WorkCover Authority of New South Wales (Inspector Hamilton) v Darren Thomas Andrew Smith

WorkCover Authority of New South Wales (Inspector Hamilton) v Darren Thomas Andrew Smith - [2006] NSWIRComm 118 - NSWIRComm 2005 case summary — Zoe

[38]

11 The defendant has no prior convictions. On behalf of the defendant, an affidavit was tendered without objection on which brief oral evidence was elicited. Relevant principles 12 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 13 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.' 14 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 15 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646. 16 On the issue of foreseeability, the Full Bench in Capral also stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. 17 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence 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. 18 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c).

[47]

32 As has been set out in the agreed facts, Mr Smith was involved in the business of electrical contracting work. Mr Smith was self-employed but he also engaged Mr Lee and Mr Hill as electrical trade assistants to help carry out the work. Neither Mr Lee nor Mr Hill were licensed electrical contractors. They were both in the process of completing TAFE courses in electrical trades and were retained on the basis that they were to conduct the work under the supervision of a qualified tradesman. 33 As the agreed facts disclose, Mr Smith was not present at the worksite at all times in order to supervise Mr Lee and Mr Hill. He was there at the commencement of work in order to give Mr Lee and Mr Hill general instructions and then called in a couple of times during the day. In my view, leaving unqualified tradesmen to undertake electrical work largely unsupervised would certainly heighten the possibility of potential risks to safety arising. As the offence particulars plead, inter alia, the failure by Mr Smith to supervise Mr Lee 'at all times' was in contravention of s 14 of the Home Building Act 1989. 34 Reference to s 14(2) of the Home Building Act 1989 provides for a maximum penalty of 200 penalty units in the case of an individual such as Mr Smith. However, the prosecutor was not pressing any offence specific to the Home Building Act in the proceedings before me but, as I would understand it, relies on those provisions to reinforce the defendant's failure of adequate supervision as pleaded referable to s 9 of the Occupational Health and Safety Act 2000. 35 In assessing the culpability of the defendant, it is a relevant consideration that the work being performed by Mr Lee at the relevant time was work involving considerable risk if proper precautions were not in place. Specifically, the system of work in working on electrical rewiring required controls in place to guard against the well recognised hazard of electrical shock. 36 The defendant was well aware of that identified hazard. That much is evident by a Safe Work Method Statement prepared by the defendant in March 2003 in relation to a project undertaken involving an identified hazard of 'electric shock' as part of general construction work being undertaken at that time. 37 The defendant's identified method of dealing with the identified hazard of 'electric shock' was to: Ensure all electrical appliances are regularly inspected and tagged. 38 While that above-mentioned Safe Work Method Statement dealt with the use of electrical appliances in general construction work, it clearly identified the widely recognised hazard that electrical work involves and the need to have controls in place to address it. Mr Smith has acknowledged that in his affidavit as follows: Annexed hereto and marked "A" is a true copy of a Work Method Statement Document which I now utilise on all my jobs.

[49]

It is now my regular practice, in consultation with workers on site, to go through this work method statement with specific reference to particular hazards that might exist on any site. 39 In relation to the factual circumstances giving rise to the offence as particularised, the Police COPS Report succinctly reported as follows: Energy Australia personnel contacted and attended scene. Stated nothing suspicious located, however, noted that stove wire would have been 'live' if circuit breaker in the on position. Voltage from the wire was 246 volts. Correct procedure would have been to have circuit breaker in the off position, and tagged to ensure no person turned switch back on. It appears this procedure has not been followed. 40 Given all of the above, it is clear there was a potential risk for serious injury to arise in the work being undertaken by Mr Hill. In isolation, the potential for 'serious consequences' is not conclusive of the nature and quality of the offence, but it is clear that such a factor should be considered when assessing the ultimate culpability of a defendant. 41 As was stated in Capral at 646, the existence of a reasonably foreseeable risk of injury 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of culpability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. ( Lawrenson Diecasting at 476). 42 It is also relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. 43 There can be little argument, in my view, that the steps to be taken to de-energise the live wire were well known to the defendant prior to 19 May 2004 and readily and easily able to be addressed. As well, as the evidence discloses, the defendant was well aware of the need to have a site specific Safe Work Method Statement for the work to be undertaken. He had done one before. As that document discloses, the purpose of such a document is to identify potential hazards or risks to safety in the particular workplace and how to safely control them. There is no doubt, in my view, that if such a task had been done on 19 May 2004, the potential hazard of working on a live wire would have been identified and the safety control of ensuring the electrical circuitry of the premises was de-energised at all times and the circuit breaker properly tagged would have been done. 44 Further, there is no evidence to explain away Mr Smith's failure to properly supervise his unqualified tradespeople. It was his responsibility to do so and he was well able to. He has acknowledged his awareness of that requirement prior to 19 May 2004. 45 Given the facts and circumstances of this matter and the principles to which I have referred, I assess the offence as objectively serious and will determine penalty on that basis. 46 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 47 The nature of the industry in which the defendant operates is one with real and potential risks to safety. Working with electrical components and circuitry with the potential for them to be live if proper controls are not observed is ever present. In the circumstances, I consider general deterrence cannot be ignored as a relevant factor in my penalty considerations. 48 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 49 The defendant continues to operate albeit as a small business. I accept he has taken steps to put in place remedial measures designed to ensure that, in the future, his systems of work in dealing with electrical circuitry properly address potential hazards such as live wires. He has acknowledged his responsibility to be present 'at all times' in relation to unlicensed contractors. As well, he now has a Safe Work Method Statement for each job undertaken. Such steps should temper the weight I give to specific deterrence in my sentencing considerations. 50 In exercising my sentencing discretion, it is clear that the defendant's financial position is a factor to be given due consideration. That submission is premised on s 6 of the Fines Act 1996 which states as follows: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and (b) such other matters as, in the opinion of the Court, are relevant to the fixing of that amount . (emphasis added)

