WorkCover Authority (Insp. Clark) v Raymond Jabboury

PROSECUTOR: Mr J J Millar of counsel Solicitor: Mr S Pertsinidis WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Ms K Nomchong of counsel Solicitor: Mr B Richardson Deacons

JUDGMENT: - 22 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Monday 15 April, 2002 Matter No IRC 986 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR CLARK) v RAYMOND JOHN JABBOURY [NO 2] Prosecution under ss 16(2) and 49(4) of the Occupational Health and Safety Act 1983 JUDGMENT - RE: PENALTY

1 On 20 April 2001 the Court gave judgment in the matter of a prosecution of Raymond John Jabboury by Thomas Clark, an inspector of the WorkCover Authority of New South Wales, for a breach of s 16(2) of the Occupational Health and Safety Act 1983 occurring on 25 June 1996 at Mount Keira Reservoir, Mount Keira in the State: see WorkCover Authority of New South Wales v Jabboury [2001] NSWIRComm 78. The Court found the offence proven and subsequently set the matter down to hear submissions on penalty and costs on 11 March 2002. Having now heard the parties, this judgment deals with those issues.

2 Paragraphs 1 and 2 of the earlier judgment summarised the circumstances leading to the charge being brought against the defendant: 1 In June 1996 the defendant, Raymond John Jabboury, was a self-employed person trading as Desman-Ray Constructions. He had been contracted by Ledonne Constructions Pty Ltd ("Ledonne") to be the Project Manager for Ledonne in the construction of a 'Booster Pumping Station' at Mount Keira Reservoir, Mount Keira ("Mount Keira project"). Ledonne was to carry out the work under a contract with Sydney Water Corporation Limited ("SWC"), which owned and operated the Mount Keira Reservoir. Australian Water Technologies Pty Limited ("AWT"), a wholly owned subsidiary of SWC, was contracted by Ledonne to supply and install pumps at the Pumping Station, to supply and install roof covers and ladders to all chambers, perform welding connections to reservoirs, connect pipe work to mains and test all of the pipe work and pumps. Waycon Services Pty Ltd ("Waycon") was a labour hire company contracted by AWT to supply labour to the construction site.

2 On 25 June 1996 Malcolm Dewar, an employee of AWT, died inside a 500 mm diameter water main pipe when the pipe filled with water and he drowned. Inspector Thomas Clark of the WorkCover Authority of New South Wales explained in his affidavit in support of the application for summons prosecution how it happened: Minutes prior to his death, Dewar had entered a concrete inspection pit and climbed approximately 2.4 metres inside an open outlet pipe attached to the inside of the concrete pit. Whilst Dewar was inside the pipe conducting an inspection to ascertain where the pipe had been previously leaking, the gate valve and flanged connector assembly (connected to the inlet pipe) located inside the inspection pit, broke away from the inlet pipe. The valve and connector assembly failed due to the force of the water inside the inlet pipe (coming from the reservoir) pushing against the gate valve. Both the concrete inspection pit and outlet pipe filled with water within approximately 10 seconds.

3 It should be noted that Sydney Water Corporation Limited ("SWC"), Australian Water Technologies Pty Ltd ("AWT") and Ledonne Constructions Pty Ltd pleaded guilty to charges laid against them in connection with the incident that occurred on 25 June 1996 and, in separate proceedings relating to sentence, substantial fines were imposed on each of the defendants: see WorkCover Authority of New South Wales v Sydney Water Corporation Ltd [2001] NSWIRComm 240; WorkCover Authority of New South Wales v Ledonne Constructions Pty Ltd [2001] NSWIRComm 272.

4 The charge against the defendant is set out in the earlier judgment. It alleged that the defendant failed to ensure that persons not in his employment, and in particular Malcolm Dewar, Geoffrey Rowling and John Watson, were not exposed to risks to their health or safety arising from the conduct of his undertaking while they were at his place of work.

