SafeWork NSW v BSA Limited

District Court of NSW|2023-09-29

Background

At trial the parties presented a Statement of Agreed Facts which was reproduced as Annexure A to the primary judgment. After reviewing the evidence, I made additional findings in relation to those facts which were not admitted or disputed by the defendant. Those findings are set out in the primary judgment at [269]-[280] and also in paragraphs of the primary judgment extracted below under the heading "Causation". I will not set out those agreed facts or findings again in full, but I incorporate them by reference into this judgment.

Company Background

BSA is a comprehensive technical services construction company. The company was first registered as Comet Float in 1999 and changed its name to BSA Limited in 2007. It is a publicly listed company.
Mr Ford gave evidence of BSA's community engagement, including its sponsorships, charity donations and support to local sporting clubs and organisations.

Improvements to BSA's System Following the Incident

On 17 December 2018 BSA conducted a mandatory HSE toolbox talk for all workers on the BSA Foxtel platform. Work was not assigned to workers until their participation at the toolbox talk was confirmed.
BSA complied with a s 191 Improvement Notice issued to it by SafeWork NSW on 21 December 2018. BSA by its own initiative addressed matters that went beyond the scope required by the Notice.
On 30 October 2019 BSA communicated the "BSA Absolutes" to all workers. The BSA Absolutes are non-negotiable minimum safe work expectations. "Absolute 7 - Energy Isolation" requires workers to verify and control isolations.
BSA closely monitors critical control effectiveness in its business. From October 2022 to April 2023 BSA completed 4083 critical control checks with "electrical" being in the top 5 most checked critical risk areas.

BSA's Broader HSE System and Initiatives

The BSA HSE Policy applies to all personnel, contractors and joint ventures engaged in activities under BSA's operational control.
BSA manages the HSE of all workers through an Integrated Management System (IMS). The IMS provides a tiered approach to the management of HSE across BSA's business operations. It is also used to store and track HSE records.
BSA has been awarded accreditation by the Federal Safety Commissioner under the Australian Government Building and Construction WHS Accreditation Scheme. Bi-annual audits of BSA's system are conducted to maintain this certification. Under the scheme BSA submits bi-annual reports to the Federal Safety Commissioner with data on work health and safety (WHS) performance indicators as well as reports on any fatalities, lost time injuries, medically treated injuries and dangerous occurrences that have taken place.
BSA conducts a HSE Steering Committee which meets quarterly to track WHS performance, review incidents and discuss general business related to WHS. Each financial year BSA publishes a Group Health and Safety Strategy that tracks WHS across the business and sets out initiatives for improvements.
BSA spent $20,000 to implement a central document management system (the document hub) to host controlled documents such as WHS polices, standards, procedures and records. It also hosts operational documents such as Safe Work Method Statements, risk assessments and safety alerts. The document hub is accessible to all BSA workers, including employees and contractors.
BSA holds an annual "Stop for Safety" day to remind employees and contractors of the importance of WHS.

Support Following the Incident

In December 2018 Mr Nicholas Yates, the then Managing Director and CEO of BSA, telephoned Mr Hooper's parents, Mr Mark Hooper and Ms Karen Maffina, to give his personal condolences and those on behalf of BSA's board of directors as well as to offer the support and assistance of BSA.
After the incident BSA's Employee Assistance Program was made available to Mr Hooper's family and to all BSA personnel.
BSA arranged and paid for the expenses of Mr Hooper's family to travel from Brisbane to Sydney following the incident. BSA also paid the funeral expenses for Mr Hooper and covered travel expenses for a number of Mr Hooper's colleagues to attend his funeral.
Mr Mark Hooper remained employed by BSA until 30 June 2022 when his role was made redundant.