[52]

56 In the circumstances, the information before the Court going to the defendant's limited means is scant to say the least. 57 No formal evidence was placed before the Court such as to permit me to make a more considered appraisal of Mr Smith's financial circumstances. Nevertheless, the information given as detailed above was not challenged by the prosecutor and I am prepared to accept it as an accurate description of the defendant as a person of limited means. 58 In the determination of penalty, the defendant is entitled to have taken into account the plea of guilty entered. In assessing the impact of the plea, the Court is guided by the decision of R v Thomspon; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. I assess that discount at twenty five per cent. 59 I accept there are subjective features that further assist the defendant in my penalty considerations. As I understand it, Mr Smith has actively assisted Mr Lee in his rehabilitation to the workplace. He has taken steps to address the workplace issues that the offence has highlighted. Further, while there was no statement to confirm it, there was equally no submission stating that Mr Smith had refused or failed to cooperate with WorkCover inspectors in their investigations. For my purposes, I believe I am entitled to conclude that proper cooperation was forthcoming. 60 Further, Mr Smith has been a qualified electrician for approximately sixteen years. He has worked on large construction sites as a supervisor and for the past six years he has worked as an independent contractor. He has had no prior involvement with any safety related workplace accidents. 61 Taking into account all the matters I have referred to, I determine a penalty in this matter of $6,000. 62 As is the usual course in such proceedings, the prosecutor sought an order for costs as agreed or assessed. In doing so, it was said such costs would be in the vicinity of $20,000. 63 No submissions were put to me on behalf of the defendant on this issue. Nevertheless, I expressed concern as to the overall financial impost that the penalty I have imposed as well as the costs order sought would have on the defendant and his family, let alone his business. The over-riding purpose of the Occupational Health and Safety Act is ultimately remedial and it is counterproductive, it seems to me, if having assessed the objective seriousness of the offence and exercised one's sentencing discretion having regard, inter alia, to the Fines Act, to then add to the penalty imposed a costs order that is punitive and harsh in its financial implications for the defendant. In effect, the costs of the proceedings becomes the penalty. 64 I have already expressed the conclusion that the defendant is a person of limited financial means. That is a factor I have taken into account in my penalty considerations. 65 The discretion inherent in the making of a costs order was considered by Boland J in Inspector Yeung v Donald Wilson trading as Wilson's Tree Service [2004] NSWIRComm 346. In those proceedings, his Honour had concluded that the defendant was 'relatively impecunious'. In considering an order as to costs, his Honour said at [53]: Having weighed up the objective seriousness of the offence and the relevant subjective factors including, in particular, the defendant's relative impecuniosity, and noting that the purpose of costs is not punishment, I have decided the defendant will pay 20 per cent of the prosecutor's costs. As a consequence of the events of 3 July 2002, which was not all of his own making, the defendant and his young family face a period of quite severe emotional and financial hardship. I can see no point in adding to their difficulties by simply adopting the usual rule that costs follow the event. I do not consider in this case that to do so would be just and reasonable. 66 Ultimately, his Honour determined that the defendant should pay twenty per cent of the prosecutor's costs as agreed or assessed. 67 On appeal on this point, inter alia, the Full Bench stated (see Inspector Yeung v Donald Edwin Wilson trading as Wilson's Tree Service [2005] NSWIRComm 158) as follows: [126] However, it is not in dispute the primary judge holds a very broad discretion to determine any order as to costs. Boland J exercised his discretion but did not follow the usual practice of awarding 100 percent of costs to the prosecution; rather he ordered a payment of 20 percent of the costs. The appellant does not challenge that within its discretion the court can depart from the "usual practice". The "usual approach", the "general position" or "ordinary" approach is that costs will follow the event. ... [133] His Honour, in our view, did not fall into error on the issue of costs. In accordance with established principle, the court must make its determination in accordance with s 6 of the Fines Act . The court must also set the appropriate penalty for the offence giving proper weight to the objective seriousness of the offence. The court must then determine the appropriate costs order. Such a consideration, in our view, may also take into account the financial situation of the defendant. In so ordering the court must then determine that the total fine and costs order be an "acceptable total" or as otherwise said "just and reasonable". If the total penalty and costs order is viewed by the court to be excessive the court must make an appropriate adjustment to the costs order. The total must not be disproportionate to the offence. Boland J took into consideration this latter step in his determination as to costs when he stated at [51]: The prosecutor sought costs and a moiety of the fine. The defendant accepted that the usual order as to costs was that the defendant be required to pay the prosecutor's costs in an amount as agreed or assessed. However, it was submitted, costs were ultimately in the Court's discretion and the Court must exercise its discretion as to costs in accordance with what is just and reasonable. 68 I consider a costs order of approximately $20,000 together with the penalty I have imposed is not an 'acceptable total' or, as otherwise stated, 'just and reasonable' in the circumstances. Accordingly, I propose to exercise my discretion and modify the costs order sought.

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