5 The charge referred to Geoffrey Rowling and John Watson. Mr Rowling was an employee of Ledonne and was in the concrete pit when it filled with water. He rose to the top of the pit with the water and was able to escape. Mr Watson was an employee of Waycon Services and on the day of the incident had been in the concrete pit working on the pipe work but had climbed out of the pit prior to the incident.

6 The charge contained eight particulars, six of which were made out. The key failure on the part of the defendant, however, arose out of a discussion between the defendant Mr Rowling and Mr McDonald, a foreman/machine operator employed by Ledonne on the afternoon of 24 June 1996. This discussion was referred to at pars 12 to 18 of the earlier judgment. At pars 26 to 29 I said: 26 The defendant's undertaking was to provide project management services to Ledonne in connection with the construction of the booster pumping station for SWC. Part of that undertaking involved a responsibility for the work associated with the construction of Inspection Pit No. 7 and the pipework, valves and connections in and around that Pit. A leak had developed in the pipe near the Inspection Pit; it was the defendant's responsibility, as part of his undertaking, to have the leak repaired. The defendant had a concern about ensuring the seal where the leak had occurred was made good. He listened to advice from either Mr McDonald on the defendant's evidence, or Mr Rowling on Mr Rowling's evidence, about how the leak might be repaired and, at least in the defendant's mind, had not discounted the idea of someone going into the outlet pipe to ensure the seal had been made good. Indeed, he thought it was a good idea. The only way to do that would be to enter the outlet pipe through the entrance to it in the Pit, once the straub coupling and spigot valve connector had been removed. The defendant did indicate, in the presence of Mr McDonald and Mr Rowling, that he wanted the concrete cleared from around the leaking pipe but, critically, he did not go on to give instructions that there was to be no attempt to enter the outlet pipe to check on the seal where the leak occurred, or alternatively, did not make it clear to Mr McDonald or Mr Rowling that before entering the Pit and the outlet pipe, there were extensive safety precautions that had to be undertaken. 27 Even if I accept the defendant's evidence that he was not aware that anyone would seek to enter the outlet pipe on 25 June 1996 and that his expectation was that the work to be done involved clearing the concrete from the leaking pipe, the inference I am able to draw from the evidence is that Mr Rowling was left with the reasonable impression that either there was no objection to the proposal, or that there was tacit approval of the proposal, that as part of the procedure for repairing the leak, there should be an internal inspection of the pipe to check on whether the seal had been made good and that he proceeded to embark on that course of action the following day. The alternative inference that may be drawn from the evidence is that the defendant was aware that Mr Rowling intended to do what he proposed, that is, to enter the pipe to apply soap to the rubber ring and either expressly endorsed it or acquiesced in the proposal. 28 On the basis of either inference the evidence shows, in my opinion, that a risk arose from the conduct of the defendant's undertaking by virtue of the fact that in repairing the leaking pipe, persons not employed by the defendant entered Inspection Pit No. 7 and the outlet pipe leading from it in circumstances where there was a risk of serious injury or death. I find that, on the basis of the first inference I referred to, the relevant detriment to safety was the presence of persons, not employed by the defendant, in the Inspection Pit and outlet pipe in circumstances where there was a risk of serious injury or death caused by inundation. The other risk to safety arose out of the fact that the Inspection Pit was 3 metres deep and that there was no ladder in the Pit to assist in gaining access to or egress from the Pit. In the absence of a ladder there was a risk that persons may fall while getting into or out of the Pit. 29 The fact that the defendant gave instructions on 24 June that the work to be done the following day was to clear the concrete from around the leaking pipe, did not carry with it an unambiguous implication that no attempt should be made to enter the outlet pipe. Mr Rowling obviously saw the removal of the concrete and entry into the pipe as part of the one operation to repair the leak. Absent any instruction not to enter the pipe there was no work-related reason why the straub coupling and spigot valve connector could not have been removed and an internal inspection carried out of the site of the leak while the concrete was being cleared. Of course, what Mr Rowling overlooked, as did the defendant, were the risks associated with doing so. In fact, the defendant candidly admitted in his evidence that, following the discussion with Mr Rowling on 24 June about the prospects of an internal inspection, he gave no further thought to questions of safety; he gave no thought to the prospect of Mr Rowling and others doing what they did in entering the Inspection Pit and outlet pipe and being exposed to the risk of inundation by whatever means that might occur. Given his conversation with Mr Rowling it was reasonably foreseeable on the defendant's part that, in the absence of an express direction to the contrary, Mr Rowling might well do what he proposed and that if he did, he would be at risk unless measures were taken to ensure the safety of Mr Rowling and others.

