1 This matter is a prosecution by Adrian Reynolds (the prosecutor) as an inspector of the WorkCover Authority of New South Wales (WorkCover) of PF Thearle & Co Pty Limited (the defendant) for breaches of s 15(1) of the Occupational Health and Safety Act 1983 (the Act).
2 It was alleged by the prosecutor that on 6 March 1997 the defendant did fail to ensure the health, safety and welfare at work of all its employees and in particular Anthony Flick and Raymond Whitney for the installation of electrical cables to the kiosk transformer at the Wardell Sewerage Treatment Works contrary to section 15(1) of the Occupational Health & Safety Act, 1983 in that:
The Particulars of the charge are:
a) The defendant, at all material times employed Anthony Flick and Raymond Whitney.
b) The defendant, at all material times, contracted with Ballina Shire Council, the owner of the sewerage works construction site, to undertake electrical installation work from the kiosk transformer to an adjacent electrical switchroom, at the said sewerage works site.
c) The defendant failed to provide systems of work in the installation of electrical cables to the kiosk transformer which ensured that employees were not placed at risk of injury from an electrical shock.
d) The defendant failed to provide such training as may be necessary in procedures required for installing electrical cables to live exposed conductors of an electrical transformer.
e) As a result of the said failure, Anthony Flick suffered an electrical shock and burn injuries and Raymond Whitney was placed at risk of injury.
3 Two summonses were originally issued. On 16 March 2001 an Amended Summons was filed in matter no 1036 of 1999. On 19 March 2001, the Court was advised by Mr M Cahill of counsel appearing on behalf of the prosecutor, that the prosecutor would be moving only on that Amended Summons filed on 16 March 2001.
4 Mr J Fernon of counsel on behalf of the defendant advised the Court that the defendant pleads guilty to the offences particularised in Matter IRC 99/1036 of the amended summons.
5 Matter No 1035 of 1999 was subsequently dismissed.
6 Judgment in this matter has been delayed. On 2 May 2000 two prosecutions by WorkCover of PF Thearle & Co, the employer of Mr Flick, were reallocated from Hungerford J, to whom they had originally been allocated, to myself. The basis for that re-allocation was succinctly stated by Hungerford J to the parties as being the usual rule that co-defendants be sentenced with the same mind. The Court as presently constituted had reserved decision in a prosecution against NorthPower based on the same incident.
7 Following that re-allocation, the hearing of the two prosecutions was set for 11 July 2000. On that date, the defendant made an application, acceded to by the prosecution, for an adjournment. A question had been raised in other proceedings as to the validity of summonses, based on an alleged irregularity in the way they had been issued. The defendant understood, though not precisely to what extent, that the same point arose with respect to the summonses in these proceedings. The matters were stood over, with leave, to allow the other proceedings to be finalised. On 18 August 2000, the Full Court (Wright J, President, Walton J, Vice-President and Hungerford J) handed down its decision in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [(2000) 100 IR 156].
8 The matters were relisted on 19 October 2000 to set a date for hearing, that being 1 March 2001, the earliest date convenient to the parties. On that date, there was a further adjournment to 19 March 2001 at the instance of the defendant, acceded to by the prosecutor.
Evidence
9 The Court had before it the following material tendered, subject to clarification of the defendant's position as to the proposition in par 35 of the Agreed Statement of Facts, without objection:
(i) Report of the inspection by Inspector Keenan of the Wardell Sewerage Treatment Works;
(ii) 80 photographs attached to that report;
(iii) various documents emanating from NorthPower, Ballina Shire Council and the defendant in relation to the work to be done at the Wardell site;
(iv) Statements of Interviews between Inspector Keenan and
(a) Glenn Raymond Wooldridge (17 March 1997 and 20 May 1998);
(b) Anthony Wayne Flick (14 March 1997);
(c) Raymond Leslie Whitney (3 March 1998);
(d) James Richard Thearle (13 November 1998);
(e) Patrick Francis Thearle (16 November 1998);
(v) Copy of Electricity (Workers' Safety) Regulation 1992;
(vi) Technical Report of Senior Inspector Edward Dugdale, Engineering Services Technical Support Unit with 26 attached photographs as to the electrical accident at the Wardell Sewerage Treatment Works. The appendices to that report included the Worksite Risk Assessment made by Glenn Wooldridge on 6 March 1997 in relation to the Wardell site and extracts from various relevant Standards etc.
(vii) Hazard Alert (NorthPower) dated 10 March 1997;
(viii) Notification of defendant's prior convictions: none;
(ix) Income tax returns for PF Thearle & Company Pty Ltd for the financial years 1996/97, 1997/98 and 1998/99;
(x) Metal model, not to scale, of part of the pad transformer. (Prepared by Mr Patrick Thearle); and
(xi) Defendant's financial statement for the financial year ending 30 June 2000.
