WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante

Prosecutor: Mr P.M. Skinner of counsel Solicitors: Ms S.J. Tankard Moray & Agnew LEGAL REPRESENTATIVES: Defendants: Mr B.D. Hodgkinson SC with Mr D. Jordan of counsel Solicitors: Mr L. Connolly Clayton Utz

JUDGMENT: - 43 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date: Tuesday 24 June 2003

IRC5432 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC5433 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 IRC5436 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC5434 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 IRC5438 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 IRC5502 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MANSELL) v LUIS BUSTAMANTE Prosecution under s19(a) of the Occupational Health and Safety Act 1983 JUDGMENT (as to penalty) [2003] NSWIRComm 201

1 The WorkCover Authority of New South Wales proceeded with five charges against Abigroup Contractors Pty Limited (Abigroup) and two charges against their foreman, an individual named Luis Bustamante. The prosecutions were brought under the Occupational Health and Safety Act 1983 (the Act). Those against Abigroup were brought by Inspector Kathleen Maltby of the WorkCover Authority of New South Wales. The prosecutions against Luis Bustamante were brought by Inspector Paul Anthony Mansell of the WorkCover Authority of NSW. The charges relate to two gas explosions which occurred near Kogarah railway station where upgrade works were in progress on Monday 4 December 1995. Following the first explosion, which occurred shortly after 2pm, a gas induced fire continued to burn for over two hours as endeavours were made to locate the leak. At approximately 4pm on the same day there was a second explosion. As a result of the first explosion, two persons sustained fatal injuries. As a result of both explosions at least sixteen other persons sustained burns as well as wounds from the blasts. Those injured were members of the public, shop employees, shop owners and officers from the New South Wales Police Force and Fire Brigades, the latter two having answered emergency calls to attend the scene.

2 In a judgment of this court in WorkCover Authority (Inspector Maltby) & Anor v Abigroup Contractors Pty Limited and Luis Bustamante [2003] NSWIRComm 35 (unreported, 27 February 2003) the issue as to liability for the breaches was determined. All five charges brought against Abigroup Contractors were found proven. The defendant company was charged under two sections of the Act. Two of the breaches were brought under s15(1) of the Act and three charges were issued under s16(1)of the Act.

3 Mr P.M. Skinner, of counsel, appeared as before for the prosecution in this hearing as to penalty; Mr B.D. Hodgkinson SC with Mr D. Jordan, of counsel, appeared for the defendants. The prosecutor tendered evidence as to the industrial record of the company. The defendant company relied upon an affidavit of Ronald James Yates, Group Manager, Contracts and Management Services of the Abigroup Limited group of companies, within which group is the defendant company, Abigroup Contractors Pty Limited. Attached to that affidavit were a number of documents relied upon by the defendant company particularly documentation related to occupational health and safety systems in place at various times on the company's constructions sites.

4 In its consideration as to liability, this court dealt with the five charges against the defendant company, for convenience, by way of the chronology of events leading up to and including the day of the explosions. The charges covered three distinct periods. Firstly, 10 November 1995, the day the gas service was disconnected; secondly, between 10 November 1995 and 4 December 1995, a period during which demolition and construction occurred on the site; and thirdly, on 4 December 1995, when the gas line was disturbed by the activities of an excavator causing the two gas explosions.

PRINCIPLES 5 In consideration of penalty in each of the five breaches under the Act, the court must first assess the nature and quality of each offence, that is, the gravity of the offence. As was held in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474): ... in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. 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.'

6 In an assessment of the seriousness of the offence, the question of foreseeability is also relevant. In Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 it was stated at [81]: . . . The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice-President, in Department of Mineral Resources (NSW) (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432, the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence: see Camilleri's Stock Feeds (32 NSWLR at 700); James Moore v Vibro-Pile (Aust) Pty Ltd (unreported, Hungerford J, CT96/1163, 28 May 1997, at 17) and Work Cover Authority of New South Wales (Inspector Kelsey) v University of Sydney (unreported, Hill J, CT95/1280, 12 April 1997 at 16).

7 While the gravity of the injury arising from the breach does not of itself dictate the level of penalty, the occurrence of death or serious injury can manifest a degree of seriousness to the relevant detriment to safety. As Wright J, President, said in Ferguson v Nelmac (1999) 92 IR 188 (at 204): ... where a fatal injury had occurred that is a factor to be taken into account and is often, of itself, reflective of an offence the nature and quality of which is serious.

Wright J, President, adopted the well acknowledged words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5): The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risks flowing from breach and its foreseeability are clearly relevant. . . .

8 I consider the words of the Full Bench of the Industrial Relations Commission in Capral Aluminium [at 94] are relevant to the circumstances before me: The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety.

It has been summarised thus in Lawrenson Diecasting (at 476): It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible.

9 Elements as to deterrence are also to be given consideration. In this respect, I bear in mind what was said by the Full Bench in Capral at [74]: The ... Court should take [into account] 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 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 Limited [No 2] [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare. . . . And at [77]: At least where the offender continues to be an employer, risk to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely re-active: WorkCover Authority (New South Wales) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd. [2000] NSWIRComm 53 at [46]. Consideration 10 The prosecution submits as to the nature and quality of each offence that their gravity is at a high level and that the gravity of the offence on 4 December 1995 is at the highest level. The prosecution submitted the damage to the gas pipe by a large construction machine, the consequent leaking of gas and the fact of the occurrence of two explosions was a risk to safety which was foreseeable in each relevant period of time. The prosecution conceded the risk was not "foreseen" by this defendant company but was foreseeable in the circumstances.

11 The defendant company submitted, as to the nature and quality of the offence, relevant to the court's consideration is the industry practice at the time. That is, the industry had no procedural requirements for the identification of particular services nor did such practice require any more than marking the service at the disconnection point by way of a stake and bunting. The defendant company further submitted, as it complied with the industry standards, the court should not assess the nature and quality of these offences as serious.

12 I find it convenient in my assessment as to the gravity of each offence and the relative seriousness of each offence to also examine whether there are common elements to each offence. If there are common elements found in each or some of the offences the defendant company is not to be punished twice for the common elements (see Pearce v The Queen (1998) 194 CLR 610).

13 In this determination, it is convenient to refer to all the pleadings and the form in which the charges were presented to, and found proven by, the court in its judgment as to liability. The court in that judgment commented on the discursive way in which each charge was pleaded by the prosecutor at [12-13]: 12 It is necessary to comment upon the form of the summonses. The Commission sitting in Court Session is considering charges under the Occupational Health and Safety Act 1983 to which the application of the criminal standard of proof, beyond reasonable doubt, is applicable. The summonses, as recited above, are, on their face, unusual as to form. Each summons filed against the defendant company recites a charge under the Occupational Health and Safety Act 1983. Each then recites, in roman numerals ((i) to (vi)), a series of alleged failures on the part of the defendant. Technically these alleged failures are, in form, particulars, although not so identified. The summonses on their face then identify the "Particulars" the prosecution relies upon. They are numbered from 1 to 18 (some varied). These particulars are a mix of facts (some later agreed) and a re-statement of alleged failures as recited in the summonses from (i) to (vi). They also enunciate a further few alleged failures. 13 I find the summonses pleaded against the defendant company, Abigroup are, in form, confusing, in content, repetitive.

14 In each of the two charges related to activity on site on 10 November 1995, that is, the acts or omissions of the defendant company which constituted the risk to safety to employees under s15(1) and others on site under s16(1), the prosecution relied upon a series of failures as constituting part of the offence, namely, the defendant company: i) failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health; ii) failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed; iii) failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area; iv) failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated. Each of the above alleged failures as pleaded against the defendant company was found proven. One other alleged failure was not proven. Other particulars which recited the circumstances on site that day were similarly relied upon as constituting particulars of each offence: 4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. 5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 6. The gas supply line remained charged. 7. The Defendant was present at the KSU when Princi attended to cut and cap the gas supply line. 8. The Defendant was aware where the gas supply line had been cut and capped by Princi. 9. The Defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were to be operated. 10. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 11. The Defendant failed to adequately protect the charged gas supply line on the KSU. 12. The Defendant failed to adequately identify the charged gas supply line on the KSU. 13. The Defendant failed to adequately mark the charged gas supply line on the KSU. 14. . . . . 15. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement. Each of the particulars relied upon and the failures as found proven were found by the court in its prior judgment, when read together, to reveal the circumstances which existed on site on 10 November 1995, the day the gas pipe was disconnected and together constituted the offence.

