SafeWork NSW v BlueScope Steel

BACKGROUND

1. Bluescope was the result of a de-merger in 2022. Prior to that date, it was part of BHP Steel (AIS) Pty Limited. That older entity commenced operations at Port Kembla in 1982.
2. Bluescope conducted a business or undertaking that included the mass production of steel at its PKSW ('the site'). The property was a 'workplace' for the purposes of s 8 of the WHS Act.
3. At all material times, Bluescope employed the following workers at the site: 1. Mr Lou Delturco ('Mr Delturco') as a Mechanical Maintenance Coordinator, coordinating maintenance work for the two furnaces and managing maintenance contractors; 2. Mr Adam Schofield ('Mr Schofield') as a Refractory Project Coordinator; and 3. Mr Kim Murphy ('Mr Murphy') as a Refractory Installer.
4. Dominion conducted a business or undertaking involving refractory installation, repairs, and maintenance. Bluescope engaged Dominion to provide its services at the site. Dominion employed Mr Jason Wills ('Mr Wills'), Mr Paul Kember ('Mr Kember'), Mr Jack Cullen ('Mr Cullen'), Mr. Steven Hurt ('Mr Hurt'), Mr Aaron Phillip ('Mr Phillip') and Mr Giuseppe (Joe) Floro ('Mr Floro') at the site.
5. In the Hot Strip Mill area of the site, the Walking Beam Furnace No. 2 ('the furnace') that was used to heat, roll, and coil steel had a recuperator draft system. A waste duct area sat above the furnace ('the waste duct area') which was classified as a confined space that measured approximately 23.7m x 7m. There was a void opening ('the void') in the floor of the waste duct area that was approximately 14.2m x 1.7m and approximately 6m above the furnace.
6. On 24 September 2018, Bluescope and Dominion inspected the waste duct area to determine what works were needed. Bluescope then engaged Dominion to undertake works in the furnace and waste duct area.
7. On 10 October 2018, Dominion hired a mobile scaffold tower that was approximately 1.2m wide, 2.4m long and 1.5m high ('the scaffold'). It was intended to be placed near the void to provide fall protection and allow workers to perform the repair work. Dominion workers, Mr Nicholas Critcher ('Mr Critcher') and Mr Stephen Douglas ('Mr Douglas'), entered the waste duct area to perform work. They ceased work after approximately three hours because they were concerned that the scaffold was too close to the void, and reported these safety concerns to their Dominion supervisor, Mr Wills.
8. On around 15 October 2018, Mr Wills advised Mr Schofield, Mr Murphy, and Mr Delturco that the work ceased due to safety concerns regarding the void and an inspection was required moving forwards. Mr Delturco, Mr Schofield, Mr Farrell and Mr Murphy met with Mr Wills. Mr Delturco advised them to inspect the area and agree on what controls for the potential fall hazard were needed. Mr Delturco expected them to scope the area and return to review it.
9. On 12 November 2018, Mr Wills and Mr Schofield inspected the waste duct and determined that the scaffold could be used as a barricade when workers needed to be within 2m of the void. That evening, Mr Wills and Bluescope's workers, Mr Bryan Shiel ('Mr Shiel') and Mr Murphy, discussed the void. Mr Murphy knew of the void's location and planned to use the scaffold as fall protection. Mr Murphy and Mr Shiel moved the scaffold in front of the void as a barricade and climbed on it to perform the work. They exited the waste duct area without dismantling or removing the scaffold, most of which was left within 2m of the void with one corner near the edge.
10. On 13 November 2018, Mr Cullen, Mr Hurt, Mr Phillip and Mr Floro attended a Dominion toolbox meeting before entering the waste duct area to dismantle and remove the scaffold. Dominion worker, Mr James Cullen ('Mr Cullen Sr'), was the confined space watcher and remained outside. Mr Hurt and Mr Phillip had been inside the waste duct area previously, but Mr Cullen had not.
11. At approximately 8:00am, Mr Cullen entered the waste duct area. He walked towards the scaffold and fell into the void around 6m to the floor below.
12. Mr Cullen was transported to Wollongong Hospital for treatment. He sustained injuries from the fall, including soft tissue injuries to his lumbar spine and serious injuries to his left leg and ankle. Mr Cullen underwent an operation on his left leg on 14 November 2018 and was discharged from the hospital on 15 November 2018. He has not returned to his pre-injury duties since the incident.

