Inspector Wright v Khouzame

Industrial Relations Commission (NSW)|2012-10-26|Before: Staff J

nspector Penfold) v Fernz Construction Materials Ltd [No 2] [2000] NSWIRComm 99; (2000) 100 IR 23 WorkCover Authority (Inspector Yeung) v Wilson (t/as Wilson's Tree Service [2005] NSWIRComm 158; (2005) 143 IR 187 Category: Principal judgment Parties: Inspector Michael Wright (Prosecutor) Zeina Khouzame (Defendant) Representation: Mr PJ Gow of counsel (Prosecutor) Mr E Khouzame Solicitor (Defendant) WorkCover Authority of New South Wales (Prosecutor) Senses Legal (Defendant) File Number(s): IRC 1668 and 1669 of 2011

Judgment 1Ms Zeina Khouzame ("the defendant") traded as Fay Property Maintenance ("Fay Property"), a business performing gardening, lawn mowing, trimming, rubbish removal, tree lopping and clearing. 2The defendant operated Fay Property from 21 January 2008 when she was aged 18 years of age. The trading name was previously held by Fayrouz Khouzame, the mother of the defendant, who established the business in 2006. It will become apparent from the Agreed Statement of Facts ("ASF") and the evidence that this is an unfortunate case. The decision of the defendant to assume the operation of the business has the potential to ruin her life. The defendant is currently a fulltime University student. 3On 2 November 2009, the defendant, Joseph Khouzame, the defendant's brother (then aged 16 years), Haussam Khouzame (the defendant's father), James Khouzame and Fayrouz Khouzame were removing trees from a property at 46 Wendy Avenue, Georges Hall in the State of New South Wales ("the property"). 4At approximately 1.20pm on 2 November 2009, Joseph Khouzame was operating a chainsaw and cut down a large tree, about 20m high. The tree fell onto power lines on Christopher Avenue, Georges Hall, an adjoining street. The power lines consisted of both 11,000 volts (high voltage power lines) and 415 volt (low voltage power lines). A number of power poles were also brought down. On top of one of the power poles was a transformer that was irreparably damaged when it fell. It spilled approximately 400 litres of oil, some of which ran into the gutter. 5Shortly before the incident, the defendant and her mother left the property to have one of the chainsaws resharpened and to obtain some food. 6The incident caused substantial damage to power infrastructure resulting in nearby homes being without power for a period of time. The cost of rectifying the damage including legal costs for repair of electricity infrastructure is $149,615.53. Ausgrid has obtained a judgment against the defendant in the District Court in the sum of $126,889.36 excluding costs. Damage to one resident's home was assessed at $1700 and the cost of repairing Singtel Optus cables at $2964. No persons suffered any injuries as a result of the incident.

