Stephen James Orr v Cudal Lime Products Pty Ltd; Stephen James Orr v Simon Shannon

The Electrical System at the Mine

1. Electricity was supplied to the Mine and the Cottage via a high voltage / low voltage substation at the Mine which was owned and operated by Essential Energy. The substation consisted of an incoming 3 wire 11,000V (11kV) powerline, an 11Kv/0.433kV transformer and 11kV fuses to protect the transformer in the case of a high voltage failure at the transformer.
2. Low voltage power was supplied via low voltage cables connected to the main electrical switchboard at the Mine, located in the main switchroom (Main Switchroom) that was immediately behind the substation. The low voltage power was 3 phase, meaning that the Mine received power from the transformer via 3 separate circuits. There was a fourth connection formed by the neutral portion of the circuit that was common to all 3 phases. Some electrical loads were designed to use all 3 phases simultaneously, being typically the larger items of plant and other loads, such as lighting and power points operated on only one phase.
3. On 30 December 2013 there was an arc fault causing substantial smoke at the main switchboard that was installed in the Main Switch Room, causing irreparable damage to the switchboard. An arc fault is an unintended and uncontrolled electrical arc caused by current flowing through the air between electrical phases or between electrical phases and the ground, causing a potentially hazardous release of energy including heat and radiation and capable of causing a fire and serious personal injury.
4. Between 30 December 2013 and 7 January 2014 the old switchboard was replaced. Cables from the transformer were connected to the new switchboard (Switchboard). The cables from the transformer were connected to the main circuit breaker switch (Main CB), which could operate to disconnect low voltage power from the point of supply to the Mine. The Main CB could be operated manually, but was designed to operate automatically in the event of a fault.
5. The Main CB had a separate earth leakage relay (ELR). The ELR provided an external shunt trip signal to enable the Main CB to operate automatically when an earth fault on the low voltage system was detected by the ELR.
6. The Switchboard also contained a core balance current transformer (CT also referred to as a Toroid). The CT measured the amount of out-of-balance electrical current flow in the 3 phase conductors and the neutral conductor that made up the low voltage electrical supply. The CT sends a signal to the ELR as to the amount of imbalance. When the imbalance exceeds a set threshold (which is adjustable) a trip signal is sent to the Main CB to shut off the power at the Switchboard.
7. The power supply to the ELR was via a 16A miniature circuit breaker (Mini CB) that could operate manually or automatically in the event of a short circuit in the ELR.

Plant at the Mine

1. The Mine operated a crusher to pulvervise rock (Crusher), which was situated about 10-15m from the Main Switchroom. The Crusher was powered by an electric motor that operated on 3 phase power (Crusher Motor). The Crusher Motor was connected to a soft starter located adjacent to the Switchboard in the Main Switchroom, by 2 independent armoured 3 core and earth PVC insulated cables (Cables). The Cables were partially buried, partially above ground in ducting and partially suspended in the air. When the soft starter was turned on the Crusher Motor windings were initially connected in an electrical configuration known as a 'star arrangement' and then after a pre-determined period in an electrical configuration known as a 'delta arrangement' for normal operation.
2. In the star arrangement one Cable was energised at the system voltage (nominally 250V) and the second Cable was energised at approximately 0V with respect to any ground. Any fault on the Cable energised at 0V during start up would not be evident. In the delta arrangement both Cables became energised at system voltage (nominally 250V) and resulted in 433V being applied across the windings of the Crusher Motor.

The Electrical System at the Cottage

1. The Cottage received its electrical supply from the Mine through an underground cable. The wiring arrangements at the Cottage were installed in accordance with the requirements of Australian Standard AS/NZ3000:2007 Electrical Installations (the Standard).

Engagement of Electrical Contractors

1. From August 1999 the Mine had engaged electrical contractors Fox Industrial Electrical (Orange) (Fox Electrical) to carry out electrical work at the Mine. Gregory Fox and Gerard Gallagher of Fox Electrical were the only qualified electricians to carry out electrical work at the Mine between August 1999 and February 2014.

