. 2. A maximum penalty is to be imposed where the case falls within the worst category of cases for which the penalty is prescribed. This is to be determined on the facts of the case: Ibbs v The Queen (1987) 163 CLR 447 at 452. However, 'that does not mean that a lesser penalty must be imposed if it is possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisable outside the worst category': Veen v The Queen (No 2) (1988) 164 CLR 465 at 478. (4) Secondly, the penalty imposed should reflect the need for: (a) General deterrence - As Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 said: The fundamental duty of the Court in this important area of public concern ... [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. (b) Specific deterrence - This is not a rare case where appropriate weight does not have to be given to specific deterrence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 in pars 71 - 79. For example, the defendant continues to employ approximately 500 full-time employees at its headquarters and main factory premises and undertakes extensive work operations (Mr Sexton pars 4, 5). Although the system has been changed there remains in the circumstances a particular role for deterrence in the present case: Inspector Barnard v Rail Infrastructure Corporation (No 2) (2002) NSWIRComm 106 at paragraph 29 per Haylen J. (5) Thirdly, this is a serious offence because appropriate measures were not taken, even though such measures were available and feasible : Lawrenson Diecasting at 476.5. See also as going to the objective seriousness of the offence the availability of simple and straightforward steps to remedy the defects in the system in WorkCover Authority of New South Wales (Inspector Glass) v ACI Operations Pty Limited , unreported, Schmidt J, 25 February 1994, at 12.2 and Department of Mineral Resources of New South Wales v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27.2. Whilst the response by the defendant after the accident was laudable, the actions taken were such as to reveal in clear terms the decisive steps which may have been taken by the defendant to actually prevent this accident and thereby demonstrate a flaw which existed in the previous system: at 27.3. The measures suggested and subsequently adopted by the defendant are measures which should have been in place all along in addition to the system in place before the incident: at 27.4. (6) The previous system of work (in relation to its own employees not working live at the premises) was a skeletal system more akin to a paper system of workplace safety because of its failure to ensure the safety of other persons at the defendant's workplace: Inspector Barnard v Rail Infrastructure Corporation (No. 2) [2002] NSWIRComm 107 in par 33. A factor of particular importance and which aggravates the offence (by analogy to par 38) is that the incident could have been simply avoided by using available steps. Such system as existed in relation to prohibition on working live was not effectively enforced, and apparently not directed with any rigour to the employees of electrical subcontractors. (7) Measures or steps taken by the defendant taken after the incident on 14 January 1999 were as follows: (a) Signs are now displayed on switchboards and state, " No live electrical work permitted on this board without an authorised Siemens Dematic Live Operating Equipment Work Permit SF206 " (Statement of Agreed Facts par 22). (b) The defendant now has in place " Specialist contractors and electrical work " arrangements (Mr Sexton par 14 (pp 6 - 7), 63). (8) It is submitted that the defendant's representations that it was reliant upon BMP as a specialist electrical contractor to follow responsible and safe systems of work and it could not have practically provided any closer supervision are unsustainable (see for example Mr Sexton par 58). Apart from being wrong as a matter of principle due to the absolute duties cast on it separately as an employer under ss 15 and 16, the introduction of the above measures or steps after the incident prove that they were practicable before the incident. See as to the last principle WorkCover Authority of NSW (Inspector Barnard) v Rail Infrastructure Corporation (2001) 109 IR 209 at 229 - 231 in pars 91 - 94. (9) Fourthly, the existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence . WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 said: 37 Those factors are to be considered in light of the obvious risks and dangers in the welding of the truss in an upright and unsecured position. Also, seen in terms of the requirements of the Act as discussed by Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd, these factors demonstrate clearly that the offence committed was of real gravity. See also the judgment of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting (unreported, 13 April 1995, Matter No CT94/1037, at 17 - 18) where his Honour said: ... the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as foreseeable technical risks in industry. and the judgment of Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (unreported, IRC97/4332 - 4333, 19 October 1999) at 35 - 36. (10) Capral Aluminium Limited in par 81 said: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice-President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432, the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (32 NSWLR at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at 17) and Work Cover Authority of New South Wales (Inspector Kelsey) v University of Sydney (unreported, Hill J, CT95/1280, 12 April 1997 at 16). (11) Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 said: 15. Further, as we have observed, we consider that the discretion to make a determination under s 10 of the Crimes (Sentencing Procedure) Act wholly miscarried in this matter. First, there was inadequacy of reasoning as to the exercise of such discretion as would be necessary and appropriate. Second, we consider that it was not reasonably open to her Worship to conclude that there were objective features of the offence which could have led to no penalty being imposed upon the respondent. The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. 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. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.

[22]

(19) Hill J in Work Cover Authority of New South Wales (Inspector Kelsey) v University of Sydney , unreported, CT95/1280, 12 April 1997 said: The prosecutor argued, in summary, that the treadmill was an inherently dangerous machine and that proper precautions were not taken to ensure that risks to health or safety did not arise therefrom; while the consequences here were obviously not foreseen, the risk was nevertheless reasonably foreseeable; the offence was therefore serious in its nature and quality. The defendant, on the other hand, argued that the actual nature of the risk which occurred in this case was not only not foreseen but was not reasonably foreseeable; accordingly, notwithstanding the enormity of the consequences, the offence in its nature and quality and in the relevant sense, was at the lower end of the scale. It should be stressed that the defendant did not shrink from its plea of guilty but relied on the provision of the safety devices and other measures which were in operation at the time but not used and the unforeseeability of the accident as matters which put the question of guilt as one of fine balance and concession . It need hardly be stated that the precise circumstances of exposure to the risk and its consequences were not foreseen. It was not and could not be contended that any of the relevant personnel of the defendant, particularly Mr Brady, the most significant person concerned, would ever have allowed the circumstances to arise if they had even remotely anticipated them. The difficult question is whether the actual risk which existed was reasonably foreseeable; was there a causal nexus between the alleged breach and the risk? Mr Kirby conceded that if the relevant persons concerned had been lawyers or engineers then the combination of circumstances may well have been foreseen. The test of foreseeability is, of course, not whether a lawyer or engineer could reasonably have foreseen the risk which existed but whether or not the ordinary juryperson or reasonable observer could have done so. … In my opinion the risk of injury to persons from the nip point, whilst not obvious, was nevertheless reasonably foreseeable. The standard of foreseeability is objective but it is not necessary that the precise causal circumstances of exposure to the risk and the consequent accident were reasonably foreseeable ( Shannon v Comalco Aluminium Ltd ). More clearly foreseeable, in my opinion, was the possibility that if children were allowed into the laboratory, they may be left unsupervised, and, even if this absence of supervision was only momentary, risks to their health or safety could arise. It is, I think, correct to say, as Mr Byrne submitted, that a lapse in concentration and supervision by Mr Brady, a common enough event in the course of human endeavours, was reasonably foreseeable and should have been guarded against so far as was reasonably practicable. The possibility of injury to young mobile children arising if they are left unsupervised in a laboratory such as this one, in my opinion, speaks for itself.