RELEVANT GUIDANCE MATERIALS

1. The SafeWork NSW Code of Practice: Confined Spaces, dated January 2012, was available to Bluescope prior to the incident. It provided the following:

• 'Sometimes more than one person conducting a business or undertaking will have the same duty in relation to a confined space. For example, a person who owns the pant or structure that contains the confined space will have management or control of the confined space. A contractor engaged to carry out work in the same space will also have management or control of the confined space at the time that work is being carried out. In these situations, effective communication, co-operation and co-ordination of activities between duty holders is essential to ensure that risks associated with the confined space are eliminated or minimised as far as is reasonably practicable.'
• 'The nature of a confined space may contribute to the risks associated with it.'
• 'The permit should be re-validated if the person with direct control of work in the space changes, a break in work continuity occurs, changes are made to the work that introduce hazards not addressed by the current permit, or new control measures are needed.'
• 'The confined space permit must list "the control measures that must be implemented or continued while work is being done in the space … [and] any equipment to be taken into the confined space[.]'

1. The SafeWork NSW Code of Practice: Managing the Risk of Falls at Workplaces, dated April 2016, was available to Bluescope prior to the incident. It provides that:

• 'Fall means a fall by a person from one level to another. Risk of a fall means a circumstance that exposes a worker while at work, or other person while at or in the vicinity of a workplace, to a risk of a fall that is reasonably likely to cause injury to the worker or other person. This includes circumstances in which the worker or other person is:
• In or on plant or a structure that is at an elevated level 1. …
• In the vicinity of an opening through which a person could fall
• In the vicinity of an edge over which a person could fall
• On or in the vicinity of a surface through which a person could fall 1. …' (page 3).
• 'You must identify all locations and tasks that could cause injury due to a fall. This includes access to the area where work is to be carried out. Tasks that need particular attention are those carried out … near an unprotected open edge …' (page 6).
• When inspecting the workplace, key things to look for include 'holes, openings or excavations - which will require guarding' (page 7).
• 'If you are responsible for a number of different work areas or workplaces and the fall hazards are the same, you may perform a single (or generic) risk assessment. However, you should carry out a risk assessment on individual fall hazard if there is any likelihood that a person may be exposed to greater, additional or different risks.' (Page 8).
• 'Control measures are needed where there is a risk of injury irrespective of a fall height.' (Page 9).
• 'Barriers (or edge protection) to prevent a person falling over edges and into holes should be provided on relevant parts of a solid construction [including] … openings in floors.' (Page 11).
• 'Edge protection should consist of guard rails, solid balustrades or other structural components.' (Page 12).
• 'Holes, penetrations and openings through which a person could fall should be made safe immediately after being formed.' (Page 12).
• 'Where work is performed using mobile scaffold, workers should be trained to ensure the scaffold … is kept well clear of powerlines, open floor edges and penetrations.' (Page 14).
• 'Administrative controls may be used to support other control measures and may include 'no go' areas, permit systems, the sequencing of work and safe work procedures. Using administrative controls exclusively to minimise the risk of falls is only appropriate when it is not reasonably practicable to use a higher order control.' (Page 32).
• 'A restraint technique controls a person's movement by physically preventing the person reaching a position at which there is a risk of a fall. It consists of a harness that is connected by a lanyard to an anchorage or horizontal life line. It must be set up to prevent the wearer from reaching an unprotected edge.' (Page 21).
• 'Terms used in fall control measures: Anchorage: means a secure point for attaching a lanyard, lifeline or other component of a travel restraint system or fall-arrest system. Anchorages require specific load and impact capacities for their intended use. 1. … 2. Restraint line: is the line securing workers to a point of anchorage and is used to prevent a person from reaching a point from which he or she could fall.'

