WorkCover Authority of New South Wales (Inspector Simpson) v Delta Electricity

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Inspector Malone v Delta Electricity [2003] NSWIRComm 212 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v The Queen [2005] HCA 25: 18 May 2005 CASES CITED: Morrison v Powercoal Pty Limited [2003] 130 IR 364 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60

PROSECUTION: Mr R Reitano of counsel SOLICITORS: WorkCover Criminal Law Practice Legal Group LEGAL REPRESENTATIVES: DEFENDANT: Mr M Shume of counsel SOLICITORS: Middletons

CORAM: Staunton J DATE: 12/9/2007

Matter No IRC 327 of 2007 WorkCover Authority of New South Wales (Inspector Simpson) v Delta Electricity Prosecution pursuant to section 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 226

1 The defendant in this matter, Delta Electricity (Delta), has pleaded guilty to an offence arising under s 8(2) of the Occupational Health and Safety Act 2000 (the Act). 2 The offence arises out of an incident which occurred on 23 March 2005 at Delta's Wallerawang Power Station (the site). On that day, a cooling water pump (the pump) was transported by a low loader from its installed location at the site to a work bay in order for maintenance work to be carried out. The maintenance work on the pump was to be carried out by Delta employees. 3 Contractors from Snodell Pty Ltd (Snodell), including Mr Graeme Jenkins, the managing director of Snodell, were also present when the low loader carrying the cooling water pump arrived at the maintenance bay. Snodell had been engaged by the defendant to assist in relation to the removal and transport of the pump to the work bay. Primarily, the role of Snodell was to provide, as requested by the defendant, lifting cranes, drivers and dogmen. Snodell, in turn, contracted to provide a prime mover and driver to transport the pump. 4 Once the pump reached the working bay, it was lifted from the back of the low loader onto the working bay by a fixed gantry crane. As the pump was lifted by the crane, it swung and struck Mr Jenkins, who was standing on the top tray of the low loader. Mr Jenkins suffered serious chest and abdominal crush injuries that precipitated renal and lung problems. 5 As a consequence of the accident and the subsequent investigation conducted by WorkCover, Delta was charged with an offence arising under section 8(2) of the Act , where it was said the defendant: Failed to ensure that people other than the defendant's employees and in particular Graeme Jenkins, Barry Trick, Wayne Dennis, Trevor Deaton and Geoff Partridge were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work contrary to section 8(2) of the Act. 6 The particulars of the charge are: (a) The defendant was an employer;(b) The defendant operated a power station for the purpose of electricity generation at the site;(c) The defendant's place of work was at the site; (d) The defendant engaged a contractor to perform work at the site;(e) The defendant failed to provide and maintain a safe system of work for the unloading of the casing for a cooling water pump ('the pump') from the back of a low loader using a gantry crane at the site in that it failed to: (i) have in place a procedure to make sure that no people were within the vicinity of the pump when it was raised by the gantry crane so as to make sure that those people could not be struck by any movement or swaying of the pump when it was lifted;(ii) have in place a Safe Work Method Statement dealing with all aspects of the procedure relevant to unloading the pump; and (f) The defendant failed to adequately train, instruct and supervise non employees working at the site in relation to the unloading of the pump from the back of a low loader using a gantry crane;