The charge 7The defendant was charged with breaches of s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 ("the OHS Act"), by failing to ensure the health, safety and welfare at work of all her employees (the s 8(1) charge) and by failing to ensure that persons (other than employees of the defendant) were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work (the s 8(2) charge). 8The particulars of the s 8(1) charge were: a)The risk to the health, safety and welfare of the defendant's employees were that they were exposed to a risk of: (i)being struck and/or crushed by falling trees which had been cut substantially in one piece at or near the base; (ii)electric shock or electrocution consequent upon coming into contact with energised power lines; and (iii)being struck and/or crushed by falling power poles. b)The defendant failed to ensure that the risk to employees was controlled by: (i)the cutting down of trees by limbing and bucking; (ii)a traffic management plan for the site; (iii)an exclusion zone; (iv)securing the site to prevent employees coming in contact with power lines and power poles; and (v)the wearing of appropriate personal protective equipment. c)The defendant failed to comply with or observe the Amenity Tree Industry Code of Practice 1998, including that the defendant: (i)failed to establish and maintain a safe working zone which extended for at least twice the height of the tree; (ii)failed to identify, establish and/or maintain an escape route for an area of 45 degrees behind the line of fall of the tree; (iii)felled, or attempted to fell, the tree by means of powered mobile plant without firstly undertaking a risk assessment which determined that risks had been controlled; (iv)failed to assess, or properly assess, the proximity of overhead power lines to the tree to be felled; and (v)failed to establish a 3 metre safe zone around the downed power lines. d)The defendant failed to comply with or observe the Work Near Overhead Power Lines Code of Practice 2006, including that the defendant: (i)failed to ensure that work was not carried out where any part of the tree could fall or otherwise be carried closer to the approach distance to power lines (3 metres); (ii)failed to ensure that no work was carried out, or that any part of a worker's body came closer to the approach distance to power lines (3 metres); and (iii)failed to establish a 3 metre safe zone around the downed power lines. e)The defendant failed to ensure that her employees at the site had formal qualifications to conduct tree work; or were competent to perform the tasks required by the Amenity Tree Industry Code of Practice 1998 by the acquisition of knowledge and skills through training, qualification or experience or a combination of these. f)The defendant failed to provide a Safe Work Method Statement that required removal of trees using recognised forms of tree removal such as limbing and bucking. g)The defendant failed to provide information, instruction, training and supervision to her employees in relation to the removal of trees, in that the defendant failed to undertake the following measures: (i)ensuring that employees were provided with information and instruction that they were not to undertake the removal of trees without having the appropriate qualifications; (ii)ensuring that employees were supervised so as to ensure that they did not remove trees by cutting the trees substantially in one piece at or near their base; and (iii)ensuring that employees were aware of the requirements of the Amenity Tree Industry Code of Practice 1998 and the Work Near Overhead Power Lines Code of Practice 2006. h)The defendant failed to ensure that site inductions were carried out for all employees so that employees were aware of the risk and were able to take measures such as those referred to above so as to avoid risk when working at the site. As a result of the defendant's acts and/or omissions, the defendant's employees' health, safety and welfare were placed at risk. 9The particulars of the s 8(2) charge were: a)The risk to the health or safety of people at the defendant's place of work was that they were exposed to a risk of: (i)being struck and/or crushed by falling trees which had been cut substantially in one piece at or near the base; (ii)electric shock or electrocution consequent upon coming into contact with energised power lines; (iii)electric shock or electrocution consequent upon 11,000 volt (high voltage) power lines coming in close proximity to, or contacting, 415 volt (low voltage) power lines resulting in high voltage power passing into residential houses; and (iv)being struck and/or crushed by falling power poles b)The defendant failed to ensure that the risk to the health or safety of people at the defendant's place of work was controlled by: (i)the cutting down of trees by limbing and bucking; (ii)a traffic and pedestrian management plan for the site; (iii)an exclusion zone; and (iv)securing the site to prevent people coming in contact with power lines and power poles. c)The defendant failed to comply with or observe the Amenity Tree Industry Code of Practice 1998, including that the defendant: (i)failed to establish and maintain a safe working zone which extended for at least twice the height of the tree; (ii)felled, or attempted to fell, the tree by means of powered mobile plant without firstly undertaking a risk assessment which determined that risks had been controlled; (iii)failed to assess, or properly assess, the proximity of overhead power lines to the tree to be felled; and (iv)failed to establish a 3 metre safe zone around the downed power lines. d)The defendant failed to comply with or observe the Work Near Overhead Power Lines Code of Practice 2006, including that the defendant: (i)failed to ensure that work was not carried out where any part of the tree could fall or otherwise be carried closer to the approach distance to power lines (3 metres); and (ii)failed to establish a 3 metre safe zone around the downed power lines. e)The defendant failed to ensure that her employees at the site had formal qualifications to conduct tree work; or were competent to perform the tasks required by the Amenity Tree Industry Code of Practice 1998 by the acquisition of knowledge and skills through training, qualification or experience or a combination of these. f)The defendant failed to provide a Safe Work Method Statement that required removal of trees using recognised forms of tree removal such as limbing and bucking. g)The defendant failed to provide information, instruction, training and supervision to her employees in relation to the removal of trees, in that the defendant failed to undertake the following measures: (i)ensuring that employees were provided with information and instruction that they were not to undertake the removal of trees without having the appropriate qualifications; (ii)ensuring that employees were supervised so as to ensure that they did not remove trees by cutting the trees substantially in one piece at or near their base; and (iii)ensuring that employees were aware of the requirements of the Amenity Tree Industry Code of Practice 1998 and the Work Near Overhead Power Lines Code of Practice 2006. h)The defendant failed to ensure that site inductions were carried out for all employees so that employees were aware of the risk and were able to take measures such as those referred to above so as to avoid risk to people who were at the defendant's place of work. As a result of the defendant's acts and/or omissions, people at the defendant's place of work were placed at risk to their health or safety. 10The defendant pleaded guilty to the offences, as charged, in the applications for order. I am satisfied on the evidence, that the defendant is guilty of the offences, as charged and it is appropriate for the pleas of guilty to be entered. It follows, therefore, that this judgment is concerned with the question of penalty.