SYSTEMS OF WORK PRIOR TO THE INCIDENT

1. The Dominion contractors participated in a toolox talk immediately prior to commencing the removal of the scaffold. I accept that in that toolbox talk, the risk of the fall into the viod was identified, and the system that had been developed to minimise the risk of a fall was communicated to the workers, including Mr Cullen (Affidavit of Mr Took sworn 18 March 2022 - Exhibit B at [58]). This system involved an administrative control of directing the workers to keep 2 metres away from the edge of the void, and to work behind the scaffolding pulling it back towards them.
2. Bluescope's Divisional Handbook entitled 'Fall Prevention', issued in April 2014 prior to the incident and reviewed in December 2018, stated the following: 1. 'No person shall work or walk within 2 metres of an unprotected edge where there is the potential to fall without the following minimum fall prevention controls in place: 1. For unprotected edges where the fall distance is 2 metres or greater, the minimum fall protection method shall be travel restraint or fall arrest equipment. 2. For a fall distance of up to 2 metres, a risk assessment is required to determine the appropriate fall protection method. 1. Where a person is walking or working more than 2 metres from an unprotected edge where there is a potential to fall and suffer serious injury fall greater than 2 metres, controls will be implemented to ensure that people cannot inadvertently or unknowingly move to within 2 metres of the unprotected edge.'
3. The Bluescope Fall Prevention procedure also stipulates that: 1. 'It is important to clearly identify where personnel may inadvertently or unknowingly move to within 2 metres of an unprotected edge. This should be identified by temporary fencing or flagging e.g. handrail height rope barrier with screening material, or chain and barricade flag. This is to clearly alert personnel they are at risk of entering the fall hazard protection area.'
4. At the time of the incident, the '2 metre rule' was implemented. There were no markings or flaggings to indicate a 2m distance from the void, no barricade around or near the void, and no fall arrest or restraint system used to remove the scaffold from the waste duct area at the time of the incident.
5. I also accept that this system was not compliant with Bluescope's established safety procedure because it did not address the risk of a person inadvertently moving within 2 metres of the unprotected edge (Affidavit of Mr Took sworn 18 March 2022 - Exhibit B at [50]).
6. That system, if followed, required the workers to use as a minimum, a travel restraint or fall arrest system or a physical barrier to access the scaffold (Affidavit of Mr Took sworn 18 March 2022 - Exhibit B at [60] and [62]). Furthermore, I accept that Bluescope was unaware that Dominion was accessing the waste duct area to remove the scaffold at that time (Affidavit of Mr Took sworn 18 March 2022 - Exhibit B at [61]).
7. A Confined Space Entry Permit was signed by Mr Delturco on 24 September 2018 after he inspected the waste duct area, authorising entry to the area from 24 September 2018 to 30 November 2018. It identified that precautions were to be taken regarding 'lighting (if required)', 'extraction/ventilation equipment (if req hot work)', 'communication equipment (visual/verbal)', and 'respiratory protective equipment (P2, if required)'. It described the work as 'general inspection, refractory repairs, mech/fab repairs, clean scale and ferrous sulphate deposits'. The permit indicated that the waste duct area was 'in a safe condition for the work to be done, provided that the precautions above are fully oBluescopeerved.' It did not include other precautions and or identify the void.
8. Mr Farrell signed the Work Permit on 24 September 2018 for work in the waste duct area, authorising work to be completed from 4 October 2018 to 16 November 2018. It indicated that there was a documented safe system of work to manage and control hazards, including fall prevention and working at heights, but did not identify the void. The permit identified Mr Murphy as the person in charge and responsible for ensuring that 'all key task related hazards have been identified and mitigated', 'identify[ing] any abnormal conditions or hazards not identified in the JSEA or Job Pack', and engaging with the workgroup.
9. Bluescope prepared an Entry Procedure for the waste duct area entitled 'No. 2 WBF Waste Ducting, Recuperator Including Stack'. It instructed that 'The confined space responsible person is responsible for ensuring that the space has been appropriately set up and is safe to enter'. The procedure instructed that, when working at heights, 'Scaffolding shall be erected for access and work required [sic]. Were [sic] scaffold is not available harnesses shall be worn [sic]'. The Entry Procedure for the waste duct area did not identify the void.
10. Bluescope also prepared a 'Confined and Controlled Space Risk Assessment' for the waste duct area, dated 23 April 2015. It stated that the hazard of working at heights is controlled by 'following working at or below heights policy'. The Risk Assessment for the waste duct area did not identify the void.
11. Mr Delturco prepared an initial toolbox briefing for the waste duct area before work commenced. All Bluescope and Dominion workers were required to be inducted on this briefing before entering the waste duct area. The briefing listed hazards including 'slips, trips and falls', and the control measures were listed as '[b]eware of uneven surfaces and voids in floor'. It did not identify the position of the void in the waste duct area.