7 At par 43 of the judgment I expressed the following opinion: … the defendant had a positive duty to ensure that, once the proposal to go inside the outlet pipe was raised for discussion, he took all steps necessary to quash any notion of such an activity and to ensure that it did not occur or, if it was to occur, that all steps were taken to ensure it was done safely. This he failed to do, including a failure to isolate the water at Inspection Pit No. 7. Only SWC employees were qualified to effect isolation procedures. No contact was made by the defendant with SWC about isolating the mains water at the reservoir site. If he had taken steps to isolate the water at the Pit the risk to health or safety would not have arisen.

8 In his submissions on sentencing Mr J J Millar of counsel for the prosecutor referred to the particulars of the charge made out against the defendant and the various failures on the part of the defendant to ensure that persons not in the defendant's employment were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work. The failures may be summarised as a failure to:

1. Ensure the effective isolation of water whilst persons were carrying out work inside the inspection pit and outlet pipe. 2) Ensure that a risk assessment was undertaken to identify any confined spaces on the project and the hazards associated with working in those confined spaces. 3) Identify the area inside the inspection pit and the inside of the outlet pipe as being confined spaces. 4) Provide or maintain means of access to and egress from the inspection pit at the site, which was safe and without risks to health. 5) Ensure that persons working at the site to whom the defendant was giving directions were aware of and had read and understood instructions relating to safe entry and working in confined spaces. 6) Instruct Geoffrey Rowling and Kevin McDonald not to climb inside the outlet pipe attached to the inspection pit.

9 Mr Millar submitted that the defendant's "central failure" was the failure to fulfil a positive duty to ensure that once the proposal to go inside the outlet pipe was raised for discussion by Mr Rowling on the afternoon of 24 June that the defendant took all steps necessary to quash any notion of such an activity and to ensure that it did not occur or, if it was to occur, that all steps were taken to ensure it was done safely. Mr Millar submitted the offence was a serious one. Mr Millar referred to WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Ltd (1998) 82 IR 80 at 85 where Hill J said: "This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace."

10 Counsel for the prosecutor also referred to the need for general and specific deterrence: WorkCover Authority of New South Wales v Warman International Limited (2001) 105 IR 236 at [80]. Mr Millar said: It is quite clear from the defendant's approach to the matter as shown by his evidence, and even by the statement from his counsel … that it needs to be brought home to the defendant that he does have a serious responsibility with respect to safety matters. In light of that, its of concern … that since this accident in 1996, that the defendant has not had any training, so he says from his evidence, in occupational health and safety matters. If your Honour accepts the submission that he apparently failed to appreciate the full extent of his responsibility in this regard at the time of the accident, one would expect that subsequent to the accident, particularly with such tragic consequences as applied here, that he would set about informing himself of his responsibilities and undertake such training. 11 In referring to the penalties imposed on SWC, AWT and Ledonne Constructions, Mr Millar submitted that the issue of parity arose for consideration. Other matters referred to by Mr Millar included: the fact that the defendant pleaded not guilty; the question of totality; the steps the defendant had taken to address safety issues; the limited evidence regarding the defendant's income.