(g) The defendant failed to undertake and implement an adequate risk assessment in relation to the unloading of the casing for the pump from the back of a low loader using a gantry crane; (h) As a result of the defendant's omissions, Graeme Jenkins, Barry Trick, Wayne Dennis, Trevor Deaton and Geoff Partridge were placed at risk of injury. 7 An agreed statement of facts has been tendered in relation to the events relevant to the offence. The facts are as follows: [1] At all material times the Defendant, Delta Electricity (ABN 67 139 819 642) (Defendant) was a State Owned Corporation established pursuant to section 7 of the Energy Service Corporation Act 1995 (NSW) with its registered address at Level 12, Darling Park, 201 Sussex Street, Sydney in the State of New South Wales. [2] At all material times the Defendant:(a) conducted its business of generating electricity from Wallerawang Power Station No. 1 Main Street, Wallerawang in the State of New South Wales (Site);(b) was an employer;(c) the Site was a place of work; and(d) had a contract with Snodell Pty Ltd (ACN 064 832 971) (Snodell) under the terms of which Snodell was required to provide cranes to the Defendant for use in undertaking maintenance work at the Site; [3] At all material times Snodell: (a) was a company with its registered office at 62 Geordie Street, Lithgow in the State of New South Wales; (b) conducted its business including, amongst other things, crane hire services from the Snodell registered office;(c) was contracted by the Defendant for a 12 month period (including the date of the incident, 23 March 2005) to provide, at the Defendant's request, cranes, drivers and dogmen;(d) contracted AC & HC Collins Transport Pty Limited (ACN 001 894 917) (Collins Transport) to provide a prime mover and driver, Geoff Partridge. [4] On 23 March 2005, in accordance with the contract in force at the time, Snodell provided a crane, two employees Wayne Dennis (Dennis) and Trevor Deaton, (Deaton), a low loader and a driver, Geoff Partridge (Partridge) to assist in relation to the removal and transport of the no. 7A cooling water pump (pump) at the Site.

The incident [5] On the day of the incident, 23 March 2005, the pump was being removed and transported from where it was installed at the Site to the no. 8 CW pump house working bay (work bay) for maintenance. The cooling water pump weighed approximately 12 tonnes. [6] The pump was transported to the working bay on the back of the low loader driven by Partridge. Partridge reversed the truck into the working bay in preparation for removal of the pump from the low loader tray. The chains affixed to the pump were owned by Snodell. [7] The gantry crane permanently fixed to the working bay was the proposed means of lifting the pump from the low loader into the working bay area. The gantry crane was owned by the Defendant. [8] Dennis stated that once the low loader was positioned in the working bay, he had a conversation with a Delta employee, who he was unable to identify. Dennis states he asked that Delta employee if they needed a hand and whether they were qualified to operate the crane. Dennis stated the Delta employee told him that they were ticketed and able to do the job on their own. [9] Graeme Jenkins (Jenkins), the Managing Director of Snodell, and Barry Trick (Trick), another employee of Snodell, had been working at a different location on a different job. On completion of that job they went to the working bay.

[10] When Jenkins arrived at the working bay he had a discussion with some of the Delta persons involved in the work. After the discussion Jenkins gave direction to some of the Delta employees about the method they proposed to use for unloading and lifting the cooling water pump. Jenkins informed the Delta employees that he had performed a similar job some months earlier and explained the process used on that occasion. [11] After that conversation the revised method for unloading the pump was adopted. It involved: re-slinging the cooling water pump with four chains, lowering the rear ramps of the low loader, lifting the pump parallel with the low loader, driving the low loader out of the working bay and lowering the pump onto blocks on the ground in the working bay. [12] The change in the proposed work method is documented in an investigation report prepared by Delta employee Barry Fitzgerald (Fitzgerald), after the incident. The report is attached and marked "A". [13] No one who was present was clearly designated to be the supervisor of the work at any time. Delta did not designate anyone to be a supervisor. Jenkins assumed control of the procedure. [14] Employees of both the Defendant and Snodell took steps to implement the revised method. The pump was reslung. Jenkins was standing on the top of the tray of the low loader, between the pump and the vertical rear ramps of the low loader assisting in the re-slinging process. The vertical rear ramps of the low loader had not been lowered. [15] Partridge and Trick were both on the ground at the rear of the low loader ready to commence the process of lowering the vertical ramps. Partridge was at the rear passenger side of the low loader. Trick was at the rear driver's side of the low loader. [16] Deaton was standing on the top of the tray at the front of the low loader. [17] Dennis was on the rear driver's side and had started to unscrew the chains attached to the vertical ramp. [18] Nemcich was at the front of the low loader operating the gantry crane. Bray (another employee of the Defendant) was located behind Nemcich. [19] Parker (another employee of the Defendant) was at the back of the low loader with Trick and Dennis. [20] Before Jenkins dismounted the low loader the pump was lifted by the gantry crane. The pump moved towards Jenkins and struck him, crushing him between the vertical raised ramps of the low loader and the pump. [21] Delta's first aid staff were notified of the incident and attended Jenkins. Ambulance personnel arrived 20 minutes later and arranged for Jenkins to be transported to Lithgow Hospital and then on to Nepean Hospital via helicopter. [22] Jenkins suffered toxic crush syndrome as a result of a crush injury, including renal and lung failure and broken ribs. He was placed in a medically induced coma for 8 days. He was then moved to a general ward for a further 4 days, then released and treated as an outpatient. He has returned to work in a limited capacity.