[32]

(28) The court has considered these types of contentions previously. Ridge Consolidated Pty Ltd v Mauger (2002) 115 IR 78 said: 33. It is pertinent to have regard to a recent judgment of Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25. His Honour considered, at [56] - [61], some of the authorities which attempted to reinforce "in the strongest possible language" the duties cast by the Occupational Health and Safety Act on employers and those in self-employment in the context of a prosecution which arose from the death of a three year old child on a residential construction site on the North Coast. His Honour dealt with the matter in that way to "reiterate the extent of the duty cast by the Act upon employers and those who are self-employed to ensure that their undertaking does not create a risk". A submission had been made that the defendant in those proceedings should be afforded some leniency due to the fact that more than one person contributed to the relevant risk. His Honour held: [61] In the present circumstances, the defendant's submission is untenable. The duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject, of course, to a consideration of whether the risk emanated from the relevant 'undertaking' and 'place of work'. However, when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd and Anor (2001) 105 IR 348; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited (2000) 95 IR 383 (at 437) and WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No.2) (2001) 99 IR 163 at [31]; Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 and Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99.

[35]

(31) Walton J in Inspector Paul Mansell v Orica Australia Pty Limited [2002] NSWIRComm 155 (12 July 2002) said: In making that assessment it will be appropriate to have regard to the contribution of Anytime Industrial to the relevant risk. That assessment may assist in the determination of the level of culpability of the defendant for the offence charged: Workcover Authority of New South Wales v McDonald's Australia Limited and Another (1999) 95 IR 383 at 437 and Workcover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 at [46]. However, it is wrong, in my view, to make that evaluation for the purpose of apportioning the overall penalty which may be said to be appropriate in the circumstances of a particular incident giving rise to prosecutions under the Act: Consolidated Constructions at [46]. When determining an appropriate penalty for a defendant in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is primarily important to assess the nature and contribution of the defendant to the relevant risk: see Workcover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25 (at [61]) (cited with approval by the Full Bench in Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 (at [33])). 73. Thus, the focus of attention in the assessment of penalty remains the objective seriousness of the offence. The penalty ultimately imposed must fall within the range appropriate to the objective gravity of the particular offence and to the subjective considerations of the particular offender: Capral at [63]. Although arising in a different context (namely, a prosecution under s 17 of the Act), I would reiterate, in this context, my observations in McDonalds (at 447): In light of these findings, this case does not demand more extensive comments in relation to the delegation of duties to third parties. However, I would express my doubt that an argument such as that raised by the defendants would normally result in the very substantial reduction in penalty sought by the defendants. I do not consider that a person who has control of non-domestic premises made available as a place of work or control of plant provided for use or operation at work and who fails to ensure that the premises or plant are safe could escape the bulk of their culpability under s17 of the Act by seeking to delegate responsibility for maintenance to third parties. In many instances it would be quite proper to contract third parties to conduct maintenance, for example. However, some responsibility will normally remain to consider what services should be provided and, so far as possible, to ensure that the services were performed adequately. At the very least, the defendants in this case were involved to that extent, although for the reasons I have given, there was not sufficient fulfilment of their obligations under the section . 74 The failures alleged in this matter, as finally pressed by the prosecutor (and identified in the statement of agreed facts) were, broadly stated, a failure to provide a safe system of work, a failure to provide safe equipment for the performance of the work and a failure to provide a safe means of egress from the tank (which was, in essence, an aspect of the failure to provide a safe system). The central risk to safety occasioned by the defendant was the use of the power operated winch to suspend and move the contractors. A related risk factor was the use of the chain over and pulley system to remove the materials from the tank (thereby creating the risk that the controls for the powered winch would be fouled). 75 The defendant was the entity responsible for fashioning the system of work and selecting the appropriate equipment. 76 Anytime Industrial did have an obligation to assess the systems and environment provided by the defendant, so as to satisfy itself that its employees were safe and not subject to risk (or to take such steps as were necessary to so satisfy itself). It was a total failure to perform this independent assessment that, no doubt, significantly influenced the penalty imposed upon it. However, the defendant did not merely rely upon the expertise of a contractor to perform the subject work. By designing the method of carrying out the work, providing the requisite machinery and equipment and giving instructions as to the application of the same, it substantially established and controlled the system of work which encompassed the requisite risk. When assessed in this way, it was plainly the defendant who should be considered the more culpable for the failure to provide a place of work that was safe and without risk to the health of persons not in its employ. 77 I consider that these conclusions are entirely commensurate with the observations of Kavanagh J in Anytime Industrial which were as follows (at [26] and [29]): 26 As an employer [Anytime Industrial] has an absolute obligation to provide a risk free work environment for its employees. So too does the employer conducting an undertaking at its place of work, namely, [the defendant]. Large corporations, once they contract-out their work must empower, within the contractual relationship, the contractor to play a role in the decision making process even if it is the Principal's defined safety procedures that are followed for the risk assessment of the task and the design of the work method to be adopted . … 29 While a contractor must be involved in the development of work safe practices on industrial sites on which their employees are sent to work, commensurate with their responsibilities and liabilities under the Act, so too the Principal, on whose worksite the task is performed, must carry a significant burden especially if, in the circumstances, it takes the primary responsibility for devising the system of work.

[40]

(39) As to an erosion of the utilitarian value of the guilty plea, some of the benefits identified in R v Thomson and Houlton did not occur - see for example: 131 Every part of the complex web of interconnected participants which comprises the criminal justice system will be improved if a greater number of early pleas could be achieved. The benefits include: · Reduce congestion in court lists and permit courts to plan the use of limited resources without overlisting and avoiding the waste of trial court time. · Reduce the waste of the limited resources available to the Director of Public Prosecutions, the Public Defender and legal aid, both by the direct saving of time spent on preparing cases that do not proceed and by the indirect saving of reducing the number of cases not reached due to overlisting. · Reduce the waste of time of witnesses, amongst whom police constitute the largest single category, in preparing to give evidence and, in many cases, appearing on the day of trial. · Reduce the waste of time of jurors who are needlessly assembled for trial. 132 All of these benefits are significantly attenuated, if not lost, to the extent that pleas occur only on the day of trial. Insofar as such benefits are achieved, they enable the criminal justice system as presently resourced to reduce delays with further attendant advantages. 133 From the utilitarian perspective alone, an early plea offers distinctive and substantially greater benefits over a plea that occurs at the commencement, let alone during, a trial. By the time of the trial considerable expenditure has been incurred by the prosecution and the defence in preparing the case, witnesses and victims are in attendance, a substantial proportion of the cost of the legal aid system has already been incurred and a jury panel has been required for attendance. Furthermore, although backup trials, either criminal or civil, may be available to employ the court's time made available without notice, that may not always be the case. The frequency with which guilty pleas are made on the day of the trial is a matter which considerably disrupts the efficiency with which courts in New South Wales can plan the use of their resources. The listing of reserve trials can never be precisely accurate. This results on some occasions in adjournments, and consequently waste of resources by the parties, and on other occasions in waste of judicial and court time.