15 The charges brought under s15(1) and s16(1) of the Act covering the second period, between 11 November and 3 December 1995 (inclusive), had a further alleged failure pleaded against the defendant company as well as the four already identified and found proven in the previous period. It was further pleaded the defendant company: (v) failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area of a charged gas supply line. The other four alleged failures and this alleged failure were all found proven by the court.

16 Other particulars were found as fact in this period. They were additional to those found to exist on site on 10 November 1995. The court accepted the circumstances as to the disconnection on 10 November 1995 and also accepted that in the period 11 November to 3 December 1995 (inclusive): 7. The defendant was aware of where the gas supply line had been cut and capped. 8. The building [four shops] was mechanically felled by the use of an excavation which commenced on or about 21 November 1995 and was completed by 4 December 1995. 9. Prior to 4 December 1995 the gas supply line became exposed . . .. 10. The defendant used a stake to mark the gas supply line when it became exposed. 11. The defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were operated. 12. The defendant failed to prevent the operation of earth moving machinery on the construction area close to the charged gas supply line. 13. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 14. The defendant failed to adequately protect the charged gas supply line on the KSU. 15. The defendant failed to adequately identify the charged gas supply line on the KSU. 16. The defendant failed to adequately mark the charged gas supply line on the KSU.

17 The court found such acts and omissions by the defendant company allowed an excavator to operate in the area on which remained a charged gas supply line and that demolition and construction work was performed by the excavator in the area. Its existence created a risk to safety and construction activity added to that risk.

18 The third period related to the day of the explosions, some three and a half weeks after the gas line was disconnected, namely, 4 December 1995. The same five alleged failures were found proven.

19 However, further particulars were relied upon which distinguished the circumstances on site on this day. After the recitation of the circumstances leading to the disconnection of the gas service the court also found as fact: 11. On 4 December 1995 Robert Campbell used a 7-8 tonne Daewoo excavator on the eastern side of the KSU to create a batter. 12. The excavator was used to create the batter in the area where the gas supply line was situated. 13. The Defendant did not prevent work from being performed on 4 December 1995 when safety officers were not present at the KSU. 14. The Defendant failed to prevent the operation of earth moving machinery on the construction are close to the charged gas supply line. 15. On 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at an elbow joint adjacent to the Family Amusement Zone (FAZ), located at 13 Railway Parade, Kogarah. 16. The detachment of the gas supply line at the elbow joint allowed gas which was under pressure within the line to escape. 17. At approximately 2.00p.m. on 4 December 1995 there was a gas explosion in the vicinity of FAZ. 18. Between 2.00 p.m. and 4.00 p.m. on 4 December 1995, the Defendant was advised of the explosion which had occurred. 19. At approximately 4.00p.m. on 4 December 1995 a second gas explosion occurred in the vicinity of FAZ. 20. The gas explosions were of sufficient extent and severity that persons were injured thereby. 21. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 22. The Defendant failed to adequately protect the charged gas supply line on the KSU. 23. The Defendant failed to adequately identify the charged gas supply line on the KSU. 24. The Defendant failed to adequately mark the charged gas supply line on the KSU. . . . 26. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement. 20 On the day of the explosions the defendant company, it was found, did not attend on site, yet it knew of possible activity on site, knew of the removal of the stake and bunting and allowed the existence of a charged gas supply line to remain on site unmarked.

21 The defendant company submitted, as to liability, the court found the same failures as being reflective of the criminality in each offence, namely, the failure to have the gas cut off the construction site; the failure to adequately protect, identify and warn; the failure to design a safe system of work with a charged gas supply line on site. The defendant company conceded the court identified a further factor but not as to the criminality of the defendant company. The submission relies upon the findings of the court as to the failures of the defendant company in isolation from the findings as to the particulars relied upon which revealed the circumstances on site during each period. The defendant company submitted the failures found were the elements of the offence and the circumstances on site as established in evidence are not relevant to any element of the offence: the criminality the court found was not dependant on whether this was a construction site. I reject this submission and rely upon the full findings of the court as to liability.

22 In consideration of the submission of the defendant company it complied with industry practices at the time of these breaches of the Act and therefore the seriousness of each offence must be assessed in that perspective, I rely on words in the judgment as to liability where the court noted at [340]: Even if the court could accept it was safe industry practice to identify a hazard generally, rather than with particularity, by stakes and bunting, the defendant company would still have to defend the specific allegation the presence of the charged gas supply line on the KSU construction site provided a risk to safety in the relevant period. I reject the proposition "industry practice" can be used to alleviate the gravity of any of these offences. The defendant company must be pro-active to ensure it provides a safe workplace for its employees and others. It must be vigilant and take all practical precautions to ensure safety. It was established as fact the defendant company left a "charged" gas supply line on a construction site and I cannot accept, if it was industry practice at the time to simply mark such a hazard with a stake and bunting, it should be considered a mitigating factor in penalty against this defendant company.

23 The court must also consider whether each act was foreseeable. I have found there was no thought given to the consequences when a charged gas supply line was left on this construction site marked simply by a stake and later a stake and bunting. I find it was foreseeable a charged gas supply line marked only by a stake and then by a stake and bunting would provide a risk to the safety of persons on this worksite. It was further foreseeable employees and persons at the site would infer, as the evidence revealed, the stake marked simply the existence of a service rather than the capped end of a service behind which lay a "charged" gas supply line. There was no evidence of any training of any employee which would have allowed them to identify that a single stake or a stake and bunting were markings which indicated a capped end of a charged gas service. Clearly, the risk to safety the charged gas supply line affected when left on this construction site was not foreseen as a risk to safety but I find it was foreseeable a charged gas supply line left on this site where demolition and construction was to, and did, occur created a risk to health and safety. The element of foreseeability exists therefore in each breach of the Act.

24 The defendant company submitted as to the s16(1) charges in the court's consideration as to liability that on the KSU site it was not, for the purposes of the Occupational Health and Safety Act 1983, conducting its undertaking at its place of work. Reliance was placed upon the fact the work on site was performed by a demolition company who were contractors. The court in judgment accepted work on the KSU site constituted the defendant company's undertaking at its place of work. It was rightly never disputed the explosion point outside the shop known as FAZ was not part of the place of work affected by the defendant company's undertaking. The effect of the explosions in the vicinity of the FAZ on 4 December 1995 was pleaded as a particular of the breach covering that day. The injuries suffered, both to persons and property, are factors therefore relevant to my consideration as to the gravity of the offences.

25 The disconnection of the charged gas supply line caused two explosions which were of such severity as to cause two deaths from the combined effects of the blast and burns. Evidence revealed 16 other people suffered injury, some, serious degree burns. As an example, a police officer called to the site was hurt in the first explosion and was in intensive care treated for burns for eight days and seven nights. The five to six months' pregnant daughter of a shop keeper came running out of her father's shop "in flames". Two shops at least were destroyed by the explosions and fire. An underground gas service was severely damaged as was a footpath near Kogarah Railway Station. Members of the public, in the most public of places, the vicinity of a commuter railway station, just at the end of a day's work, were seriously affected.

26 I have found the risk to safety foreseeable and I find the number of deaths and injuries as well as the damage to property in the area where the explosions occurred are reflective of the degree of seriousness of the offences.

27 In terms of the seriousness of each offence I would rank the offences for which the defendant company has been found liable in the following way: the offences on the day of the explosions, 4 December 1995, are most serious as the defendant company knew the demolishers could come onto its KSU site but it failed to have anyone at the site to oversee any activity. Further, the defendant company knew the stake and bunting were missing from the disconnection point of the charged gas supply line which marked it as a hazard before the defendant company left the site. It failed to even replace its hazard warning. The use of an excavator on a site on which existed such a hazard, unmarked, was most serious.