Systems of works prior to the incident [23] Prior to work being undertaken on 23 March 2005, Delta had prepared a "work module" which detailed the method of dismantling and repairing a pump. The "work module" related to pump 7B and was prepared in September 2004. This module was adopted as the work method statement for the removal and repair of the pump. [24] Delta prepared an initial risk assessment in relation to the removal and repair of pump no.7A. Delta employees were instructed in this procedure. The risk assessment did not include consideration of any aspect of the procedure for unloading the pump from the low loader or how the pump was to be slung. The risk assessment prepared by Delta was not shown to Snodell employees prior to the incident. The risk assessment prepared by Delta was not shown to Partridge prior to the incident. No job safety analysis or revised risk assessment was prepared in relation to the alternate system of work ultimately adopted.

[25] Delta failed to ensure that no-one was in the vicinity of the lifting area when they used the overhead gantry crane at the time the load was to be lifted by the gantry crane. Delta failed to designate a person as being responsible for ensuring all persons were clear from the load before it was lifted. [26] Delta did not provide instruction or supervision for non employees in relation to the unloading of the pump from the low loader. [27] After 23 March 2005 Delta changed its purchasing procedure to ensure that a contract administrator is clearly nominated on all purchase orders with a service component. Purchase orders with a service component require a site safety management plan signed off by a safety professional before awarding of the contract. [28] After 23 March 2005 Delta introduced a distracting devices policy of all Delta worksites. [29] After 23 March 2005 Delta tightened its policy and procedures to ensure that anyone coming on to site to perform work must be inducted. [30] Delta has one prior conviction. [31] Delta has co-operated with Work Cover during the course of the investigation. 8 In addition to the agreed statement of facts, the prosecutor also tendered a indexed bundle of documents including the following: (i) A copy of an incident report compiled by Mr Barry Fitzgerald, Western Safety Manager for Delta; (ii) Copies of sixteen colour photographs taken by Mr Fitzgerald; and (iii) A copy of a WorkCover document, which discloses that the defendant has one prior conviction. The conviction was recorded under section 16(1) of the Occupational Health and Safety Act 1983. 9 On behalf of the defendant, the following affidavit material was tendered, without objection: (i) Affidavit of Mr Stephen Gray Quilter. Mr Quilter is employed by the defendant in the position of Delta Maintenance Western Region Manager. He has only been in that position since 5 February this year. Mr Quilter is a qualified mechanical engineer and was previously employed by a Queensland state-owned corporation, CS Energy, for 12 years. Mr Quilter's affidavit described the operational structure of Delta, including details about its maintenance division, Delta Maintenance. Mr Quilter's affidavit also outlined the operations of Delta's power stations, including Wallerawang Power Station, details about the cooling water pump, what he understood had occurred on the day of the incident as well as actions taken by the defendant following the accident. (ii) Affidavit of Mr Garry Johnson. Mr Johnson has been employed by Delta in the position of Legal and Compliance Manager since April 2006 and is currently also acting in the role of Corporate Secretary. Mr Johnson's affidavit deposed to the corporate history, functions and structure of Delta. As well, Mr Johnson detailed the defendant's safety policies and procedures as well as its on-going safety developments following the accident. 10 An exhibit note folder containing various occupational health and safety policies and work manuals were each annexed to Mr Quilter and Mr Johnson's affidavits. They were tendered without objection. 11 Mr Quilter was required for cross examination. 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 where the Court said: In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence' ... 15 Further, as was said in Morrison v Powercoal Pty Limited [2003] 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ... 16 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. 17 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. 18 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. 19 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). 20 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 21 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. ... (emphasis added) 22 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...

