Essential Energy (the offender) has pleaded guilty to an offence that as a person who had a health and safety duty pursuant to section 19 Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Trevor Tooze to a risk of death or serious injury contrary to section 32 of the Act.
The maximum penalty for the offence is a fine of $1.5 million.
[3]
Facts
The parties presented an Agreed Statement of Facts that can be summarised as follows.
A particular 11kV recloser (circuit breaker) was defective and required replacing, and the offender decided to relocate the new recloser. This required removal of approximately 2.3kms of 11kV bottom circuit conductors across 14 spans between poles 97053804 and 97051582. The circuit conductors were the wires strung between the poles. In the area where the work took place there were three wires strung at the top of the poles (the top circuit conductors) and three wires strung about 1200mm underneath them (the bottom circuit conductors). The work was being conducted at Burgwahl. The workers had travelled from the offender's site at Bulahdelah.
On 28 August 2013, a work crew disconnected and removed the bonds that connected the top and bottom circuit conductors at poles 97053804 and 97051582, which had the effect of de-energising the 11kV bottom circuit conductors between these poles. The top circuit conductor between these poles remained energised.
At the relevant time, the offender's Electrical Safety Rules required that:
1. No person was to come closer to any live conductor than the "safe approach distance" specified, which in relation to the relevant task was 700mm;
2. A safety observer was to be used to ensure compliance with the "safe approach distance"; and
3. Access to the de-energised bottom circuit conductor was to be in accordance with an Access Permit regime.
On 2 September 2013, six workers, working in two teams arrived at the site to carry out the task of removing the bottom circuit conductors. Mr Tooze was working in Team 2 and was assigned the role of Safety Observer and, when not performing that role, to work as a Ground Assistant. In his role as Safety Observer, he was to observe and warn against unsafe conditions including if other team members or plant came in close proximity to the energised top conductor or was at risk of moving within 700mm of that conductor.
The work crew carried out tasks to ensure that the bottom circuit conductor was de-energised, applied danger tags, identified hazards, and applied appropriate Access Permits. One of the members of the team, Mr Bratfield, also drove between poles 97051588 and 97051582 to check there was sufficient clearance between the bottom and top circuit conductors.
Team 1 commenced work from pole no 97051584 and Team 2 commenced work from pole no 97051588.
The incident occurred when Team 2 was carrying out work at pole no 97051587. A team worker from Team 2 lowered the bottom circuit conductor at this pole and handed it to Mr Tooze, who took hold of the conductor with his right hand with the intention of placing it on the ground. It was important to place the wire carefully on the ground to avoid the risk that it would come in contact with the energised top circuit conductor.
At the time that Mr Tooze took hold of the wire, another section of it located two spans away from the work location (between poles 97051589 and 97051590) made contact with, or came in close proximity to, the top energised circuit conductor, causing the transmission of electrical current through it. The lowering of the bottom circuit conductor by Team 2 had increased the tension of the bottom circuit conductor causing it to come into contact with the live wire about 450m away.
Mr Tooze was electrocuted and sustained fatal injuries.
The offender issued an almost immediate safety alert later that day) prohibiting overhead conductor re-stringing, re-tensioning or removal, unless all conductors had been de-energised. It has since implemented a new procedure, but the prohibition remains in place and has been taken up by electricity utility companies of similar Ausgrid and Endeavour Energy.
[4]
The Offender's Evidence
The offender read the affidavit of Gary Humphreys, affirmed 29 July 2016, and the affidavit of David Nardi sworn 3 August 2016. Both Mr Humphreys and Mr Nardi were present at the sentence hearing by were not required for cross-examination.
Gary Humphreys is currently employed by the offender as Deputy Chief Executive Officer and has been in this role since 18 July 2016. At the time of the incident Mr Humphreys was employed as Chief Operating Officer. He has worked for the offender for 18 years.
The offender operates a business supplying electricity 24 hours per day 7 days per week across 95% of the geographic area of New South Wales. The offender is responsible for maintaining almost 200,000 kilometres of powerlines, 1.4 million power poles, 136,000 distribution sub-stations and 326 zone sub-stations. In far-west New South Wales the offender also delivers water and sewerage services to 20,000 customers.
Mr Humphreys deposed that the offender currently employees over 3,100 people in regional and rural communities. In 2012, the offender was awarded the Premier's Public Sector 'Revitalising Regional NSW' Award for its Indigenous Employment and Development Strategy.
Mr Humphreys expressed on behalf of the offender deep regret and remorse for the injuries occasioned to the deceased and the risk that the offender's employees were exposed to. On behalf of the offender, Mr Humphreys accepted full responsibility for the offence and expressed a commitment to ensuring health and safety of employees and improving its systems of work in order to do so.
Mr Humphreys gave evidence in his affidavit that on the day of the incident the offender's Chief Engineer, Mr Ken Stonestreet; an Area Manager, Mr Ross Berry; and Regional General Manager for the North Coast, Mr Brendon Neyland; attended the site and co-operated with the requests of the Emergency Services. Mr Berry accompanied police to the deceased's home to inform his family of his death. Mr Berry and Mr Neyland attended the family's home later in the day to check on the family of the deceased.