28 I determine in the preceding period, the two weeks plus in which demolition and then construction work was performed, as the next most serious two breaches of the Act. In that period, the defendant company allowed heavy equipment to move about the site where the hazard was marked with a stake and bunting. The hazard was identified with no particularity. It was five metres of a "charged" gas line left on the site. Evidence revealed some of its own employees could not identify the nature of the "hazard" as marked.

29 I assess the acts and omissions of the defendant company on 10 November 1995 as the least serious of the offences but are nonetheless two grave breaches of the Act. The defendant company allowed the disconnection of a charged gas supply line to sit within one metre from a building to be demolished. It knew this was to be a construction site.

30 In approaching the issue of specific deterrence, I take into account the evidence from the defendant company drawing attention to the endeavours it has taken to ensure safe working on its construction sites. This consideration required an examination be made of the documents placed before me by affidavit through Mr Yates. On examination, I am unable to clearly identify what safety programme was in place at the time of the offences. A document headed "Site Safety Rules Abigroup Contractors Pty Limited" was put before the court as a document which was posted at the KSU site office and in its crib rooms at the relevant time. It is worthy of comment relevant to this consideration the site safety rules did not in any way mention the procedures to be followed for the disconnection of existing services on a construction site.

31 The defendant company submitted in 1995 it had an Occupational Health and Safety Rehabilitation system which was applied to projects it undertook. There was evidence this safety system had been submitted to and accredited by the Construction Policy Steering Committee of the New South Wales State Government on 18 September 1995. No copy can be found of this documented system for safety. There was, however, evidence the defendant company required from its sub-contractor the demolition company, a Work Method Statement. The statement exhibited did not specifically address issues of Occupational Health and Safety but rather stated a work chronology. However even accepting the work chronology or "Method Statement" was designed with occupational safety in mind, as to services it simply states: All services will be terminated prior to any demolition work commencing . . . This defines no safety protocols for the disconnection of a service nor any protocols for leaving a charged service on site. The defendant company accepted this unsatisfactory Work Method Statement without a challenge. 32 The Occupational Health and Safety policy programme of the defendant company was reviewed and reissued in 1996 after the explosions. It was distributed to company worksites. This 1996 system had three component parts: a manual detailing company policy; stated health and safety procedures, and a health and safety plan which was project specific. While the 1996 system outlined safety procedures, it did not address as a possible hazard the identification of the services left on site or the disconnection of services off a construction site.

33 A further update on the Occupational Health and Safety policies was conducted dated May 2002. It was significantly more comprehensive and identified under a list of "Typical Hazards" to be considered in risk assessment from a "check" document "O'head/U'ground services". It required the hazards to be identified in a grading 1 to 3. In the "Hazard Control" column of the document there was then required a consideration by employees as to how the identified risk could be minimised. "Services" is listed 17th in a list of 22 "typical" hazards and the risk assessment form allowed seven lines for the consideration of safe working procedures for all or any of the 22 typical hazards identified as relevant. 34 The defendant company relies upon the fact that safety audits by its clients, the Roads and Traffic Authority and the Department of Public Works and Services in 1999 and again in the 2002-2004 had approved its policies and procedures. 35 The defendant company's practice since the explosions is to disconnect and remove the service, if possible, outside of the construction zone. I accept services such as gas, water and electricity, sometimes cannot be disconnected on a construction site if these services are required to run to neighbouring buildings and residential homes on the other side of the construction site. In such circumstances, the first affidavit of Mr Yates revealed the service is identified by the service provider (for example, AGL) then its position within the construction site is confirmed by the defendant company pot holing the services across the site, then it is marked, as it was in 1995, with stake and bunting. If work has to take place in an area close to a service, the service provider is asked by the defendant company to advise so as to ensure the work will not interfere with the service. However, this system puts the obligations under the Occupational Health and Safety Act 1983 on the service provider rather than on the defendant company to ensure the health and safety of persons at the site.

36 An example as to how the 2002 system worked was demonstrated in a sample "Scope of Work" contract which was prepared for a demolisher on one of the defendant company's construction sites: Trade Specific Issues . . . 8. Once a Services Disconnection Certificate has been provide, (sic) abandon and remove all existing services. . . . 15. Determine the location of all existing live services, including any communications, telecommunications, electrical etc which may pass through the site, or be located in a position which may render them vulnerable to damage by the execution of the Subcontract works . Bring the existence of any of these to the attention of the Project Manager and seek directions prior to proceeding with works. In respect of such existing non-redundant services, it is likely that there are critical communications services such as fibre-optics and the like, particularly near the Ryde Road / Pacific Highway junction which are in full service. It is also possible these services may stray within the site boundary. Abigroup will provide assistance in the general location of these services but it is the Subcontractor's responsibility to ensure that no destructive works are undertaken which may pose a threat to such services until the precise location of the cables etc has been ascertained and directions from the Project Manager received . (emphasis added)

37 The court indicated it was not satisfied, from the evidence before it, in its consideration as to the element of specific deterrence, that there were procedures in place to make safe from any risk to the safety of employees and others on the defendant company's construction sites where services must remain connected. The court noted the offences occurred in December 1995 and by its hearing as to Penalty in April 2003, seven and a half years has passed and the court still did not have before it, even in document form, any assurance existing services left on this company's construction sites could be identified with particularity - that is, any existing service left on site could be either identified or the status of the service recognised, that is, whether it was "live" or "disconnected". Further, on a reading of the "Scope of Work Contract" between the defendant company and its sub-contractors the defendant company, I find, attempts to pass on to a sub-contractor its responsibility for safe working. Of even greater concern is the contract still directs itself to ensuring there is no "threat to such services" rather than recognising the disturbance of such a service could reflect in a risk to the health and safety of persons on site.

38 An ajournment was allowed as to the issue of specific deterrence, particularly directed to the company's practices, for the identification of the type of service left on site, and the status of such services, that is, whether it remains "live" or "disconnected".

39 A further affidavit was tendered, with leave, by the defendant company through Mr Yates. It revealed the defendant company has now further developed a scheme for the identification and marking of services which will be implemented by Abigroup Contractors on its next major project, the Western Sydney Orbital Project. It is recognised there will be a large number of "live" services left across the site at various points. A colour coding system will be used to identify and mark each service. After the location of the services is provided by the relevant service providers, they will be colour coded on the defendant company's drawing. The drawings will then be taken to the construction site where pot holing by hand will locate the services to ensure the locations have been accurately provided by the service provider. Any discrepancies found will be noted on the drawings and the drawings updated. The actual locations of the services will be made available to all on site.

40 This is a procedure recently devised by the company. I am satisfied this belated endeavour addresses the risk to safety which was identified through these breaches. It is to be hoped in the trial of the colour coding system for the recognition of services on the defendant company's worksites there is an education/training programme to support its introduction and to assist all persons on site. Further, the system so designed must be monitored and adjusted according to needs.

41 The defendant company failed to address an identified safety issue until this court found it liable for the breaches of the Occupational Health and Safety Act 1983. I do not believe such delay satisfies as to specific deterrence. The company now expresses a willingness and a concern to acknowledge the risk to safety as identified. While, after the explosions, the defendant company took steps to ensure services were, where possible, disconnected off site, it has not for the last seven and a half years revised its Occupational Health and Safety Policy and systems to allow the identification of the existing services left on site with particularity nor the status of that service: that is whether it is disconnected or live.

42 As to general deterrence the practices which led to the charged gas supply line remaining upon the construction site created various risks to safety in breach of the Act over a period of three and a half weeks. The risk exposed its employees and others to an unsafe work site. The words of Mr Dean as to the practice on site in 1995 was revealing: Q. What procedures did Abigroup Contractors Pty Ltd have in place in the event that services such as that gas line remained on building sites in a live state - that is, with gas in them? A. Abigroup has a safety policy which means that the company personnel and supervisors must act safely at all times. In an instance such as this, this is a decision made by the senior supervisor on site as to what action should be taken should a service be exposed. This is routine on all projects where services are exposed routinely. . . . and: Q. If you need to expand on that by reference to other services, please do so, but particularly talking about an underground gas pipeline in this courtroom, do you mean to say that underground gas pipelines charged with gas are exposed routinely or were at that time on projects under the control of Abigroup Contractors Pty Ltd? A. What I mean is that when you start a project, one of the first things you do is check the services - that's gas, telephone, power, et cetera - and you talk to each of the authorities and ask them for whatever advice you can get on the location of these services. They are then marked and you then determine what you must do to those services in order to complete your work. You do that generally hand in hand with the authority or the service supplier, because they are the experts at the particular product they supply.