Causation

The prosecutor submitted that it had proved, beyond a reasonable doubt, that the breaches of the Act committed by BSA caused the death of Jayden Hooper. The defendant submitted that this matter had not been established beyond a reasonable doubt.
Whether or not the death was caused by the commission of the offence is relevant to the following matters: 1. The objective seriousness of the offence. 2. The aggravating factor set out in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3. Whether two Victim Impact Statements, from the father and the sister of Jayden Hooper, were admissible, because the breach of duty had resulted in the death of Jayden Hooper: s 27(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Both parties agreed that the prosecutor had to prove beyond a reasonable doubt that the acts or omissions of the defendant were a significant or substantial cause of Jayden Hooper's death.
The starting point for consideration of the issue of causation is the decision of the High Court of Australia in Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378. Mason CJ said (at 385.8) that the trial judge must, as a logical and practical necessity, identify the act causing death. Mason CJ also approved a statement made by Burt CJ in Campbell v The Queen [1981] W.A.R. 286 at 290, that: "[It is] enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter."
That statement was also recited in Royall with approval by Deane and Dawson JJ (at 411.8) and Toohey and Gaudron JJ (at 423.1).
Brennan J said in Royall (at 398.1) that the question of whether the required causal relationship exists is usually a simple question of fact. His Honour also said that the conduct of the defendant, whether by act or omission, must contribute significantly to the death of the victim.
Deane and Dawson JJ said in Royall (at 411.5): "Of course, there may be no single cause of the death of the deceased, but if the accused's conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder. It is for the jury to determine whether the connection between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility to the accused."
In Regina v Andrew [2000] NSWCCA 310, the Court of Criminal Appeal considered an instruction by a trial judge to a jury to decide what act or combination of acts constituted the cause of death: at [56].
The Court of Criminal Appeal considered the decision of the High Court in Royall and said at [58]: "There would be no material difference in the way a jury would understand the words 'substantial' and 'significant' in this context. The formula proposed by Deane and Dawson JJ, a 'substantial or significant cause', would reflect the view of the court as a whole."
The Court of Criminal Appeal said at [60] it was an error to instruct the jury to determine the cause of death by making a selection from various acts left to them by the trial judge for this purpose. It is a misapplication of principle to attempt to search for a principal cause of death.
In Regina v Katarzynski [2005] NSWCCA 72 Sully J (with the approval of Spigelman CJ and Kirby J) said at [18]: "In the present case, therefore, it seems to me that the trial Judge was required by law to make plain to the jury, on the topic of causation, these things: (1) That the Crown must prove beyond reasonable doubt some act or acts of the appellant that caused the death of the victim. (2) That the identification of any such act was a matter of fact for the jury alone. (3) That the jury might so identify any act that the jury thought was established beyond reasonable doubt on the whole of the evidence at trial…"
Sully J also said at [19] and [20] that the question was to be considered in a common sense way, taking into account all that the accused did.
The question of causation in the criminal law also arose for consideration by the High Court of Australia in Swan v The Queen [2020] HCA 11; (2020) 269 CLR 663. In a unanimous decision the court referred to its previous decision in Royall and considered a direction given by the trial judge that causation could be established by acts of the appellant that "substantially contributed" or "significantly contributed" to the death. The High Court approved this direction. At [27] the High Court considered what was said by the trial judge, when the jury was directed that causation did not require that the acts of the appellant were the only cause of death, the most important cause of death or even the only important cause of death. This direction was also approved by the High Court.
The authorities referred to above all arise in the context of jury trials, usually in murder cases, where the issue is whether the acts or omissions of the defendant caused the death. In the present case, being a judge-alone hearing, I am the judge of the facts, and thus the reasoning in those cases applies to me.
From a reading of the authorities referred to above, the principles in relation to causation applicable in the present case are as follows: 1. The prosecutor must prove beyond reasonable doubt that some act or acts of the defendant caused the death of the victim. 2. The court must make findings to the identify any such act. 3. The question of causation for the court to decide is not a philosophical or a scientific question, but a question to be determined by applying common sense to the facts as found, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter. 4. The conduct of the defendant must be a substantial or significant cause of death. 5. The court is not required to find that the acts of the defendant were the only cause of death, the most important cause of death or even the only important cause of death.
In the course of submissions, I was referred to my recent previous judgment in SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343. The issue of causation was not fully argued before me in that case. I have come to the view that I did not apply the correct test in relation to whether or not the breach of the Act caused the death of the worker: see [87]-[93] in Murray. I will not speculate on what the outcome on the question of causation would have been if I had applied the correct test. I merely wish to point out that my own decision in Murray provides no guidance on how the issue should be approached.
The primary judgment contained detailed findings of fact in relation to the failures by BSA to comply with its duty under s 19(1) of the Act. Two of those failures were admitted and the others were established by the evidence.