Prosecutor's evidence 11Mr PJ Gow of counsel, who appeared for the prosecutor, tendered an agreed bundle of documents on sentence, which included an ASF which provided: ... 2.At all material times ZEINA KHOUZAME ("the defendant") of 200 Edgar Street, Condell Park, in the state of New South Wales traded as FAY PROPERTY MAINTENANCE ("Fay Property"). 3.The defendant, under the auspices of Fay Property ran a business performing gardening, lawn mowing, trimming, rubbish removal, tree lopping and clearing. 4.At all material times the defendant employed persons to perform work. 5.The defendant managed Fay Property, visited work sites and was aware of the usual method of work on sites. 6.At all material times the Defendant employed Joseph Khouzame and would from time to time receive assistance from family members, Haussam Khouzame, Fayrouz Khouzame and James Khouzame. 7.The defendant operated as Fay Property from 21 January 2008 and was the holder of that trading name. The trading name was previously held by Fayrouz Khouzame, the mother of Zeina Khouzame. 8.In return for their services, Joseph Khouzame as well Haussam, Fayrouz and James Khouzame were provided with payments in the form of paying for their various expenses such as mortgage payments, utility bills, school fees and general shopping. 9.The incident occurred at 46 Wendy Avenue, Georges Hall ("the property") which was a vacant block of land on the corner of Wendy Avenue and Christopher Avenue in a built up residential area. Fay Property had been engaged by the land owner, Mohamad (Michael) Darwich to remove a number of trees at the site in preparation for building. 10.The Defendant was paid $3,000.00 for the work including the removal of trees and taking the tree waste from the site. 11.On 2 November 2009 Joseph Khouzame, Haussam Khouzame, James Khouzame and Fayrouz Khouzame, were removing trees at the property. 12.The Defendant's workers had been working at the property for up to one week prior to the incident. 13.Throughout the relevant time there was no person on the property who held any formal qualification for tree work. Details of Incident 14.On the day of incident, the Defendant, Joseph Khouzame (then aged 16 years), Haussam Khouzame and Fayrouz Khouzame felled several trees and then cut up the tree parts while they were on the ground. The cuttings were then taken away in a trailer. 15.The trees at the property prior to the incident were felled at their bases. 16.The employees and those assisting were wearing fluorescent shirts, safety boots, gloves, safety hats, ear muffs and safety goggles. 17.At approximately 1:20pm, Joseph Khouzame who was operating a chainsaw, cut down a large tree (about 20m high) at its base, which then fell onto power lines on Christopher Avenue (being an adjoining street), bringing down those power lines and a number of power poles. On top of the power poles was a pole top transformer that was irreparably damaged when it fell, as a result of the incident, spilling approximately 400 litres of oil, some of which spilled into the gutter. 18.The tree had been about two metres from an adjoining fence that separated the neighbouring property upon which a house was built. Joseph Khouzame cut the tree approximately one metre from its base (the stump being about 600mm in diameter) using two cuts similar to a recognised "scarf and back cut", a method of tree felling. The scarf is most commonly a wedge shape cut in the trunk of the tree that designates the direction of fall. The back cut should be on the opposite side of the scarf. A small section of wood known as hinge wood is left between the scarf and back cut, which allows the tree to fall in a controlled manner. 19.While the cut made was similar to a scarf and back cut, it was fundamentally flawed as the back cut was made a forty five degree angle and there was also no holding wood. 20.Shortly before the incident, Zeina and Fayouz Khouzame left the property to have one of the chainsaws re-sharpened and get some food to have a break during which time, neither Haussam nor Joseph Khouzame were being supervised. Prior to departing, the Defendant told Joseph not to take any risks and to wait until she got back to remove the third tree. 21.CCTV footage obtained by WorkCover Authority investigators captured the subject tree falling to the road surface. It shows a utility motor vehicle parked in the intersection of Wendy and Christopher Avenues which had been stopped there for at least 15 minutes before the tree fell. A witness to the incident saw a rope attached to the back of the utility leading up to the subject tree and saw a person on the corner of Wendy Avenue and Christopher Avenue wave to the driver of the utility to start driving. The witness saw the rope snap as the utility drove forward. 22.The CCTV footage shows utility being driven away as the tree fell onto the power lines and also shows at least two vehicles drove through the intersection and around the stationary utility in the minutes before the tree fell. The footage also shows that a person jogged past the intersection minutes before the tree fell and a worker standing in the approximate position where the tree ultimately fell some 30 or so seconds before the fall. It was evident that there was inadequate traffic control in place before the tree fell. 23.The power lines that were brought down consisted of both 11,000 volt (high voltage power lines) and 415 volt (low voltage power lines). Sparks were emitted from the fallen lines as they came to the ground which indicates that they were energised at the time. In the process of the 11,000 volt lines falling, there was a risk that they could contact the low voltage lines suspended by the same power poles. Such contact can allow for high voltage electricity to pass to the low voltage circuit, thereby entering houses and potentially causing an electric shock or electrocution to persons using electrical appliances in their homes. Approximately 56 premises were impacted by the power outage due to the fallen lines. 