Q. Will you answer the question, which was, "Do you mean to say that underground gas pipelines charged with gas are exposed routinely or were at that time on projects under the control of Abigroup?" - that was the question. A. Yes. And: Q. Did Abigroup Contractors Pty Ltd, in its written policy at the time, which you've referred to I think as being in the site shed, have a specific protocol as to how to deal with a charged gas pipe on the site? A. The policy is a general policy about acting safely. It would not specifically refer to gas lines in that policy. And: Q. What I'm asking you, Mr Deane, is there anything other than his experience of 40 years that you relied upon in your answer as establishing him having the requisite training? A. No, from my knowledge, it was his experience of 40 years.

The prosecution submitted a substantial penalty is called for to deter such practices generally as described by Mr Deane which evidence revealed are ongoing industry practice.

43 I have seriously considered whether to issue an order against the defendant company under s47A of the Act.

44 Section 47A of the Act states (see also s113 of the Occupational Health and Safety Act 2000 Act): 47A. Court may order cause of offence to be remedied (1) If a court convicts a person of an offence against this Act or the regulations in respect of a matter which appears to the court to be within the person's power to remedy, the court may, in addition to imposing a penalty provided with respect to the offence, order the person to take such steps as may be specified in the order for remedying that matter within the period specified in the order. (2) A person must not, without reasonable excuse, fail to comply with an order under this section. Maximum penalty: 1,000 penalty units in the case of a corporation and 250 penalty units in any other case. (3) . . .

45 However, the defendant company has made an endeavour, if belatedly, to design a system of work through colour coding which would allow the recognition, by employees and others, of existing services left on construction sites and the state in which that service remains on site. Accordingly, given the trial of a new colour coding system for the recognition of services on site on its next major construction work, I have determined not to issue an order under this section.

46 These breaches occurred in 1995. As to the maximum penalty for each breach of the Act, reliance was placed on the view expressed by Marks J in WorkCover Authority of New South Wales (Insp May) v Swift Placements Pty Limited [1999] NSWIRComm 407 (published 9 September 1999) who considered the effect of the WorkCover Legislation Amendment Act 1995 (No 89) which commenced on 1 February 1996. The amending Act increased the maximum penalty from 2500 to 5000 penalty units in the case of a corporation. The amendments in 1995 increased the specific number of penalty units without amending the value of each penalty unit which is done through the Crimes (Sentencing Procedure) Act 1999. The savings and transitional provisions of the amendment Act were contained within a new Part 3 of Schedule 8 of the Occupational Health and Safety Act and relevantly s10(1) and (2) WorkCover Legislation Amendment Act 1995 applies to these proceedings: 10. Alternative convictions (section 15 and 16) (1) The amendments made to sections 15 and 16 by the amending Act do not apply in respect of proceedings against a person for an offence against section 15 or 16 that were commenced in a court before the commencement of those amendments. (2) In respect of any proceedings against a person that are commenced in a court on or after the commencement of those amendments, the amendments apply whether the offence is alleged to have been committed before or after the commencement of those amendments.

47 Under s10, the date to be considered to determine the relevant penalty is the date the charge was laid, that is, the date of the commencement of proceedings (section 10(2)). The effect of the amending Act was to increase from 1 February 1996 the maximum penalties for the charges laid after that date under s15(1) and s16(1). Accordingly, in accordance with the concession made by the defendant company I find the increased penalty applies by reason of clause 10(2) to these proceedings. The maximum penalty for these offences therefore was increased from $250,000 to $500,000.

48 A further consideration is the question of the applicability of s51A of the Occupational Health and Safety Act. The section, as it now reads, was inserted into the Occupational Health and Safety Act by the WorkCover Legislation Amendment Act 1995 (No 89), which relevantly commenced on 1 February 1996, that is, after the dates pleaded to cover these offences. The s51A in force as at the time of these offences was as follows: Repetition of Certain Offences - Additional Penalty S51A(1) This section applies to proceedings for a second or subsequent offence against this Act which comprises a wilful repetition of the act or omission which constituted a previous offence. (2) If the defendant in proceedings to which this section applies is a natural person, a sentence of imprisonment for a period not exceeding two years may be imposed in addition to or in substitution for any other penalty which may be imposed under this Act. (3) This section applies even if the previous offence concerned was committed before the commencement of this section.

I accept, the effect of the relevant s51A of the Act to increase the maximum penalty because the defendant company commits a repetition of a prior offence is not, in these circumstances, applicable. I therefore find the defendant company faces a maximum penalty for each breach of the Act of $500,000.

49 In assessing penalty, a number of subjective features have been placed before the court. I find it appropriate to take into account the size of the defendant company's workforce, the number of work sites and the nature of the work carried out by the defendant company and its employees (see WorkCover Authority of New South Wales (Inspector Sheppard) v The State Rail Authority of New South Wales [2000] NSWIRComm 179 (6 October 2000) at [47]).

50 The defendant company's corporate reputation is relevant. The company was first established in 1961 as a private construction company. It has become an Australian publicly listed Infrastructure and Construction company specialising in civil engineering and building construction, mining works, project management, asset management, maintenance and other related activities. The company's extensive experience in construction work has been gained from and used on projects which include rail (Maldon-Picton, Granville Y-Link and station upgrades at Concord West, Hamilton, Westmead and Parramatta), road (major works on the Hume and Pacific Highways, construction on the F3 Freeway and M2 toll road in Sydney and the Yelgun to Chinderah (Northern NSW) deviation), building (construction of the SuperDome, Tennis Centre) and other major works at the Homebush Bay Olympic site and numerous residential and commercial developments).

51 Abigroup Constructions is about to commence in joint venture with Leightons to work on the Western Sydney Orbital which is considered the largest project of its type undertaken in Australia. Abigroup employs over 2500 full time, part time and casual employees. Of these employees, approximately 1300 persons are full time employees of the defendant company. The number of subcontractors working for Abigroup Contractors at any particular time varies depending upon the number of projects in which the defendant company is involved. The number, however, would be in the order of 700 Australia-wide with approximately 250 of those subcontractors working on civil constructing and building sites in New South Wales. The company provides significant employment opportunities especially in New South Wales for a number of persons with diverse skills and trades.

52 I accept, as one of the leading construction companies in Australia, Abigroup is conscious of its role as a corporate citizen. It sponsored the State Sports Award for New South Wales, Victoria and Queensland and the National Sports Award for the Australia Day Council's Young Australian of the Year Award. In September 1999, in recognition of its support, Abigroup was honoured with Life Governorship of the Royal Institute of Deaf and Blind Children. Abigroup also provided support by way of donations to Australia's Paralympians in the lead up to the Sydney 2000 Paralympic Games.

53 Abigroup Contractors has, it would appear for its own purposes, assisted local communities in areas in which it is working on construction sites through activities such as sponsorship of local charities, the provision of materials for the building of community recreational facilities and the provision of material to support local LandCare groups. On long term projects, Abigroup Constructions endeavours to employ staff from surrounding communities so as to support the economy of local towns.

54 Abigroup's other entities such as the Sydney SuperDome also contribute to a number of charities such as the Farmhand Concert by providing at no cost the venue for the concert. Over $13 million was raised for drought relief.

55 I accept Abigroup encourages the involvement of staff supporting national charities such as the Cancer Council's Daffodil Day, Red Nose Day, Jeans for Genes Day, Clean Up Australia Day and many other national days. Abigroup sponsors organisations that recognise excellence in certain industries, or promote awareness of industry issues. National sponsorships include the Banksia Environmental Foundation which recognises excellence in environmental management. Abigroup also sponsors the Engineering Excellence Awards (Institute of Engineers).

56 I accept, through Mr Yates, that the Chairman and the Board of Abigroup Contractors express their sincerest regrets to all those involved or affected by the tragic events of 4 December 1995.