[42]

(41) Mr Sexton's representations in par 67 of his affidavit are similar to the facts surrounding the ultimate guilty plea in WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd, t/as Transfield Maintenance (No 2) [2001] NSWIRComm 289 (14 November 2001). Hungerford J said: 30 Finally in mitigation of penalty, Mr Hodgkinson submitted: At the end of the day there are many factors which are to be weighed in favour of the defendant in these proceedings. The fact that the prosecutor altered its charge and a plea was entered to it was one of them. The fact that the system was owned, devised, operated and maintained and insisted upon by BHP is another. The fact that there was no recognition prior to this circumstance where there were relevantly qualified and trained personnel involved in the very process of risk and hazard assessment is a further matter going in favour of my client when one considers its level of culpability ... ... the case, it was not fought up to the point that it was fought on the basis that there was this huge fight about ventilation and monitoring equipment. It was fought on the factual circumstances surrounding matters going to the other particulars. That has then been altered by the circumstances that the prosecutor seeks to amend and we say we plead to that amended summons. ... If my client had proceeded to contest the proceedings beyond the opportunity that was given when the prosecutor sought to amend its summons, then it would bear the brunt of the totality of the proceedings but it did not. As support for that latter proposition, which essentially related to the pleas of guilty to the amended summonses, Mr Hodgkinson relied upon two decisions of the Supreme Court in R v Ryan [2000] NSWSC 724 in pars [1] and [27] per Adams J and R v McNellee, Tucker and Dalley [2000] NSWSC 1154 in pars [19] and [20] per Bell J. … 37 The defendant's pleas of guilty in mitigation of penalty gave rise to sharp differences between the parties. On the one hand, Ms McDonald said the circumstances in which they were given led to either no reduction or only a minimal amount; Mr Hodgkinson, on the other hand, submitted the pleas were given as early as possible, that is, on the prosecutor amending the charge so that full recognition should be allowed. The defendant was charged with offences under ss15 (1) and 16 (1) of the Occupational Health and Safety Act , effectively that it failed to ensure the safety of Mr Boyce and Mr Swan by exposing them to risks in the various ways described in the essential particulars to the charges. The charges were sternly defended during the first six days of a defended hearing scheduled for a period of ten days, even to the point where Mr Hodgkinson made it plain at an early stage that a submission of no-case to answer may be put. As it happened, however, on the sixth day the prosecutor amended the charges so as to rely on two elements of relevant failure only, those related to an air monitoring system and forced ventilation, and abandoned those related to isolation of the LP gas supply at the regulator outlet, purging the hoses of LP gas and oxygen, provision and maintenance of oxy/propane cutting equipment and inspection of the cutting equipment prior to use. Mr Hodgkinson emphasised that much of the evidence in the case focussed upon those finally excluded elements, the real area where the case was fought, and the two elements remaining were not subject to much attention at all. 38 I do not accept Mr Hodgkinson's submission that the pleas were given at the first opportunity even though they were given when the charges were amended. And neither do I accept Ms McDonald's submission that the defendant "should not receive a discount for the plea of guilty as only minimal utilitarian advantage had been gained from the entry of the plea of guilty". I think the position is somewhere in between those extremes. The two elements eventually accepted by the defendant to establish its guilt, an air monitoring system and forced ventilation, were contained in the charges as originally laid and, in themselves, were even at that early stage sufficient to establish the charges and as to which the defendant could have made admissions but did not do so. It is perhaps relevant to point out that s 49A of the Occupational Health and Safety Act enables more than one contravention of s 15 or s 16 arising out of the same factual circumstances to be charged as a single offence in which case a single penalty only may be imposed in respect of more than one contravention of any such section so charged. Here, a single charge under s 15 (1) and another under s 16 (1) was brought and that was permitted by s 49A even though each single charge contained a number of elements any one of which was sufficient for the charge concerned to be proven. Therefore, in terms of the charges as brought, the particulars thereof, the length of the proceedings, the amendment of the charges on the sixth day of the hearing and the consequent pleas of guilty immediately the amendments were made result, in my opinion, in pleas of guilty for the purpose of reduction of sentence but in such a manner as not to be pleas entered as early as possible. Nevertheless, they were entered as soon as the amendments were made but where the hearing had been proceeding for six days with a further four days scheduled. … 46 An assessment of the subjective features affecting the defendant as to their impact on the sentence to be fixed requires attention to the guideline judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383 in which Spigelman CJ (with whom Wood CJ at CL, Foster A-JA, Grove J and James J agreed) concluded (49 NSWLR at p 419 in pars [160] and [162]): (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount. … 47 Allowing, then, for the subjective factors peculiar to the defendant, as stated earlier, and including the pleas of guilty, I would allow a discount of 20 per cent, that is, $40,000 for each offence so as to result in a fine for each offence of $160,000 thus giving a total of $320,000 for the two offences charged . (42) Secondly, contrition might be raised by the defendant as a matter to be taken into account to further discount the defendant's sentence, when it is considered as part of factors additional to the utilitarian value of the guilty plea.

[45]

(45) R v Thomson and Houlton said: 136 Separation of the elements of contrition and utilitarian value in the plea of guilty requires a consideration of whether or not the element of strength of the Crown case, to which reference is frequently made as limiting the value of a plea, should be attributed to both of the elements. The Attorney General submitted that the strength of the Crown case should not have any bearing upon the weight to be attributed to that aspect of the discount which is attributed to purely utilitarian considerations. The authorities support this submission. (See R v Slater supra at 525-526; R v Bond supra at 7; R v Winchester supra at 350; R v Bishop (New South Wales Court of Criminal Appeal, 23 September 1996, unreported); R v Bulger [1990] 2 Qd R 559 at 564. 137 In R v Winchester Hunt CJ at CL related the strength of the Crown case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused (c/f R v Beavan supra at 12). As his Honour put it at 350: The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable. In my opinion his Honour was correct to link the question of the strength of the Crown case only to the issue of contrition or remorse. A "recognition of the inevitable" may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea. 138 The element of the strength of the Crown case varies from one extreme where there is a very strong Crown case and the plea simply involves a "recognition of the inevitable", to the other extreme where, but for admissions made by the accused, the crimes committed would have gone unpunished or, in some circumstances, even undetected. As Street CJ said in R v Ellis (1986) 6 NSWLR 603 at 604: This court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given. When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.