STEPS TAKEN AFTER THE INCIDENT

1. After the incident, SafeWork NSW issued a Prohibition Notice to Bluescope, prohibiting further work inside the waste duct area until a safe system of work was in place. Bluescope prepared a Maintenance Instruction for the job description 'Remove items in recuperator duct' for the waste duct area, which instructed that a physical barricade is erected over 2m from the fall hazard and that workers wear fall restraints. It also developed a 'defined work zone map' of the waste duct area that identified void openings and fall hazards in the area.
2. Bluescope engaged KJ Industrial Scaffold Pty Ltd ('KJIS') to erect scaffolding as a barricade in the waste duct area as fall protection. KJIS supplied Bluescope with a Safe Work Method Statement ('SWMS') and utilised a 'restraint line' system while working on the mobile scaffold.
3. On 15 November 2018, Bluescope issued a Safety Alert regarding the incident, outlining that 'controls must be implemented to ensure people cannot inadvertently or unknowingly move within [2m] of the unprotected edge'.
4. On 11 July 2019, Bluescope updated its waste duct area Entry Procedure, outlining that barricade/safety harnesses and scaffolding must be erected for work and access, persons responsible for the confined space must ensure that barricades are set up over 2m from a fall hazard edge before work entry or risk assessments, and that there are fall hazards in the furnace recuperator.

SENTENCING

1. The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the WHS Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the WHS Act.
2. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') which include: 1. Section 3A, which sets out the purpose of sentencing; 2. Section 21A, which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22, which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.
3. The Court is to approach a sentencing exercise on the basis of it being one of 'instinctive synthesis': Markarian v The Queen (2005) 228 CLR 357.
4. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way: 'The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.'

OBJECTIVE SERIOUSNESS OF THE OFFENCE

1. The duty of a defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and Bluescope had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
2. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a suBluescopeidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474-5. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].
3. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 ('Capral Aluminium') at [81].
4. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117.
5. The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465.
6. The Court of Criminal Appeal examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). Justice Basten at [34], under the heading 'Assessment of Risk' said: 'The sentencing judge commenced his consideration with the proposition that '[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.' However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.'
7. His Honour further observed at [42]: 'The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known.'
8. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.
9. The Court is obliged to make an assessment of where on the scale of criminality the offence lies, referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).
10. Bluescope's duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the WHS Act: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
11. The risk of a person being injured when standing and working in the vicinity of an unguarded void is foreseeable and obvious. It was incumbent upon Bluescope to ensure that an engineering control in the form of signage, a barrier or a covering across the void was in place, and that workers ought not to have been allowed to engage in work in that area without that engineering control. Bluescope has accepted its responsibility for the charge, as evidenced by its plea to the charges in the Amended Summons.
12. An issue between the prosecutor and Bluescope has arisen as the prosecutor asks me to infer that Bluescope is seeking to minimise the plea by identifying its failure as one of not following its established safe system of work (see [35] Prosecutor's Submissions and [10]-[12] Bluescope Submissions).
13. The Affidavit of Mr Took sworn 18 March 2022 (Exhibit B) was read and Mr Took gave evidence before me. He was a very impressive witness, and I accept him as a witness of truth. He very fairly conceded that the risk of someone falling in an unprotected void exists in Bluescope's operations, and that it can have very serious consequences.
14. I accept that the evidence of Mr Took, when properly construed, is not seeking to place any blame on the injured worker, but rather to emphasise that there was a system of work in place at the time of the accident which included the following: 1. an induction which specifically referred to and cautioned workers in relation to falls from heights; 2. a toolbox talk prior to the commencement of the work in which the workers, including Mr Cullen: 1. were advised that the void in the floor presented a hazard; and 2. were directed to comply with the 2 metre rule by remaining more than 2 metres away from the unprotected edge of the void. 1. an acknowledgment and acceptance that this system was deficient to protect the inadvertent actions of workers.
15. I also accept that the only charge against Bluescope is in relation to the events on 13 November 2018, and not prior to that date.
16. Employers must take steps to protect workers against risks created by inadvertent conduct of workers in the course of their work, if it is reasonably practicable to do so: SafeWork NSW v Poletti Corporation [2019] NSWDC 491 at [88].
17. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying: 'It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.'
18. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
19. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the graduation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

• The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Ibid [34];
• The availability of steps to eliminate or minimise the risk: Ibid [53];
• Whether those steps are complex, burdensome or mildly inconvenient if mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] and [53];
• Whether the risk was known or ought reasonably have been known to or identified by the offender;
• Whether the risk was an obvious or clear one; and
• The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).