2007

1. On 4 and 27 January 2007 CLP engaged Fox Electrical to assess the Crusher. Between 7 February 2007 and 1 March 2007 Fox Electrical carried out work including the trace of a fault to the star/delta arrangement timer in the fan starter. The timer was replaced.
2. On 30 October 2007 Bernard Gittins, the Electrical Inspector of Mines with the Department of Primary Industries (DPI) conducted a safety assessment of the Mine, with Michael Skeen the local Mine Safety Officer (MSO).
3. On 2 November 2007 Mr Gittins issued a notice to Ian Shannon pursuant to section 36B Mine Inspection Act 1901 (2007 Notice). The 2007 Notice related to non-compliance with clauses 68(1)(a)-(b) Mines Inspection General Rule 2000, namely: 1. 'electrical installations at the mine are designed, installed and maintained to minimise the potential for any electric shock or for burns, injury, explosion, fire, overheating or mechanical damage'; 2. 'suitable inspection and testing of electrical installations at the mine is carried out at time of installation and then periodically in order to identify any deficiencies and have them corrected…'.
4. To the 2007 Notice also identified that an "armoured cable needs to be resecured into its gland and supported in such a way as to prevent the recurrence of this failure. Similarly, other motor cables in and about the plant should be supported so that the motor gland does not support the weight of the cable". Mr Gittins observed that some conveyors were without lanyard switches and that this was a requirement of AS1755 unless equivalent safety precautions had been taken.
5. On 28 November 2007 Ian Shannon sent a letter to Mr Gittins (and others) in relation to the 2007 Notice. Ian Shannon stated that the cables had been secured and insulated to prevent electric shock and that the armoured cable had been resecured into its cable gland.
6. Between 16 January 2008 and 10 December 2008 CLP engaged Fox Electrical to undertake further work including the installation of the lanyard switches. On 29 February 2008, 27 March 2008 and 10 April 2008 Fox Electrical carried out work involving the trace of a fault in the starter of the Crusher. A relay from a spare starter was installed.

2009

1. Between 20 February 2009 and 18 March 2009 Fox Electrical carried out further work at the Mine.
2. On 20 March 2009 Mr Skeen wrote to Ian Shannon in relation to a recent visit to the Mine. Mr Skeen's letter said, "Electrical leads that are not maintained to recognised standards pose an electrical risk".
3. On 24 March 2009 Mr Gittins attended the Mine to conduct a safety assessment. Mr Gittins told Ian Shannon that the actions undertaken that fallen short of the recommendations in the 2007 Notice. He told Ian Shannon that the electrical equipment at the Mine was not being satisfactorily maintained and reminded him of the requirement to use licensed electricians.
4. On 2 April 2009 CLP wrote two letters to Mr Skeen in response to his letter of 20 March 2009 that included an undertaking to have all electrical leads and equipment on site undergo industry approved testing, which was scheduled for 7 April 2009. The letters were signed by Ian and Simon Shannon.
5. On 26 April 2009 Mr Gittins issued Ian Shannon a notice pursuant to section 131(b) of the MHS Act (2009 Notice). The 2009 Notice noted that the standard of cable installation was often poor. CLP was advised to obtain the services of a licensed electrician to conduct a general inspection of the cables at the Mine and to secure and protect the electrical cabling at the Mine in order to comply with the Standard.
6. Between 5 June 2009 and 11 July 2009 and between 20 October 2009 and 2 November 2009 Fox Electrical carried out electrical work at the Mine concerning trip faults in plant and providing advice on the protection of wiring at the Mine.

2010 Electrical Fire

1. On 23 February 2010, 1 April 2010 and 10 May 2010 Fox Electrical attended to carry out work at the Mine.
2. On or about 9 August 2010 there was an incident on the Old Switchboard that resulted in the top port portion of the Main CB switch melting, causing it to trip and requiring replacement. Mr Gallagher of Fox Electrical attended the Mine and repaired the damage.
3. On 15 September 2010 and 24 September 2010 Fox Electrical attended the Mine and carried out further work.

2012

1. On 9 January 2012, John Lean a MSO (Electrical) carried out an inspection at the Mine. On 27 April 2012 Mr Lean wrote to Ian Shannon identifying the following issues: 1. recommending the repair of an earth cable on the HV pole; 2. recommending a system of regularly testing lanyards and emergency stop systems; 3. recommending testing of the key lock out system to ensure that equipment is actually locked out; and 4. that the emergency stop button was faulty and needed to be replaced.
2. Between 19 and 24 January 2012 Fox Electrical attended the Mine and carried out work including the identification and repair of an arc fault in a starter and replacing the earth leakage unit that was not working.
3. On 18 March 2012 and 5 April 2012 Fox Electrical attended the Mine to investigate the starter in the Main Switchboard not working. The connections were loose and this was rectified.
4. Between 23 July 2012 and 31 July 2012 Fox Electrical attended the Mine and carried out work including the replacement of a residual current device (RCD) for the 3 phase power. It was identified that the RCD had been terminated in a power point in the switchboard. An arc fault in the distribution board was identified and rectified by cleaning up the damage and replacing the damaged cabling and circuit breakers.
5. On 21 August 2012 Fox Electrical attended the Mine when the plant was not working. The safety circuit was examined and the emergency stop settings were reset.
6. The HV pole issue identified by Mr Lean was repaired by Essential Energy and the remaining matters were addressed through the introduction of pre-start checks and periodic inspections.