[49]

Previous sentences in other cases involving electricial incidents (49) Although no two cases are the same, consideration of other cases might provide at best a rough guide to the approach on penalty that might be imposed by the IRC NSW. It should be noted it is not suggested that there is any tariff or range for this type of offence. (a) In WorkCover Authority of NSW (Inspector Vassel) v Duff Bros Pty Ltd t/as Ric Electrics [2000] NSWIRComm 78 (6 June 2000) the defendant was fined $50,000 (maximum available penalty of $550,000) by Walton J. The defendant failed to provide or maintain a system of work that was safe and without risks to health in respect of electrical installation work being carried out on an electrical switchboard at the premises. An apprentice employee received serious flash burns to 80% of his body. A metallic measuring tape held by the employee appears to have come into contact with the busbars. The failures relied upon by the prosecutor were: failure to adequately supervise; failure to de-energise the switchboard; failure to use an insulated measuring device; and failure to instruct in safe working procedures for working in close proximity to live electrical equipment. The defendant presented a very significant argument as to subjective features as it always had appropriate safety policies in place. The court accepted the contrition expressed by the employer and offered words of praise of how it handled the rehabilitation of the injured employee as it placed him back to serve a dignified role in his work community. Total staffing just under 30 persons. Significant turnover but profit margins after salary and expenses usually came in between $8,000 and $50,000. History of good industrial citizenship. Plea of guilty. (b) In WorkCover v Kevin R Sheather Services Pty Ltd [2001] NSWIRComm 294 (16 November 2001) the defendant was fined $110,000 (maximum available penalty of $550,000) by Peterson J. Two day labour employees who were supplied to the defendant were injured when an electrical switchboard into which they were inserting pyrotenax cables exploded. The employees knew the busbars were live. One employee suffered burns to 75% of his body and other serious injuries. The other employee suffered burns to his legs, stomach and arms. Plea of not guilty. A conviction was recorded in respect of an allegation of a failure to properly and adequately supervise the two workers, thereby enabling them to take steps to obtain equipment necessary to achieve the state of the risk which caused the electrical explosion within the switchboard. One of the employees was very experienced electrical tradesman and another who held himself out as a tradesman but in reality was a trades assistant. The defendant employed 60 full-time employees and had work in hand of approximately $4 million. The defendant had no prior convictions. (c) In Inspector Rodney Dubois v Integral Energy Australia [2002] NSWIRComm 75 (22 April 2002) the defendant was fined $160,000 (maximum available penalty of $825,000). This case involved employees performing a procedure known as a low voltage augmentation of three bays of redundant conductor. Kavanagh J found that the work method devised to meet the 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 defendant had one prior OHS Act conviction.

[69]