1. The following matters are those that are relevant in determining the objective seriousness of the offending: 1. I accept that the seriousness of the offence must be considered in the context of the systems, training and policies in place at the workplace at the time of the charge: Warman International Limited v WorkCover Authority of NSW (1998) 80 IR 236 at 342. 2. I am satisfied that the safe system of work was no mere 'paper system', but one where safety was a priority comprehensively integrated into every level of management and every level of the operations at PKSW. This is apparent from the Scott and Took Affidavits (Exhibits A & B). 3. Bluescope had identified the risks of falls at PKSW and had well-developed and appropriate systems in place to address the risks of falls so that, so far as was reasonably practicable, the risk was eliminated or if it could not be eliminated, was minimised so far as was reasonably practicable. 4. Bluescope had promulgated that safe system of work widely throughout its workforce and to its contractors including Dominion. 5. Bluescope had engaged Dominion, a contractor that they had worked with before, that was appropriately skilled to do the maintenance work, including the 'clean-up' work incorporating the removal of the scaffolding, and Dominion were aware of the Bluescope safety systems that it had to follow. 6. The persons undertaking the removal of the scaffolding in the waste duct area, including Mr Cullen, had all been inducted and were aware of the fall prevention requirements of Bluescope. 7. The toolbox talk held immediately prior to the removal of the scaffolding had identified the risk of falling into the void and communicated the system that Dominion had adopted to address that risk. 8. Bluescope was not doing the work involving the removal of the scaffolding but had engaged Dominion to undertake the maintenance and 'clean-up' work. 9. The relevant Bluescope decision-maker, Mr Delturco, expected that Dominion would bring its proposed system back to him for review, but that did not happen. As such, Bluescope was unaware that the Dominion workers were going to access the area on that morning. 10. The matrix in which the exposure occurred on 13 November 2018 is that Bluescope was unaware that Dominion were removing the scaffold that morning. Bluescope submits that, on that basis, their culpability is much less than if they were aware and permitted or allowed the work to be done in the way that it was. The prosecutor takes issue with this 'inadvertence argument'. 11. I accept that employers must take steps to protect workers against risks created by the inadvertent conduct of workers in the course of their work, if it is reasonably practicable to do so. In SafeWork NSW v Poletti Coproation [2019] NSWDC at [88], Scotting J stated as follows: '[88] One of the matters PCBUs must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work; R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].' 1. Nonetheless, in this instance, the risk was known to Bluescope. It may not have been specifically aware that the scaffolding was to be removed on that day, but it must have known that employees would be accessing the recuperator waste duct to remove the scaffold at some point in time, as the work had been completed and the scaffold would no longer be required. 2. Had Bluescope's extant safety system been followed, the pleaded measures, in particular 21(d) and (e), would have been engaged as part of the fall prevention system.

DETERRENCE

1. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
2. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court is to ensure that a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).
3. General deterrence is to be approached in the context of the industry in which Bluescope is engaged, the types of duties, as well as the broader hazards and risks associated with the industry. The construction industry is notoriously dangerous and involves the management of a number of different risks, including the risks associated with the manufacture of flat steel products including slab, hot rolled coil, cold rolled coil and plate, primarily for the construction industry, and in the vicinity of furnaces.
4. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some suBluescopetance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some suBluescopetance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 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. … [75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.'
5. General deterrence must be a significant feature of the sentence imposed upon Bluescope. It can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with working in the industrial metal processing work.
6. In this case the penalty needs to reflect that Bluescope was on notice of the risk but it's safe work procedures did not adequately address the risk - the risk assessment document was deficient in that regard. A clear message needs to be sent to employers generally, and in the construction industry more specifically, that breaches of the WHS Act in the face of known, serious and identified risks are to be treated seriously when they come before the Courts. In particular, a message needs to be sent to principal contractors of construction sites that they cannot take shortcuts when it comes to managing serious and known risks to which their subcontracted workers may be exposed.
7. In relation to specific deterrence, the attitude of Bluescope to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for Bluescope to reoffend. I note that Bluescope continues to perform the same work as it did when the incident occurred.
8. However, I accept the manner in which Bluescope has developed and integrated its safety systems into all levels of the operational processes, to enhance their safety procedures. I also accept that Bluescope has been proactive in its approach to safety generally and to the risks of falls in particular.
9. Dominion has not undertaken any contracting work for Bluescope since the incident.
10. I accept that the prospects of rehabilitation of Bluescope are good, but the need for an element of specific deterrence is still necessary in these circumstances.