2013

1. On 7 January 2013 Fox Electrical attended the Mine and identified that the starter for the generator was not changing from the star arrangement to the delta arrangement. Fox Electrical identified a faulty control contactor in the starter. It was noted that CLP would replace the relevant parts from a spare starter.
2. On 29 January 2013 and 27 February 2013 Fox Electrical attended the Mine and identified that the starter was overheating. A short trip was installed in the Main CB and it was connected to the earth leakage unit.
3. On 4 February 2013 Fox Electrical attended the Mine regarding the travelling irrigation installation and adjusted the limit switches.
4. On 11 March 2013 Mr Gittins attended the Mine in response to a report from an Inspector from the Department of Environment concerning an unsafe electric cable connection to an irrigation pump at the Mine. Mr Gittins met with Ian and Simon Shannon at the Mine. Mr Gittins observed that the cable did not comply with the Standard and issued an Improvement Notice, pursuant to section 191 of the Act (2013 Improvement Notice).
5. The 2013 Improvement Notice identified that the cable to the watering pump had not been connected in accordance with the Standard and that CLP did not have evidence that it had been commissioned and tested in accordance with the Standard.
6. Between 6 November 2013 and 30 December 2013 Mr Gallagher form Fox Electrical attended the Mine and altered the existing control system to accommodate a different milling process.

Safety System Generally

1. CLP was required to have a mine safety management plan, kept at the Mine: sections 27 and 33 of the MHS Act.
2. In accordance with its obligations, CLP prepared a mine safety plan (MSP).
3. On 16 September 2014 CLP provided a MSP dated 2011 (the 2011 MSP). It later provided an unsigned MSP dated 29 July 2013 (the 2013 MSP) and an unsigned MSP dated 5 April 2014 (he 2014 MSP).
4. Each MSP identified the extensive use of electricity at the Mine, that the risks of electrocution were 'moderate' and the consequences 'catastrophic'. The control measures identified to manage the risk included having electrical work undertaken by or under the direct supervision of qualified electrician or electrical engineer and that any work was to be done in accordance with the Standard. Electricity was identified as a 'significant' risk.
5. Each MSP required the monthly external inspection of switchboards and annual internal inspections and overhaul, as required, in accordance with the Standard.

Background to the Incident

1. At about 4.30pm on Sunday 29 December 2013, Troy Armstrong of Essential Energy attended the Mine in response to a call from Simon Shannon concerning the high voltage equipment. Mr Armstrong observed Simon Shannon with a voltmeter conducting voltage checks on the load side of the circuit breaker on the old switchboard. The cover was off the circuit breaker, exposing live parts.
2. At about 9.45am on Monday 30 December 2013 there was an arc fault in the Main Switchroom that significantly damaged the old switchboard. Mr Perceval was present and observed smoke and possibly flames. Simon Shannon did not see flames, only smoke. He used a fire extinguisher as a precaution. Simon Shannon telephoned Ian Shannon to advise him of the arc fault in the Old Switchboard. Ian Shannon recorded the event in his diary as a fire in the switchboard.
3. At 12.06pm Ian Shannon contacted Essential Energy advising them of the fault and that an electrician was on the way. Essential Energy attended later in the day and de-energised the power to the Mine and the Cottage. CLP did not advise the Department of the arc fault.

Replacement of the Switchboard

1. On 30 December 2013 Mr Gallagher of Fox Electrical attended the Mine. He carried out work for about 4 hours on that day, 4 hours on 3 January 2014, 5 hours on 7 January 2014 and 3 hours on 8 January 2014.
2. Between 30 December 2013 and 7 January 2014 the old switchboard was removed and the Switchboard installed. At the direction of CLP, Simon Shannon conducted some of the electrical work on the Switchboard as part of its installation in the absence of a qualified electrician or electrical engineer.
3. On 3 January 2014 Essential Energy reconnected the power to the Mine, but operations did not resume until 8 January 2014.
4. In the period 3 January 2014 to 27 February 2014 Mr Gallagher's work sheets showed he carried out 44.5 hours work for CLP.
5. Simon Shannon acted within the scope of his employment and was not a qualified electrician or electrical engineer.
6. CLP failed to ensure that Simon Shannon was directly supervised at all times by a qualified electrician or electrical engineer, while undertaking electrical work on the Switchboard.
7. Each of the MSPs required an Electricity Risk Assessment (ERA) to be completed for the replacement of the Switchboard and that a competent person carrying out that work provide a certificate of compliance relating to that work. No ERA form was completed in relation to the work and no certificate of compliance was obtained.