The first way in which BSA failed to comply with its duty was that it failed to provide and maintain a system of work requiring the placement of a lock on the main switch or the meter box itself, or in the alternative, using a recognisable tag, when the defendant's workers were required to isolate power: par 9(d) of the Further Amended Summons. This particular of the defendant's failure to comply with its duty was admitted by BSA prior to the disputed facts sentencing hearing.
The second way in which the court found that BSA failed to comply with its duty under s 19(1) of the Act is that it failed to provide and maintain a system of work requiring the use of a volt stick, to check on power isolation and de-energisation of Foxtel cables, the copper pipe and/or any other conductive material under the house: par 9(e) of the Further Amended Summons.
In this regard the primary judgment found as follows: "315 The evidence of Mr Lithgow shows that BSA did induct and train its technicians to use a volt stick in the following circumstances: (1) Technicians should use a volt stick to test an appliance prior to installation or removal of a STU. (2) Technicians should isolate the STU from the power point and check the STU with a volt stick before touching it. (3) Technicians should use the volt stick to test anything metallic before they isolated it. (4) After technicians have isolated the power, they should go back inside and check the power point where they were installing the STU. (5) If the workers went inside a roof or under the house, they should carry a volt stick with them to make a clear work corridor. (6) Plumbing in old houses might be connected to the earth of the electricity, so that technicians should not touch the plumbing, but should check it with a volt stick. 316 While this was the initial training given to technicians, consideration of the BSA safety documents shows that there was no reinforcement of this training or mandating the use of a volt stick in those safety documents. 317 The pre-incident SWMS (PX 2, Tab 25) did not mention the use of a volt stick in relation to checking for the isolation of electricity. The pre-incident SWMS in job step 6 (which referred to working inside roof spaces) referred technicians to SWI-133 and SWI-136. 318 SWI-136 (PX 2, Tab 26) had a picture of a volt stick on p 2 under the heading "Isolate the power". However, STI-136 said nothing about using the volt stick. 319 SWI-133 (PX 2, Tab 28), being a safe work instruction for work in ceilings or under floors, referred to using a multi-meter for testing steel frames, insulation, or all other potential electrical conductors. SWI-133 makes no mention of having or using a volt stick. 320 By contrast, the post-incident SWMS (PX 3, Tab 41) in item 6 (pp 9 and 10) sets out a long step-by-step list of what should be done when working inside a roof space. Included in the step-by-step list are the following entries: '• All workers must carry a functioning volt stick to ensure no work is completed on live circuits. … • Confirm isolations in place using a tester/volt stick at a GPO.' 321 The pre-incident audits carried out in relation to Mr Hooper (PX 3, Tabs 60, 61 and 62) did check that Mr Hooper was implementing the control measures for the job steps in the SWMS and was isolating power prior to entering a roof space or working under the floor. However, those audits, which were assessing Mr Hooper's work performance against the SWMS and the SWIs, say nothing about whether he properly used a volt stick, as the use of a volt stick was not mentioned in any of those safety documents. 322 I find that while there was a system of work requiring the use of a volt stick, at least as conveyed on one day by Mr Lithgow during an oral presentation, BSA failed to maintain a system of work requiring the use of a volt stick to check on power isolation and de-energisation. It is not enough for a worker to be told on the first day of the job what to do, and then not to have that followed up by audits and supervision, and by appropriate use of a volt stick being included in the safety documentation provided to the worker. 323 I find that the step pleaded in paragraph 9(e) of the Further Amended Summons, in relation to maintaining a system of work requiring the use of a volt stick, did constitute a reasonably practicable measure which the defendant should have taken."
The third way in which BSA failed to comply with its duty under s 19(1) of the Act was that it failed to provide Mr Hooper with adequate information, training, instruction and/or supervision concerning the mandatory requirement of isolation of power, when working under the house: par 9(g)(i) of the Further Amended Summons.
The primary judgment made the following findings in relation to this matter: "334 The training provided at the induction in relation to electrical isolations is recorded in PX 2, Tab 22, p 12, reproduced in par 81 above. That training provided a type of checklist for a technician to run through, including consulting with the customer, before turning off electricity at the meter box. The training did suffer from the defect that it included an instruction to apply a lock or tag to prevent someone from turning the power back on, and this was an instruction observed in the breach, given that BSA did not supply locks or tags to its technicians. 335 The pre-incident SWMS did not supply a checklist, but simply referred the reader to SWI-133 Work in Ceiling or Under Floors and SWI-136 Electrical Isolations. 336 SWI-136 Electrical Isolations did not provide a checklist, but under the heading "Isolate the Power", simply said that locks or tags had to be installed and isolations have to be confirmed using a tester at a GPO. 337 SWI-133 Work in Ceiling or Under Floors did provide a checklist, although it was a truncated version of the checklist provided at p 12 of the induction document. 338 Thus while at the induction a worker was referred to a type of checklist or step-by-step guide as to what to do to isolate power, on the job a technician had to refer to three documents (the SWMS and the two SWIs), which between them did not add up to a step-by-step checklist, let alone one with the detail which had been provided during the induction. 339 The post-incident SWMS was a much-improved document which provided a step-by-step checklist of control measures in relation to electricity when working under floors. That checklist, which is longer and more detailed than the checklist provided at the original induction, and is certainly much more detailed than a reading of the pre-incident SWMS and the two SWIs, is set out in par 139 above. 340 I find that BSA did not provide adequate instruction concerning the mandatory isolation of power when Mr Hooper was working under the house. Mr Lithgow provided a wise induction concerning the risks posed by electricity and the precautions which should be taken to control such risks. But once the inductees left the training room and were out on the job, BSA's safety documentation (discussed immediately above), copies of which were issued to Mr Hooper, left a lot to be desired. 341 Safety could only be ensured by repeating and reinforcing good practice, and it was inadequate to hold a training course but not provide appropriate documentation to repeat and reinforce what was taught at the induction. I find that the step pleaded in par 9(g)(i) of the Further Amended Summons, in relation to instruction, did constitute a reasonably practicable measure which the defendant should have taken."