57 The industrial record of the company is also relevant in a consideration as to penalty. It was revealed the defendant company has five convictions recorded against it, details of which were placed before the court. The first conviction recorded is on 4 November 1996 and a significant penalty attached to that breach of the Act. The other three breaches of the Act were brought before the Chief Industrial Magistrate and appear on the industrial record of the company as minor breaches of the Act. The prosecution relied upon general sentencing principles to submit the Court would withhold some element of leniency given other offences were committed by the company after the breaches being considered by this Court.

58 The prosecution in support of this submission placed reliance on commentary of editors of Criminal Practice and Procedure NSW, LexisNexis Butterworths, Service 28, Johnson & Howie at [5-300]: The offender's criminal record is a relevant matter to sentence and the prosecution is obliged to produce the record before the court . . . "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences… The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case retribution, deterrence and protection of society may all indicate a more severe penalty is warranted . . . Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties": Veen v R (No 2) (1988) 164 CLR 465 at 477; 77 ALR 385; R v Coleman (1991) 56 A Crim R 369 . . .

The court can take into account offences committed after the offence to be sentenced as relevant as to whether the court should withhold leniency to the offender and to the prospects of rehabilitation: R v Hutchens (1957) 75 WN 75; R v Boney (CCA(NSW), 22 July 1991, unreported , BC9101758), where it was held that later convictions could not be used adversely to the offender . . .

It has been held that it is the duty of the Crown to place proper material before the sentencing court indicating the nature of prior offences so that court can consider the similarity and distinction between earlier offences and that for which sentence is being passed: R v Mitchell (FCA, 9 December 1997, unreported, BC9706607); (1998) 5 Crim LN 14 [817].

Veen and Boney (above) have been considered in this jurisdiction (see Capral Aluminium for authorities). The Prosecution submitted in some of this court's authorities, attention has been directed to a possible tension between common law principles and the effect of s51A of the Act. As s51A does not apply to attract an increase in penalty in the circumstances here in accordance with the common law principles, the prior convictions for subsequent offences must be taken into account in any consideration of leniency in the sentence imposed. 59 The principle was applied by Walton J, Vice-President in WorkCover Authority of New South Wales (Insp Robert Stobo) v State Rail Authority of New South Wales (2002) 115 IR 130 who stated at [69]: . . . the relevance in the sentencing process of convictions for offences committed after the subject offence must be seen as long settled: see Boney as citing R v Withers (1789) 3 TR 428 and R v Hutchens (1957) 75 WN (NSW) 75. I consider no reason exists to depart from the approach so laid down for offences under the Act. In the result, all of the convictions against the defendant, . . . may permissibly be taken into account in sentencing the defendant for the present offence by tempering the leniency or mitigation which the defendant might otherwise attract in subjective terms, but not so as to increase the appropriate penalty based on the objective seriousness of the instant offence. 60 In assessing the effect of these subsequent five recorded convictions against the company since 1995, I take into account the number of breaches and also consider the submissions of the defendant company that the increases reflect the defendant company's expanding role as a significant operator since 1996 in a heavy industry capacity, especially in the road building industry. Penalty is however tempered by the fact there appears one serious offence on the company's record.

61 The prosecutor accepts the Court should not increase the penalty otherwise determined as appropriate because of the conduct of the defendant company in its defence of these charges. It submits, however, the defendant company's choice to litigate its innocence vigorously in the manner it did, both in the interlocutory proceedings and a substantial trial, disentitles it to any leniency which it might otherwise have been able to seek if it had chosen to conduct its defence in some other manner (see R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; (2000) 115 A Crim R 104). The defendant company does not ask for any discount for the utilitarian value of a plea and no discount is applicable. The defendant company however cannot, and does not, suffer any criticism in the application of its right to defend the charges.

62 In considering questions of totality the defendant company submits these five offences should be seen as "a continuous course of conduct" all reflecting "the same common elements". Such a continuous course of conduct should reflect in only one total penalty the defendant company submitted.

63 When sentencing a defendant for multiple offences, the Court is required to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality (see Pearce v The Queen (1998) 194 CLR 610 at 624).

64 On the issue of accumulation of sentences, where there are legislative circumstances, the majority's view, McHugh, Hayne and Callinan JJ in Pearce is relevant at [40]: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common . No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts (sic). (emphasis added)

65 Simpson J in R v Hammoud (2000) 118 ACrimR 66 commented on the effect of the authority of Pearce on the sentencing process saying at [67]: As a result of the decision of the High Court in R v Pearce , the question of whether to accumulate sentences for multiple offences has taken on a new dimension. Following Pearce , a judge is required to fix 'an appropriate sentence' for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in cases of multiple offences committed as part of a single, discrete, episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced.

66 Beazley JA in R v Gorman [2002] NSWCCA 516 reflected on the language used in Pearce to warn at [4-5]: 4 In stating the principles in these terms, their Honours did not use language such as "part of the one criminal enterprise" or "the same criminal enterprise" for the purposes of determining the question of concurrence or accumulation as well as totality of sentence. Notwithstanding that, the terminology has survived Pearce . Indeed, it is referred to by this Court in R v AEM [2002] NSWCCA 58. 5 Whilst adopting that categorisation may not necessarily be an error, especially for the purposes of considering questions of totality, there is a risk that it may lead a sentencing judge into error, especially where as here the offences were of the one 'kind', that is, sexual assault (recognising that one was aggravated sexual assault) on the one victim on the one night. Her Honour then referred to the above quoted remarks of Simpson J's in Hammoud : 8 . . . Those remarks, with which I also agree, demonstrate the potential for error where a series of offences are labelled or characterised as being part of the one criminal enterprise without due regard being had to the individual circumstances of each offence. 9 In the present case, the three offences had to be considered separately. There was no common element in any of the offences, in the sense that notion is explained in Pearce . To characterise the offences, therefore, as his Honour did as "one episode of criminality" misapplied Pearce and failed to have regard to the specific circumstances of each individual offence. In my opinion, his Honour's categorisation also led him into error in that he then failed to deal adequately with the totality of the criminality involved. I should add that, although I have expressed my reasoning in different terms, I do not see that it necessarily involves a different approach to that taken by Sperling J, except to eschew the characterisation of these offences as being "part of the same" criminal enterprise or being "one episode of criminality" .

67 Sperling J in his analysis in Gorman took a slightly different view from Beazley JA saying . . . 51 . . . The approach now required is to fix appropriate sentences for each offence and to apply the totality principle by the extent to which the sentences are made concurrent or cumulative.

52 Whether the offences are unrelated or form part of the same episode or course of conduct is a relevant consideration. As Simpson J said in Hammoud , at [7], in a passage with which Mason P agreed: I do not agree that for the sentencing judge to take into account, in considering questions of concurrence and accumulation, features that were common to the two conspiracy offences, denotes an invalid reasoning process. Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong. Sperling J, contrary to Beazley JA accepted the trial judge's discretionary determination there were offences in the course of the same episode over a single evening but noted at [57]: . . . However, each offence contributed to the total criminality involved and care had to be taken to ensure that the over-all effective sentence was appropriate having regard to the offences which were committed in the course of that episode.

68 I approach the question of totality and accumulation in the circumstances before me having regard to the specific circumstance of each individual offence in the following way: while the defendant company submitted each charge contains common elements and this should be perceived as part of one criminal episode, and while many of the failures "continued" on in each period, I find the circumstances and activity on site over the three week period differed dramatically between each relevant period identified in the charges. I find the risks to safety were therefore different risks in each relevant period. I do not perceive this as a case where all five breaches arise out of a single, discrete, criminal episode. I reject the submission that given there are some common elements to each offence, the effect is to make this one continuous course of conduct or one episode of criminality. The different circumstances during each relevant period created different risks.

69 I now consider the circumstances within the identified periods. There were two charges brought under the Occupational Health and Safety Act 1983 in each of the first two identified periods. Under the Act, there is an expressed legislative intent to place different obligations on an employer to provide safe working for its employees (s15) where it must "ensure" their health and safety at work rather than an employer's obligation in the conduct of its undertaking at its place of work to ensure others are not exposed to risks to their health and safety (s16).

