SafeWork NSW v Dominion Global Pty Ltd

RELEVANT GUIDANCE MATERIALS

1. The Work Health and Safety Regulation 2017 (NSW) ('Regulation') has relevant provisions regarding confined spaces, the layout of a workplace, and managing the risks of a fall. It provides that a person conducting a business or undertaking ('PCBU') must manage risks to health and safety associated with working in confined spaces as far as reasonably practicable, and conduct a documented risk assessment. Consideration must be given to the nature of the space and a confined space entry permit must specify measures to control the associated risks. It also requires PCBUs to manage risks to health and safety associated with a fall by persons from one level to another, ensure that work involving this risk is performed on the ground or on solid construction, and provide adequate protection against this risk through safe systems of work.
2. The SafeWork NSW Code of Practice: Confined Spaces, dated January 2012, was available to Dominion prior to the incident. It relevantly provides that:

• '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 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 was available to Dominion 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 void 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, voids 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 hazards 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] … voids in floors.' (Page 11).
• 'Edge protection should consist of guard rails, solid balustrades or other structural components.' (Page 12).
• 'Holes, penetrations and voids 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. SafeWork Australia provided the following information on its publicly available website prior to the incident regarding working at heights: 'Working at heights is a high risk activity and a leading cause of death and serious injury in Australia. Between 1 January 2003 and 31 December 2015: - 359 workers were killed following a fall from a height - 11% of all workers killed over this period. - Half of these falls involved falling three metres or less.'

SYSTEMS OF WORK PRIOR TO THE INCIDENT

1. Dominion used a Job Safety Environmental Analysis ('JSEA') entitled 'Demolition and Installation' for work to be completed in the waste duct area. It was signed by Mr Hurt, Mr Floro, Mr Phillip, and Mr Cullen on 11 October 2018. It was not relevant to the work being conducted in the area on 10 and 12 October 2018, or on the day of the incident, nor did it identify the void in the waste duct area or contain instruction on dismantling and removing the scaffold near the void. For the step of 'coredrilling and demolition of roof from top of furnace', it identified controls to include 'ensur[ing] temporary handrail system along entire roof repair section is in place. No persons to go closer than 2m of unprotected edge without the use of harness system'.
2. Dominion also had a JSEA entitled 'Roof Inspections and Internal Inspections' for work in the waste duct area, signed by Mr Floro, Mr Phillip, and Mr Cullen on 19 September 2018. It was not relevant to the work being performed on the day of the incident, did not identify the void in the waste duct area, and did not contain information or instruction on dismantling and removing the scaffold near the void. For the step of 'accessing the work site', the JSEA listed controls to include 'be[ing] aware of any trip hazards in walkways and the work area. Remove the hazard prior to commencing task even if it is not our rubbish/rubble/scale etc.'
3. Dominion's Mr Wills conducted a pre-start toolbox meeting on 10 October 2018 that listed 'fall from heights, penetrations, lighting' as safety topics, 'unprotected edge' as a high-risk activity/hazard, and the void as a hazard. A sketch of the area was attached to the record, which indicated 'safe' areas and noted '2m' near the position of the void. Mr Douglas, Mr Critcher, and Mr Phillip were present at the meeting. Mr Kember and four of Dominion's workers in the area on 13 November 2018 were not present at that meeting.
4. On the day of the incident, Mr Kember conducted a pre-start toolbox meeting that noted 'slips/trips/falls' as safety topics. The minutes recorded 'look close and wide in work area … penetrations / 2m rule', and no sketch of the waste duct area was attached, nor any information or instruction regarding the scaffold location or the void. Mr Cullen, Mr Phillip, Mr Hurt, Mr Floro, and Mr Cullen Sr were present and signed the toolbox talk record. Mr. Kember directed the workers to remove the scaffold from the area, stay 2m away from the void, pull the scaffold away from the void, and dismantle and remove the scaffold. At the time of the incident, the scaffold was situated within 1m of the opening.