10 The only person called to give evidence was Patrick Francis Thearle, electrical fitter-mechanic, director of PF Thearle & Co Pty Ltd (the defendant). The electrical contracting work undertaken by the defendant covers a broad range including domestic, commercial and industrial. Patrick Francis Thearle is senior director of the defendant, the two other directors being his wife, Coral Valmai Thearle, and his son James. Mr James Thearle could be described as assistant manager and he visits the work sites more frequently than does Mr Patrick Thearle. The shares in the company, the number of which Mr Patrick Thearle did not know, are owned by Patrick and Coral Thearle.
11 Mr Patrick Thearle's current role in the company is mainly in back up administration and in a support role for general activities. He has been in business as an electrical contractor for almost 40 years and as at 16 November 1998 had had 52 years experience in most sections of the electrical trade. The company employs an average of between 11 and 13 employees, though in March 2000 there were more. At the time of the interview with Inspector Keenan on 16 November 1998, Mr P Thearle stated that the defendant employed eight electrical trades staff, those being seven tradesmen and one apprentice.
12 The background to the events on 6 March 1997 are set out in the following Agreed Statement of Facts:
6. On the 6 March 1997, at about 9.30am, Anthony Flick suffered an electric shock resulting in burn injuries to his left hand when he was undertaking work upon a kiosk type transformer which was owned by NorthPower, at the Wardell Sewerage Treatment Works, Kays Road, Wardell, in the State of New South Wales. The kiosk type transformer failed to comply with AS3000 in that the cables connected to the surge diverters were covered yellow/green indicating the cables at the rear of the earth bar were inactive whereas those cables in fact were active notwithstanding their colouring.
7. At all material times Northpower [sic] was the electricity supply authority charged with responsibility to authorise the work undertaken at the site.
…
10. … the Wardell Sewerage Treatment Works that was under construction at Kays Road, Wardell. At the time of the accident Anthony Flick was attempting to bolt an earth cable lug to the low voltage earth bar of a kiosk transformer owned by NorthPower, the local electricity supply distributor.
11. The circumstances leading up to the accident were that Ballina Shire Council who owned the site, had contracted the defendant to carry out electrical installation work. As part of their contract (Annexure 'C') the defendant, was required to run mains cables from the kiosk transformer on site to an adjacent electrical switchroom.
12. PF Thearle & Co Pty Limited sent a form (Annexure 'D') to NorthPower requesting access to the kiosk transformer so they could install the mains cables. Access to the transformer was not permitted without the authorisation of Northpower [sic]. Northpower [sic] gave PF Thearle & Co access to the transformer. A service request form was completed for the work by NorthPower tradesperson Phil Bielefeld. The day before the accident NorthPower tradesperson Mark Summers attended the site to access the kiosk transformer, so that the cables could be installed by Anthony Flick. The cables were not ready to be installed so Mark Summers advised Anthony Flick to contact Phil Bielefeld when they were ready and left the site.
13. Glenn Wooldridge who was at the NorthPower depot the morning of the accident acted on the service request form and attended the site to allow access to the kiosk transformer by PF Thearle & Co Pty Limited employee. See statement of Glen Wooldridge (Annexure 'E').
14. Glenn Wooldridge on arrival at the site conducted a risk assessment. Glen Wooldridge informed Anthony Flick that Northpower [sic] would do the terminations. Glen Woodridge [sic] also advised Anthony Flick that terminations underneath the switchgear were live.
15. After these discussions Glen Wooldridge left the work site to attend to another job, leaving Anthony Flick and Raymond Whitney.
16. Anthony Flick carried out the job of pulling cables through an underground conduit located between the switchroom and kiosk transformer with the assistance of the apprentice Raymond Whitney. The cables installed were three active cables, one neutral cable and two earth cables. These cables were fed through the kiosk transformer and pulled through the conduit to the switchroom. None of the cables were live at the time this work was done. See statement of Anthony Flick (Annexure 'F').
17. After the cables were fed through the conduit and cut Flick lugged the earth cables and decided to connect the earth cables to the low voltage earth bar of the kiosk transformer. Flick did this because he thought that if he left them lugged and lying free they might come in contact with live equipment as he worked.
18. In attempting to bolt the first earth cable lug to the earth bar by reaching in with his left hand, he came in contact with a live 240 volt cable termination to a surge diverter located at the rear of the transformer cubicle and connected to the low voltage earth bar.
19. In his statement to WorkCover Inspectors, Flick said:
Q: "What instructions were you given by the tradesperson from NorthPower (Glen Wooldridge) in relation to the work you were to carry out inside the transformer"?
A: "To cut and lug cables and prepare for them to terminate".
Q: "Did you discuss exactly what you were going to do with him in relation to the work you were going to perform inside the transformer in relation to lugging the cables"?
A: "No, I didn't discuss exactly what I was going to do".
Q: "Did you advise him you were going to bolt the earth lugs to the transformer earthbar"?
A: "No, it wasn't until after I lugged them and thought they were going to be a danger or safety concern, if I left them floating they could have shorted or touched live equipment because in lugging the much larger active conductors you do not need obstructions which could become dangerous such as the loose earth cables".