The incident - 27 August 2014

1. At about 6.45am on 27 August 2014 Mr Perceval left the Cottage to commence work at the Mine. At about 8.30am or 9.00am he turned on the Crusher Motor. He turned the motor off at about 9.30am or 9.55am to return to the Cottage for morning tea with Ms Liehr.
2. At about 10.00am Mr Perceval returned to the Cottage and found Ms Liehr collapsed in the shower. Mr Perceval called another worker at the Mine, Phiilip Ling, and asked him to come to the Cottage. Mr Ling called for an ambulance. Mr Perceval commenced CPR until the ambulance arrived.
3. At about 10.42am an ambulance crew attended. They determined that Ms Liehr had been deceased for some time.
4. Ms Liehr's death was caused by electrocution when she came into contact with the metallic flexible shower hose, whist standing on the metallic waste drain in the shower recess. Dangerous electrical voltage was present in the metallic fixtures of the Cottage as a result of a fault in the low voltage system of the Mine.

Mine Health and Safety Regulation 2007

1. The Mine Health and Safety Regulation 2007 (the MHS Regulation) required that CLP maintain the electrical installations at the Mine in accordance with the Standard, provide electrical protection on all electric circuits at the Mine to interrupt supply in the event of a fault and to provide effective earthing at the Mine.

Absence of a MEN link

1. The Standard required that the Switchboard include an earth-neutral link (MEN link). The purpose of a MEN link is to connect the earthing system to the neutral conductor. A MEN link was critical to the correct and safe operation of the low voltage system and for reliable fault detection and earth leakage protection.
2. On 27 August 2014, the Switchboard did not include a MEN link, which compromised the ability of the ELR to detect a fault and disconnect the power supply.

Ineffective automatic disconnection of supply

1. The Standard required the low voltage system to allow automatic disconnection of supply in the event of excessive earth leakage current and provide an effective low impedance path for earth current leakage. The Standard required the disconnection of supply within 0.03 seconds of detecting excessive earth current leakage.
2. On 27 August 2014 the ELR was set to a residual current trip of 20A with a time delay of 1 second.
3. A maximum setting for the ELR to ensure reliable operation was a current trip of 2A or 4A and a delay of between 0.1 to 0.5 seconds. Typical trip currents would be 0.1A to 1A.
4. The absence of a MEN link resulted in a high impedance earth return path and the ineffectiveness of the ELR to detect certain faults and disconnect supply in the event of excessive earth leakage. As a result the ELR failed to trip the Main CB at the time of the incident.

Condition of the cables

1. The Standard required that the low voltage system provide adequate strength of supports, suspensions and fixings and protection against mechanical damage, environmental and other exposure by enclosure or other means. The Standard also required the selection and installation of cables to miminise damage to the cable insulation, sheathing and connections during installation, operation and maintenance.
2. The Cables were not adequately supported or protected against mechanical damage. The Cables to the Crusher Motor had damaged insulation and armouring as well as earth faults on the cable support arm and at the connection to the Crusher Motor. The Cables showed evidence of electrical arcing. PVC electrical tape had been wrapped around the Cable armouring at the gland where it connected to the Crusher Motor, which was not a suitable repair.

The fault at the Crusher Motor

1. A phase to earth fault occurred at the Crusher Motor as a result of mechanical damage to the return Cable that connected the Crusher Motor to the soft starter.

The fault enters the Mine's earthing System

1. Current flowed from the Transformer to the Switchboard to the damaged Cable insulation at the Crusher Motor. At the point where the Cable was damaged, earth fault current then left the Cable into the 'earthing system' including the Cable's protective earth, Cable armouring and any connected metallic items.
2. In the absence of the MEN link the earth fault current flowed through the soil to complete the circuit. Once in the soil the earth fault current could return to the Transformer through any point on the neutral system that was connected to the ground including the Cottage.

The fault transfers to the Cottage

1. The voltage rise in the Mine's neutral system was transferred to the Cottage via the 3 phase and neutral cable supply between the Mine and the Cottage's electrical sub-board.
2. The neutral voltage rise at the Cottage transferred to the Cottage's protective earth via the MEN link installed in the Cottage's electrical sub-board. The voltage was transferred to all earthed equipment in the Cottage including metal pipework and taps, the hot water service, external taps and power points.
3. A large touch voltage of approximately 240V was present between the flexible metallic shower hose and the other metallic fittings in the shower.
4. Ms Liehr received an electric shock from simultaneous contact with the flexibl metallic shower hose and the metallic floor waste. The magnitude and duration of the electric shock caused her death.

Risk to persons at the Mine

1. The absence of a MEN link on the Switchboard resulted in the fault in the Crusher Motor persisting. The operation of the plant at the Mine, while the fault in the Crusher Motor was present, created a risk or serious injury or death to persons at the Mine by: 1. Electric shock as a result of contact with a neutral conductor and earthed equipment during maintenance or simple electrical activities, such as changing a light globe; 2. An arc fault, flashover, arc blast and/or fire at the Switchboard arising from; 1. the absence of insulation or separation of the electricity supply cables to the Main CB; 2. (ii) increased voltage stress on cables connected to the Switchboard due to the persistence of the fault; 3. (iii) improper electrical connections at the Main CB on the Switchboard leading to excessive heating; and/or 4. (iv) the accumulation of dust in the Switchboard.