12 Ms K Nomchong of counsel appeared for the defendant. Ms Nomchong helpfully provided written submissions and supplemented those by further oral submissions. The main points made by Ms Nomchong may be summarised as follows:

· Sentencing principles in occupational health and safety matters rest on compliance, deterrence and rehabilitation. In considering the factors relevant to these three aspects of sentencing the Court should take into account the relative culpability of the defendant. · The facts disclose there was no direction of the defendant for Mr Dewar to enter the pipe. Mr Rowling and Mr Dewar made that decision on their own. Their failure to appreciate the grave risk to their safety by removing part of the valve connections without ensuring that the pipe had been isolated is inexplicable. · The defendant has taken active steps to rehabilitate the way in which he conducts his work. He is now extremely careful as to the way in which instructions are given and is aware that he should immediately voice his concerns over any suggested activity that may give rise to occupational health and safety risks. Further, he has acknowledged the need to develop detailed risk assessments and systems of work in relation to each and every task undertaken under his control and supervision. · The objective matters to be taken into account in determining penalty must reflect the nature and quality of the offence and the level of penalty must balance compulsion to adherence to occupational health and safety risks but not be too oppressive. While subjective factors are to be taken into account, they play a subsidiary role to objective factors. · The objective seriousness of the offence is to be measured by looking at the particulars of the charge proven against the defendant. They include the failure to instruct Mr Rowling not to climb into the pipe but not Mr Dewar as he was not present at the conversation on 24 June 1996. Most of the particulars relate to the failure to assess the risks in terms of isolation of the area in which work was being carried out and the inherent risk associated with working in confined spaces. Those risks all flow from the finding that the relevant failure was not to prohibit any work inside the Pit or the pipe from being carried out on 25 June 1996. Once that finding is made it is clear that the objective quality of the offence is a moderate to serious one. · The particulars of the charge relate mainly to the identification of and the need for a risk assessment arising out of working in a confined space. The defendant had no idea that the workers were going to be working in a confined space. It was his understanding that the only work to be carried out on the day was the excavation of the 45-degree bend. If this is taken into account, the Court ought find that although the outcome was certainly serious, the quality of the breach of the defendant was not intentional or recklessly indifferent to the safety of workers; there was no intentional or deliberate act on the part of the defendant, rather it was inadvertence. · The defendant believed that the responsibility for safety rested mainly with Ledonne Constructions. · Other relevant considerations include: the defendant is an individual person and not a large corporation; the defendant's income is modest; the defendant has voiced his remorse; the defendant was not aware of his obligations under the occupational health and safety legislation; the defendant has taken steps since the accident to modify the way in which he carries out his work; the defendant's occupational health and safety procedures have been accredited by Sydney Water and he is currently engaged by them; the defendant has no prior convictions; the maximum penalty under the Act is $50,000; the defendant's breach whilst moderate to serious is not a worst case. Consideration 13 Both counsel for the prosecutor and the defendant have referred, correctly in my opinion, to the fact that the defendant's culpability in this matter stemmed fundamentally from his failure to take positive steps to ensure that the idea, floated at the meeting on the afternoon of 24 June 1996, of Mr Rowling going into the pit and outlet pipe to investigate the cause of the leak was unequivocally quashed or, if it was to go ahead, that instructions were given and arrangements made to ensure it was done safely. 14 Ms Nomchong, for the defendant, conceded that whilst the objective nature and quality of the offence was "moderate to serious", the Court should have regard to the defendant's: 1) Belief that he "had no idea that the occupational health and safety requirements under the Act were part and parcel of my responsibilities as a project manager" and believed that they were the responsibility of Ledonne Constructions. 2) Inadvertence rather than any deliberate act or reckless indifference, noting that Mr Dewar and Mr Rowling entered the pit and outlet pipe of their own accord. 15 The defendant was a civil engineer and had been in business as a project manager for approximately ten years. He was contracted by Ledonne Constructions to be the project manager at the Mount Keira site. That is, he was responsible for that work falling within the scope of the contract between Ledonne Constructions and Sydney Water Corporation Limited at the Mount Keira Reservoir, Mount Keira, which involved the construction of a booster pumping station. There was no evidence to the effect that Ledonne Constructions had specifically said to the defendant that it was his responsibility to manage occupational health and safety on the project, although it was clear from the tender documents that occupational health and safety was an issue that had to be managed by someone.