The offender provided support to the family of the deceased by taking steps including:
1. organising for the deceased's family to access immediate and ongoing counselling;
2. organising working bees at the family's home on 29 November 2013 and 21 November 2014;
3. setting up a memorial fund to raise money for the family;
4. continuing to pay the deceased's salary for 3 months following his death to provide his family with regular income whilst worker's compensation payments were pending; and
5. making a donation to the pre-school of which Mrs Tooze acted as a director for 25 years.
The offender provided support to co-workers of the deceased by organising for ongoing counselling services to be available and offering to make available legal assistance regarding the investigation of the incident
On 11 September 2013, Mr Humphreys and other members of the offender's Senior Executive Team attended the deceased's funeral. A minute of silence was held across all of the offender's worksites.
On 2 September 2014, the offender held a memorial barbecue at the Bulahdelah depot. The deceased's passing was acknowledged in the offender's 2013-2014 annual report.
The offender has kept the deceased's family and co-workers up to date with the progress of Court proceedings.
The offender has cooperated with Safework NSW during the investigation.
Mr Humphreys deposed that the offender has a commitment to public safety and has taken a number of steps to educate the community about the risks associated with electricity including:
1. The creation of a 'Public Electrical Safety Awareness Plan' which analyses risks associated with public interaction with the electrical distribution network and details strategies being undertaken by the offender to increase awareness of hazards associated with the electrical distribution network;
2. The creation of safety campaigns for primary producers using moving plant near power lines, during bushfire season, during Christmas season, for storm safety and targeting industry groups;
3. Participation in regional and rural safety events; and
4. Participation in the Electricity Safety Week Primary School Program between 2013 and 2015.
Mr Humphreys deposed that the offender works with the Emergency Services to manage safety issues during times of storm.
Mr Humphreys gave evidence in his affidavit that in December 2013, the offender launched the Essential Giving Program. That program allows employees to make donations to charities which the offender matched. In the first 6 months of 2013, employees gave $36 125.20 which was matched by the offender.
The offender operates a program known as 'Community Halls Support' which provides discounts on electricity bills to community groups in rural and regional areas who need, but can ill afford, community halls. In 2013-2014, the offender discounted bills by $240 972.
My Humphreys deposed that he participates in the Customer Advisory Group which brings together community representatives to provide feedback and advice on electricity network distribution issues relevant to the community.
Mr Humphreys provided that the offender has in place a number of measures to ensure the well-being of its employees including:
1. The continuation in 2013-13 of the Powerful Minds program aimed at promoting psychological well-being of employees;
2. The installation of 178 defibrillators in 2015 across 32 sites;
3. Developing and providing a program to support employees who may be experiencing family violence;
4. Providing monthly e-talks which focus on safety and respond to any questions submitted by employees; and
5. Delivering safety messages to employees and the community via social media.
Mr Humphreys deposed that at the time of the incident the offender had in place the 'Essential Energy Health Safety and Environment Policy'.
David Nardi is employed by the offender as General Manager Safety, Human Resources and Environment, having held this role for approximately 12 months. At the time of the incident, Mr Nardi was employed by the offender as General Manager Regional Operations.
Mr Nardi deposed that the offender has approximately 16,500 customers on life support, and that there are strict controls on cutting off the supply of electricity to those customers. This includes requirements to provide notice of planned interruptions.
Mr Nardi deposed that at the time of the incident the offender had in place a certified Health, Safety and Environment Management System.
In his affidavit, Mr Nardi explained that where work was to be conducted on or near the electricity network it was subject to the Electricity Safety Rules. These Rules were supplemented by a system of work which required, inter alia:
1. The completion of a Safe Work Method Statement, Hazard Identification and Risk Assessment Control, and toolbox talk prior to commencing work;
2. Having correct personal protective equipment;
3. Maintaining a minimum safe distance from live conductors; and
4. Having a Safety Observer when people or plant were approaching the minimum safe distance.
Mr Nardi deposed that the employees working at the site on that date of the incident were experienced.
Mr Nardi deposed that on the day of the incident, the offender distributed an Industry Safety Alert to Ausgrid and Endeavour Energy. These companies put in place similar restrictions for working on re-stringing, re-tensioning or removal of overhead conductors to those put in place by the offender.
Following the incident, the offender took workers off active work on or near the network for around 6-8 weeks.
Immediately following the incident, the offender conducted an internal review of its work practices by setting up a Safety Review Working Group and Live Line Working Group.
As a result of Safety Review Working Group inquiry, a procedure was developed titled 'Company Procedure: Working Above, Below or Adjacent to Energised Overhead Conductors'. All employees of the offender received face to face training in this procedure. This procedure was shared with Ausgrid and Endeavour Energy.
The Live Line Working Group inquiry found that there were 20 high voltage line tasks that could not reasonably be undertaken when de-energised. All live line crews were trained on the recommendations of the inquiry and an alert was issued in January 2014 allowing live line work to continue. Live line wire work is still however restricted.