23 The defendant has one prior conviction and as such, the maximum penalty that may be imposed is $825,000. 24 As set out in the agreed statement of facts, Delta had contracted Snodell to provide a crane and dogmen services for the purposes of assisting Delta in carrying out maintenance work to the pump at the Wallerawang power station. The Delta employees carrying out the maintenance work were from a business unit of the defendant known as Delta Maintenance. That unit provided maintenance services for Delta plant and sites.

25 In order to perform the repairs, the pump needed to be transported from its location in the north-western area of the site by a low loader to the No 8 unit cooling water pump house work bay. The pump was then required to be lifted by crane from the back of the low loader on to the work bay area. Such a process required the pump to be lifted, albeit a relatively small distance.

26 The pump weighed approximately 12 tonnes. 27 Considering the immense size of the pump, it was essential that the defendant had in place a safe system of work for loading and unloading the pump to and from the low loader. Unless a safe procedure was in place and communicated to all workers participating in the task of loading and unloading the pump, there was a clear and foreseeable risk of injury to workers involved in the process.

28 As was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability 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).

29 Delta clearly recognised that the maintenance work to be carried out by its employees on the pump involved risks to safety. A risk assessment document had been prepared the day before the accident which set out the procedures and risks associated with the overhaul, removal and repair of the pump. However, the risk assessment did not contain any reference to the procedure to be followed or the risks to be addressed in lifting the pump onto and from the back of the low loader in the work bay area. 30 Further, the risk assessment that was undertaken by the defendant, notwithstanding its deficiencies, was not provided to Snodell or its employees. As well, the defendant did not enquire of Snodell as to whether it had prepared a Safe Work Method Statement in relation to the unloading of the pump.

31 The above omissions on the part of the defendant resulted in the defendant's and Snodell employees devising a method for lifting the pump in what can only be described as an ad hoc manner. Given the risks to safety involved, such an approach was clearly inadequate.

32 As the agreed facts identify, the defendant's and Snodell employees had initially verbally agreed that the pump would be lifted vertically from the low loader by the gantry crane utilising two slings. This method was eventually superseded by a method put forward by Mr Jenkins, explained in the agreed facts thus: [11] … It involved: re-slinging the cooling water pump with four chains, lowering the rear ramps of the low loader, lifting the pump parallel with the low loader, driving the low loader out of the working bay and lowering the pump onto blocks on the ground in the working bay.

33 Whether the first method devised by the workers or Mr Jenkins' subsequent method as to how to lift the pump was the appropriate way to actually lift the pump is unclear. What is clear is that the ad-hoc nature of the lift method was clearly inadequate in that there was no clarity or certainty as to who was in charge of supervising the work and how the work being performed was to be communicated between the workers so that each of them knew what had to be done and who was responsible for doing it. As a consequence, no consideration was given to the need to check that the area around the low loader was clear of any persons when the pump was being lifted by the gantry crane. 34 As the agreed facts state and it is relevant to re-emphasise: [25] Delta failed to ensure that no-one was in the vicinity of the lifting area when they used the overhead gantry crane at the time the load was to be lifted by the gantry crane. Delta failed to designate a person as being responsible for ensuring all persons were clear from the load before it was lifted. [26] Delta did not provide instruction or supervision for non employees in relation to the unloading of the pump from the low loader. 35 The above failures resulted in the crane being lifted while Mr Jenkins was still on the low loader and the rear ramps were still upright. 36 It would appear there was no coordinated step taken by any person to signal the need for all workers to stand clear before the pump was lifted. Further, it is apparent none of the employees in the immediate vicinity of the lift had a clear view of Mr Jenkins. Mr Deaton, a Snodell employee present, stated in his interview with WorkCover: Q66. Do you know why the clearance was not checked at the back of the low loader before the pump was moved?

A66. Nobody said "are we ready to go". The load just moved. I don't know if someone was operating the crane as I heard no direction and did not see any signals given. It would not have shifted on its own. There were only two possibilities, either the truck moved of the crane was operating. The truck never moved as the truck driver was standing next to me.