AGGRAVATING FACTORS

1. The injury, harm and loss caused by this offence was substantial: s 21A(2)(g) of the Sentencing Act. For an aggravating factor to be established, I must be satisfied beyond a 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]
2. It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. In this circumstance, Mr Cullen was seriously injured and has been left with significant impairments that will no doubt persist for the rest of his life. He may never return to the workforce.
3. A Victim Impact Statement from Mr Cullen was tendered and became Exhibit 1. Mr Cullen states that in the immediate period after the accident and whilst he was being transported to hospital, he was in extreme pain, thought that he might die, and was extremely frightened. His father was with him and he, Mr Cullen Snr, was distraught.
4. For the first four or five months after the accident, Mr Cullen was cared for by his father and sister as he could do very little for himself, which understandably made him feel miserable.
5. It is clear from Exhibit 1 that Mr Cullen's life has been irreparably damaged. He has terrible memories of the incident and experiences flashbacks of it - he can no longer watch television or movies that may depict that someone might fall, including rock climbing which he used to enjoy.
6. Prior to the accident, Mr Cullen was a very fit and active person, and having lost such physical strength and agility, his mental health has also been negatively affected. The ability to participate in any of his favourite sports and hobbies has been taken from him.
7. Mr Cullen remains in pain daily in his leg, ankle, hip, neck and back. He has trouble sleeping because of constant pain and discomfort. His lack of mobility is impacting his recovery at physiotherapy. His posture is poor, he has gained weight and suffers regularly from tinnitus.
8. Mr Cullen states that he feels useless as he has not been able to work for three years, and he knows he will never be able to go back to the work he did prior to the accident. He states 'I feel like I don't have a purpose anymore'. The accident has also severely affected his social life and it has killed his dating life. Consequently, and tragically, he feels very isolated because of his injuries
9. Section 21A(2)(d) of the Sentencing Act requires that the Court take into account: 'If the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence and has a record of previous convictions for serious personal violence offences).'
10. Bluescope has a prior record, however, it has no prior record for serious personal violence, and so the 'particularly' has no part to play in this matter.
11. The prosecutor asserts that the record of previous convictions poses some difficulties, as whilst the last offence was 18 years ago, there were a number of offences prior to that last incident - 18 August 1998, 21 April 2000 and 11 April 2004.
12. In Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) [1999] NSWIRComm 343; (1999) 90 IR 464, this issue was addressed as follows: 'It is well established that a judicial officer considering the appropriate sentence is to impose is entitled to have regard to the antecedent criminal history of the offender. The criminal histpry of an offender should not lead to the imposition of a penalty which is disproportionate to the seriousness of the offence, but may be relevant to show that the instant offence is not an uncharacteristic aberration or whether the offender in the commission of the instant offence has manifested a continuing attitude of disobedience of the law: see Veen v R (N0.2)(1988) 164 CLR 477-478; Mears (1991) 41 A Crim R 141 at 145; Inspector Haynes v James Glass and Aluminium Pty Limited (unreported, Fisher CJ, CT91/772, 773, 774 and 775, 20 May 1994) at p 6; R v Cassar (unreported, Court of Criminal Appeal, Barr j and McInerney AJ, 28 May 1999 at para [25]. In Camelleri's Stock Feed Pty Limited v Environmental Protection Authority (1993) 32 NSWLR 683 at 700, Kirby P regarded the evidence indicating that the offences were not uncharacteristic aberrations was a factor going toward the seriousness of those offences.'
13. In Bluescope's favour, however, the earlier convictions are the only convictions in a company that has been operating since 1928, and thus the record extends for almost a century, and the recorded convictions span a period of 1958-2004.
14. This must be viewed through the prism of the inherently dangerous nature of the metal industry.
15. I am satisfied that Bluescope has made a firm commitment to the ongoing improvement of its risk profile and that reduced the likelihood of any recidivism. Therefore, I accept that a minimal component of the sentence should be based on the prior convictions.