24.At least one of the nearby homes was within the possible fall radius of the tree but most were within the safe zone for tree felling of two times the height of the tree required by the Amenity Tree Industry Code of Practice 1998. 25.Officers of the New South Wales Fire Brigade then attended the scene. Fire officers and officers of the New South Wales Police Force (who also attended the scene) saw that there was inadequate traffic control in place when they arrived. Those officers and local residents saw a Fay Property worker using a chainsaw to cut branches from the fallen tree after the power lines had been brought down and before the power had been confirmed as isolated by the electricity authority. The Defendant had not yet returned to the property. The workers were seen to be moving under, around and stepping over the fallen lines which were entangled in the branches of the tree. 26.While the power lines were on the ground, Ausgird personnel (formerly Energy Australia) indicated that there was a risk of electric shock or electrocution to anyone within the vicinity of the downed power lines, including Fay Property workers, emergency responders and members of the public. This risk emanated from contact with the conductor but also from a risk known as "step potential", in that a person could be close to, but not on top of, grounded high voltage overhead lines and still be electrocuted as the person has a potential voltage between the legs when he or she steps. Some of the Fay Property workers only moved away from the power lines at the direction of emergency service personnel. 27.The method used to fell the trees, the lack of traffic and pedestrian control and the potential for electric shock or electrocution from falling and fallen power lines, gave rise to a significant risk that this incident could have resulted in death or serious injury to workers and/or members of the public. Fortunately, no injuries were sustained. 28.This incident caused substantial damage to power infrastructure resulting in nearby homes being without power for a period of time. The cost of rectifying the damage has been estimated at $99,000.00 for electricity infrastructure and approximately $1,700.00 for damage to one resident's home. Systems of Work Prior to the incident 29.Not all employees were wearing adequate personal protective equipment at the time of the incident. At different stages, some were wearing fluorescent shirts, safety boots, gloves, safety hats, ear muffs and safety goggles. Appropriate personal protective equipment for work being conducted would have included, at a minimum, helmets, facial shields, hearing protection, gloves, cut resistant pants and chaps for chainsaw operators. 30.Zeina Khouzame, Joseph Khouzame, Haussam Khouzame, James Khouzame and Fayrouz Khouzame did not have any formal qualifications to conduct the relevant tree work although Haussam Khouzame asserted that he had extensive experience as a tree removalist, dating back more than 20 years where he began assisting his father in removing trees in a village in Lebanon. Joseph Khouzame (then only 16 years of age) claimed he had experience conducting tree work for Fay Property and also with another family company which only performed limited tree work. Joseph Khouzame claimed that he was given instruction in amenity tree work by Haussam Khouzame. 31.There is no evidence that there were written work procedures for the type of work conducted by the Defendant's business. 32.Control measures identified in the risk assessment and safe work procedures were not implemented including the clearing of a safe zone, provision of adequate traffic management and felling a large tree at the base. 33.A vehicle that was tied to a tree to pull the tree in a desired direction. This is an unsafe practice. In any event, the Amenity Tree Industry Code of Practice 1998 requires a safe working zone to be set up and maintained when felling a tree. That zone should extend for at least twice the height of the tree and should identify an escape route for an area of 45 degrees behind the line of the fall of the tree. The power lines were in fact within the impact zone and no 45 degree escape route was identified. 34.Employees claim that the rope was tied to another tree, near the tree to stop it falling towards the power lines. There is no industry code that recommends the use of ropes in the way described by the defendant's employees. 35.Both the Amenity Tree Industry Code of Practice 1998 and Work Near Overhead Power Lines Code of Practice 2006 stipulate that the minimum safe working distance for power lines, up to 132,000 volts is 3 metres and the latter code indicates that if any part of a branch is touching live power lines, the entire branch may be live including the leaves. However, after the tree was felled, a worker used a chainsaw to cut branches from the crown of the tree despite the risk that the live power lines on the road were live which were entangled in the branches of the felled tree. Work systems after the incident 36.Following the incident the defendant developed safe work method statements and risk assessments. These documents were based on practical guidance given in the Amenity Tree Industry Code of Practice 1998. 37.The defendant stated that Fay Property Maintenance no longer conducted tree work on the scale seen at the property. Prior convictions The Defendant has no prior convictions under occupational health and safety legislation. 12The agreed tender bundle contained the following documents: i.Business Name Extract of Fay Property Maintenance; ii.Factual Inspection Report of Inspector C Jelley; iii.Aerial Photo (Whereis.com) of the property; iv.Aerial Photo (Google Maps Australia) of the property; v.Photographs of site; vi.Amenity Tree Industry Code of Practice 1998; vii.Work Near Overhead Power Lines Code of Practice 2006; viii.Risk Assessment; ix.Safe Work Procedure; x.Prior Conviction Record showing the defendant has no prior convictions.