37 There is evidence that at the time the low loader was lifted, Mr Jenkins was distracted by a telephone call and remained standing at the back of the low loader. While I accept such an interruption would be a distraction, it does not negate the defendant's primary failure. That is, the absence of a system of work in place to ensure no person was in the vicinity of the pump when it was being lifted from the low loader. 38 It is 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. 39 Interestingly, the control measures for addressing risks associated with lifting of machinery had been mentioned in the risk assessment prepared by the defendant for the overhaul of the pump. That related to the removal of pipework, motor, gearbox and pump components by lifting. The control measures identified on p.2 of the defendant's risk assessment document included measures to ensure: … that personnel are not working/walking under suspended load. Crane driver and rigger to ensure that areas under suspended loads are kept clear… 40 What the above evidences is that the defendant had recognised the risks to safety inherent in lifting machinery using a crane and the fundamental measure, amongst others, that had to be in place to ensure such a task was done safely. It was, on any view, a control measure the defendant could have readily adopted for lifting the pump from the back of the low loader but failed to do so. 41 As was reaffirmed in Morrison v Powercoal, 'the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected'. On any view, Mr Jenkins is lucky to be alive. As well, it must be noted, as the charge particularises, it was not just Mr Jenkins who was exposed to risks to safety in the pump unloading procedure. Four other employees are also identified. 42 Following the accident involving Mr Jenkins, the defendant conducted a review of its contractor procedures and introduced a revised standard to manage the occupational health and safety procedures with respect to contractors and contract work carried out on Delta sites. 43 The revised standard now requires a Delta contract administrator or site contact to explain the company's risk assessment procedure to a contractor. Contractors are also required to have in place their own hazard identification and risk assessment procedures, which must be shown to a Delta site contact or contract administrator. 44 Under clause 3.4 in the revised standard, contractors are engaged and approved after they have been assessed as capable of complying with the occupational health and safety requirements for contract work. They must also demonstrate satisfactory performance of their safety obligations by reference to the contractor's previous record of occupational health and safety as part of the tender evaluation process. 45 The defendant has also implemented a distracting devices policy. The policy took effect in September 2005. The policy prohibits the use of any handheld communication device or portable audio equipment outside of an office area unless the employee is not involved in a work activity, is stationary and in a safe location. 46 Between April and May this year, the defendant introduced a new work procedure called Standard Procedure for Safe Lifting using Lifting Devices. The policy highlights the need for all workers to be informed and instructed as to how a lift is to be conducted. Lifts are assessed according to whether they are high or low risk. If they are assessed as a high risk lift, then workers must adopt a complex lifting plan. Additionally, the policy also requires that, prior to the lift taking place, a lift plan must be communicated to everyone participating in the lift, including contractors,. 47 As commendable as the remedial actions taken by the defendant have been, they were steps that could easily have been implemented beforehand. I also note that the policies, particularly the new safe lifting policy, have been somewhat slow in their promulgation following Mr Jenkins' accident. For example, the distracting device policy was not implemented until some months after the accident and the safe lifting procedure was not put in place until April/May this year - some two years after the accident. 48 Taking into account all of the above matters, I assess the offence as being objectively serious and I propose to address penalty on that basis. 49 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. 50 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.

51 General deterrence is a relevant consideration as the defendant operates in an industry where risks to workers' safety are an ever present issue, particularly when working with large and heavy plant. Specific deterrence is also relevant. The defendant continues to operate and its workers regularly have to deal with the movement and lifting of large machinery such as the pump.

52 I accept the evidence discloses that, prior to the accident involving Mr Jenkins, the defendant had in place a comprehensive occupational health and safety management policy and that the defendant was committed to ensuring its employees were made aware of workplace health and safety matters, including proper training and instruction in relation to it. This was done through mechanisms such as requiring employee tradespeople to undertake annual training for the safety system, maintaining a training database to ensure the currency of its employees' safety training and training both employees and contractors in the D-ZIP program.