Installation of a MEN link

1. If a MEN link was installed on the Switchboard, as required by the Standard, sufficient fault current would have flowed such that the ELR would quickly trip the Main CB and cut off the power supply to the Mine and the Cottage. A MEN link would have reduced the voltage level in the shower to approximately 45V.
2. Even at the settings of 20A with a time delay of 1 second, the ELR would have tripped if a MEN link was installed. If the ELR settings were at an appropriate level of 1A and 0.5 seconds, the risk of serious injury or death would have been significantly reduced by reducing the duration of the electric shock and reducing the likelihood of a person being in the shower whilst the fault in the Crusher Motor persisted.
3. If a MEN link had been installed on the Switchboard there would have been a reduced risk of electrical faults, overheating, equipment failure and fire at the Mine.

Reduced trip delay settings on the ELR

1. The ELR time delay was able to be adjusted between 0.03 seconds and 5 seconds. An appropriate setting was between 0.1 and 0.5 seconds. In the absence of a MEN link the 1 second time delay on the ELR was not fast enough to disconnect a fault to prevent a harmful electric shock.
2. Even if a MEN link had been installed, the 1 second time delay allowed Ms Liehr to be exposed to touch voltages in excess of those permitted by the Standard.
3. The ELR trip current setting was able to be adjusted between 0.03A and 30A. An appropriate trip current setting was between 0.1A and 1A. The appropriate trip setting would have improved the detection of electrical faults and the disconnection of the power supply, thereby reducing the risk of serious injury or death at the Cottage and at the Mine.