Defendant's evidence 13Mr E Khouzame Solicitor, who appeared for the defendant, led oral evidence from the defendant. The defendant was required for cross-examination. 14The defendant stated that she was studying a Bachelor of Business Marketing at the University of Western Sydney. She commenced this course in 2006. She works part-time as a pharmacy assistant with Pharmacy for Less at Riverstone, on average three days per week. She earns approximately $500 net for this work. 15Mr Khouzame tendered employee payslips for the periods 4 September 2012; 11 September 2012; 25 September 2012; 9 October 2012 and 16 October 2012. The payslips disclosed the defendant earned for the relevant periods $820; $608; $531, $595 and $516. In respect of the first amount, the defendant explained that she had worked additional hours that week. 16She stated that she is in her final year of her degree having taken some breaks because she could not handle the workload and needed to earn some additional money. 17The defendant's evidence was that both her parents were in receipt of disability pensions and suffered serious health problems. She is the eldest with four brothers and one sister. Two siblings are still at school. One brother is in employment and pays $120 board per week to his parents. He has a serious eyesight condition which results in him going almost blind at night. Another brother pays approximately $120 board to his parents. The defendant's sister is studying a Bachelor of Business degree and a Law degree and earns approximately $300 - $400 per week which she contributes to the running of the family household. The defendant's evidence was that she contributes almost all of the her wages to the running of the family home. 18Mr Khouzame tendered the defendant's bank statements for a Commonwealth Bank of Australia Smart Access account which showed a closing balance as at 29 August 2012 of $211.03. This is the only account that the defendant holds. Her evidence was that there is a key card attached to the account, which is controlled by her parents. She stated that her parents had a mortgage on the family home of just over $300,000. Monthly repayments were $2,500. Repayments are made by her parents from their disability pensions and whatever the defendant and her sister contribute. 19Mr Khouzame tendered the defendant's tax returns for 30 June 2009 and 30 June 2010. They showed respectively a taxable income of $6,035 and $31,058. 20The defendant stated that she became the proprietor of Fay Property on or around 21 January 2008 when she was aged 18 years. Her mother had set up the business in 2006. However, after a serious car accident her mother was unable to continue to run the business. At the time that her mother ran the business, it involved gardening, lawn mowing and landscaping. The defendant expanded the business to include tree lopping or tree felling work. The defendant said that she was not at the property when the tree fell on the power lines. She had left with her mother to have a chain of a chainsaw sharpened and to get lunch. She agreed that the safety measures adopted by the business while undertaking the work at the site were lacking and that this gave rise to a serious risk. 21Since the incident, Fay Property had not undertaken any further tree lopping or tree felling work. The business continued to trade for a further five or six months. It was brought to an end and deregistered approximately one year after the incident. This was following a decision that the defendant did not want anything to do with the business after the incident. She was upset that the work was not being done properly and she realised that she could not supervise the work while she was studying. After the incident she ensured that she was on site while the business carried out any further work. She stated that she implemented new strategies including wearing safety gear and ensuring that the work was properly carried out. The defendant accepted that she it was 100 per cent her responsibility for the incident. 22The defendant stated that as a result of the incident, a claim had been brought against her by Ausgrid who had obtained a judgment against her in the District Court of New South Wales in the sum of $126,889.36, excluding legal costs. The solicitors for Ausgrid sought payment of the sum of $149,615.53 by 20 September 2012. 23Mr Khouzame also tendered a tax invoice from SingTel Optus Pty Ltd seeking payment of $2964, being the cost of repair for SingTel Optus cables damaged as a result of the incident. 24NRMA Insurance is also seeking the sum of $826 which represents damage caused to a vehicle during the incident. The defendant was required to answer an Examination Summons on Monday 29 October 2012. 25The defendant also stated that she had accumulated a credit card debt with the National Australia Bank of $20,000. She is in default in respect of this card which has impacted on her ability to obtain credit. 26Mr Khouzame tendered a character reference from Joseph Gittany, a Builder. Mr Gittany stated that Fay Property had conducted work for him on many occasions and the work had been carried out in a safe and orderly manner. He believed the reason why the incident occurred was because Fay Property had taken on a job which was too big for them. He stated he had discussed the matter with the defendant on two occasions when she became tearful. He believed that the incident had caused her a lot of distress. He further stated that he had observed the defendant to become withdrawn since the incident. He stated that she is a very trustworthy person of the highest moral integrity who has spent the majority of her adult life working hard to help support her family. This has meant that she has put most of her adult life on hold to assist the family, including her siblings. He believed that the defendant was truly sorry for what happened. 27During cross-examination the defendant agreed that she had not produced her Notice of Taxation Assessment for the year ending 2011 or 2012. She confirmed that she only had one Commonwealth Bank key card to which other members of the family also had access. She stated that withdrawals of amounts such as $500 would have been for her mother or herself. She stated this was the first occasion that Fay Property had been involved in felling a large tree. Normally the business worked on trees which were a couple of metres high, such as lemon or olive trees. The defendant acknowledged that she was aware that neither her father nor her brother Joseph had any form of accreditation to be felling a tree 20m tall. The defendant confirmed that she had no other assets other than those she had referred to while giving her evidence.