16 The defendant said that he believed occupational health and safety was the responsibility of Ledonne Constructions, although it was not evident to me that there was any other person on the site of the project representing Ledonne Constructions who, it could reasonably be said, could have assumed the day-to-day managerial responsibility for occupational health and safety on the project. It seems to me that the obvious person to do so was the defendant. Being a civil engineer with ten years' experience, it should have been obvious to Mr Jabboury, as the person in charge of the project, that the responsibility for occupational health and safety lay with him.

17 In my opinion, the simple fact was that neither Ledonne Constructions nor the defendant were conscious of the critical role occupational health and safety must be afforded in any work environment, whether the work is managed by a corporation or self employed person. In this respect, in WorkCover Authority of New South Wales (Inspector Thomas Clark) v Ledonne Constructions Pty Limited [2001] NSWIRComm 272, I commented at [19] that: The reality in this case was that the defendant had virtually no system in place for ensuring the health and safety of employees or any other persons in circumstances where they might perform work in confined spaces. The managing director of the defendant frankly admitted that, in effect, he relied on his employees to look after their own safety. There was, in my opinion, a most regrettable, and ultimately tragic, absence of safety consciousness on the part of the defendant.

18 In relation to the question of inadvertence, I accept that the defendant did not direct Mr Rowling to enter the Pit and the outlet pipe on 25 June 1996 and that his expectation was that this would not occur. Thus, it might be said that the defendant's failure was due to inadvertence rather than any deliberate act or omission or reckless indifference. To this extent I am prepared to give the defendant the benefit of the doubt. However, as I said in the earlier judgment, following the meeting on 24 June 1996: Mr Rowling was left with the reasonable impression that either there was no objection to the proposal, or that there was tacit approval of the proposal, that as part of the procedure for repairing the leak, there should be an internal inspection of the pipe to check on whether the seal had been made good and that he proceeded to embark on that course of action the following day.

19 The defendant should have made it abundantly clear to Mr Rowling that he was not to enter the pit or the outlet pipe or if he was to do so, it had to be under the most stringent safety conditions laid down in the relevant instructions relating to working in confined spaces. If Mr Rowling had been clear about this, in my opinion he would not have entered the pit or the outlet pipe and it follows that there would have been no reason for Mr Dewar to do so or, if he attempted to do so, he would have been told of the instructions forbidding entry or, if entry were to be effected, he would have been told of the safety precautions that were to apply.

20 As to the question of foreseeability, that employees and other persons might work in an inspection pit in circumstances where it could be regarded as a confined space, or enter a water main pipe during the course of work on the project and become subject to risks was, in my opinion, entirely foreseeable, not only because of the general nature of the work being supervised by the defendant of laying pipes, constructing pits and connecting valves and fittings, but also in the manner described by the Court in the earlier judgment as follows: 29 The fact that the defendant gave instructions on 24 June that the work to be done the following day was to clear the concrete from around the leaking pipe, did not carry with it an unambiguous implication that no attempt should be made to enter the outlet pipe. Mr Rowling obviously saw the removal of the concrete and entry into the pipe as part of the one operation to repair the leak. Absent any instruction not to enter the pipe there was no work-related reason why the straub coupling and spigot valve connector could not have been removed and an internal inspection carried out of the site of the leak while the concrete was being cleared. Of course, what Mr Rowling overlooked, as did the defendant, were the risks associated with doing so. In fact, the defendant candidly admitted in his evidence that, following the discussion with Mr Rowling on 24 June about the prospects of an internal inspection, he gave no further thought to questions of safety; he gave no thought to the prospect of Mr Rowling and others doing what they did in entering the Inspection Pit and outlet pipe and being exposed to the risk of inundation by whatever means that might occur. Given his conversation with Mr Rowling it was reasonably foreseeable on the defendant's part that, in the absence of an express direction to the contrary, Mr Rowling might well do what he proposed and that if he did, he would be at risk unless measures were taken to ensure the safety of Mr Rowling and others.