Post-incident events

1. CLP ceased operating the Mine on 27 August 2014.
2. On 4 September 2014 CLP notified the Department of the incident.

The Offenders' Case on Sentence

1. The offender relied on an affidavit of Hamish Kenneth Shannon , affirmed on 22 January 2018. Hamish Shannon (the deponent) was not required for cross-examination. The contents of the affidavit can be summarised as follows.
2. Ian Shannon is the deponent's father and Simon Shannon is the deponent's twin brother. The deponent has worked in the family's quarrying operations since 2004, after leaving school in 2003. In 2008 the deponent was awarded a Diploma of Agribusiness and in 2011 was awarded a Bachelor of Agribusiness.
3. In August 2014 CLP operated 2 quarries, the Cudal Lime Quarry at Davy's Plains (the Mine) and a hard rock quarry at Goonumbla (Goonumbla).
4. CLP was incorporated on 1 July 2004 and is the trustee of the Davy's Plains Family Settlement Trust (the Trust).
5. The Mine was commenced by WKS in about 1997 as a small family owned and operated quarry to supply agricultural lime in the local area. On 8 September 2008 CLP was approved to operate the Mine.
6. At different times Simon Shannon and the deponent have worked between the Mine and Goonumbla as well as on the family farm. From 2004, the deponent was employed as a Plant Operator at the Mine, progressing to Production Operator/Team Leader. In April 2013, when Goonumbla was established the deponent went there to work as the Production Manager.
7. In 2004 Simon Shannon enrolled in a Bachelor of Mining Engineering at the University of New South Wales. In 2006 he took time off study to work at the Mine as a Plant Operator. In 2007 he returned to university and worked at the Mine during his holidays. He returned to work in 2009, completing the balance of his degree by distance education in 2009 and 2010. From about this time, Simon Shannon transitioned into the role of Production Operator / Team Leader. He was awarded a Bachelor of Mining Engineering in 2011.
8. The deponent is still employed by CLP as the Production Manager at Goonumbla. He is responsible for the general operations of the quarry as well as Work Health and Safety (WHS) matters. He has undertaken further training in explosives, first aid and the Institute of Quarrying Australia's (IQA) electrical awareness course.
9. Simon Shannon has attended training courses run by IQA in mining planning and plant design and configuration.
10. Prior to the incident, the Mine was operated 5 days per week selling approximately 25,000 tonnes of limestone per annum. CLP had 5 employees at the Mine, 4 of whom worked at Goonumbla from time to time. CLP has not operated the Mine since the incident.
11. Presently, Goonumbla operates 5 days per week. CLP employs 4 staff including the deponent to operate the quarry.
12. CLP had a MSP in place for the Mine. The 2014 MSP was in force at the time of the incident and had been the subject of regular review. The MSP included procedures for hazard identification and management including Hazard Control Measure Action Plans and Hazard Identification Forms.
13. CLP also had in place pre-start checks including pre-start checklists. CLP carried out annual inspections dedicated to identifying WHS issues at the Mine. CLP provided inductions to its employees as well as on the job training relating to the identification of risks, personal protective equipment and safe operation of plant.
14. CLP undertook monthly earth leakage checks by pressing the test button on the Mine's main earth leakage system and RCD's installed elsewhere to ensure that the system would trip. The deponent now understands that the absence of a MEN link and the settings on the ELR prevented the effective tripping of the system.
15. CLP engaged Fox Electrical from August 1999. CLP expended approximately $85,000 on the servicing and maintenance of the electrical system at the Mine in the period 1999 to 2014.
16. CLP advised the Department of the incident, on 4 September 2014, when it was informed that the incident was caused by an electrical fault at the Mine.
17. Immediately after the incident CLP arranged for counselling for its employees with a psychologist from Bathurst.
18. Mr Perceval took leave and then worked at Goonumbla and around the family farm until January 2015 when he took sick leave. CLP paid Mr Perceval until May 2015 when the workers compensation insurer took over. Mr Perceval remained employed with CLP until September 2015.
19. At Goonumbla the deponent has engaged with the Department to ensure CLP is meeting its WHS obligations. Goonumbla changed from diesel plant to electrical equipment in late 2016. CLP engaged qualified electrical contractors, an electrical engineer and liaised with Mr Gittins in the process. The installation was compliant with the Standard and certified. CLP adopted an Electrical Engineering Control Plan formulated by the electrical engineer. CLP developed an Electrical Maintenance Plan and have put in place an electric shock protocol. CLP has arranged for quarterly inspections by qualified electricians for testing of the electrical system and equipment. CLP has also implemented an electrical isolation procedure that consists of 2 locks on electrical cabinets, one that can be opened with the manager's key and one that can only be opened by an electrical contractor's key. CLP arranged for Ian Shannon, Simon Shannon, another employee and the deponent to attend the IQA's Electrical Awareness Course.
20. CLP has updated its MSP, developed a Mechanical Engineering Control Plan and portable first aid stations. It is developing Principal Mining Management Plans covering hazards including ground instability, inundation, fire and explosion. It is developing Safe Operating Procedures for common activities. CLP carries out monthly inspections to identify and rectify WHS concerns. It is conducting weekly toolbox talks about safety that are documented and has invested in more external employee training. In 2015, CLP engaged an independent assessor to inspect its plant and equipment.
21. Ian Shannon has expressed to the deponent how upset he is by the death of Ms Liehr and that he feels responsible for it.
22. The deponent describes Simon Shannon as being devastated by Ms Liehr's death. He has expressed regret to the deponent about what happened and the ongoing impact on Mr Perceval and Ms Liehr's family.
23. Prior to the incident, Mr Perceval and Ms Liehr were close friends of the Shannon family. The deponent described Ms Liehr as having a 'heart of gold' and always being willing to do things for others.
24. Once the cause of the incident became more apparent there has been a deterioration in the relationship between Mr Perceval and the Shannon family. The family has reached out to Mr Perceval without success. The family acknowledges the effects that the incident has had on Mr Perceval and accepts that he wants no further contact. The family sees this as a source of regret and sadness.
25. The incident has had significant emotional impact on Ian Shannon, his wife, Simon Shannon and the deponent. They often think about the profound impacts on Mr Perceval and Ms Liehr's family. The incident and the subsequent legal proceedings has deeply affected the family's interactions.
26. Simon Shannon accepts that he should not have done the electrical work. The guilt associated with the incident and the charges he has faced has been a source of constant stress. He has put his life on hold for 4 years and suffered symptoms of anxiety and depression. He has become socially withdrawn.
27. Simon Shannon has been involved with the work of developing the safety systems CLP now has in place. Simon Shannon and Ian Shannon have offered to speak at safety seminars conducted by the Department about the failures that led to the incident.
28. On 29 June 2016 CLP sold the lease on the Mine at a discounted price. It has not yet received payment in full and has received no other income from the Mine since the incident, other than a nominal annual royalty. CLP has also incurred significant legal costs to date.
29. CLP has put aside funds and continues to operate Goonumbla to pay any penalty that may be imposed by the Court.
30. CLP put into evidence the Profit and Loss and Balance Sheet for the 2014 to 2017 financial years. CLP holds the assets and trades as the Trustee of the Trust.
31. Simon Shannon has put into evidence his taxation returns for the financial years 2013 to 2017. His annual salary in the 2017 financial year was $31,200 and he also received a distribution from the Trust in the sum of $26,472. Distributions from the Trust are usually deferred. Simon Shannon has no other source of income.
32. CLP has contributed to the community by donating items to charity, sponsoring local sporting teams and donating money to Careflight. CLP also contributes to the industry by maintaining membership of IQA and communicating with industry peers about the incident and the importance of WHS.
33. Ian Shannon has ongoing heart issues and is not in good health.
34. The deponent's sister, Skye Shannon, suffers from spina bifida and hydrocephalus. She has been very unwell in recent years undergoing 5 bouts of surgery in the last 12 months, including the partial amputation of one of her legs. The family have incurred significant medical expenses for Skye and have to take her to medical appointments regularly in Sydney, where her specialists practice from. The trip is 4 hours one way from the family home in Cudal. Skye's health issues are chronic and will be the source of personal and financial strain for the family for the foreseeable future. Simon Shannon is actively involved in Skye's care.