70 I find in the first two identified periods, namely, 10 November 1995 and the period between 11 November 1995 and 3 December 1995 (inclusive) there were safety risks to both employees and others on the same site which risks had some common elements. However, within each period, allowing there some commonality in each charge, there were two separate risks to safety as defined in the legislation one under s15(1) and one under s16(1).

71 The Full Bench in Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181 discussed this overlap between s15 and s16 of the Act at [44]: The relationship between these provisions was considered by Wright J, President , in WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362. (Leave to appeal from this decision was refused: Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16.) His Honour considered an objection that a summons under s 16(1) used the language of s 15(2) to describe a charge under s 16(1) and was thereby invalid. His Honour said (at 372-373): However, on their proper construction, s15 and s16(1) are to be seen as in part parallel provisions. Both impose liability on employers. Section 15 imposes liability to "ensure health, safety and welfare at work of all of the employer's employees"; whereas s16(1) imposes an obligation to ensure that persons who are not employees of the employer are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking whilst at the employer's place of work. . . . . Some confirmation of the interrelationship of these sections is provided in the useful discussion by Bauer J in his Honour's judgment in Workcover Authority of New South Wales (Inspector Reid) v CSR Limited t/as CSR Wood Panels (unreported, matter number CT1176/94, 10 August 1995) at 24-25. See also his Honour's discussion of the elements of the offence created by s16(1) at page 12 of that judgment. . . . Thus, when the practical circumstances envisaged by the form of s16(1) are considered, and the evident purpose of the provision is identified, it does not follow, as the defendant contends, that the use of language derived in whole or part from words in s15(2) is inappropriate to describe offences said to arise under section 16(1), or a summons using such words is thereby invalid. Whilst it is to be accepted that the language of parts of s15 derives from the common law (see for example, the discussion by Fisher CJ in Boral Gas (1995) 37 NSWLR 150 at 153; 58 IR 363 at 386) the fact that important features of s16 (namely "its terms, its essential elements, its field of operation and its common law jurisprudential background" - as referred to in the defendant's submissions) may not be applicable to s15 is, for present purposes, irrelevant. What is relevant is that both s15 and s16 impose statutory obligations which conceptually overlap, although the identity of the persons the object of the obligations specified is different . [emphasis added] 72 I therefore find the charge under s15(1) and the charge under s16(1) covering the period 10 November 1995 have some common elements to attract accumulation as to penalty. The charges brought under s15(1) and s16(1) covering the period 11 November to 3 December 1995 (inclusive) also attract some accumulation as to penalty.

73 However, while the applicable principles compel a degree of accumulation of the penalties to be imposed for individual offences with some common element, each penalty must also reflect the objective seriousness of the offence, that is, regard is had to the individual circumstances of each offence: or, as otherwise expressed, regard is had to what the defendant company "has done" to put at serious risk the safety of both its own employees as well as other persons on its work site. I also take into account the subjective features placed before me. In this particular circumstance, the court also ensures the penalty reflects the need for deterrence both general and specific.

74 While the Full Court concluded in Pearce it may be open to impose a single penalty for multiple offences under the Act, the court expressed the preferred course to be that separate penalties should be imposed after the principle of totality is applied (see Keenan).

75 Approaching these cases on the principles set out in Pearce, Keenan, Hammoud and Gorman, the appropriate penalty to be imposed for each offence is as follows:

In Matter IRC 5432 of 1999 I find the defendant guilty. The defendant is fined the sum of $300,000. In Matter IRC 5433 of 1999 I find the defendant guilty. The defendant is fined the sum of $300,000. In Matter IRC 5436 of 1999 I find the defendant guilty. The defendant is fined the sum of $350,000. In Matter IRC 5434 of 1999 I find the defendant guilty. The defendant is fined the sum of $350,000.

In Matter IRC 5438 of 1999 I find the defendant guilty. The defendant is fined the sum of $400,000.

A total penalty for the five offences is $1.7 million.

76 It is now necessary to apply the totality principle in the accumulation of penalty to the extent to which each penalty reflects some common elements but also having regard to the specific circumstances of each individual offence: In Matter Nos 5432 and 5433 of 1999 related to the breaches under s15(1) and s16(1) of the Occupational Health and Safety Act 1983 on 10 November 1995 in the totality I reduce the sentence from $600,000 to $500,000. Therefore: In Matter No 5432 of 1999, I fine the defendant the sum of $250,000. In Matter No 5433 of 1999, I fine the defendant the sum of $250,000. In Matter Nos 5436 and 5434 of 1999 related to the breaches under s15(1) and s16(1) of the Occupational Health and Safety Act 1983 between 10 November 1995 and 4 December 1995, in totality, I reduce the sentence from $700,000 to $600,000. Therefore: In Matter No 5436 of 1999, I fine the defendant in the sum of $300,000. In Matter No 5434 of 1999, I fine the defendant in the sum of $300,000. In Matter No 5438 of 1999 which I find a discrete offence under s16(1) of the Occupational Health and Safety Act 1983, I find no reason to reduce this fine. In Matter Nos 5438 of 1999, I fine the defendant in the sum of $400,000. 77 At this stage in my consideration it is opportune to make a statement as to workplace safety on large construction sites in New South Wales. These particular comments, addressed to the WorkCover Authority of New South Wales, are not part of this court's consideration as to penalty.

78 The provisions of the Occupational Health and Safety Act 1983 (see s44A (1-10) and the recently operative Act, Occupational Health and Safety Act 2000 (see s40-s46) contain provisions which empower the WorkCover Authority to formulate and prepare Industry Codes of Practice to provide practical guidelines to employers and others who have duties in respect of Occupational Health Safety and Welfare. Relevantly, the Act states: 44A. Industry codes of practice (1) For the purpose of providing practical guidance to employers, self-employed persons and employees, the WorkCover Authority may formulate and prepare industry codes of practice. (2) The Minister may, having regard to any recommendation of the WorkCover Authority, approve an industry code of practice. (3) An industry code of practice may: (a) consist of any code, standard, rule, specification or provision relating to occupational health, safety or welfare approved by the Minister, or (b) apply, incorporate or refer to any document formulated or published by any body or authority as in force at the time the industry code of practice is approved or as amended, formulated or published from time to time. (4) The Minister may, having regard to any recommendation of the WorkCover Authority, approve any amendment of the whole or any part of an industry code of practice or revoke the approval of an industry code of practice. (5) The Minister shall cause to be published in the Gazette: (a) an approved industry code of practice, (b) an approved amendment of an industry code of practice, and (c) the revocation of approval of an industry code of practice. (6) The Minister shall cause: (a) a copy of every approved industry code of practice, (b) if an approved industry code of practice has been amended, a copy of every approved industry code of practice as so amended, and (c) if an approved industry code of practice applies, incorporates or refers to any other document, a copy of every such document, to be made available for inspection by members of the public without charge at the office of the WorkCover Authority during normal office hours. (7) An approved industry code of practice commences on the day when the code is published in the Gazette or, if a later commencement date is specified in the code, on that date. (8) An approved amendment of an industry code of practice commences on the day when the amendment is published in the Gazette or, if a later commencement date is specified in the amendment, on that date. (9) An approved revocation of an industry code of practice commences on the day when the revocation is published in the Gazette or, if a later commencement date is specified in the revocation, on that date. (10) A person shall not be liable to any civil or criminal proceedings by reason only that the person has failed to observe any provision of an approved industry code of practice. The Occupational Health and Safety Act 2000 defines the powers of the WorkCover Authority of New South Wales in similar terms: Section 40 - Purpose of industry codes of practice The purpose of an industry code of practice is to provide practical guidance to employers and others who have duties under Part 2 with respect to occupational health, safety and welfare.

Section 41 - WorkCover may prepare draft codes (1) WorkCover may prepare draft industry codes of practice. (2) An industry code of practice may refer to or incorporate, with or without modification, a document prepared or published by a body specified in the code, as in force at a particular time or from time to time.

Section 42 - Consultation on draft codes (1) WorkCover is to consult with such organisations or persons as the Minister may direct about a draft code and may consult with such others as WorkCover thinks appropriate. (2) WorkCover is to take into consideration any submissions it receives that relate to a draft code before it makes any recommendation to the Minister for its approval.

Section 43 - Approval of codes by Minister The Minister may, having regard to any recommendation of WorkCover, approve an industry code of practice.