STEPS TAKEN AFTER THE INCIDENT

1. Dominion investigated the incident and prepared an Incident Report dated 16 November 2018. It included the following factors in its incident analysis: 1. 'When I.P walked over to the scaffold he didn't notice the penetration and walked straight into the Furnace Outlet.' 2. 'Work space was near a penetration.' 3. 'No internal danger flagging or physical barricading was installed.' 4. 'Non compliance with Bluescope working at heights procedure.'
2. The Incident Report listed 'Lessons Learnt' as installing suitable barricading for all tasks with a potential to fall, and that procedures must be followed.
3. The Incident Report identified the following corrective actions: 1. Both BlueScope and the Dominion's contractors are to 'follow all procedures at all times.' 2. BlueScope 'must ensure a physical barricade is established prior to any work being carried out. As a minimum, a rope with danger flags 2 metres from potential to fall zone must be installed.' 3. Dominion's contractors are to 'ensure all persons are clear in understanding all potential hazards.'
4. Dominions's JSEAs are now sent to its health and safety group, as well as a BlueScope representative, for review and management sign-off before any work can commence. Dominion also now require BlueScope to install a fixed barricade within the waste duct area before Dominion workers access the area.

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.'
5. By its plea, Dominion has conceded that there was a risk to workers, and in particular Mr Cullen, Mr Hurt, Mr Philips and Mr Floro of serious injury or death as particularised by the prosecutor. It is further conceded by Dominion that the risk was foreseeable and known to it.
6. Dominion admits that the steps taken to mitigate or eliminate the risk after the incident were suitable and available measures to take; those measures are included in the systems of work implemented after the incident as set out at [115]-[117] of the Statement of Agreed Facts ('SOAF').
7. Additional improvements to Dominion's safety systems are detailed in the Affidavit of Mr Nathan Harold Richardson ('Mr Richardson') affirmed 15 March 2022 (Exhibit A) in these proceedings.
8. Dominion concedes that the risk of serious injury or death was not remote.