Relevant principles 28The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS Act. Their Honours stated at [8] - [15]: [8]The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9]In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' [10]The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: '[I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... [11]The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) ("Capral") 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: '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 and 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/a 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.' [12]On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: 'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd [1999] 92 IR 188 (at 209 - 210) in these terms: '... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.' [13]It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" (Capral at 650; 66). On that point the Full Bench in Capral stated: 'We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).' [14]The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: '[B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.' [15]In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: '[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).'

Consideration 29The primary consideration as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence, as set out in the "ASF" and the evidence. 30As the ASF discloses, the defendant was involved in work on 2 November 2009 which was inherently dangerous. It was made even more dangerous by the lack of procedures employed by the defendant. No person working at the property held any formal qualification for tree work. 31On the day of the incident, a tree (approximately 20m high) and having a diameter of approximately 600mm, was felled by the defendant's 16 year old brother, using a chainsaw. The tree was cut at its base, rather than being cut into pieces from the top down. When the tree fell to the ground, it hit energised power lines which brought down the lines and a number of power poles. Although the cut made was similar to a "scarf and a back cut", the cut made by the defendant's brother was made with a 45 degree angle and there was no holding wood. (See ASF at paragraph 19). This was contrary to the Amenity Tree Industry Code of Practice 1998. 32The seriousness of the offences must be assessed in light of the policies and procedures which the defendant had in place: WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd [No 2] [2000] NSWIRComm 99; (2000) 100 IR 23. In respect of this incident, the defendant acknowledged that she did not have any procedures in place. 33The risks to safety that manifested themselves during the carrying out of the felling of the tree included persons being struck by the falling tree, persons being struck by one of the falling power poles, including the transformer attached to one pole, the electrocution or electric shock of persons coming into contact with falling or fallen power lines and the electric shock to residents using electrical appliances by virtue of high voltage electricity (11,000 volts) passing into the low voltage circuit. 34Mr Gow emphasised that the Amenity Tree Industry Code of Practice 1998 (at page 7) warned that: TREE WORK IS HAZARDOUS. The industry is full of hazards ranging from the tree itself, to the weather, the terrain and difficult sites in which the tree work is carried out. Each year, many people in the tree industry are killed or injured. 35The risks identified in the Amenity Tree Industry Code of Practice 1998 could have been reduced or avoided if an employee of the business held formal qualifications. It is no answer to the charges, nor is it a mitigating factor, that the defendant told her brother not to take any risks and to wait until she got back to remove the subject tree. Clearly, the method employed to fell a tree using a utility vehicle to pull the tree in the direction desired of fall by means of a rope, was an unsafe practice. This method that elevated the risks to safety was unsuccessful. The rope snapped upon the vehicle driving forward. The Amenity Tree Industry Code of Practice 1998 (at page 46) required a safe working zone to be set up and maintained. Such zone should have been extended for at least twice the height of the tree (which could never have been achieved at the property) in addition to an escape route 45 degrees behind the line of the fall of the tree. 36The risk to both employees and non-employees was significant. Mr Khouzame acknowledged that there was a severe risk. Closed Circuit Television footage demonstrated that in the minutes before the fall, two cars drove past the intersection where the tree fell. Furthermore, a person jogged past the approximate position where the tree ultimately fell some 30 or 50 seconds before the fall. This demonstrates the seriousness of the offence, in my view, and the risk that a person could have been killed or seriously injured by the falling tree, energised power lines and power poles. 37In addition, once the power lines were down, employees of the business commenced to cut branches from the fallen tree at a time when the power lines were entangled in the tree's branches. The power had not at this stage been confirmed as isolated and a risk of electrocution was brought about by "step potential" (see ASF at paragraph 26). 38The Work Near Overhead Power Lines Code of Practice 2006 warns that for 415 voltage and 11,000 voltage power lines, the minimum separation in air from an exposed overhead conductor that must be maintained by a person, is 3m (at page 9 and page 23). Employees of the business were well within that approach zone and moving around the fallen tree. 39The Work Near Overhead Power Lines Code of Practice 2006 also warns (at page 6): Overhead power line contact is one of the largest single causes of fatalities associated with mobile plant and equipment. ... You don't have to have a direct contact with a high voltage overhead power line to receive a fatal electric shock. Simply being too close can kill. 40The Amenity Tree Industry Code of Practice 1998 also points to the dangers of coming too close to power lines and cautions that the minimum safe working distance is 3m (at page 20). It also advises in the Chapter Electrical Fitted Safety (page 18 and page 19) that: A powerline or electrical conductor should always be assumed to be energised or "live". ... ... A tree of branch of a tree can conduct electricity even in dry conditions and it should never be assumed that a tree branch can safely rest on or against a powerline. 41The conduct of the defendant and the employees of the business demonstrated either a lack of awareness or ignorance of the relevant safety standards concerning electrical cables. There was, in my view, a significant risk of serious injury or death in the circumstances. Additionally, there was a risk of electrocution or electric shock to residents operating electrical appliances in their homes. 42In light of the inherently dangerous nature of the work and the existence of a clearly foreseeable risk to safety, results in this offence being more serious in nature. 43Furthermore, it was also reasonably foreseeable that there was the risk of serious injury or death in the absence of the defendant providing instruction and information to employees and non-employees working in felling the tree. 44The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the risk to safety including adherence to the Codes of Practice referred above, are relevant to assessing the seriousness of the offences: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. 45The existence of a reasonably foreseeable risk to safety that is likely to result in a serious injury or death is a factor that will be relevant to the assessment of the gravity of the offences: Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; (2000) 99 IR 29 at 81 and Kembla Coal and Coke Pty Ltd at 27.