MITIGATING FACTORS

1. Bluescope entered a plea of guilty, and as such this plea is a mitigating factor: s 21A(3)(k) of the Sentencing Act.
2. Bluescope co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act.
3. The prosecutor concedes that Bluescope is entitled to a discount for the utilitarian benefit of the plea. Therefore, I will allow the deduction of 25% for the utilitarian value of the pleas in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s 21A(3)(k) of the Sentencing Act.
4. Bluescope has made a number of significant changes to its safe systems of work since the incident, and I accept is committed to do so. I accept that Bluescope has reasonable prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.
5. Section 21A(3)(i) of the Sentencing Act provides that remorse may be taken into account as a mitigating factor in recognition of the remorse shown by Bluescope, and this has been demonstrated by Mr David Justin Scott's affidavit (Exhibit A) and Mr Simon Glen Took's affidavit (Exhibit B) and the plea. I accept that Bluescope has shown remorse and contrition and as such is entitled to leniency on that basis.
6. Having said that, the objective seriousness of the offence is such that it must be reflected in a significant fine. I accept that Bluescope is reasonably unlikely to reoffend, but the seriousness of the offence is such that a fine must be imposed to send a message to employers that they must take their obligations to protect their workers from a risk of injury very seriously. To reduce the fine significantly would not provide the level of general deterrence that is expected, nor specific deterrence, given the risk that Mr Cullen was exposed to.

COMPARATIVE CULPABILITY OF THE DEFENDANTS

1. This prosecution was commenced against Bluescope and Dominion with regard to the same incident. The submisssions on the pleas ran consecutively. The Court must deal with the culpability of Bluescope and Dominion separately because they are not co-offenders. Bluescope and Dominion are charged with different failures (even though there is similarity), the agreed facts are different for each defendant (even though there is similarity) and some of the documents tendered are different.
2. Bluescope accepts that the category of 'co-offenders' is not closed and that the identity of charges is not the only matter of properly characterising offenders as co-accused, the Court ought nonetheless be guided by the significant practical difficulties referred to in Green v The Queen [2011] HCA 49. At [71], the High Court confirmed that disparity of sentence is permissible if it is based on each offenders' ascending level of criminality in the criminal enterprise, and differences in the penalties applicable to the relevant charges and those matters which are personal to each of the offenders. I have assessed the culpability of Bluescope on the basis of it's conduct separately from that of Dominion.
3. I accept that the culpability of BlueScope and Dominion is not equal. BlueScope was the owner and operator of the site and took responsibility for the work overall. However, it engaged specialist contractors to do the work and required Dominion to follow established safe systems of work. Dominion had been inducted into the site, and had noticed safety issues and reported them about 15 October 2018.
4. BlueScope has a record of previous convictions, albeit a long time ago, but this affects the amount of natural leniency that they might expect from the Court.
5. Furthermore, they appropriately make no application under s 6 of the Fines Act 1996 (NSW), nor do they suggest that they would have any incapacity to pay a fine.
6. The Court is entitled to take into account the fact that Bluescope will be liable to pay the prosecutor's costs when considering any monetary penalty to be imposed on Bluescope, particularly in circumstances where there is evidence of a limited capacity to pay a fine. The costs payable to the prosecutor are an important aspect of the punishment of Bluescope. The Court can also have regard to Bluescope's own costs that it will have to bear as a consequence of a breach of the Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78]. I have also taken into account that Bluescope will be liable for the prosecutor's costs as part of the overall penalty imposed.
7. The appropriate fine for BlueScope is $400,000.00 and it is entitled to a discount of 25% for the early plea.

PENALTY

1. I make the following orders: 1. The defendant is convicted. 2. The appropriate fine is $400,000.00 and that will be reduced by 25% for the utilitarian value of the plea. 3. I order BlueScope pay a fine in the sum of $300,000.00. 4. 50% of the fine imposed is to be paid to the prosecutor, pursuant to s133(2) of the Fines Act 1996 (NSW). 5. The defendant is to pay the prosecutor's costs as agreed or assessed pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).

Amendments 30 June 2022 - Paragraph 1 of the Judgment: The section reference "19(2)" amended to read "19(1)". 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: 30 June 2022