The fourth way in which BSA failed to comply with its duty under s 19(1) of the Act was that it failed to provide Mr Hooper with adequate information, training, instruction and/or supervision concerning the mandatory use of a lock and/or a tag when isolating power: par 9(g)(ii) of the Further Amended Summons. This was a matter admitted by BSA.
The fifth way in which BSA failed to comply with its duty under s 19(1) of the Act was that it failed to provide Mr Hooper with adequate information, training, instruction and/or supervision concerning the mandatory use of a volt stick: par 9(g)(iii) of the Further Amended Summons.
The findings in the primary judgment on this issue were as follows: "345 I repeat the findings made in pars 315-323 above concerning volt sticks. Apart from what Mr Lithgow said at the initial induction, there was no evidence of further information, instruction or supervision concerning the use of volt sticks, let alone the mandatory use of volt sticks. 346 I find that the step pleaded in par 9(g)(iii) of the Further Amended Summons, in relation to information, instruction and supervision, did constitute a reasonably practicable measure which the defendant should have taken."
The sixth way in which BSA failed to comply with its duty under s 19(1) of the Act was that it failed to provide Mr Hooper with adequate information, training, instruction and/or supervision concerning the conduct of an adequate risk assessment: par 9(g)(v) of the Further Amended Summons.
The findings in the primary judgment on this issue were as follows: "347 Paragraph 9(g)(v) of the Further Amended Summons pleads that the step which should have been taken by BSA was: 'g. Providing, before he commenced the work he was assigned or on the job, or both, to Mr Hooper, adequate information, training, instruction and/or supervision concerning the following: … (v) conduct of an adequate risk assessment.' 348 The risk assessment carried out by Mr Hooper at the Malabar property was conducted on the Marvel app. This was a Foxtel system and not a BSA system. It is no answer to the notion that the risk assessment was inadequate, to say that BSA could not change the Marvel risk assessment without having Foxtel change it. BSA sent technicians to suburban homes to do Foxtel installations, and had an independent duty to its workers to provide an adequate risk assessment process. 349 Evidence has been referred to above to the effect that BSA, during 2018, saw the need to increase the specificity of the questions in the risk assessment to deal more fully with isolation of electricity. This was escalated to "Rapid Response", which proved to be less than rapid, as the risk assessment had not been upgraded by the time of the incident on 14 December 2018. 350 In late November 2018 Mr Parkinson sent an email to Mr Mark Hooper and other BSA managers with a BSA Quality Alert and Advice (PX 7, Tab 68). This alert required a photo of the lockout tag to be sent if a technician was isolating power. That was never implemented, and could not have been implemented since technicians were not provided with locks or tags at that date. 351 BSA had taken positive steps to improve safety in relation to working on ladders and working at heights. There were a number of specific questions in the Marvel risk assessment concerning these matters and there was a requirement for photographs to be taken to demonstrate that technicians were working safely at heights. 352 The only question asked in relation to risks other than working at heights, was that part of the risk assessment which said, "Have you controlled all other hazards in accordance with your company SWMS?" Such a question, covering all other risks in the SWMS, apart from working at heights, in one hit, was hardly likely to direct the attention of a technician to the steps which had to be taken to properly isolate electricity at the site. The risks of the job were many and varied, including spiders, rats, needles, poor ventilation, heat, parking, bush fires, dogs and aggressive customers (PX 2, Tabs 28 and 29). 353 After the incident, the risk assessment was updated and improved, to ask a specific question about isolation of electricity. Further, the risk assessment was improved by adding in red and large letters the following: 'If you have chosen yes to power isolation a photo must be attached in Marvel.' 354 The post-incident risk assessment asked a specific question about power isolation and required a photo of the power isolation to be uploaded in Marvel. Thus the risk assessment in relation to isolation of electricity then took steps similar to those taken, prior to the incident, in relation to working at heights. 355 I find that the risk assessment required to be completed as at 14 December 2018 was an inadequate document, particularly when compared to the post-incident risk assessment which took steps to draw to the attention of a technician the need not only to isolate power, but to prove that power had been isolated, before doing work. A paper system (or as in this case an electronic system) cannot eliminate a risk, but it can be a reasonably practicable step to minimise a risk. 356 I find that the step pleaded in par 9(g)(v) of the Further Amended Summons did constitute a reasonably practicable measure which the defendant should have taken."
The acts or omissions of BSA relevant to the question of causation are set out above. It is not a correct approach to take one or two of these acts alone and consider whether or not each matter has been a substantial or significant cause of the death. Rather, I must consider all of the failures of BSA, to see whether its breach of duty under s 19(1) of the Act was a significant or substantial cause of the death of Jayden Hooper.
Some of the established particulars of breach relate to provision of equipment. For example, provision of a lock out or tag out device and provision of a volt stick. However, other particulars of the failure to comply with the duty refer to providing adequate information, training or instruction in relation to the use of that equipment.