Q: "Did he advise you specifically what work you were to undertake inside the transformer"?
A: "He advised us we were not to connect the active conductors but no mention was made of earths, I assumed it would have been safe for me to have connected the earths because earth bars are seen as safe and non-hazardous".
20. Raymond Whitney, the apprentice assisting Anthony Flick, heard screams coming from outside the adjacent switchroom where he was working. He rushed outside to see Anthony Flick convulsing near the kiosk transformer. See statement of Raymond Whitney (Annexure 'G').
21. Anthony Flick yelled at Raymond Whitney telling him not to touch him. Raymond Whitney looked around for a split second for something non-conductive to knock Anthony Flick away from the transformer with but nothing was available, so he grabbed his shirt and pulled him away from the transformer receiving a small shock in the process.
22. The actions of Glen Wooldridge in allowing Anthony Flick access to the live kiosk transformer were in contravention of the requirements outlined in the Electricity (Workers Safety) Regulation 1992.
…
25. There were no written or standard procedures or risk assessment procedures in place within PF Thearle & Co Pty Limited, for the safe installation of mains/earth cables into the conduit that was located inside the kiosk transformer. See statements of James Thearle, Annexure 'J', and Pat Thearle, Annexure 'K'.
26. Anthony Flick was not trained and authorised under Clause 12, 27, 35 & 43 of the Electricity (Workers Safety) Regulation 1992 to enable him to access the live kiosk transformer. Training and authorisation under the Electricity (Workers Safety) Regulation 1992 is a prerequisite for any person to access NorthPower network assets.
27. In the NorthPower letter to Ballina Shire Council, OFFER TO SUPPLY TO WARDELL SEWERAGE TREATMENT PLANT, subheading Point of Supply it states; "The design allows for you to take supply at the low voltage terminals of NorthPower's transformer low voltage switchgear. The electrical Contractor is therefore required to provide customer mains to this point, with the necessary terminal lugs fitted to the cables and stainless steel bolts, nuts and washers to clamp the customer mains to the low voltage terminals." This is what Flick did.
28. At the time of the accident Anthony Flick was not supervised by a trained person from Northpower who was authorised in accordance with Clauses 9 & 42 of the Electricity (Workers Safety) Regulation 1992.
29. Glenn Wooldridge stated, he was not given any instruction from NorthPower that he was to supervise Anthony Flick. …
30. Anthony Flick is a licensed electrical contractor who has had twenty years experience in various types of electrical installations including domestic, commercial and industrial installations but he had minimal experience with the internal configuration of a kiosk transformer. He was aware of the function of the surge diverters.
31. Glenn Wooldridge stated he had not seen or worked on a design of the type of low voltage system which was present in the kiosk transformer involved in the accident.
32. NorthPower had total control over access to the kiosk transformer at the time of the accident.
33. The requirements of Clause 35 of the Electricity (Workers Safety) Regulation 1992, were not observed by either NorthPower or PF Thearle & Co Pty Limited for the work Anthony Flick was undertaking inside the kiosk transformer.
34. The investigation revealed that the cables connected to the surge divertors in the low voltage compartment which were covered with earth coloured insulation were in fact live.
35. The system used by Anthony Flick in relation to the connection of the earth cables to the earth bar was one that was inherently unsafe, in that the opposite ends of the earth cables had not been terminated in the switchroom and were just left lying on the floor. This procedure was not in line with standard electrical safety practice for the connection of cable, especially when the kiosk transformer was live.
36. Vince Kelly, NorthPower's Manager Design and Construction Services stated in respect of the risk assessment completed by Wooldridge, the following, "The main deficiency was that Glenn should have identified that Flick was not appropriately authorised under Item 2 of the Pre Job Checks. Hence he should not have given Flick access to the substation. …
37. Flick was not and could not be authorised to work inside the substation. In any event, Flick was not trained by NorthPower and did not comply with the requirements of Clause 21(2) which specifies the relevant safe working procedure to be adopted when working on such a transformer.
38. Clause 21(2) of the Electricity (Workers Safety) Regulation 1992, states "An employee engaging or preparing to engage in work to which this Regulation applies must regard all low voltage exposed conductors as alive until they are isolated and proved to be de-energised, by means approved by the employer". Glen Wooldridge and Anthony Flick did not conduct any testing inside the kiosk transformer.
39. There was no approved rescue equipment provided or available by PF Thearle & Co, for removing Anthony Flick from the live transformer. In Raymond Whitney taking the action he did, he saved Anthony Flick's life but put his own life in danger and could have been electrocuted himself.
40. Adequate safety clothing was not provided by PF Thearle & Co nor worn by Anthony Flick when working on or near live exposed conductors as required by Clause 26 of the Electricity (Workers Safety) Regulation 1992. Clothing such as a hard hat, combination overalls/long trousers/long sleeved shirt and insulating gloves.