Mr Nardi deposed that the offender also had its HV Live Line Manual externally reviewed for compliance with Australian Standards. This manual was found to comply with Australian and industry standards.
[5]
Consideration
I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.
[6]
Objective Seriousness of the Offence
The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No 2) (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relevant to the gravity of the offence: Capral Aluminium Limited v Workcover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.
The offender operates in a high risk industry. In this case the workers were exposed to a risk of electrocution by a live wire conducting 11,000 volts. The gravity of the risk was extreme. Even a short exposure to that voltage was likely to cause death.
The offender had adopted a detailed and substantial policy to try to minimise the risk that it was aware of. The offender took a number of steps intended to maintain a safe working gap between the top and the bottom circuit conductors of 700mm. However, the offender was also aware that there were a number of factors that could result in the bottom circuit conductors becoming live, including by the intervention of flora and fauna or by unusual sagging in the top circuit conductors caused by the lack of tension in them.
After the incident, on the same day, the offender decided that the work should only be done if the top circuit conductors were de-energised. That approach would have involved some interruption to supply and an interference with its competing statutory duty to ensure supply. By reason of its plea of guilty the offender recognises that it was reasonably practicable to conduct the work in this way to eliminate the risk of death or serious injury to its workers.
The work had been conducted over the years in the manner adopted on the day, presumably without incident and this was also the practice of other electricity utilities of considerable size. There is still work that must be performed on live lines and for which the special precautions are still enforced.
There was nothing about the way the workers performed the work on the day that in any way contributed to Mr Tooze's death. The extensive precautions were taken at every step and they were documented as having taken place. The failure that led to Mr Tooze's death occurred at a higher level in the organisation, being a failure to recognise that the top circuit conductors should have been de-energised prior to the work being performed to ensure that there was no risk to safety.
The death of Mr Tooze is relevant to the objective seriousness of the offence.
[7]
Deterrence
The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].
The penalty must reflect the need for specific deterrence. The offender continues to operate in a high risk industry and has a large number of employees exposed to the risk of electrocution on a daily basis. The penalty imposed must reflect the need for the offender to be proactive in identifying situations when this may occur and devising ways to avoid the risks involved. Having said that the offender's response to this incident has been impressive. The offender has taken considerable steps to improve its safety systems, which were already substantial. The offender has demonstrated its remorse in providing support to Mr Tooze's family and I accept that his death has impacted the employees of the offender at all levels of the organisation.
[8]
Aggravating factors
The offender has a record of prior convictions: section 21A(2)(d) Crimes (Sentencing Procedure) Act 1999. Prior convictions are pertinent to deciding where, within the boundaries set by the objective circumstances, a sentence should lie: R v McNaughton at [26]. It cannot be said in the present case that the offences before the Court were isolated. Prior convictions should not be taken into account in such a way as to punish the offender again for those earlier matters, but in this case they do not assist the offender in affording to it any particular leniency.
The offender has 7 prior convictions for breaches of work health and safety legislation. Two of these offences involved fatal electrocution, one in September 1994 and the other in August 2003. It should be noted that the prior convictions were entered against predecessors to the offender when it was a government instrumentality. The position is different to the position of a .company that has continually operated with the same management. It should also be recognised that from reading the previous decisions the offender's systems and attitudes to safety have progressively and continuously improved. It is appropriate in the circumstances of this case to afford some leniency despite the aggravating factor being established.
The injury, emotional harm, loss or damage caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.. The incident resulted in the tragic and premature death of Mr Tooze and it has had a substantial and irreparable impact upon his family, friends and colleagues.
[9]
Mitigating factors
The offender was of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The offender was involved in numerous community safety programs and provided charitable donations to match those made by its employees.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender, through David Nardi and Gary Humphreys, accepted responsibility for the offence and demonstrated contrition and remorse. The offender provided support to the family of the deceased following the incident, and took numerous measures to improve safety standards both on its own and in consultation with other energy network operators. I am satisfied on the balance of probabilities that the offender has demonstrated genuine contrition and remorse.
The offender entered an early plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range a particular case should fall is the timing of the plea, so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.
The offender assisted the Safework investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
[10]
Penalty
The offender is convicted.
The Court has received and considered the Victim Impact Statements of:
1. Gay Tooze (wife);
2. Mikaela Tooze (daughter);
3. Elise Tooze (daughter);
4. Dylan Tooze (son).
The Victim Impact Statements were read aloud by the deceased's family members. Each statement was thoughtfully prepared and conveyed the love and respect held for the deceased as well as the pain and loss suffered by each the family members. The experience was made very personal by the family's attention to detail including bringing photographs of the deceased into Court. The prosecutor has applied to have the content of the statements considered in determining the appropriate punishment for the offence on the basis that the harm caused to the family by the deceased's family is an aspect of harm done to the community: section 28(4) Crimes (Sentencing Procedure) Act 1999. I find that it is appropriate to do so.
Taking into account all relevant matters, the appropriate fine is $400,000 that will be discounted by 25% to take into account the early plea of guilty.
I impose a fine of $300,000.
I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
I order that the offender pay the prosecutor's costs agreed in the sum of $30,000.
[11]
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 September 2016