Further, I have found that there was inadequate information, training or instruction in relation to a mandatory requirement to isolate power when working under the house.
I find as a fact that Mr Hooper failed to isolate the power before he worked underneath the house where the incident occurred. Both Mrs Tropman and Mr Tropman did not notice the power ever going off from the time that Jayden Hooper arrived at the property. The supervisor Ms McKenzie never checked the power box and thus could say nothing about whether the power was on or off when she attended the property. She did however see cables underneath the house and she knew that Mr Hooper would be working underneath the house to complete the installation of the Foxtel cables.
The notion that Jayden did isolate the power, but that someone else turned it back on, I regard as fanciful.
I have found that there was no adequate information, training or instruction regarding the conduct of an adequate risk assessment. The risk assessment required to be done was perfunctory in the extreme, in relation to the crucial matter of isolation of power. The fact that there were detailed questions regarding working at heights is admirable, but straight away demonstrates that there could have been simple and similar questions in relation to isolation of power, and provision, in effect, of a checklist which included isolating the power.
There was evidence in the case that BSA had greatly improved its procedures relating to isolating power when working underneath a house. Mr Ford gave evidence at the sentencing hearing and was cross-examined. He told the court that there had been no incidents of electrocution since the incident involving Jayden Hooper. There had been an increased level of auditing and supervision, and only one instance of a technician failing to isolate power had been picked up. Fortunately, this was detected before there was any injury suffered.
When I have regard to all of the failures of BSA listed above, I find as a fact that BSA's inadequate procedures meant that either Jayden Hooper did not appreciate the risks involved in failing to isolate the power when he was working under the house, or he inadvertently failed to isolate the power because his attention was not drawn to the need to do so. As previously recited, his attention could have been drawn to this matter by the provision of adequate equipment, adequate instruction and training, and an appropriately detailed risk assessment. None of these things happened, and together they made a substantial or significant contribution to the electrocution event which took place.
There was an important additional matter found in the primary judgment in relation to BSA's failure to comply with its duty under s 19(1) of the Act. I am referring to the failure of the supervisor Ms McKenzie to provide adequate supervision to Jayden Hooper on the day of the incident, and in particular her failure to make any check upon whether or not the power had been isolated. It would have taken a matter of seconds to do this check.
The findings on this issue in the primary judgment were: "Supervision 342 BSA had a supervisor attend the premises on the day. Part of her job description was to supervise the safe carrying out of work by technicians under her command. Further, that supervisor had her own personal interest in checking that the power was isolated, as she handled cables on the day to assist Mr Hooper. The supervisor actually walked past the meter box, which was immediately above the open door to the under-floor area, where Ms McKenzie could see cables and a multi-switch which was work needing to be completed. It would have been a simple and effective check on the isolation to look at the meter box and see that the circuits were switched off. 343 I have already made a finding that the supervision of Mr Hooper by Ms McKenzie was conduct which she engaged in as an employee of BSA, when she was acting within the actual scope of her employment. By force of s 244(1) of the Act, such conduct by Ms McKenzie was also conduct engaged in by BSA. Her failure is its failure. 344 I find that BSA did not provide adequate supervision concerning the mandatory isolation of power when Mr Hooper was working under the house, and thus there was a failure by BSA to properly provide such supervision. I find that the step pleaded in par 9(g)(i) of the Further Amended Summons, in relation to supervision, did constitute a reasonably practicable measure which the defendant should have taken."
The submission was made that Jayden Hooper did not need supervision because he was an experienced technician, and indeed was one of the most highly regarded technicians. I reject this submission. Firstly, Mr Hooper was not an electrician or a qualified tradesman, he was a technician. Secondly, BSA itself thought that he, along with all of the other service technicians, required supervision. Thirdly, Ms McKenzie accepted that it was part of her role description to provide supervision, which included checking that power had been isolated when she was on site.
BSA also submitted that Ms McKenzie had come and gone from the site and was not there when Jayden was electrocuted. I fail to see why this matter has any relevance. When Ms McKenzie did attend the site, if she made even a cursory inspection of the power box, she would have observed straight away that the power was still on. Ms McKenzie could then have given an adequate instruction to isolate the power if she did not do so herself.
Given my finding that it was Jayden who failed to isolate the power, and no-one else, the failure of the supervisor to pick up his non-compliance was a crucial last opportunity for BSA to take appropriate steps to comply with its duty under s 19(1) of the Act. Taken alone, the failure to properly supervise Jayden Hooper on the day of the incident made a substantial or significant contribution to the causation of his death.
Once the failure to supervise is added to the other failures, discussed above, I am of the view that the failure of BSA to comply with its duty under s 19(1) of the Act was a substantial or significant cause of the death of Mr Hooper.
I propose to use this finding for the three purposes identified above ie. assessment of objective seriousness; presence of an aggravating factor on sentencing; and admissibility of the two Victim Impact Statements.
Those two Victim Impact Statements, which are discussed below, were admitted provisionally at the hearing. As a result of the findings set out immediately above, they are admitted into evidence with no reservation.