41. Anthony Flick had not been provided with any training by his employer PF Thearle & Co Pty Limited on the requirements of the Occupational Health and Safety Act, 1983.
42. Anthony Flick had not been provided with any safety training by his employer PF Thearle & Co Pty Limited in regard to the procedures required when working on or near live exposed conductors. These procedures are clearly outlined in a number of electrical safety booklets, namely the Office of Energy pamphlet "ELECTRICAL SAFETY FOR ELECTRICAL WORKERS (Annexure 'M') and the Electricity (Workers Safety) Regulation 1992.
43. PF Thearle & Co Pty Limited did not have any written or standard safety procedures for the installation of cables into a kiosk transformer. This was clearly evident due to the system utilised by Anthony Flick in installing the cables inside the kiosk transformer when it was live and not de-energised.
Note: Annexures referred to in the Agreed Statement are not reproduced.
13 An earlier disagreement by the defendant to par 35 of the Agreed Statement was withdrawn, but Mr Fernon asked the Court to view that paragraph in the context that the connection spoken of in it is of course the earth cable. So in normal circumstances there would not be circumstances giving rise to an injury of someone, but the defendant conceded that in particular circumstances there might be a risk of injury to someone from the switch room, bearing in mind there is a transformer at one end and there is the switch room at the other end, and it is the switch room end that is spoken of. It is the transformer end where the accident in fact occurred that this matter is concerned with. There would be a circumstance where something occurred in the transformer end that might cause a problem in the switchboard end, but being the earth cable that is spoken about in para 35, one would normally expect a problem to arise, at the switch room end of that cable. Perhaps the description of the procedure as "inherently" unsafe is too strong. It could be unsafe.
14 As Mr Fernon understood the paragraph, it is concerned with earth cable as referred to in the second line of paragraph 35.
15 Mr Cahill said he would not say it was so limited. The circumstances in which this particular incident occurred are that this particular defendant, being an electrical contracting company, pursuant to the terms of the contract carried out certain work between a live transformer and a switch room that was to be connected, and the work that was involved came in various parts.
16 Part of that work was dragging the cable through PVC underground tubing between the pad transformer at the exterior of the building and a switch room in the interior of the building. There were in fact two ends of the cable, one end unconnected in the switch room and one end unconnected in the transformer.
17 The transformer is, during the entirety of this process, live, so that the situation is that there are cables which are not connected which are masked off with tape at one end in the switch room while this work is being done. The work that is being done in the switch room consists of cutting off the ends of the access cable and the attachment of metal lugs to the end of the cable so that they can be connected with various points within the transformer.
18 The cables awaiting connection at the switchboard were lying there on the floor unconnected in any way. There is a risk that someone working at the other end could unintentionally energise those ends. Indeed that is actually the risk involved in this case. Mr Whitney said he would go and untie the other ends of the cable in the switchroom. Mr Flick was actually working on one end of the cable, a cable that he is attempting to engage to the switchboard at the time that he gets his shock, and there is an apprentice working at the other end of these cables, so the risk of energisation by somebody being placed at the unconnected end becomes apparent as a consequence of that.
19 The prosecutor says as to that situation that the very notion that one would connect the work on the live end first, leaving the switchboard end unconnected, was not a good process. The proper and safe method is to take care of the end of the switchroom first. The appropriate practice was to ensure that the end of the cables that could not be seen from the live transformer, the end of the cables under the switchboard, was deliberately secured before any work took place in the switchroom.
Prosecutor's Submissions on Sentence
20 In sentencing a defendant for a breach of s 15(1) of the Occupational Health & Safety Act, 1983 (As Amended) the approach to be adopted by the Court is that outlined by the Full Bench of the Industrial Relations Commission of New South Wales in Court Session in Warman International Limited v The WorkCover Authority of New South Wales (1998) 80 IR 326.
21 The primary factor to be considered in determining the sentence to be imposed is "…the objective seriousness of the offence charged" (WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) [2000] NSWIRComm 39 per Wright J President, at page 31 and the cases cited therein].
22 In the present case there are a number of objective features which call for the imposition of a substantial monetary penalty:
(i) at the time of the subject incident, the maximum penalty to the offence committed by the Defendant corporation is $550,000.00; [See Sections 55 and 56 of the Interpretation Act, 1987]
(iii) The provision of a maximum penalty of $550,000.00 sets the upper limit against which an appropriate fine is to be determined with the maximum penalty to be imposed in relation to "a worst case scenario" (See WorkCover Authority of New South Wales (Inspector Victor Page) v Walco Hoist Rentals Pty Limited and see also Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 698-699).