General deterrence 46I consider it is appropriate in this case to once again draw attention to the need for employers and contractors involved in tree lopping and tree felling to be constantly vigilant of the need to ensure that workers are not exposed to risks from trees falling upon them or from being exposed to power lines and/or falling power poles. 47I am mindful that in fixing an appropriate penalty the need for general deterrence is one of the main purposes of punishment and therefore must be considered: see Capral at 388. However, I agree with the observations of Boland J President in Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96 where his Honour in citing R v Jenkins [1999] NSWCCA 110 stated at [24]: It is clear from the Full Bench's consideration in Capral Aluminium that general deterrence is a major consideration in occupational health and safety cases but I do not consider the Full Bench was suggesting it should be allowed to override, to an impermissible degree, the offender's favourable subjective circumstances, particularly that the defendant is unlikely to re-offend: R v Jenkins [1999] NSWCCA 110 at [38] per Simpson J. 48I include an element in the penalty for general deterrence.

Specific deterrence 49In relation to specific deterrence, the defendant stated that she no longer conducted tree felling work and that Fay Property no longer operates as a business. I therefore accept that this is not a case that calls for the imposition of some additional significant punishment aimed at deterring this defendant from further offending against the OHS Act and/or for the purpose of compelling the defendant's attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety.

Subjective factors 50The relevant subjective factors include a plea of guilty at the earliest available opportunity. I propose to allow a discount of 25 per cent for the utilitarian value of the plea: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104. 51I also take into account the defendant's remorse. 52The defendant co-operated with the WorkCover Authority of NSW in its investigation of the breach. I also find that at the time of the offences, the defendant was of good character. I also take into account her age, which may have clearly affected her ability to assess the seriousness of the level of risk to which she was exposing herself and her employees and non-employees while work was being carried out.