Consideration

I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

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 The Queen (No. 2) [1988] HCA 14; (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] NSWCCA 242; (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] HCA 67; (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].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
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 relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
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. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater 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 on assessment of all those factors."
Further at [42] his Honour continued: "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 [event] 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 little, if any, costs."
At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the 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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting 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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the defendant's level of culpability are based upon the following: 1. The risk was foreseeable, which is a matter conceded by BSA. 2. BSA submits that it did not, and could not, know of the particular electrical problem underneath the house at Malabar. The fact that serious electrical risks may exist, without any sign or warning, underlines the need for appropriate measures to be taken to ensure that power is isolated whenever technicians are working underneath a house. It is impossible to say what the likelihood of the risk occurring is, given that electricity is effectively a "silent killer". That is all the more reason for taking appropriate steps to guard against the risk. 3. The potential consequences of the risk are serious injury, or as tragically occurred in the present case, death. 4. Steps were available to eliminate or minimise the risk. These are the steps established by the primary judgment. None of them were complicated. Indeed, BSA recognised earlier in 2018 that it needed to improve its risk assessment in relation to the isolation of electricity. Sadly, that did not occur in a timely fashion. 5. There was no particular burden or inconvenience of steps being implemented. BSA took steps straight after the incident, and using its own resources, to improve its safety systems. 6. As I have found under the heading "Causation", the death of Jayden Hooper was caused by the breach of s 19(1) of the Act by BSA. 7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence. 8. BSA was a large organisation, with a large workforce, operating in a potentially dangerous field. It had a very good safety record, which shows that it was a company committed to safety. However, there were "gaps in its otherwise good systems" (MFI 3, par 41). 9. BSA submitted that other parties made a contribution towards the existence of the risk (MFI 3, par 46). Each person conducting a business or undertaking has independent duties under the Act. While others may have made a contribution to this risk existing, I find that BSA, being the employer of a technician doing electrical work, played a major part in the creation of the risk. Ultimately, it was steps that BSA failed to take, which led to the risk continuing to exist while Mr Hooper was working underneath the house.
I find that the level of culpability of BSA is in the mid range.

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 Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].
The penalty must reflect the need for specific deterrence. BSA is still conducting a business. Its operations involve electrical installations and the continuing engagement of workers.