23 Further, in the present case both general deterrence and specific deterrence must be given significant weight in determining the penalty to be applied:
(a) the risks and the gravity of the danger involved in operation of the subject type, which involved work on an energised sub-station, were extreme and self evident;
(b) the risks were such that work on the relevant type of kiosk transformer was, at all material times, subject to strict regulation by virtue of the provisions of the Electricity (Worker's Safety) Regulation 1992, the terms of which were effectively ignored;
(c) the defendant corporation did not hold a relevant authorisation;
(d) further, the workers exposed to the subject risk, Anthony Flick and Raymond Whitney:-
(i) had not been properly trained by their employer to undertake the subject work, even when the sub-station was de-energised;
(ii) did not possess relevant industry authorisation;
(iii) did not carry out any, let alone adequate, risk assessment prior to commencing work, nor had they been trained to do so;
(iv) did not carry out any pre-work safety checks;
(v) had not been provided with and did not adopt any safe working methodology;
(vi) were not provided with any safety clothing;
(vii) did not install any form of insulated screening to reduce the risk of inadvertent contact with suspected and/or known live conductors;
(viii) were not supplied with any form of authorised rescue equipment and/or first aid kit;
(ix) did not conduct any tests inside the low voltage side of the kiosk to confirm which conductors were potentially dangerous; and
(x) did not recognise that earth colour-coded conductors had been incorrectly fitted as life [sic] conductors between the surge diverters and the neutral bar.
(e) the work procedure adopted by Mr Flick was inherently dangerous;
(f) the rescue procedure adopted by Mr Whitney was inherently dangerous.
24 As a matter of public policy, management has a positive obligation to inform itself of proper and safe working methods. More significantly in the circumstances of the present case, management has a positive obligation to ensure that proper and safe working methods are utilised at all times.
25 A failure on the part of a defendant to ensure that even the most basic proper safe working methods are adopted, as occurred in the present case, constitutes an aggravating feature which should be taken into account in assessing the objective seriousness of the offence and, as an aggravating factor, it should be reflected in the level of penalty imposed.
26 Having regard to the circumstances in which the subject incident occurred and to the answers provided by both Mr P Thearle and Mr J Thearle when interviewed on behalf of the WorkCover Authority, it is apparent that the defendant corporation did not have any form of occupational health and safety system in place prior to the subject incident. The defendant's failure to provide an occupational health and safety system combined with its failure to ensure that even the most basic safety precautions were followed in circumstances where its employees, Mr Flick and Mr Whitney, were exposed to the ultimate risk of injury, namely loss of life, highlights the serious nature of the subject breach.
27 In determining the appropriate penalty to be applied, the defendant is entitled to have taken into account subjective features that tend to mitigate the objective seriousness of the subject offence. [See Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464; see also Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 and Alcatel Australia Ltd v WorkCover Authority of New South Wales (1996) 70 IR 99].
28 In assessing the value of the discount to be granted in respect of the plea of guilty, the Court should have regard to and apply the approach evidenced in the guideline judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton [2000] NSW CCA 309.
29 In the present case the defendant corporation is entitled to a discount with respect to the undoubted co-operation it provided to the WorkCover Authority in its investigation of the subject incident.
30 In addition, a plea of guilty may attract a greater degree of leniency where the Court is satisfied that the plea of guilty reflects contrition on the part of the defendant corporation. [See Winchester (1992) 50 A Crim R 345 at 350 per Hunt CJ at CL.]
31 Nonetheless, in determining the degree of discount to be allowed in this particular case, the Court should have regard to the circumstances in which the plea (and any assistance) was provided. In the present case it is submitted the defendant's breaches of the relevant legislation were obvious and that conviction, in the face of a strong Crown case, was inevitable. A plea in the face of such an overwhelming Crown case reflects acceptable of the inevitable and as a matter of principle, the Court may conclude that such a plea should not attract as great a discount as a plea which more clearly reflects an expression of remorse. [See Winchester (1992) 58 A Crim R 345.]
32 In the circumstances, it is submitted that the defendant's failure, constitutes a serious offence.
33 Mr Cahill made some short oral submissions in addition to the written submissions set out above in relation to the oral evidence given by Mr Thearle, particularly as to the steps taken by the defendant since the incident as to work procedures to mitigate risk.
34 What the prosecutor submits primarily in this regard is that de-energisation of this particular sub-station would have obviated the risk entirely and that that was really the step that should have been taken. That procedure is a procedure which the defendant now says it has adopted. The only submission Mr Cahill wished to make related to the effectiveness of the procedure, not to the defendant's desire to introduce it.
35 There has been a review by the defendant of its OH&S system since the date of this incident, but, except to the extent that the defendant utilises some form of generic risk assessment procedures and work procedures put out by the National Electrical Contractors Association (NECA), there are no written procedures which have been brought into effect by the defendant in answer to this particular risk. Whilst the company purports to have adopted a policy which would obviate the risk, the Court would be far from satisfied with the methodology of putting that policy into place and making sure it is followed is as efficacious as it can be.
Submissions as to Penalty - Defendant
36 Mr Fernon submitted that the Court would take into account the fact that this company has operated for a long period of time in a dangerous industry, but has no prior convictions.
37 The approach of the Commission to a defendant of that kind is explained by the Full Bench in Haynes v CI & D Manufacturing Pty Limited (No 2) [(1995) 60 IR 455] and Hungerford J in Campbell v Neaves [(1996) 84 IR 240].