21 In my opinion, the offence with which the defendant has been found guilty was, indeed, serious. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence or the amount of penalty but the occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29 at [94]-[95]. It is plain in this case, involving as it did a death, that the consequences of the breach of the Act were most serious.

22 The defendant has no previous convictions and operates in an industry that might be described as hazardous. The defendant has also taken some measures to improve his occupational health and safety practices. However, both general and specific deterrence should feature in the assessment of penalty in this matter: Capral Aluminium at [73]- [74]. In my opinion, there is a clear need in this case to compel the defendant's attention to "occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388. Moreover, as Walton J, Vice President observed in WorkCover Authority of New South Wales (Inspector Lyons) v Warman International Limited (2001) 105 IR 236 at [80]: 80 In my view, and having regard to the principles of sentencing in Capral , specific deterrence should feature in the assessment of penalty in this matter. The defendant has conceded that it was unaware of, and had taken no steps to, assess the risks to safety of employees engaged in the process giving rise to the incident. It is necessary, in these circumstances, to ensure a sufficient level of diligence in the defendant searching for, identifying and removing risks to safety (even where the work to be undertaken does not form part of the defendant's ordinary work practices). This will be so in a hazardous industry, although regard needs to be paid, as noted in Capral , to the particular circumstances of the offence and the offender. 23 In considering the subjective factors, it is to be noted that the defendant pleaded not guilty and consequently there is no entitlement to a discount on the sentence based on utilitarian considerations. Matters that Ms Nomchong urged me to take into account in mitigation included: the improvements the defendant has made to his occupational health and safety practices and procedures; that the defendant only earns a "modest income" and is an individual person and not a corporation; the defendant's expression of remorse; and, the fact that the defendant has no prior convictions.

24 As to the improvements to the defendant's occupational health and safety practices, but for the defendant's accreditation by Sydney Water, I would not have been prepared to give this much weight. As Mr Millar for the prosecution pointed out, the defendant has not undertaken any occupational health and safety training since the incident on 25 June 1996 and one wonders about the usefulness of such improvements, especially in the absence of any material demonstrating the nature of them. However, in WorkCover Authority v Sydney Water Corporation Limited I noted that SWC had imposed a requirement on contractors to have specific occupational health safety and rehabilitation (OHS&R) management systems in place prior to the commencement of works. Specifically, contractors are required to prepare and submit Site Safety Management plans and Work Method Statements that comply with the New South Wales Government OHS&R Guidelines. Given that SWC has accredited the defendant in relation to occupational health and safety, this affords some credibility to the defendant's submission that he has made improvements to his occupational health and safety practices and procedures.

25 It was submitted that the defendant earns only a modest income. Placed into evidence were income tax returns for 1996, 1997, 1999 and 2000 as well as a letter from the defendant's accountants in relation to his probable earnings for the 2001 financial year. What was not put into evidence was information about the defendant's overall assets and liabilities. Moreover, no submission was made to the effect that the defendant did not have the means to pay any fine imposed except that he has "limited means to pay a substantial fine." Nevertheless, I note the approach by a Full Court of the former Industrial Court in Haynes v C I & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 at p 457: In a number of cases decided under the OHS Act where the corporate structure of the defendant has been shown to be little more than the means of distribution of earnings arising from personal exertion, or where, as a matter of corporate structure, the burden of any fine levied would fall on one person or one family group ownership, the Court has seen it appropriate to impose a fine substantially less than if the corporation was functioning as a company with assets of a substantial kind. (See Gordon v MIJO (NSW) Pty Ltd; Ford v Warrah Ridge Pastoral Company Pty Ltd (unreported, Bauer J, 23 September 1994, Matter No CT1109 of 1993); Robins v C T Plumbing Pty Ltd (unreported, Fisher P, 16 December 1991, Matter No 522 of 1991) and Mauger v Krcmar Engineering Pty Ltd [1993] 47 IR 359).