OBJECTIVE SERIOUSNESS OF THE OFFENCE

1. The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and Dominion 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 subsidiary 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, as far as 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 WHS 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. Dominion'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 Dominion to ensure that an engineering control in the form of signage, a barrier or a covering across the void was in place, and workers ought not to have been allowed to engage in work in that area without that engineering control. Dominion has accepted its responsibility for the charge, as evidenced by it's plea to the charges in the Amended Summons.
12. 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: SafeWork NSW v Poletti Corporation [2019] NSWDC 491 at [88].
13. The gravity of the risk is demonstrated by the seriousness of the injuries suffered by Mr Cullen as described previously in paragraph [14].
14. 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.'
15. 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).
16. 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 this is not a case where the offence occurred as a result of Dominion exhibiting a cavalier attitude to its risks in the workplace, or that it had a general disregard for its safety obligations. I note that the prosecutor accepts that Dominion had not paid mere lip service to its obligations to ensure safety and had systems of work in place, but that it had failed to ensure that important aspects of its systems were observed. 2. The prosecutor submits that the existence of these systems both elevate and mitigate the objective seriousness of the offence (Prosecutor's Submissions [23.3] & [23.4]). I accept that I must have regard not merely to the system as it exists in theory, but also as it was implemented in practice, and I have done so. 3. Prior to the incident, BlueScope had implemented a fall prevention procedure known as the '2 metre rule'. Dominion relied on the 'Roof Inspections and Internal Inspections' JSEA approved by BlueScope for the work to be completed in the waste duct area. Unfortunately, the JSEA approved by BlueScope was not relevant to the task and did not identify the void in the waste duct area. 4. Whilst all Dominion workers who entered the waste duct area were first required to be inducted on BlueScope's 'No. 2 Walking Beam Furnace Entry Confined Space-Toolbox briefing', none of these systems specifically identified the void that was present, or the actual task that was to be performed. 5. The first time the hazards were identitified was at the tool-box talk on 10 October 2018. When that occurred the work was stopped and reported to Mr Wills on about 15 October 2018. 6. On 12 November 2018, Mr Wills and Mr Schofield inspected the waste duct area from the entrance, observing the scaffold and the void, and determined that the work could be done using the scaffold as a barrier when the workers needed to be within 2 metres of the void. During the evening, the scaffold was moved to act as a barricade. It was left in the waste duct area at about a 90 degree angle overnight. 7. The following day Mr Kember conducted and documented a pre-start tool box meeting which was attended by all workers who entered the waste duct area that day, namely Mr Cullen, Mr Hurt, Mr Floro and Mr Phillip, and they all signed the record. 8. During the toolbox talk on 13 November 2018, Mr Kember instructed workers to stay two metres away from the void, pull the scaffold away from the void and dismantle it before taking it out of the area. The minutes recorded, 'slips/trips/falls' as safety topics and 'look close and wide in work area' and 'Penetrations/2m rule' as points of discussion. 9. The record indicates that the task was expected to take ten minutes. The toolbox minutes did not record any information or instruction to workers regarding the location of the scaffold or the void and, unlike the toolbox talk on 10 October 2018, there was no sketch of the waste duct area attached to the record. 10. At the time of the incident the scaffold was situated within 2 metres of the void. 11. By its plea Dominion acknowledges that its systems were inadequate, and exposed workers to the risk of serious injury or death. 12. The gravamen of the offending is that Dominion did not conduct an adequate risk assessment, JSEA or Safe Work Method Statement ('SWMS') specifically in relation to the task. 13. Dominion stopped the work on 10 October 2018, and I accept that having been given specific instructions about the risk posed by the void, the workers were able to assess that the control measures were inadequate. Nonetheless, the ultimate control of the work space was BlueScope's and the void which was a key hazard was not identified in Dominion's JSEAs. 14. Dominion accepts full responsibility for its breach, in that those control measures were inadequate because of the deficiencies in Dominion's safety systems and it's reliance on BlueScope's safety systems. 15. Dominion and BlueScope did not work hand in glove, and could not do so. Dominion's ability to control the site was always subject to the control of BlueScope. BlueScope had the ultimate control, influence and direction of any work performed by Dominion, and then to some extent had a greater part to play in exposing the Dominion workers to the risk. 16. However, Dominion did not ultimately control the site, and BlueScope had authorised the works and the JSEAs. The essence of the offence is that there was a failure to use an engineering control. 17. 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. 18. I accept that 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. In SafeWork NSW v Poletti Corporation [2019] NSWDC 491 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. I am satisfied that Dominion is not a defendant who did not think about or consider safety - it put safety as a priority and had systems to deal with safety that covered the field. Its safety systems were operational and working to some extent over the period that work was being done.

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 the defendant is engaged, the types of duties, as well as the broader hazards and risks associated with the industry. The metal work indstry 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 roiled coil, cold rolled coil and plate, primarily for the building and construction industry.
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 that should normally be given weight of some substance 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 substance 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 Dominion. 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 Dominion was on notice of the risk but its 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 building and 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 the defendant 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 the defendant to reoffend. I note that the Dominion continues to perform the same work that it did when the incident occurred.
8. However, I accept that the manner in which Dominion has developed and integrated its safety systems into all levels of its operational processes, to enhance their safety procedures, will address some safety concerns. I also accept that Dominion has been proactive in its approach to safety.
9. Dominion has not undertaken any contracting work for BlueScope since the incident.
10. I accept that the prospects of rehabilitation of Dominion are good, but the need for an element of specific deterrence is still necessary in these circumstances.

VICTIM IMPACT STATEMENT

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

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 very seriously injured.