38 There was no intentional disregard of safe work practices in the work that was carried out by the defendant, rather the reverse. Mr Flick, the man undertaking the work, was a very experienced electrical contractor, having some ten years or so with the defendant itself and some twenty years or so in electrical contracting work.
39 Mr Thearle's evidence was that never in his experience had he ever come across a case where active wires were coloured as if they were earth wires. If usual practice within the electrical environment had been observed, the overwhelming likelihood is, of course, there would have been no accident; rather the accident occurred in a context where the experienced employee was seeking to do something that he regarded was safe, namely, attach wires to the earth bar, the bar that was otherwise itself safe.
40 Also to be taken into account in assessing the gravity of the offence as to the objective circumstances, is the fact that NorthPower was the electricity distributor which was charged with the authorisation of the work. Access was asked by the defendant and access was granted to the defendant by NorthPower in order to undertake this work. A risk assessment was undertaken of the work that was to be done and in that risk assessment, insofar as hazard identification was concerned, there was noted a need to alert the electrician of live terminals. There was no misunderstanding about the presence of the live terminals in the transformer.
41 Also to be taken into account is that the employee of NorthPower who was to supervise the work left the site when the employee of the defendant commenced to undertake the work.
42 Therefore, when one comes to assess the nature and quality of this offence, one takes into account that the accident occurred in circumstances where Mr Flick acted in the interests of safety and that the accident occurred in circumstances where the most unusual circumstances was applying, namely, an active wire was depicted as an earth wire.
43 The defendant did not quibble with the notion that the transformer should be de-energised before work is undertaken but when the Court judges the nature and quality of this offence, it will also take into account the misleading way in which the transformer itself presented to the employee of the company: on one side a sign indicating isolation being necessary before the door is opened, the other side, by implication, not so, in that it lacked a similar sign.
44 The cables that had been pulled through, of course, were unconnected and there was no connection with the switch; there was no connection to any other power source, and there was to be no connection with the transformer. That was work that was to be done later, by NorthPower. The function of the work that was undertaken by the defendant was merely to lug the end of the cables.
45 In relation to the training that is now undertaken within the organisation, the Court in assessing the offence, would take into account the nature of the company that one is dealing with. It is a small company where there is discussion between the officers of the company and its employees.
46 It is not a question whether or not there is a written procedure. Written procedures are not necessarily an indicator of a safe system. An indicator of a safe system is the practice and knowledge which the employees of a company have. The employees of the company who have experience in transformers of this kind are Mr Flick and Mr James Thearle.
47 In summary, Mr Fernon drew particular attention to a number of factual matters contained in the agreed statement: the cables connected to the surge diverters did not comply with AS3000 in that they were the wrong colour, indicating inactive instead of active cables (par 6); NorthPower was charged with responsibility to authorise work on the site (par 7) and had total control over access to the site (par 32); the request by the defendant for access and the grant of it by NorthPower (par 12); the involvement of Mr Wooldridge from NorthPower (par 14); the description of the job carried out by Mr Flick (par 16); the reason Mr Flick decided to connect the earth cables to the low voltage bar (par 17); how the accident occurred (par 18), and the instructions given to Mr Flick by Mr Wooldridge and the reason Mr Flick went beyond those instructions (par 19).
48 Mr Fernon submitted that the matter should be regarded as falling into the lower range as to the gravity of the offence. That submission was supported by the factors to which he had already drawn attention.
Consideration
49 In the light of those matters set out in the Agreed Statement of facts and of the evidence before the Court as detailed earlier, I find that the plea of guilty was properly made. That being so, I find the offence proven, accept the plea and enter a verdict of guilty against the defendant.
50 The essence of the charge is that the defendant failed to provide safe systems of work and to provide training necessary for certain procedures for employees working on a kiosk electrical transformer.
51 According to Mr Thearle, the defendant, as at March 1997, might have, over the last forty years, been involved with eight or ten transformers of the kind involved in this incident.
52 The work that was being conducted at the time of the incident was work that fell within the scope of the Electricity Workers Safety Regulation 1992 (the Regulation). Mr Thearle conceded that there was non-compliance with relevant portions of that Regulation. Under the Regulation only employees who are trained in accordance with the Regulation and working in accordance with the Regulation are required to do work. Mr Flick was, according to Mr Thearle, probably not trained in accordance with that Regulation.
53 The evidence of Mr Thearle was that the defendant has not prepared, since the incident, any documents of its own as to specific procedures, for instance, for working inside the low voltage side of a transformer, relying instead on those published by NECA and other such bodies. The risk assessments of work to be done by its employees now involve visits to the site by one of the senior staff and the employee actually doing the job and discussions between those people. The employee doing the work is advised that if there is any danger whatsoever, the power will have to be isolated. It is now mandatory policy for the defendant to seek on behalf of its employees de-energisation before work commences on a pad transformer.