Aggravating Factors

The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

BSA has no prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
BSA is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. BSA has been in business for approximately five years since the incident.
BSA is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.
BSA has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.
I find that BSA has not shown remorse for the offence, within the meaning of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, which provides that remorse shown by an offender is a mitigating factor, but only if "the offender has provided evidence that he or she has accepted responsibility for his or her actions, and the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for any such injury, loss or damage (or both)".
The Court of Criminal Appeal has recently considered the concept of "remorse" as defined in the legislation in Brzozowski v R [2023] NSWCCA 129. At [58] the court said: "Regret, which was expressed by the applicant, may be regret at the commission of the offence or regret as to the consequences of the offence. The kind of regret that is equivalent to remorse is a deep regret at the commission of the offence; not a regret as to its consequences."
I accept the BSA submission (MFI 3, par 120) that there is "deep regret by BSA in relation to the breach of the Act". However, BSA disputed that the death of Jayden Hooper was caused by its breaches of duty under the Act (see MFI 3, par 119).
BSA gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.
BSA entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999.
The principles applicable to the discount to be given for a guilty plea are as follows: 1. The discount is given because a plea of guilty improves the efficiency and effectiveness of the criminal justice system, requiring an acknowledgement "by way of an incentive, so that the benefits will in fact be derived by the system": R v Thompson and Houlton (2000) 49 NSWLR 383 at [115]. 2. While a recognition of the inevitable may qualify the extent of genuine contrition, it does not qualify the utilitarian value of a plea of guilty: Facenfield v R [2021] NSWCCA 128 at [41]. 3. The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25% discount on sentence: Thompson and Houlton at [160]. 4. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge: Thompson and Houlton at [160]. 5. A person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing: R v AB [2011] NSWCCA 229 at [32]. 6. The utilitarian value flowing from a plea of guilty is not a fixed element and is capable of erosion as a result of the manner in which the sentencing hearing is conducted: AB at [2].
The procedural history of the matter is as follows: 1. The prosecution was commenced by a Summons dated 9 December 2020. 2. The matter came before the court for directions on 8 February 2021, 19 April 2021 and 15 June 2021. 3. On 12 July 2021 a plea of not guilty was entered. Directions were made in relation to compliance with Practice Note 16. The matter came back before the court several times in 2021 and 2022. Some of the dates involved interlocutory motions. 4. On 7 April 2022 the matter was listed for hearing for four weeks commencing on 13 February 2023. At this stage the plea was still "not guilty". 5. On 6 December 2022 BSA changed its plea to one of guilty, on the basis of a document marked as MFI 5. Put shortly, the plea of guilty was limited to failures to supply lock out and tag out (LOTO) equipment, and failures to provide instruction and training in relation to such equipment. The balance of the particulars of failure to comply with s 19(1) of the Act were still in dispute. The hearing was still estimated at four weeks. 6. The hearing commenced on 13 February 2023, but not all of the four weeks was required. There was a gap in proceedings as the prosecutor awaited the return of one of its expert witnesses. The hearing proceeded on 13, 14, 15, 16, 17, 22 and 28 February 2023 and 1, 3, 6, 7, 9 and 10 March 2023. In other words, 13 days of court time, spread over four weeks, were occupied with the evidence and the submissions. 7. Judgment was delivered on 31 March 2023. Some, but not all, of the allegations of failure to comply with the duty were found to be established by the primary judgment.
SafeWork NSW submitted that BSA had not demonstrated any utilitarian value flowing from the limited guilty plea (MFI 1, par 82).
BSA submitted (MFI 3, par 93) that much of the hearing time "was consumed by the prosecutor taking a position in relation to the pleaded risk and some of the particulars that it was ultimately unsuccessful in persuading the court that such findings should be made". In particular, BSA pointed to the failure of the prosecution to establish "significant aspects of its case" including: 1. The existence of the risk inside bedroom 1. 2. BSA's prior knowledge of the potential electrical faults at the property. 3. Measures 9(a), (b), (c), (f), (g)(iv) and (h) as pleaded in the Further Amended Summons.
I find that the utilitarian value of the plea of guilty was very limited. BSA only pleaded guilty to failures to comply with its duty in relation to LOTO equipment. This limited admission of guilt saved little or no time at the hearing. It would have taken only a matter of minutes to prove that BSA did not provide locks or tags to its technicians.
True it is that the prosecutor did not succeed on all of the particulars of breach of duty pleaded in the Further Amended Summons. That may be a matter relevant to costs, which remain in dispute. The court must focus upon the plea of guilty and the basis on which it was put forward. My finding is that this plea saved only a miniscule amount of time and public expense in hearing the disputed facts sentencing hearing.
I find that the appropriate discount is at the lower end of the range, and should be 10%. But for the Court of Criminal Appeal stating that 10% is the bottom of the appropriate range, I would have selected 5%.