53 D-ZIP refers to Delta Zero Incident Process and is a behavioural-based safety program which aims to encourage workers to observe work behaviours and discuss safety in the workplace. With respect to the implementation of D-ZIP, Mr Johnson stated that: D-ZIP has been implemented in all of Delta Electricity's business units and the corporate office to reduce at-risk behaviours and improve safety performance. Delta Electricity has trained over 95% of its employees and a number of contractors as D-ZIP observers…

54 The prosecutor tendered a Victim's Impact Statement prepared by Mr Jenkins. I have received that statement in accordance with s 28(1) of the Crimes (Sentencing Procedure) Act 1999, which sets out: If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. 55 The injuries suffered by Mr Jenkins as a result of being struck by the pump were very serious and he was fortunate to have survived. He continues to suffer from serious physical and psychological side effects from the accident. This has impacted on his capacity to participate in day-to-day activities such as gainful employment. As he wrote in his statement: The accident has affected my life in such a way that working to my full ability is no longer an option. My strength is limited, my memory is nowhere near as efficient, I continually ache with pins and needles in my feet which I was told would most likely be with me for the rest of my life with the healing process not as expected, which is a major life long problem that I have to learn to live with.

56 Counsel for the prosecutor acknowledged that the defendant's prior conviction was not factually similar to the offence now before me. As noted earlier, the defendant has one prior conviction under the Occupational Health and Safety Act 1983 under s 16(1). That was dealt with by Peterson J in the matter of Inspector Malone v Delta Electricity [2003] NSWIRComm 212. In his judgment dated 10 July 2003, his Honour imposed a fine of $81,500 for an accident involving the death of a contractor who had fallen from a walkway inside an air heater at Delta's Mt Piper power station located in Portland, New South Wales. 57 In considering the facts and circumstances of that matter, Peterson J said at [39]: ... As I have said, I do not consider the defendant's failure, assessed in the light of it constituting a not easily foreseen risk from a uniformly-available form of equipment, as high The defendant's culpability is more towards the lower end of the scale.

58 In the determination of penalty, the defendants are 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 Thomson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration, reinforced as they are by s 22 of the Crimes (Sentencing Procedure) Act 1999. 59 There are additional mitigating factors that favour the defendant. 60 Counsel for the defendant submitted that in spite of its prior conviction, the defendant had an overall 'excellent' safety record, given that it operated in a dangerous industry. It should be noted that prior to the incident occurring, the defendant had no safety incidents arising out of work involving the lifting of the pump. 61 While I do not necessarily agree the defendant's health and safety record is 'excellent', I do agree that, overall, the defendant has manifested a genuine and ongoing commitment to workplace safety that is to be commended.

62 It would appear that prior to the accident, the defendant was proactively committed to meeting its occupational health and safety obligations. Commendably, Delta received an award from the Labor Council of New South Wales in 2004/2005 for excellence in workplace safety in relation to a proposed fatigue policy. That policy was subsequently adopted and is currently in force. 63 Delta is also a participant in a New South Wales government strategy called "Working Together", which aims to improve injury management and reduce workplace injuries within the public sector. As a participant, Delta has laudably achieved four out of the five targets that participants are required to meet. 64 The defendant has also allocated substantial sums of money to meeting its occupational health and safety obligations. Mr Johnson deposed in his affidavit that between 2004 and 2007, the defendant had spent between $2 million and $2.5 million on safety, which was directed at employing safety professionals, training, protective safety equipment and safety audits. The defendant has projected that it will spend between $3.4 million to $3.9 million over the next three years for the purposes of workplace safety. 65 I am satisfied that in accepting responsibility for the accident involving Mr Jenkins, the defendant has expressed contrition for the accident. As well, the prosecutor has acknowledged the defendant cooperated with WorkCover during the investigations into the incident. 66 Taking into account all the matters I have referred to, I determine penalty in this matter and make orders as follows: (1) The defendant is convicted of the offence charged; (2) I impose a penalty of $190,000;

(3) I allocate a moiety to the prosecutor on the usual terms; (4) The defendant is to pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment.

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.