54 The measures now said to be taken of consultation between management and employees in relation to the safest approach to be adopted to each particular site would seem, contrary to the prosecutor's submission, apposite to a company that has, in effect, one active manager and eight or so tradespeople. The generic protocols put out by NECA and others are also available to underpin those discussions.
55 Safe training undertaken by the defendant's employees since this incident, has covered enclosed spaces courses with Hunter Valley Training and self-inspection courses through TAFE and NECA. NECA also ran courses in Lismore for site inductions in which the defendant participated and the next day NECA ran a management training course to which two of the defendant's senior people went.
56 Tony Flick and James Thearle have participated in the NorthPower authorisation scheme and in NorthPower's annual top up of the training involved. All the staff did the course for rescue and pole rescue and some did a similar course to that for authorisation but did not go ahead to get authorisation. The purpose for those persons to go to that training conducted by NorthPower is that it enables them to become familiar with some of the work procedures of NorthPower and also pole rescue training, in which the defendant does not as a general rule become involved, and resuscitation. The defendant issued the WorkCover handbook to all new staff and had discussions with them about OH&S, particularly if they have never worked on a site that has had site inductions. NECA publishes a handbook relating to safe work practices and that handbook is distributed within the company.
57 As to protective clothing for employees in relation to electrical work undertaken by them the defendant generally has suitable clothing in the vans to be used if they are working in a situation around a switchboard or an area that could have other problems.
58 It is through such measures set out above that the defendant has sought to address the requirements of the Electricity (Workers' Safety) Regulation 1992.
59 I note for the record that, in so far as the circumstances in which the subject incident occurred, Mr Cahill indicated that the particular circumstances that prevailed at the time of this particular incident have in effect been superseded by the introduction of a new industry wide system for the training and licensing of contractors to carry out this type of work and the provisions that were in force at the time of this particular incident no longer appertain to the circumstances. Now it is required for employees of all contracting organisations such as this defendant to undergo training and obtain a special licence that enables them to carry out work of this kind. One now can in fact be a contractor who has approval, as long as one holds the relevant licence to carry out this type of work.
60 The only rider that attaches to that is it still remains under the control of NorthPower. Access still has to be granted by NorthPower and the work still has to be done under the auspices of authorisation and supervision of NorthPower, but at the time the particular incident occurred Mr Flick, and indeed all employees or contractors of the type of this defendant, could never be authorised under the then system to get access and carry out work of the type that was being carried out here.
61 The Court of Criminal Appeal (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ) on 17 August 2000 delivered judgment in R v Thomson; R v Houlton (Thomson and Houlton) [2000] NSWCCA 309, the guideline judgment as to pleas of guilty in criminal proceedings. The guideline adopted and set out in that judgment is as follows:
160. The Court should adopt the following guideline applicable to offences against State laws:
(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.
(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In come cases a plea will not lead to any discount.
62 The guideline is to be considered with the relevant provision of the Crimes (Sentencing Procedure) Act 1999 which replaced s 439 of the Crimes Act 1900 and which provides:
22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:
(a) the fact that the offender has pleaded guilty, and
(b) when the offender pleaded guilty or indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.
(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.
(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.
63 The guideline was adopted and discussed by Wright J, President in WorkCover Authority of New South Wales (Inspector Robert Sheppard) v The State Rail Authority of New South Wales (unreported; 99/3369; 6/10/00). After setting out the guideline, his Honour said:
Also relevant is the approach followed and applied many times by this Court in R v Winchester (1992) 58 A Crim R 345 …
…
I consider it is appropriate to apply the guideline judgment in R v Thomson; R v Houlton in determining the fine that should be imposed on the defendant in these proceedings. Subject to that consideration, the principles that should be applied are clear and well settled: see, for example, Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales at 474-476 and Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at 21-24. …
64 In relation to penalty I have considered the factors, both objective and subjective, that have been put before the Court.
65 In accordance with the guideline judgment of Thomson and Houlton, and of s 22(1) of the Crimes (Sentencing Procedure) Act 1999, I state that the defendant's plea of guilty has been taken into account.
66 I find that the offence, related particularly as it was to failure to provide training and a safe system of work in relation to working on a kiosk electrical transformer, falls, in the circumstances of this case, into the lower range of seriousness, but towards the top of that range.
67 The most serious aspects of that failure related firstly, to the lack of training of Mr Flick in work that fell within the scope of the Regulation, and, secondly, to the risk that arose from the procedure adopted in relation to the connection of cables from the pad transformer to the switchroom, which gave rise to the risk to persons in the switchroom of coming into contact with cables they would have no reason to consider could be energised.
68 I must say I do not accept the prosecutor's submission that the fact that Mr Flick and Mr Whitney did not recognise that earth colour-coded conductors had been incorrectly fitted as live conductors between the surge diverters and the neutral bar, was one of the matters to which significant weight should be given in determining penalty. It would seem to me that it is the manufacturer who should bear the responsibility for that mistake. However, routine testing by Mr Flick, if it had been required by the defendant's system of work, would have revealed that danger.