To like effect was the decision of His Honour Hungerford J in Wong Wong . . There His Honour had occasion to deal with the relevance of a failure to prosecute other seemingly culpable parties. His Honour stated (at page 121) During the hearing, I asked Mr Goldberg whether any other person had been prosecuted in relation to the detriment to safety occasioned to Mr Child. He replied, on instructions, that no such prosecution had been instituted because, 'Advice was taken as to the prospects of success against the company and the recommendation was that it would not be successful.' I am constrained to say I find such a situation, on the facts as disclosed in evidence before me, 'extraordinary'. I have in mind the responsibility of Mr Child's employer, Towabug Pty Ltd, to ensure the health, safety and welfare at work of all its employees as required by s.15(1) of the Occupational Health and Safety Act; also, Mr Timmins and Alan Keevers Enterprises Pty Ltd seemingly had a duty pursuant to s.16(1) of that Act to ensure that persons not in his/its employment were not exposed to risks to their health or safety arising from the conduct of his/its undertaking while they were at his/its place of work or, alternatively, they too had an apparent duty to ensure safety under s.17(1)(a) to the extent they had control of the premises. That the only person charged was the Defendant as the owner of the premises, and was not informed by Mr Timmins of his intention to have the windows cleaned, is most relevant and very significant to take into account in determining penalty against the Defendant. Equality of treatment in terms of the relative seriousness of the offence is an obvious and well known concept in matters of this nature, otherwise a disadvantaged Defendant could reasonably feel aggrieved: see per Kirby P, as he then was in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698 and Nesmat Pty Ltd v WorkCover Authority of NSW (unreported, NSW Industrial Relations Commission, The Comm, IRC 97/1382, 30 March 1998), pages 20 to 21. Indeed, as I view the totality of the circumstances of this case, the culpability for what occurred may be effectively and very largely attributed to Towabug Pty Ltd, Mr Timmins and Alan Keevers Enterprises Pty Ltd, rather than the Defendant. …. I have such a concern in determining penalty against the Defendant that I consider the omission to charge the other three persons should be emphasised so that prosecuting authorities in the future will be mindful of the consequences. 19. To the extent that His Honour Justice Walton's position in McDonald's is contrary to these propositions, it is submitted that the views of Hungerford J are to be preferred. The Company relies upon His Honour's observations that: The culpability of the Defendants should be assessed in light of the systems which were in place and the reliance which was placed upon the third parties to provide various services both in relation to the particular restaurant involved in this case and in the system of safety employed in the entire McDonald's system. 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. (at 437). 20. Such a position it is submitted, considered in light of the principles identified by the decisions in Nesmat and Wong , establishes the need to assess the level of relative culpability in determining sentence. The Defendant submits that the apparent failure to prosecute any other relevant party, the failure to prosecute or continue the prosecution against BMP and the extent of their culpability fall to be taken into account in determining penalty. 21. The prosecution submits (paragraph 33) that: Seventhly, the Defendant is disentitled to the measure of leniency which would normally be given to a person of previous good character or a person without a prior criminal record. This submission, the prosecution submits, is supported by Inspector Barnard v Rail Infrastructure Corporation (No 2) [2002] NSW IRC 107, paragraph 31. Paragraph 31 reads: The fact that an offender has a long record of previous convictions and prior offences of the same character does not justify the imposition of a sentence of greater length than the offence warrants: it merely disentitles the Defendant to the measure of the leniency that would normally be given to a person of previous good character, or a person without a prior criminal record. 22. The Company submits that the passage relied on provides no warrant for ignoring its generally good record in determining an appropriate penalty. The prosecution in opening properly stated that the Company does not have a long record of previous convictions and prior offences of the same character. Its convictions are both minor and ancient. The Prosecutor accepts that it is appropriate to take into account the significant size of the Company's workforce and the nature of its work. The Prosecutor opened: "these are old convictions in relation to a defendant that has a substantial industrial enterprise involving the use of machinery, and we regard those as being distant events which really have no significant bearing upon your Honour's determination " It is submitted that the Company is entitled to the measure of leniency that would normally be accorded a person of previous good character. Subjective circumstances 23. It is submitted that there are a number of subjective circumstances that should be taken into account in mitigation. First there is a plea of guilty. The prosecution submits (paragraph 40) that the discount should be in the bottom half of the range due to the plea being made after 4 days of hearing. That submission overlooks that the four days were devoted to hearing particulars of charges not now pressed. The Company not only pleaded guilty at the first opportunity, it actively volunteered to plead guilt to the new charge as reparticularised before the prosecution amended the charge. The Company should be given the appropriate discount for pleading to the charge at the first available opportunity. 24. The prosecution rely on the decision of WorkCover Authority of NSW (Inspector McMartin) v Transfield , (paragraph 41). In Transfield , His Honour Hungerford J declined a submission that the Defendant had pleaded at the earliest opportunity in the context of a change to the charge. His Honour did so because the particular offence was contained in both the original charge and the amended charge. No such situation is here present. The original Application for Order stated that: The Defendant failed to ensure that a place of work under its control, to wit, the main factory electrical switchboard room at the premises, was maintained in the condition that was safe and without risks to health and in particular: (1) Failed to ensure that water did not leak onto the main electrical switchboard situated in the said room from overhead air conditioning pipes; (2) Failed to ensure that the floor space around the main switchboard was clear of stored material: (f) The Defendant failed to maintain means of access to and egress from the said switchboard room that was safe and without risks to health. 25. In the present circumstances, the charge is now quite different and the Company is entitled to the benefit of its actions in pleading guilty. 26. The prosecutor's submissions assert: there does not appear to be any manifest expression of contrition in the Affidavit of Mr Sexton . The submission manifestly ignores the unchallenged evidence of Mr Sexton in paragraphs 9, 11, 52, 53 and 60 and Annexure "G" of his affidavit. It ignores the significant involvement by company personnel in the rescue of and first aid attention given to Mr Patel. It does not acknowledge the need for counselling for all involved, which need was met by the Company. It does no justice to the conduct of Mr Farrar who visited Mr Patel in hospital, and offered the Company's help and condolences to Mr Patel's family. Mr Sexton attended Mr Patel's funeral. All of these actions were appropriate and responsible, and reflect the deep emotion generated by the accident. It is through the actions of its servants that the Company's attitude is to be assessed. Whilst "contrition" is an inexact word in the circumstances, it cannot be doubted that the Company profoundly regretted the accident, and expressed its sympathy without reserve. 27. It is further suggested (paragraph 44) that the Company "was pleading to the inevitable" . That submission overlooks the reformation of the charge at the Company's instigation, the abandonment of the original particulars of charge and the totally different nature and particulars of the substituted charge. Nor does it acknowledge the prosecution's attempts to bolster its position before the original particulars of charge were withdrawn. As the earlier judgement in this matter recognises, the case faced by the Defendant has changed significantly (see paragraphs 1 and 2 of Inspector Fiona Stewart v Siemens Dematic Pty Ltd [2001] NSWIR Comm 285 ). That judgment records: On the material that has been presented I do not doubt that the volume of material and the flurry of activity which occurred shortly before the commencement of the hearing left the defendant in a state of some uncertainty as to the nature of the case it had to meet (paragraph 87). Mr Sexton's affidavit records the receipt by the Company of detailed advice from a senior practitioner that a defence was reasonably likely to be successful . 28. The prosecution accepts (paragraph 46) that the co-operation of the Company with the authorities and the steps taken to remedy the unsafe system of work are also matters that stand in its favour in terms of penalties. Application that the Court not proceed to conviction 29. It is submitted that in the circumstances established by evidence before the Court that it is open and appropriate to make an order under s.10 of the Crimes (Sentencing Procedure) Act 1999 . Section 10 of the Crimes (Sentencing Procedure) Act 1999 provides: (i) Without proceeding to conviction, a Court that finds a person guilty of an offence may make either of the following orders: (b) an order directing that the relevant charge be dismissed, (c) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding two years. (ii) An order referred to in sub-section (1)(b) may be made if the Court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (iii In deciding whether to make an order referred to in sub-section (1), the Court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the Court thinks proper to consider. 30. It is appropriate to draw the Court's attention to the discussion of the circumstances in which such an order is appropriate in WorkCover Authority v ProFab Industries 100 IR 64 at 70. There the Full Bench stated that the provision will be available in only very limited circumstances. In McCarthy v Cell & Parker Pty Ltd 102 IR 355, a Full Bench stated (at 357) that the exercise of the discretion under s.556A must be considered as "extraordinary and highly exceptional" . It is submitted that the circumstances of this case fall within the limitations to which the Full Court has drawn attention. Whilst the tragic outcome to Mr Patel could be described only in terms of the utmost seriousness, it is upon the Company's offence that s.10(iii) focuses. 31. It is submitted that the case is properly comparable with Wong v Melinda Group, 82 IR 118, in which the owner of a building was prosecuted for injuries to a window cleaner who was engaged by a tenant. Neither the employer of the window cleaner nor the tenant was prosecuted. In the circumstances of that case, Hungerford J gave the defendant the benefit of a s.556A order, and reduced the normal costs order. His Honour said: The real vice which occurred as to safety in this case, in my view, was the action of Mr Timmins [a tenant] in engaging a contractor [window cleaner] Towabug Pty Ltd, to clean the windows to his suite … He did so without reference to the Defendant and, on the evidence, failed to take any steps to ensure the safety of Mr Child while he was cleaning the windows to Suite 308 by intervening or otherwise preventing Mr Child doing so without a safety apparatus or harness. The employer of Mr Child, Towabug Pty Ltd, also failed to ensure the safety of its employee by permitting him to clean the windows without the use of safety equipment. The accident, it appears to me, would not have occurred were it not for these failures . (at 132). 32. His Honour went on: ... the Defendant was somewhat removed in a causal sense from what occurred, although not from its statutory duty to ensure the safety of the premises it controlled … The real culpability in this matter, I am satisfied, was that of Mr Timmins and of Towabug Pty Ltd and, but to a somewhat lesser extent, Alan Keevers Enterprises Pty Ltd. The Defendant, in my view, has itself been the victim of circumstance over which it was unaware ... … . The Defendant has no prior convictions and it pleaded guilty to the present charge in a timely way. Its attention to safety consideration in respect of the King Street building over very many years was well established... The real and effective culpability for what occurred was that of a tenant, Mr Timmins, and of Mr Child's employer, Towabug Pty Ltd. The Defendant was simply unaware of the arrangements for the work to be performed by Mr Child and, in view of its policy on window cleaning and the steps for a safe system, could not reasonably have foreseen the accident. Indeed, the Defendant engaged a consultant, Alan Keevers Enterprises Pty Ltd, to provide building services necessarily including safety arrangements, for the King Street property and that corporation must bear a degree of responsibility for the incident. The Defendant, in my view, has been subject to extenuating circumstances over which it had no direct control. It follows, in view, that it is inexpedient to inflict any punishment on the Defendant. I propose to apply the provisions of s.556A of the Crimes Act by dismissing the charge. 33. The Company submits that it is within the sound discretion of the Court to find the charge proved, but that in the circumstances the Defendant ought have the benefit of the provisions of s.10(1)(a). The Defendant has agreed to pay the costs of the prosecutor, assessed at $75,000.00. It is submitted that the Commission should make the following orders: (d) Pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999 the Court dismisses the application for order. Or in the alternative: (a) Pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999 the Court discharges the Defendant on condition that the Defendant enter into a good behaviour bond for a term of one year. (e) The Defendant is to pay the costs of the Prosecutor in the sum of $75000.

