Safe Work (NSW) v WGA Pty Ltd

Consideration

1. 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.

Objective seriousness of the offence

1. The risk to workers working on the window ledge was actually known to the offender. Mr Hassan was told by Inspector Newton and Mr Leishman and understood that a person working on the window ledge was encroaching on the SAD for the 33kv power lines. Mr Hassan was told that the workers could not be on the window ledge unless the power was isolated. Mr Hassan told Inspector Newton and Mr Leishman that he would not carry out any work on the window ledge until the power was isolated. Mr Hassan had been told similar things on earlier occasions in relation to the lower power lines and was required to comply with the first, second and third prohibition notices relating to the same subject matter. The offender had also been given an improvement notice relating to the risk. Mr Hassan was specifically told of the risk posed by workers handling lengths of materials that may come into contact with or in close proximity to the 33Kv power lines. That precise risk was also referred to in the literature provided to Mr Hassan by Sydney Trains.
2. The likelihood of the risk occurring was high if the control measures were not adopted. As soon as a worker set foot on the window ledge they were encroaching on the SAD. They were at risk of electric shock by their mere presence on the window ledge unless the power was isolated. The likelihood of the risk was increased if those workers were required to handle tools or materials that could come within closer proximity to the upper power lines. The task that Mr Cullen was performing was such a task. The angles being installed were cut to size in one piece. The angle Mr Cullen was attempting to install was 2720mm long and greatly increased the chance of the risk of electric shock coming home. Mr Hassan had manufactured the windows that were installed at the site. Mr Hassan supplied the angle in a colour to match the windows. Mr Hassan had actual knowledge of the content of the task that was required to be performed by Mr Cullen.
3. The gravity of the risk was significant and included a risk of death. The potential consequences were catastrophic in that an electric shock was likely to cause death or at the very least serious injury because the upper power lines were carrying 33Kv.
4. The offender had actual knowledge of the steps that were required to eliminate and or avoid the risk, including the need to isolate the power when work was required to be performed on the window ledge. The fact that those measures would have delayed the work for possibly an extended period is not a mitigating circumstance in this case because it was the offender's actions that caused the building to be constructed too close to the upper power lines. Sydney Trains worked constructively and practically to resolve the issue. At its expense, it moved the upper power lines to the other side of the poles and installed new poles to reinstate the required separation. Whilst there would be some delay incurred that was an inevitable consequence of the offender's actions.
5. The offender took none of the steps that it had been informed of to eliminate or minimise the risk. Mr Hassan misled Inspector Newton into believing that barrier tape and warning signs had been installed.
6. I accept Mr Cullen's evidence that he was not told of the presence of the 33Kv power lines, or the risk posed by them. Mr Cullen was not told any of the control measures to avoid the risk that Mr Hassan had been made aware of by his interactions with Inspector Newton, Mr Leishman or the representatives from Ausgrid. Mr Cullen was not told that he should not go onto the window ledge unless the power was isolated.
7. The safety system implemented by the offender at the site in so far as it related to Mr Cullen was non-existent.
8. Mr Hassan required Mr Cullen to do the work after he was told that the proposed isolation of the power could not proceed in order to minimise the delay that he believed would be incurred in completing the building and so that the scaffolding could be removed. Mr Hassan told Inspector Newton and Mr Leishman that the installation of the angle to the windows from the window would not occur until the power was isolated. When Mr Hassan was told that the isolation could not take place he brought forward the work involving the installation of the angle. When he did so he knew of the risk posed by that work and the magnitude of the risk but did warn Mr Cullen. The offender required Mr Cullen to work on the window ledge in circumstances that indicated a blatant disregard of its safety obligations.
9. The extent of the injury to Mr Cullen was significant. He suffered burns to 30% of his body and has required surgery in the form of multiple skin grafts. His last operation was in about February 2017. He spent 3 months in hospital immediately after the incident. He also suffered injury to his thumbs and the AC joint in his shoulder. He has required extensive physiotherapy and occupational therapy. He has the constant feeling that his skin is very tight. He has been unable to return to work.
10. The offender's level of moral culpability for the offence is high.
11. The objective seriousness of the offence is in the high range.

Deterrence

1. 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].
2. There is also a need for specific deterrence. The offender took no precautions to avoid a known risk.

Aggravating factors

1. The injury, emotional harm and loss caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. A risk that comes home and causes serious injury is thereby more deleterious than may ordinarily be expected for the offence. Mr Cullen suffered burns to 30% of his body requiring multiple operations. He has endured the continuing disabilities referred to above, which I will not repeat. He has been unable to return to work. I am satisfied beyond reasonable doubt that the injury harm and loss caused by the offence was substantial.

Mitigating factors

1. The offender does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender was incorporated in 2009. I do not know for what period the offender was involved in construction work.

Capacity to pay a fine

1. I am required to have regard to section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
2. I have no evidence from the offender that it has a limited capacity to pay a fine. In any event, I consider this to be a very serious matter requiring the imposition of a very substantial fine.

Penalty

1. The offender is convicted.
2. I impose a fine of $1 million.
3. I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
4. The prosecutor seeks an order that the offender pay the prosecutor's costs in the fixed sum of $50,460.90. I am satisfied that the prosecutor has notified the offender by registered post of the listings of this matter after it was listed for hearing on 3 April 2017. The offender had been represented by a solicitor before that date and was aware of the listing on 3 April 2017. The offender has been given a reasonable opportunity to appear and to be heard on the issues. I have received a schedule of the costs sought and I am satisfied that the costs sought are reasonable.
5. I order that the offender pay the prosecutors costs in the sum of $50,460.90.

Endnote

1. A Tiger tail is black and yellow striped plastic sheath that is fitted over a power line to mark its presence. 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: 05 May 2017