69 Mr Fernon submitted that on any view the company is a small enterprise. There are three directors of the company and it is plainly a family business. It is also a corporation. The tax returns demonstrate clearly and without equivocation that the company is a modest financial performer. In the last financial year, the performance of the company has improved somewhat, but taking into account all of those things, it remains a modest performer.
70 On that point, Mr Cahill disagreed. This is not a matter which falls within the scope of those cases that deal specifically with the notion of family type business. This is a company which, although it is a small concern, is not just a family company, which is operating solely as a husband and wife company for the redirection of the personal earnings of the husband for legitimate tax purposes. This is a company which employs a number of people and goes beyond the scope of that sort of company.
71 I see the corporate situation of the defendant as being similar to that considered by Hungerford J in Fisher v Samaras Industries Pty Limited [(1996) 82 IR 384 at 390] i.e. it is a small corporation of modest means. While it is a modest operation, the defendant should be seen as a corporation attracting a maximum fine of $550,000. At the same time the burden of paying any fine will fall on one family group.
72 I also take account of the Fines Act 1996 which by s 6, provides that:
6 Consideration of accused's means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A)
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.
73 As was stated earlier in this judgment, this prosecution is one of two prosecutions arising out of the accident to Mr Flick, the second being against NorthPower.
74 That raises for consideration the application of the principles of parity and/or consistency in relation to penalty.
75 In Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) [2000] NSWIRComm 71 ((2000) 99 IR 29) it was said (at p 56) that principles of parity and consistency have different applications. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime. However, as Walton J, Vice-President, observed in WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 435-436:
"Whilst the principle of parity normally operates in relation to co-offenders or across the range of those convicted of the offence in question (see Signato v The Queen (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione (1997) 189 CLR 295 at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which 'shows consistency and not disparity in punishment in the same was as discussed by Mason J in The Queen v Lowe (1984) 154 CLR 606]' where there exists common factual circumstances giving rise to the charges. …
76 The principle of parity operates to ensure equal justice, but the principle does not require equal sentences where there exists differences between offenders which warrant a different approach: Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295 at 301, 309, 325, 338 and 340.
77 As the Court has already said in WorkCover Authority of New South Wales (Inspector Reynolds) v NorthPower [2001] NSWIRComm 104, examination of all the circumstances that were involved in the accident at Wardell shows that the offences, to which both defendants pleaded guilty, were qualitatively different.
78 The accident arose out of an unfortunate confluence of events. One was the lack of provision by PF Thearle & Co Pty Ltd of a safe system of work and proper training on kiosk transformers for its employees, or in accordance with the Regulation, which gave rise to risks to the safety of those employees. The failure by NorthPower's employee was twofold, first, in granting access to such transformers to non-authorised persons, and, secondly, not remaining to supervise the work. The fact that the transformer to be worked on was not only not de-energised but had live conductors incorrectly colour coded as earth conductors provided a risk to any person accessing it. The contribution of each of the actors (including the manufacturer) to the accident stood alone.
79 In the case of the defendant, PF Thearle & Co there does not appear to have been any prior recognition by it that either in regards to its systems of work, or its training of employees in installing electrical cables, its employees were exposed to risk in carrying out such work and that there reposed on it a duty to ensure, in terms of s 15(1) of the Occupational Health & Safety Act, the health, safety and welfare at work of all its employees.
80 Even if NorthPower's employee had stayed to supervise the work of Mr Flick at the transformer, and, indeed, if he had made the terminations, the placement of the cables in the switchroom (in a heap) was unsafe and a risk should any person pick them up once they had been connected at the other end to the energised transformer. If Mr Wooldridge had remained on site to supervise in accordance with NorthPower's requirements, and carried out NorthPower's part of the work, the accident may still have occurred if the transformer was not de-energised, but the victim at the transformer end was more likely to have been Mr Wooldridge. It is a matter of speculation in such a case as to what might have happened if one of the defendant's employees had been simultaneously working on the switchboard end of the cables.
81 In WorkCover Authority of New South Wales (Inspector Reynolds) v NorthPower [2001] NSWIRComm 104 (IRC99/1033, Glynn J) the Court found that NorthPower had recognised the risk to safety that would arise in the event that access was granted to the energised kiosk transformers to unauthorised persons. The steps that it had taken aimed at obviating that risk had included training of its employees and putting in place procedures governing access by non-employees and non authorised persons.
82 I have found the task of deciding upon the fine that would fairly take into account the circumstances of what I earlier described as "qualitatively different" offences to be extremely difficult.
83 I find that the appropriate fine would be $90,000. However, taking into account the early plea of guilty, the defendant's co-operation with WorkCover, the efforts it has made, and continues to make, in relation to training and its status as a small corporation of modest means, I discount that amount by 35%.
84 The defendant is ordered to pay a fine of $58,500 with a moiety to the prosecutor.
85 The parties are to confer as to costs. The court is to be advised within twenty one days if agreement cannot be reached.