[76]

15 Mr Sexton gave evidence of a concerted campaign by the defendant to improve its occupational health and safety performance. Steps were taken from the commencement of 1997 which resulted, at the time of swearing his affidavit, in a reduction of workplace injuries 97 per cent below the levels experienced in 1996. There were said to be a number of initiatives, including the creation of structured safety committees, with greater involvement of employees and the engagement of accredited trainers to provide procedures and employee training for fire and emergency evacuation. There were a number of additional procedures implemented, including the mandatory wearing of safety glasses for all factory personnel and the implementation of an electrical lock-out procedure for work on the defendant's equipment. In late 1998, company management discussed the planned establishment of new premises, enabling the defendant to adopt an "even more comprehensive safety management system": it was planned to introduce the National Safety Council of Australia (NSCA) five star safety system in 1999. The five star safety system involved an independent audit of five specific areas. The initial audit resulted in the defendant achieving a grading in the band between 70 per cent and 80 per cent, resulting in a three star rating. This was said to place the defendant in the top 30 per cent of Australian organisations. Following the accident, the defendant continued to refine its systems and has now reached the point where lost time injuries are said to be now near zero level. Importantly, it was said, this absolute reduction in the number of injuries had been achieved notwithstanding an 80 per cent increase in the number of employees of the company between 1996 and 2002. Further, by December 2001, the defendant was certified with a five star safety grading by the NSCA, thereby rating the defendant in the top five per cent of Australian organisations. Mr Sexton annexed to his affidavit a copy of the submission of the company in relation to the National Safety Awards of Excellence for 2002. The defendant was selected as a finalist for the NSCA awards of excellence for 2002 and received an "outstanding performance award". The company's entrance documentation indicated the breadth of issues addressed by the company in relation to occupational health and safety.

[80]

19 In relation to the circumstances surrounding this particular accident, Mr Sexton detailed the formulation of plans in the mid-1990s to establish a new purpose built factory and office complex at Belrose. A construction company was engaged and a contract signed, which required that company to construct the factory and office buildings on the site and specifically to undertake design, documentation and construction of the mechanical, electrical and hydraulic services in accordance with specifications. That company was specifically required to carry out design, documentation, supply, installation, testing, commissioning and warranty of all electrical work, including main switchboards and all work associated with the establishment of electricity supply. The company was required to fully commission the complete installation of each particular section of electrical work. Mr Sexton stated that the defendant had no expertise in electrical matters relating to the construction project, so a consulting and chartered engineering firm was retained to provide electrical performance specifications prior to the award of the building contract. That firm continued to provide ongoing advice after the finalisation of the construction contract in 1998. That work included preparation of performance specifications for electrical work and supervision and inspection of electrical work carried out by the building contractor and their sub-contractor BMP Electrical Pty Ltd. The building contractor had responsibility under the contract for engaging a qualified specialist electrical contractor for the completion of the electrical work: it nominated, sought approval for and finally selected BMP to carry out all of the electrical work required to be performed under the main building contract. BMP in turn engaged Enginuity Pty Ltd as its electrical engineering consultant to carry out design for BMP, including the design of the main switchboard. This was the switchboard that was destroyed in the accident and described in the agreed Statement of Facts.

[101]

40 It is appropriate here to record that in oral submissions the prosecutor accepted that the exact cause of the explosion was not known: expert opinion supported only one conclusion and that is that the explosion arose from whatever the worker was doing himself in handling something metallic which caused the electrical arcing process. In addition, on the plea, the prosecutor relied on the evidence of two engineers. Mr Clarke, an electrical engineer, identified a number of hazards in respect of working on live switchboards. He stated that the control of such hazards included: (a) the use of insulated tools; (b) covering bare electrical conductors; (c) wearing insulated gloves; (d) standing on an insulated mat; (e) wearing full length clothing; (f) removing personal metal objects such as jewellery; (g) having a second person in attendance for assistance and rescue purposes. Mr Clarke stated that if the controls were not adequate to fully protect the worker, then working live should not be performed. He noted that at the time of the accident there was no prescriptive legislation to prevent live work on electrical equipment including switchboards. Mr Girling, a consulting engineer, stated that there were no circumstances where there was no risk associated with working on any live switchboard. It was essential for a risk assessment to be made prior to undertaking any work on a live switchboard. DELIBERATION 41 In relation to the objective seriousness of this offence, the defendant has submitted that the risk was not readily foreseeable or obvious. It relies upon the fact it engaged specialist consultants to design, supply, install, test, commission and warrant the safety of all electrical work which included work on the main switchboard. Further, the defendant submits it could not have known that one of the specialist companies engaged, BMP, would not inform the co-ordination meeting of the work it was to undertake that day on the switchboard and that in such circumstances there was little the defendant could do. Significantly, the defendant accepts that, had BMP made it known that it wished to carry out work on the main switchboard, a partial shutdown would have been effected, there being "no reason why it should not".