Capacity to Pay a Fine

I am required to have regard to s 6 of the Fines Act 1996 (NSW) 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: Mahdi Jahandideh v The Queen [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.
In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996."
There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statements

BSA was convicted at the sentence hearing on 29 September 2023.
Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person - s 27(2)(a).
A Victim Impact Statement may be tendered to the court only by the prosecutor - s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division - s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement - s 30D(1).
A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate - s 30E(1).
By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim's death on the family victim or other members of the primary victim's immediate family.
A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community - s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statements into account.
Mr Mark Hooper is the father of Jayden Hooper. He was present in court. His statement (PX 2) was read aloud in court.
The last time Mr Mark Hooper saw his son was on Jayden's 22nd birthday just a few weeks before Christmas. He described Jayden as quick-witted, kind-hearted and generous. These qualities were warmly captured in a poem by Rupert McCall dedicated to Jayden.
The death of Jayden has had a devasting emotional and physical impact upon Mr Mark Hooper. It has affected every aspect of his life. He lives in a state of constant grief and has required significant psychological and psychiatric assistance. His relationship with his wife has deteriorated and he feels disconnected from his new baby son. His feelings of intense sadness and loss have led to suicidal thoughts.
Mr Mark Hooper has also experienced being electrocuted in the workplace. He is no longer able to work due to the trauma he has suffered and now faces severe financial difficulties, including the prospect of losing his home.
Ms Chelsea Hooper is the sister of Jayden. She read her statement (PX 3) aloud to the court.
Ms Hooper described her brother as her hero. She looked up to him and admired his selflessness and desire to make everyone in the room happy. She now has to deal with the knowledge that she would be older than her older brother, and that she will be forced to remember him longer than she knew him.
Ms Hooper spoke of the emotional impact the loss has had on her and her family. Since the death of Jayden, Ms Hooper has struggled daily and stopped enjoying the things she once loved. Christmas and birthdays are now reminders of the sadness and dread of going on another year without Jayden.
I will take these Victim Impact Statements into account in reaching an appropriate penalty.

Costs

The parties wish to have a separate hearing on costs. I will reserve all questions of costs and make directions for such hearing.

Penalty

My orders are: 1. BSA Limited was convicted on 29 September 2023. 2. The appropriate fine is $600,000 but that will be reduced by 10% to reflect the early plea of guilty. 3. Order BSA Limited to pay a fine of $540,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. 5. Reserve all questions of costs. 6. Direct that costs be resolved by the following steps: 1. The defendant is to file and serve its written submissions on costs by 30 October 2023. 2. The prosecutor is to file and serve its written submissions on costs by 13 November 2023. 3. The defendant is to file and serve any written submissions in reply in relation to costs by 20 November 2023. 4. The parties are to inform my Associate by 27 November 2023 whether the issue of costs can be dealt with on the papers, or whether either party wishes to have a hearing date allocated for oral submissions in relation to costs.

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 October 2023

WLR 383 R v Wilkinson (No. 5) [2009] NSWSC 432 Regina v Andrew [2000] NSWCCA 310 Regina v Katarzynski [2005] NSWCCA 72 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 SafeWork NSW v BSA Limited (No.2) [2023] NSWDC 73 SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343 Swan v The Queen [2020] HCA 11; (2020) 269 CLR 663 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: SafeWork NSW (Prosecutor) BSA Limited (Defendant) Representation: Counsel: J Agius SC with B Docking (Prosecutor) A Moses SC with M Shume (Defendant)

Judgment

On 14 December 2018 Mr Jayden Hooper was installing a satellite dish and associated cabling at a Foxtel customer's house in Malabar. While underneath the floor of the house, dealing with the connection of cables, he received a fatal electric shock.
On 31 March 2023 I found BSA Limited (BSA) guilty of an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Mr Hooper to a risk of death or serious injury contrary to s 32 of the Act: SafeWork NSW v BSA Limited (No. 2) [2023] NSWDC 73 (the primary judgment).
The maximum penalty for the offence is a fine of $1,500,000.

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