79 The explosions at the KSU occurred in 1995. The WorkCover Authority has been on notice as to a lack of established procedure for the disconnection of services and the lack of a protocol which allows the recognition of existing services on construction sites as to both their particularity and status since the explosions at Kogarah Station in 1995. The analysis of the Coroner completed on 17 October 1997 and the laying of the charges by the WorkCover Authority under the Occupational Health and Safety Act 1983 on 12 October 1999 further revealed to the Authority that such a lack of procedure provided a risk to safety to workers on constructions sites in New South Wales. It is of grave concern, despite the knowledge of the WorkCover Authority as to this risk to safety, there is still no industry standard nor relevant Code of Practice relating either to the disconnection of services off construction sites or the identification of existing services left on construction sites and their status.

80 Construction work requires, at times, the disconnection of services from the construction sites or alternatively the continuing existence of live services on site (for example, gas, electricity and water). There has been no endeavour to establish an industry standard or code of practice across the construction industry which would allow employees, be they employees or sub-contractors, to identify with particularity the type of service existing on site and its status: that is, whether it is disconnected or live. Neither the WorkCover Authority nor other Industry Regulators have initiated the reform process for the standardisation of protocols to be followed by the industry when disconnecting a service from a site or when determining to leave a charged service on a construction site. It is imperative on construction sites if a service cannot be disconnected the nature of, and status of, such existing services can be identified to ensure workplace safety.

81 The WorkCover Authority of New South Wales under s44A of the 1983 Act (see also s40 of the 2000 Act) together with members of the construction industry such as the defendant company, must prepare and formulate a code of practice for the construction industry in New South Wales addressing protocols for the safe disconnection of services off site and codes for the identification of, and status of, existing services left on construction sites. An associated educative programme for both employer and employees should be established once those codes are defined. Orders: The court makes the following orders: In Matter IRC5432 of 1999 (a) the defendant is convicted of the offence as charged under s15(1) of the Occupational Health and Safety Act 1983; (b) the defendant is fined the sum of $250,000 with moiety thereof to the WorkCover Authority of New South Wales.

In Matter IRC5433 of 1999 (a) the defendant is convicted of the offence as charged under s16(1) of the Occupational Health and Safety Act 1983; (b) the defendant is fined the sum of $250,000 with moiety thereof to the WorkCover Authority of New South Wales.

In Matter IRC5436 of 1999 (a) the defendant is convicted of the offence as charged under s 15(1) of the Occupational Health and Safety Act 1983; (b) the defendant is fined the sum of $300,000 with moiety thereof to the WorkCover Authority of New South Wales. In Matter IRC5434 of 1999 (a) the defendant is convicted of the offence as charged under s16(1) of the Occupational Health and Safety Act 1983; (b) the defendant is fined the sum of $300,000 with moiety thereof to the WorkCover Authority of New South Wales. In Matter IRC5438 of 1999 (a) the defendant is convicted of the offence as charged under s16(1) of the Occupational Health and Safety Act 1983; (b) the defendant is fined the sum of $400,000 with moiety thereof to the WorkCover Authority of New South Wales. 82 Leave is granted to re-list as to Costs. I note from transcript there is an issue as to the costs of the Real Time transcript recorded during the hearing as to liability. The parties are to meet in relation to a possible Order as to Party and Party costs to the prosecutor (leaving aside the issue of costs of Real Time transcript if no agreement can be reached). In accordance with the view expressed in Caltex Refining Co Pty Limited v Maritime Services Board of NSW (1995) 36 NSWLR 552, the Court is obliged to give specific Orders related to costs with a quantification as to those costs. I require the parties to conciliate on this issue. If the parties are in dispute I advise the parties to seek the assistance of the Registrar of the Court as a prelude to the court making any final Cost Orders as to the quantification of costs which are "just and reasonable" on a party and party basis. Each party will be heard as to appropriate orders on the matter being re-listed. Matter No IRC5502 of 1999 - WorkCover Authority of NSW (Insp Mansell) v Luis Bustamante: as to penalty

83 In WorkCover Authority (Inspector Maltby) & Anor v Abigroup Contractors Pty Limited and Luis Bustamante [2003] NSWIRComm 35 (unreported, 27 February 2003), Luis Bustamante was charged with two breaches under s19(a) of the Occupational Health and Safety Act, 1983 one of which allegedly occurred on 10 November 1995 in Matter No IRC5503 of 1999 and the other which allegedly occurred in the period 11 November to 3 December 1995. Matter No IRC5503 of 1999 was dismissed. In Matter No IRC5502 of 1999 the charge was found proven.

84 Mr Bustamante therefore comes before the court for penalty in relation to one breach of the Act. In matter No 5502 of 1999, it was alleged between 11 November and 3 December 1995: the Defendant being an employee of Abigroup Contractors Pty Limited, whilst at work contrary to s19(a) of the Occupational Health and Safety Act 1983, failed to take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work in that the Defendant did not take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur."

As to this charge the court found at [421]: . . . I am not satisfied the obligations imposed upon the defendant under s19(a) of the Act are met with the proposition he complied was the safety standards of common practice in 1995. The test the defendant must meet under the Act is the application, to his acts or omissions, of the standard of "reasonable care". "Common practice" is no answer to the obligation to provide "reasonable care". While all the relevant circumstances must be taken into account as well as the employees' state of knowledge I do not accept that the lack of an official standard for the disconnection of a gas service nor the alleged common practice of leaving live gas supply lines on constructions sites provide a satisfactory defence sufficient to be recognised that in such circumstances the defendant took "reasonable care". Given the work which was to be performed on the site and given Mr Bustamante's knowledge as to that work, including the use of an excavator on site, I find the existence of the charged gas supply line not adequately marked or identified created a circumstance which may have affected the safety of persons at Mr Bustamante's worksite in the relevant period. And at [422]: It was the acts and omissions of the defendant employee, as the foreman, which adversely affected the health and safety of persons on this work site. The duty of care was the defendant's and he failed to meet the standard of reasonable care required under s19(a) of the Occupational Health and Safety Act 1983. Reasonable care required of the foreman at this place of work with regard to the health and safety of persons who may be affected by those acts or omissions to take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur. He failed to so do.

85 In consideration of penalty the court must first assess the nature and quality of the offence, that is, the objective seriousness of the offence (see Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales at 474).

86 In the relevant period of time a charged gas supply line remained at first within one metre of the alignment of a shop to be demolished and after the demolition of four shops the charged gas supply line lay some five metres across the construction site. This charged gas supply line, at least until the latter days of the relevant period, was marked with a stake and bunting. The site was always under the supervision of the defendant, Mr Bustamante, as foreman for Abigroup Contractors Pty Limited. The evidence persuaded me Mr Bustamante was on site during the relevant period and at work. Further evidence persuaded me Mr Bustamante assisted in the marking of the gas line in the relevant period with the stake and bunting. A finding was made he "knew the gas line behind the capped end was charged".

87 On site in the relevant period the demolition of four shops occurred and then a ramp was built across the site over the charged gas supply line. Across the ramp and over the charged gas supply line evidence revealed a number of heavy vehicles passed in the performance of the construction of the railway station extension. Photographic evidence revealed the type of heavy equipment which was being used on the site and was to be found at or near or close to the charged gas supply line.

88 As foreman, under the Act, Mr Bustamante was required to "take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work." Mr Bustamante took no steps to remove the charged gas supply line from a site in which he knew construction and demolition work was being performed and where earthmoving machines were operating. He failed to recognise leaving the charged gas supply line on this construction site was inherently dangerous. He also failed to adequately protect, identify and/or mark the said gas line. Those failures were acts or omissions by the defendant and persuaded the court he did not take adequate precautions such as could be represented as taking "reasonable care" for persons at his place of work.

89 As Project Foreman at the KSU, the defendant was responsible for the general overseeing of the work of all contractors and ensuring the completion of the construction works by sub-constructors at the KSU site. In ensuring the completion of works he was responsible at any one time for up to 20 different trades including painters, electricians, builders, surveyors, demolishers and others. He asserts at any one time there were up to 80 persons working at the KSU site.