Consideration

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

CLP - section 31 offence

1. The objective seriousness must be considered within the gradation of the category 1, category 2 and category 3 offences provided for by the Act: Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [45].
2. The offence that CLP has pleaded guilty to and the matter for which it has admitted its guilt and asks to be taken into account, are in the most serious category, category 1. The maximum penalty for the offence is $3 million.
3. The risk of electrocution as a result of the absence of the MEN link and the settings on the ELR was foreseeable. The Mine was required by section 27 of the MHS Act to have a MSP. The MSP identified the risk of electrocution. The control measures to be implemented were that electrical work was required to be undertaken by qualified persons or under their direct supervision and that the work was to comply with the Standard.
4. The risk of electrocution from the mechanical damage to the Cables to the Crusher Motor was foreseeable. The absence of a MEN Link and the ELR settings operated to increase the risk.
5. The Control Measures identified in the MSP were not implemented when the new Switchboard installed after the old switchboard was damaged beyond repair by an arc fault on 30 December 2013. As depicted in the photographs there were obvious deficiencies in the maintenance of the electrical cabling at the Mine.
6. It was reasonably practicable for CLP to ensure that the following steps were taken to eliminate or minimise the risk to Ms Liehr and Mr Perceval: 1. To have the Switchboard installed by or under the direct supervision of a qualified electrical tradesperson or a qualified electrical engineer; 2. To ensure that the electrical protection on the Switchboard interrupted the power supply in the event of an electrical fault; 3. To install a MEN link; 4. To ensure that the Cables were properly insulated and free from damage; 5. To ensure that the Cables were properly affixed to the terminal box of the Crusher Motor; 6. The ensure that the Cables were properly supported between the Crusher Motor and the Switchboard; and 7. To ensure that the Cables were regularly inspected by a qualified electrical tradesperson or a qualified electrical engineer.
7. Each of those steps were simple and easily implemented. The installation of the Switchboard by or under the direct supervision of a qualified electrician was a Control measure identified in the MSP.
8. The death of Ms Liehr is relevant to the objective seriousness of the offence. Mr Perceval has effectively been unable to return to work and has been diagnosed as suffering from Posttraumatic Stress Disorder (PTSD) and Major Depressive Disorder. It has also affected the lives of Ms Liehr's children.
9. I infer that CLP's direction to Simon Shannon was motivated by a desire to save costs.
10. By its plea, CLP accepts that the risk was recklessly disregarded. The direction of an unqualified person to install the switchboard to save costs was an act devoid of social utility, so that the foresight of the possibility of the risk of serious injury or death arising was sufficient to constitute recklessness: Aubrey v R [2017] HCA 18 at [49].
11. The recklessness of CLP is aggravated by the history of electrical issues at the Mine that were identified as safety risks by the MSOs and not properly rectified. CLP was on notice through those interactions of the importance to design, install and maintain electrical plant to minimise the potential for electric shock, the need for regular inspection and testing of electrical installations, the importance of retaining qualified electricians to inspect and maintain electrical equipment and the risks associated with inadequately maintained electrical cables.
12. I must also take into account the offence on the Form 1, in which CLP without reasonable excuse exposed Mr Perceval to a risk of serious injury or death and was reckless to that risk. The Form 1 offence was directed at the risk to Mr Perceval at the Mine.
13. CLP had in place some safety systems. It engaged Fox Electrical to do a considerable amount of work between August 1999 and 2014.
14. The section 31 offence is in the mid-range of objective seriousness.

Simon Shannon - section 32 offence

1. The risk posed by undertaking unqualified electrical work was obvious.
2. Simon Shannon could have simply refused to do the work.
3. Simon Shannon failed to take reasonable care that his acts or omissions did not adversely affect the health and safety of Ms Liehr and Mr Perceval.
4. The death of Ms Liehr is relevant to the objective seriousness of the offence.
5. The section 32 offence is in the mid-range of objective seriousness.

Deterrence

1. The penalty imposed in relation to the offences must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].
2. In CLP's case, there is also a need for specific deterrence because the offender continues to operate in an industry that presents significant risks to the health and safety of its employees. The need for specific deterrence is reduced because CLP no longer operates the Mine, it had undertaken some steps to implement a safety system at the Mine and it has now taken considerable steps to implement appropriate WHS systems at Goonumbla.
3. In Simon Shannon's case the need for specific deterrence is significantly reduced. I am satisfied that the incident has had a significant emotional effect of him and that he will not undertake work he is unqualified for in the future.