[105]

45 The defendant is not able to avoid the seriousness of this offence by suggesting that it could not foresee that skilled and specialist contractors would not abide by their obligations, including contractual obligations, to announce and discuss their work plans at the regular co-ordination meetings and that they would undertake electrical work without notice to the defendant. The decisions of this Court dealing with breaches of the Act are liberally sprinkled with references to the provisions of the Act requiring employers to be pro-active in ensuring the safety and health of workers and warning that those obligations require consideration of the fact that there will be careless, inattentive and even negligent persons who may disregard specified workplace safety measures. Additionally, it is not beyond human experience that acknowledged diligent workers may, from time to time, under pressure of work, adopt some shortcut or alternative method of work which raises a risk to safety. These possibilities are part of common experience and the Act operates to require employers to adopt measures which will ensure the safety of employees even in circumstances arising from carelessness, inattention or workplace skylarking, tempered only by the defences specified in s 53. In its approach, the defendant submits that it could not foresee that a skilled specialist sub-contractor would not disclose the work it was to undertake at the co-ordination meeting as required and that it would otherwise permit the work to be performed by involving an unqualified person, inadequately supervised and clothed for the task. While these factors require weighting in determining the culpability of the defendant, the appropriate question to pose is whether or not it was foreseeable that working live on one of the defendant's switchboards would pose a risk to health and safety. The answer to that question is obvious and was obvious to the defendant - it recognised the risk and took steps to address it but did not take the next and simple step of extending that protection to contractors and sub-contractors working at its premises. The defendant's internal policy recognised the position referred to by the engineers, Mr Clarke and Mr Girling. Their unchallenged evidence was that there is always a risk in working on live switchboards and that, unless control measures are adopted, such work should not be undertaken.

[106]

46 The defendant submitted that there was a need to assess the level of relative culpability of other entities involved in the incident in January 1999 in determining the appropriate sentence. In this context, it was submitted that the apparent failure to prosecute any other relevant party, the failure to prosecute or continue the prosecution against BMP and the extent of the culpability of other entities were to be taken into account in determining penalty. In relation to a similar submission, Hungerford J in WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 stated: [43] What I think flows from those settled principles as to the sentencing process is that the penalty is to be determined by reference to the offence. It is necessary to make this point because I detected a continuing thread running through the submissions of Mr Phillips that in viewing the total circumstances in assessing criminality one had to consider in a relative or proportionate sense the conduct of the other parties involved. As Mr Phillips said: 'The evidence clearly reveals the involvement of other parties all of whom either caused or contributed to the accident on 15 December 1997.' I am concerned in that that approach focused more on the occurrence of the collapse of the brick wall causing fatal injuries rather than with the offence as charged, and as set out in the particulars thereof, which may be distractive in the sentencing process as to the defendant's failures. There can be no doubt on the admitted evidence that the brick wall was in an unstable state at all relevant times of the defendant's occupancy of the site as the principal contractor. What it was charged with was a failure to ensure persons not in its employment were not exposed to risks to their health and safety; and that, essentially, concerned a failure by it to properly assess the risk posed by the freestanding, but unstable, brick wall. The wall collapsed, it may be said for whatever reason, but that was not the occurrence with which the defendant was charged. This aspect of the immediate reasons for the occurrence of an accident, as distinct from the steps enabling it to occur and with which a defendant stands charged, was considered by a Full Court of the former Industrial Court in Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at 158-159 in the following way: … The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating 'risks' to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the casual connection therewith of the employer …" In making those comments, the Full Court was dealing with the liability of a defendant for a breach of the Occupational Health and Safety Act but, in my view, the same approach needs to be had in mind in considering penalty because, after all, the penalty is fixed for the offence found to have been proven. It is, therefore, to the offence itself to which attention is to be directed and not, as Mr Phillips suggested, the occurrence of the accident and the contribution of other persons for what occurred. [44] In WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257, Bauer J helpfully, with respect, put the matter in this way: Whilst … it was natural to concentrate on the events giving rise to the actual cause of the death, such a concentration exhibits an error in law as was pointed out by the Full Court in the passage from C I & D Engineering previously quoted. The actual event of the accident and injury is relevant; but it goes to satisfy the evidentiary burden that failure gave rise to a risk to health, safety or welfare. [45] In the present case, then, the collapse of the brick wall causing the death of two workers manifested the existence of a detriment to safety and provided a measure of the degree of its severity. [46] 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 a 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 a 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. Mr Phillips put it this way: You do not need to look at the circumstances of the events to identify what was the proportionality or what is the portion rather of the criminality of a particular co-accused, because if as I said, if we had had the whole range of possible defendants in these proceedings in the one hearing, one perhaps then has that proportionality of perhaps relief, one could perhaps feel it by way of the evidence that in the circumstances here one would have thought the starting point, as I have said in my submissions, is firstly the wall, the wall should not have been in that state at all. It was clearly not meant to be like that … it was perhaps a carport attached to the building where the Blue Mountains Water Company was to be found. The fact of the cutting slab compromised the wall. Then of course you then go to the beginning of the work on that site. We were not the principal contractor, Develco was. Develco had certain responsibilities. That then flows on to van der Meer Bonser Pty Ltd … the dilapidation [report] was commissioned by Develco … [47] Although Mr Phillips said he was not suggesting that the proper process involved apportioning the total culpability between all of those persons responsible and fixing a penalty as a share therefore for a particular defendant, I think his submission came very close to that and, for that reason, I would wish to state my understanding that that is not what the sentencing process involves in assessing the objective seriousness or the nature and quality of an offence. I think the vice in the approach by Mr Phillips, who clearly used it to support a penalty lower than what it might otherwise be, may be seen from his following submission: One has to look at the total circumstances in assessing the nature and the quality of the offence to identify how much of the whole incident really was the responsibility of the relevant accused which is before the Court now … In doing that one might say there are players in this whole incident who are more blameworthy than the accused who is before the court and that does require assessment of the total circumstances of the events and in making that assessment one then could form a proper view of the nature and the quality of the offence. To do otherwise might, I think, as the cases say, suggest some form of justifiable grievance in the accused who says: Well, just because I was there and I am the only one left, or I am the only one that WorkCover Authority, for whatever reason, decides to prosecute. One has to still look at the whole circumstances and say, 'What part of the whole circumstances did I play?' True it is, if we had done what we should have done, this accident may not have happened, and I say it may not. If the proper work had been done before in a safe way before we got there, this wall equally may never have fallen.' [48] It will be therefore apparent, I think, that Mr Phillips' submission was dangerously close to what I have referred to as apportioning a total penalty as between persons said to be responsible for the occurrence of the accident. I am unaware of any such approach in the sentencing process and, I think, it should be stated as plainly as may be that it is an approach leading to error. To the extent that Mr Phillips relied upon the parity principle in sentencing to support such a submission, I am of the view that that principle does not require a sharing or apportionment of culpability (and hence of sentence) but rather is designed to ensure that there should not be a marked disparity between sentences given to co-offenders for the offence for which they have been respectively found guilty …

[108]