MITIGATING FACTORS

1. Dominion entered a plea of guilty, and as such this plea is a mitigating factor: s 21A(3)(k) of the Sentencing Act. I will allow the deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383.
2. Dominion has an unblemished safety record in circumstances where the refractory work that it does is inherently high risk and is a highly specialised area of work within the industry. Paragraph [60] of the Prosecutor's Submissions states of Dominion as follows: 'a good and even impressive safety record in the refractory manufacturing and construction industry it has operated in for 44 years in which it has been one of Australia's leaders in the refractory sector.'
3. Dominion is also entitled to leniency on the basis of this exemplary record.
4. I accept that Dominion is a good corporate citizen and is of good character: s 21A(3)(f), and is heavily involved in community and benevolent activities in their local community and in Papua New Guinea which affords Dominion some leniency.
5. Dominion co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act.
6. Dominion has made a number of significant changes to its safe systems of work since the incident, and I accept is committed to continue do so. I accept that Dominion has reasonable prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.
7. Dominion also provided assistance to Mr Cullen primarily working with his insurers and rehabilitation providers. They remain willing to have him to return to work with them when a viable opportunity arises.
8. It is evident that the incident has had a major impact on Dominion. Mr Richardson's affidavit (Exhibit A) states as follows: '[51] As a consequence of the Incident, Dominion has not been awarded any further work for BS at the site (where Dominion had previously done a substantial amount of work - on average around 1.4 M per year since 2012). Please refer to NR-1 at Tab 9 for a copy (sic) the Company Annual Revenue Analysis and the BS invoice summaries for 2012 - 2020. [52] This has had a substantial and ongoing financial impact on Dominion, equating to approximately $250,000 per annum in lost profits and company overhead (cost of operations - requiring contribution from each and every project margin to maintain an operating business and going concern). This has had a flow on effect on Dominion's workers (both supervisors and ground workers) local to the Site, who are now essentially unemployed if unable to travel for interstate works. [53] The Incident has had an adverse impact on Dominion's strong reputation in the close knit industry sector and the subsequent prosecution will impact Dominion's tendering capacity for major projects with significant companies and any government funded projects for many years to come. In this respect, the vast majority of major projects require conformation at thee tender stage of any significant safety events or related prosecutions, with heavy consideration against businesses operating with poor safety records, outweighing other elements of the tender review such as price, capability, quality endorsement etc.'
9. Mr Richardsons's evidence is not contested and I accept that this incident has had a significant negative impact on Dominion's financial circumstances, and I will afford Dominion somelenienct on that basis.
10. 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 the defendant, and this has been demonstrated by Mr Richardson's affidavit (Exhibit A). I accept that Dominion has shown remorse and contrition and, as such, is entitled to some leniency on that basis.
11. Having said that, the objective seriousness of the offence is such that it must be reflected in a significant fine. I accept that Dominion is 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.
12. This prosecution was commenced against Dominion and BlueScope with regard to the same incident. The submisssions on the pleas ran consecutively. The Court must deal with the culpability of Dominion and BlueScope separately because they are not co-offenders. Dominion and BlueScope are charged with different failures (even though there is similarilty), the agreed facts are different for each defendant (even though there is similarity) and some of the tendered documents are different.
13. 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 Dominion on the basis of it's conduct separately from that of BlueScope.
14. Dominion has an exceptional history of no previous convictions despite having been in this inherently dangerous industry for over 44 years. This entitles Dominion tosome significant leniency.
15. Furthermore, I accept that this incident has very significantly impacted the financial circumstances of Dominiion. As a consequence of this incident, Dominion no longer receives any work from BlueScope.
16. The Court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor's costs when considering any monetary penalty to be imposed on the defendants, 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 the defendant. The Court can also have regard to Dominion's own costs that it will have to bear as a consequence of a breach of the WHS Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78]. I have also taken into account that Dominion will be liable for the prosecutor's costs as part of the overall penalty imposed.
17. The appropriate fine for Dominion 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 Dominion 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 in the sum of $31,362.20.

Amendments 07 June 2022 - File Number Amended to read 2020/312660 28 June 2022 - Cover Sheet Decision (5) and at Paragraph 88 (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)" amended to read "The defendant is to pay the prosecutor's costs as agreed in the sum of $31,362.20. Legislation Cited: Reference to "Criminal Procedure Act 1986 (NSW)" removed. Paragraph 1 of the Judgment: The section reference "19(2)" amended to read "19(1)". Paragraph 11 of the Judgment: The reference to "Dominion's workers" amended to read "BlueScope's workers". 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: 28 June 2022