90 In assessing the gravity of this offence the defendant submits the court take into account it was common practice in the construction industry, in the relevant period, to leave on site a charged gas supply line and to mark it randomly as described. While a plea of common practice in the circumstances is not a defence to a breach of the Act, I weigh it into my consideration as to the gravity of this breach by Mr Bustamante. What appears so blatant a risk to safety as leaving a charged gas supply line on a construction site was, in Mr Bustamante's circumstances, a most serious offence. However, given the standards in the industry at the time which were confirmed to me by more senior officers of the defendant company as the ad hoc marking of services by way of a stake and bunting, I find Mr Bustamante's offence, in his capacity as foreman on a site where there were also a number of other senior company officers on that site in the mid-range.

91 A number of subjective features are also relevant to the court's consideration. Upon conviction the defendant is liable for sentencing in respect of a maximum penalty of $2,500. By amendment of s19 of the Occupational Health and Safety Act 1983, (see WorkCover Legislation Amendment Act 1995, No. 80, Schedule 2) the maximum penalty for a breach of this section increased from 25 penalty units to 30 penalty units. However, the provisions of the WorkCover Legislation Amendment Act 1995 came into effect from 1 February 1996, that is, after the date of this offence. There was no amendment of s19 (through Schedule 8, Part 3 of the Act) in the way as Clause 10 raised penalties for breaches under ss15 and 16 of the Act (see WorkCover Authority of NSW v Swift Placements Pty Ltd).

92 Consideration must be given, in any assessment of penalty, to elements of specific and general deterrence to compel attention to safe working. Mr Bustamante has now retired. He is a pensioner. The element of specific deterrence in the circumstances is however of some relevance to this consideration. The defendant continued to supervise major construction works in New South Wales for the next three years after the explosions occurred. Nothing has been placed before me to indicate he made any systemic change or practice over the period he continued to work. The system he used for marking existing services on site before the breach he continued to use post the breach. I accept however after the breach, where possible, services were disconnected off site.

93 As to general deterrence, it must, as a matter of public policy be ensured the penalty reflects the seriousness of the offence and is proportionate to the offence. It is a fundamental duty of the court to ensure the penalty for the breach compels attention to occupational health and safety issues.

94 I accept Mr Bustamante has personally been gravely affected by this event. He has expressed the deepest sympathy for the deceased, those injured and the family and friends of the deceased and injured as a result of the explosion. He co-operated fully with police and WorkCover in their investigations of the explosions.

95 The prosecution revealed, as to this individual's industrial record, he is not known to the WorkCover Authority and has no prior convictions.

96 The character of the defendant is relevant to my consideration. Mr Bustamante relocated to Australia from Chile on 16 June 1968. He qualified as a Draftsman-Estimator at the University of Chile in 1958. On 4 September 2000 he became an Australian citizen. He is 69 years of age and is married with two adult sons. He has now retired from employment having resigned from the defendant company in September 1998 when aged 65 years.

97 Mr Bustamante commenced employment with the defendant company on 27 June 1994 as a Project Foreman. Before joining the defendant company his resume reveals he held positions as foreman on construction sites to the value of up to $9 million. As the project Foreman with Abigroup, his role essentially involved the general overseeing and ensuring the completion of works at constructions sites by sub-contractors. During his employment he worked on a number of projects of varying sizes and difficulty including five station upgrades between 1994 and 1996. He then worked on the development of Greenwich Hospital.

98 In affidavit evidence Mr Bustamante states: . . . 13. I have neither before or after the incident at the Kogarah Station Upgrade site ("KSU") ever been involved in any form of occupational health and safety complaint. . . . Attitude towards occupational health and safety 15. Prior to and in my role with Abicon (the defendant company) I was very safety conscious, especially given the nature of the construction industry and the potential for serious injury to workers and the public. 16. I believe that I was a competent and capable supervisor at Abicon and particularly at the KSU. In taking the precautions that I did at the KSU I applied my industry experience and the standards accepted in the industry as at 1995. 17. My particular practice at the KSU was to inspect the KSU site, usually every hour or so, checking on work being undertaken and that it was being completed in a safe manner. I would always show new workers around the site and along the way I would indicate any potential safety hazards. 18. A practice which developed over my 38 years in the construction industry was to mark services such as gas, electricity and water with a stake and bunting. This was a practice which had developed in the industry and which was, in my view, accepted as the set standard for marking services that remained on the construction site. . . .

99 The Commission sitting in Court Session accepts, on the totality of the evidence, Mr Bustamante's reputation was that of a competent and capable supervisor on construction sites. The views as to Mr Bustamante's skills were collated in the court's judgment on liability at [408]: . . ."one of the best" project supervisors he had worked with. As to safety Mr Cejka referred to Mr Bustamante's approach as "meticulous". Mr Dean referred to Mr Bustamante as being "absolutely experienced, and certainly not gung-ho". Mr Bolger from Abigroup referred to Mr Bustamante's work as a foreman as "always very good" and Mr Stewart who was employed by Group One Interiors Pty Limited to work with CWM on the station upgrade project said he had no reason to complain about Mr Bustamante or the way he was carrying out his work and commented Mr Bustamante appeared to be carrying it out safely. Mr Sibley, Superintendent of the KSU Contract between the SRA and Abigroup, referred to Mr Bustamante as carrying out the works appropriately and within the set standards and safety regimes required. Mr Warren an employee of Abigroup stated Mr Bustamante guided him around the site and pointed out activities and explained safety requirements. Mr Smithers, SRA's safety officer on the KSU site referred to Mr Bustamante and himself having a "yarn on the day's activities". He refers to Mr Bustamante as being forthcoming with information, happy to explain things, there was no trouble in dealing with him and he had no issues with the way Mr Bustamante handled safety at the worksite. 100 Further, the evidence revealed in this relevant period of time a number of senior persons from Abigroup Contractors were also on site. Not one such person recognised the risk to safety provided by the existence of the charged gas supply line five metres at least into the construction site.

101 The financial status of the defendant is also relevant. The defendant receives an aged pension of approximately $370 per fortnight and does not receive income from any other source. The aged pension he receives each fortnight is spent in its entirety on living expenses.

102 It was submitted this is an appropriate matter for the application of s10 of the Crimes (Sentencing Procedure) Act 1999 and there should not be recorded a conviction against the defendant: 10. Dismissal of charges and conditional discharge of offender s10(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, . . . (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. . . .

103 I have considered Mr Bustamante's character, reputation, age and his experience in the construction industry. I note also there were no standards or codes of practice applicable to the status of services on construction sites. I have further examined the nature and quality of the offence. I do not believe, in the circumstances, this is an appropriate matter for an order dismissing the charges and discharging the offender, Mr Bustamante. While I have taken into account the high regard in which the offender was held, his implementation of an alleged industry practice in the marking of the gas line and his unblemished industrial record as a long serving foreman on construction sites I nonetheless do not consider this is a proper matter for the application of s10 of the Crimes (Sentencing Procedures) Act, 1999.

104 As foreman on site, Mr Bustamante failed to take reasonable care for the safety of others and left on a very active construction site, in the relevant period, a charged gas supply line. It was not safely marked or identified. I do not accept the offence is of a trivial nature nor do the circumstances reveal any extenuating circumstances. Accordingly, I reject the application.

105 I take into account the long service given and the high esteem in which the defendant is held within the construction industry in Australia. I further, in the setting of penalty, note his financial position. However, given the gravity of the offence I believe it is, in the circumstances, proper a penalty is set which reflects the seriousness of the offence. Given the maximum penalty is $2,500.00 I find the appropriate level of penalty is $1,250.00.

106 I have considered the question as to Costs in this matter. The evidence against Mr Bustamante in the hearing as to liability was also proffered by the prosecution against another defendant, his employer, Abigroup Contractors. In this hearing as to Penalty most of the evidence before me is from the defendant himself in affidavit form. Accordingly, I consider in the circumstance there shall be no order as to Costs against the defendant, Luis Bustamante. Orders: The court makes the following orders: In Matter IRC5502 of 1999: (a) The defendant is convicted of the offence as charged under s19(a) of the Occupational Health and Safety Act 1983; (b) The defendant is fined the sum of $1250 with moiety thereof to the WorkCover Authority of New South Wales. (c) There shall be no order as to Costs.

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