Fines Act 1996 53The defendant gave evidence of her financial position and that Fay Property was no longer operating. Section 6 of the Fines Act 1996 ("Fines Act") provides that in the exercise of the discretion of a court to fix the amount of a fine, the Court is required to consider "such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration". The evidentiary onus in establishing the financial situation of the defendant lies with the defendant, noting that it no longer trades. In my view, this onus has been satisfied in this case. I have earlier set out the financial position of the defendant. However, as was observed by Wright J in Ferguson v Nelmac Pty Ltd (1999) 92 IR 188, the financial situation of the defendant should not cloud the central issue, which is to impose a fine commensurate with the seriousness of the offence. His Honour observed at 209: The financial position and more particularly the means of the defendant should be taken into account in relation to the question of penalty ... Whilst I accept that imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the court not imposing a heavy penalty. 54In Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 353, Stein J considered the significance of the fact that the corporate defendant had ceased to trade. His Honour held: Whether a person or company's financial circumstances will sound in mitigation of penalty however will very much depend on the particular facts and circumstances...So far as the company is concerned all I know is that it is no longer trading. It is difficult to see how its largely indefinite financial circumstances should mitigate the fine to any appreciable extent. It is not in receivership and could possibly trade again. In any event, the means of the company may not have the same impact on third parties as with an individual defendant. 55The defendant is entitled have taken into account account, as a significant factor, that she is a first offender: Corinthian Industries (Sydney) Pty Limited v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 at [17]; Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 at [107] and JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; (2008) 184 IR 1 at [107]. 56This matter, as I have already observed, has the potential to destroy this young defendant's life. The criminality in my view, does not warrant a substantial fine. The stupidity of the business operations on the day of the incident is another matter. Furthermore, the Fines Act is specifically directed to cases such as this one. Taking into account the seriousness of the offences, the subjective factors and the matters referred to earlier in this paragraph, where issues such as these are raised, the Supreme Court of New South Wales, Court of Appeal has observed that a court is not to impose a crushing or oppressive penalty, nor should it impose a fine that the offender does not have the means to pay: see Retsos v Regina [2006] NSWCCA 85, as applied by this court in Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153 at [16], and the authorities referred to therein.

Totality 57As the two offences found to have been committed by the defendant arose out of the same course of events, the principle of totality therefore has application. 58The maximum penalty for each offence is $55,000. 59The principles of totality require consideration of the overall culpability or criminality attributable to the defendant from both convictions, and in the process ensures that there is no "double counting of the culpability of the defendant from the respective offences": WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57; (2000) 99 IR 284 per Wright J at [37]. 60The approach to the application of the principles of totality is found in the decision of the Full Bench in Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan [2001] NSWIRComm 313; (2001) 105 IR 181, which considered the High Court's ruling in Pearce v The Queen (1998) 194 CLR 610. The Full Bench held that: [23]The effect of Pearce is that, in sentencing a defendant for more than one offence, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. It is only after determining an appropriate sentence for each offence that the Court should consider whether the sum of the separate sentences properly reflected the totality of the criminality involved. ... [29]In an appropriate case, however, it may still be appropriate to impose a single penalty for multiple offences under the Act, but only as the result of the operation of the principle of totality after separate penalties have been assessed for each offence. However, we consider that the preferable course is that separate penalties should be imposed after the principle of totality is applied.... [51]In view of our conclusion that the two offences contained very substantial common elements, it could not be considered that the deduction made by her Honour was appropriate and sufficient. In a case such as this, the totality principle must be applied to ensure that the defendant is not punished more than once for the common elements of the offences and that the resultant penalty is appropriate to the overall criminality of the offences for which the defendant is being sentenced. 61In determining the penalty to be applied to the defendant, taking into account the total criminality of the offences under s 8(1) and s 8(2) of the Act, I consider the appropriate penalty to be: 1.In matter No IRC 1668 of 2011 - $5000. 2.In matter No IRC 2669 of 2011 - $5000. 62I consider that the overall culpability of the defendant, bearing in mind the significant overlap between the two offences and the aggregate culpability arising from the effect of both breaches occurring at the same time (and being evidenced by a single incident) would result in a total fine of $5000. Having regard to the separate assessments of culpability of the defendant in relation to the two offences, fines of $2500 should be imposed in each matter. 63I should note that in determining penalty, I have also had regard to the decision of the Full Bench in WorkCover Authority (Inspector Yeung) v Wilson (t/as Wilson's Tree Service) [2005] NSWIRComm 158; (2005) 143 IR 187, (at [122] - [133]), in particular that there will be a cost impact on the defendant in respect of the orders I make. I have taken this into account.

Costs 64The prosecutor seeks a moiety and costs which I propose to grant.

Orders 65I make the following orders: In Matter No IRC 1668 of 2011

The offence is proven and a verdict of guilty is entered. 2.The defendant is convicted of the offence, as charged. 3.The defendant is fined an amount of $2500 with a moiety thereof to the prosecutor. 4.The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, as assessed. In Matter No IRC 1669 of 2011
The offence is proven and a verdict of guilty is entered. 2.The defendant is convicted of the offence, as charged. 3.The defendant is fined an amount of $2500 with a moiety thereof to the prosecutor. 4.The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, as assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2012

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