Aggravating factors

1. The injury harm and loss caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. The death of Ms Liehr was the manifestation of the risk created. The Victim Impact Statements were not objected to or called into question and in my view it is proper to take it into account in consideration of the establishment of the aggravating factor: R v Tuala [2015] NSWCCA 8. I have already referred to the effects on Mr Perceval. Ms Liehr's children have lost a loving mother and a doting grandmother. Sangeeta and Nathan have suffered psychological symptoms relating to their mother's death. I am satisfied beyond reasonable doubt that the injury harm and loss caused by the offence was substantial.

Mitigating factors

1. The offenders do not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. CLP operated the Mine since 2008 and was incorporated in 2004. WKS operated the Mine from 1997. Simon Shannon is presently 32 years of age.
2. The offenders were a persons of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. CLP was a good corporate citizen that was involved in the local community and charitable works. It was a local employer and demonstrated some effort to comply with the legislation. CLP tendered a number of character references relating to Ian Shannon and the family in general. It is appropriate to consider these in the context of CLP being a family owned and operated company. Simon Shannon relied on a number of character references that described him as honest, hardworking and sincere. He has a strong commitment to the care of his disabled sister.
3. The offenders have good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. CLP has taken considerable steps to improve its safety systems since the incident. It has implemented a change to electrical plant at Goonumbla and has developed comprehensive policies and procedures to do so. Hamish Shannon has taken control of the safety requirements at Goonumbla and I am satisfied that he has learnt from the failings of CLP at the Mine. I am satisfied that CLP has demonstrated good prospects of rehabilitation. Simon Shannon has taken a positive role in the changes at CLP. He is relatively young and experienced significant emotional stresses as a result of the incident. He has tertiary qualifications in mining and has always been gainfully employed. I am satisfied that he has good prospects of rehabilitation.
4. The offenders have demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. CLP has expressed remorse through Hamish Shannon, by relaying the expressions of acceptance of responsibility and remorse made by Ian Shannon, the director of CLP and Simon Shannon. I accept that CLP is a family owned and operated company and that Hamish Shannon is well placed to convey those expressions. I am satisfied that the offenders have accepted responsibility for their actions and expressed genuine contrition and remorse.
5. The offenders entered pleas of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. The offenders are entitled to a discount on penalty that reflects the utilitarian value of that plea. The primary consideration in determining where in the range a particular case should fall is the timing of the plea, so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.
6. The offenders co-operated with the Safe Work investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Capacity to pay a fine

1. The Court is required to have regard to section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
2. In the 2017 financial year, CLP had a turnover of about $1.5 million. The Balance Sheet records a negative net asset position. CLP has not received an income from the Mine since the incident and the lease was sold for a discounted (but undisclosed) amount. CLP has retained an undisclosed sum to pay any fine imposed and intends to continue to operate Goonumbla for this purpose also. CLP has paid a substantial amount for legal costs of approximately $575,000 in the last 3 financial years that demonstrate it has some capacity to pay a fine over time. I accept that it has some limited capacity to pay a fine by reason of its overall size and turnover.
3. Simon Shannon earns about $50,000 gross per annum. This is established from examination of his past 4 tax returns. He is 32 years of age. There is no evidence of his assets or liabilities. With his tertiary qualifications, he is probably not exercising his full earning capacity, if other work in the mining industry was available to him. I am satisfied that his capacity to pay is limited to some extent.

Penalty - CLP

1. Cudal Lime Products Pty Ltd is convicted.
2. The Court has received and considered the Victim Impact Statements (VIS) of: 1. Barry Perceval; 2. Sangeeta Liehr (daughter); 3. Gillian Liehr (daughter); 4. Nathan Liehr (son).
3. Each statement was thoughtfully prepared and conveyed the love and respect held for the deceased as well as the pain and loss suffered by each the family members. I have considered the VIS in determining the appropriate punishment for the offence on the basis that the harm caused to the deceased's family is an aspect of harm done to the community: section 28(4) Crimes (Sentencing Procedure) Act 1999.
4. The appropriate fine is one of $1.2 million that will be discounted by 25% to take into account the plea of guilty.
5. I impose a fine of $900,000.
6. I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
7. I order that the CLP pay the prosecutors costs as agreed or assessed.

Penalty - Simon Shannon

1. Simon Shannon is convicted.
2. I have considered the VIS.
3. The appropriate fine is one of $64,000 that will be discounted by 25% to take into account the plea of guilty.
4. I impose a fine of $48,000.
5. I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
6. I order that the Simon Shannon pay the prosecutors costs as agreed or assessed.

Amendments 26 February 2018 - Formatting error in title field 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: 26 February 2018