48 As indicated by the Full Court in Capral Aluminium v WorkCover Authority (2000) 49 NSWLR 610, when sentencing an offender in relation to a serious breach of the Act, both aspects of deterrence should normally be given weight of some substance in the sentencing process. The Full Court said that, although there may be exceptional cases, the expectation was that they would be "very rare". Earlier in that judgment, the Full Court had cited with approval the well known passage from R v Rushby (1997) 1 NSWLR 594 at 597 - 598 where Street CJ noted that the fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment or with only a light punishment. Thus, the role of general deterrence assumes the importance referred to in Capral. In this case, general deterrence is a significant consideration having regard not only to the particular industry in which the defendant operates but also having regard to the widespread engagement of contractors and sub-contractors and the need to reinforce the obligations under the Act of those who engage them. I am unable to accept the defendant's submission that there is no role in sentencing this defendant for considerations of specific deterrence, mainly because of the extensive steps now taken by the defendant to implement a more comprehensive scheme of workplace safety and the specific steps taken to address the risk which was exposed by the occurrence of this incident. The defendant operates a large business and employs a significant number of people. Its activities are such that it is likely to engage contractors and sub-contractors in the future. Although the recent measures adopted to enhance workplace safety are commendable, it is to be remembered that, at the time of this accident which exposed a risk to safety which was simple to address, the defendant had an existing and significant workplace safety plan in operation. I do not suggest that the evidence permits a conclusion that it was no more than a paper system, but the failure to extend its policy of "no live electrical work" was so fundamental that it is difficult to understand why that policy was not extended to contractors and sub-contractors. Having regard to the totality of the evidence, however, while specific deterrence will be considered in setting an appropriate penalty, it will not play as prominent a role having regard to the actions taken by the defendant more recently.

[110]

50 In relation to subjective considerations, there are a number of matters in its favour which the defendant is entitled to have taken into account in setting an appropriate penalty. The prosecutor, however, has challenged the defendant's submission that it entered a plea of guilty at an early stage of the proceedings and is therefore entitled to a significant discount. The prosecutor points to the fact that the trial had been running for four days before the plea was entered, but that statement alone masks what actually occurred. The first two days of the proceedings were devoted to a notice of motion pursued by the defendant seeking to have the prosecution struck out as an abuse of process and otherwise permanently stayed. The gravamen of the complaint of the defendant was that it had been inundated with additional material and further particulars of the offence just days before the trial. A large issue was the alleged cause of the explosion, with possibilities being considered which included the presence of water dripping on to and possibly in to the switchboard, and the activities of rodents. While the defendant's motion to permanently stay the proceedings failed, I expressed my concern at the manner and volume of material so recently served by the prosecution which may well have justified an adjournment of the proceedings if the defendant had sought such a course. It was noted in the interlocutory judgment that effectively the defendant had obtained such an adjournment because it was necessary to reserve on the question of whether or not a case had been made out to permanently stay the prosecution. It was also made clear in the interlocutory judgment that the parties were to co-operate to ensure that the defendant was in possession of all the material relevant to the prosecution in a timely fashion and well before the date upon which the matter was to resume. One complicating factor was that the brother of the deceased, who was a witness of some importance and who had been told by his brother while in hospital what had occurred immediately before the explosion, was due to return to India and would not be available on the dates set for a resumption of the hearing. In those circumstances, a special fixture was set down purely to receive, out of normal sequence, the evidence of the deceased's brother. It was only in these unusual circumstances that evidence was commenced in the substantive case. As noted earlier, the amended charge, as particularised, was significantly different to the original charge. The present case is not similar, therefore, to the circumstances disclosed in WorkCover Authority of New South Wales (Inspector McMartin v Transfield Pty Ltd [No 2] NSWIRComm 289.

[116]

56 Section 10 permits an order to be made directing the relevant charge be dismissed if the Court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. In exercising this discretion a court is required to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition; (b) the trivial nature of the offence; (c) the extenuating circumstances in which the offence was committed; (d) any other matter that the court thinks proper to consider. In support of its submission seeking the benefit of a s 10 order, the defendant submitted that there were similarities in the present case with a matter decided by Hungerford J, being Wong v Melinda Group Pty Ltd (1998) 82 IR 118. In that case, his Honour held that the real culpability for the offence lay elsewhere and that there were extenuating circumstances over which the defendant had no control. Earlier in this judgment, I have indicated the basis upon which I have concluded that this was a serious breach and one which could not be significantly ameliorated by reference to the culpability of others. I have found that the risk was foreseeable and that the defendant had a simple and effective measure already in existence in order to avoid the risk. The case is therefore not comparable with the underlying facts as found in Wong , nor can the breach here be regarded as trivial in nature or one that was committed in extenuating circumstances. While I accept that the discretion conferred by s 10 is wide ranging, and that it is not appropriate to treat the scope and range of matters which it is proper for a sentencing Judge to take into account in a narrow way ( Thorneloe v Filipowski (2001) 52 NSWLR 60), I am not persuaded on the matters raised by the defendant, that this is a case where it is proper or appropriate to exercise the discretion in favour of the defendant.

[117]

57 My approach in relation to s 10 is influenced by the discussion of the Court of Criminal Appeal in Thorneloe v Filipowski. That case was an appeal against a refusal to give the benefit an order under s 10 in relation to a breach of the Marine Pollution Act 1987. The offence was a strict liability offence but the Court of Criminal Appeal considered that, in circumstances where there was a comparatively minor pollution by a first offender and where it was difficult to identify any effective step which the offender could have taken that did not require virtual perfection, those considerations should have been given weight by the sentencing Judge. In the course of his judgment Spigelman CJ (at [165] et seq) noted that, in Hunter WaterBoard v State Rail Authority NSW (No 2) (at 23), Stein J had said: "This court has not infrequently stated that it will be a rare case when a dismissal under s 556A is seen as appropriate to an environmental offence, especially a breach of the Clean Waters Act". It was noted that on appeal to the Court of Criminal Appeal, no error was found in his Honour's approach to penalty. The Chief Justice also noted that the formulation "a rare case", or equivalent words, had been applied in the Land and Environment Court on a number of occasions and that similar issues had arisen under s 15 of the Occupational Health and Safety Act. In that context, reference was made to the judgment of Fisher CJ in Shultz v Tamworth City Council (1995) 58 IR 221 at 229: "The use of s 556A of the Crimes Act, which in the light of the strongly defined duty of care, clear public policy considerations in the Act and major penalties provided, ought to be rare indeed." Reference was also made to the judgment in ProFab and the fact that formulation had frequently been used in the Industrial Relations Commission. Spigelman CJ went on to state: 171. Even in the case of an offence of strict liability , no public purpose is served by recording a conviction or imposing a penalty in circumstances where the relevant accused could not, as a matter of practical reality, have done anything to ensure that the offence or, in the case of a result offence, the adverse consequences of the conduct, did not occur … 178. It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act, in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing Judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeated offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight. In the context of that discussion, the Chief Justice regarded the distinction between "strict" and "absolute" liability as not being material.