We consider that as precedent has been developed there are two strands to the consideration of fines under the OHS Act. The first comes into play when the defendant is an individual and there is no corporate structure. Where the defendant is a company with the structure as above considered, the principles and approach adopted in the cases above cited are to be applied.

26 I accept that the defendant is indeed remorseful and I note that over the ten years that the defendant has operated, no convictions have been recorded against him.

27 Mr Millar properly submitted that I should have regard to the principle of totality. The issue of totality was addressed by Hungerford J in WorkCover Authority of New South Wales v Byrne Civil Engineering Constructions Pty Ltd (No 2) (2001) 104 IR 268. At par 20 his Honour said: I should only add in terms of approach that I am very conscious the present charge under s 16(1), although a single offence, contains eight multiple failures or contraventions of the section and is, therefore, to be considered by application of the principle of totality. As was observed recently by a Full Bench of this Court in Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 at pp 196-197 in par [36] : [36] ... Where the multiple offences contain common elements, the principle of totality must, for that reason alone, be applied to ensure that the defendant is not punished more than once for the common elements of the offences and to avoid the double jeopardy that would follow if that occurred. ... That approach, although relating to common elements in multiple offences under s 15 and s 16, was adopted by the Full Bench in Manpac Industries (in par [75]) where their Honours said that the approach to the problem so stated was "conceptually of assistance in resolving the present issue of multiple contraventions being charged as a single offence because, after all, in both situations the aim must be to avoid excessive or double punishment for common elements". Accepting, as I do, that I am bound to follow the same approach, I would wish to state I am in respectful agreement with it as being sound in both logic and common sense as part of the sentencing process.

28 There was, as Mr Millar conceded, "some degree of overlap" in the particulars and I am conscious of the need to avoid double punishment. For example, if the defendant had undertaken a risk assessment, it is reasonable to assume he would have identified the need to isolate the water at the inspection pit, identified the need for training in relation to working in confined spaces and in the absence of the necessary precautions being taken would have instructed Mr Rowling not to enter the outlet pipe. 29 Mr Millar also submitted that I should have regard to the principle of parity in sentencing the defendant. That is, I should have regard to the sentences imposed on SWC, AWT and Ledonne Constructions. In WorkCover Authority of NSW (Inspector Clark) v Sydney Water Corporation Ltd, which related to the same incident that is presently before me, SWC was charged under s 16(1) of the Act and AWT was charged under s 15(1). A penalty of $150,000 was imposed on SWC, it being noted that the maximum penalty was $750,000. AWT was fined $112,500 on the basis of a maximum penalty of $500,000. Ledonne Constructions was charged with two offences under s 15(1) and one offence under s 16(1) with a maximum penalty of $500,000 for each offence. The fine imposed on Ledonne was as follows: 31. In considering a just and appropriate penalty in this case I have considered the objective seriousness of the offences; subjective factors including a plea of guilty, contrition, the defendant's previous good record and measures taken by the defendant to improve health and safety and avoid future risks to employees and other persons and the need for parity and consistency in sentencing. I find as follows: Matter No IRC98/3394

I consider an appropriate penalty to be $150,000. As to the utilitarian value of the plea of guilty I allow 12.5 per cent discount upon the penalty and in respect of contrition, the defendant's previous good record and the measures taken after the incident to ensure the health and safety of employees and other persons, I allow a further 12.5 per cent.

I consider an appropriate penalty to be $80,000. As to the utilitarian value of the plea of guilty I allow 12.5 per cent discount upon the penalty and in respect of contrition, the defendant's previous good record and the measures taken after the incident to ensure the health and safety of employees and other persons, I allow a further 12.5 per cent.

I consider an appropriate penalty to be $160,000. As to the utilitarian value of the plea of guilty I allow 12.5 per cent discount upon the penalty and in respect of contrition, the defendant's previous good record and the measures taken after the incident to ensure the health and safety of employees and other persons, I allow a further 12.5 per cent. 32. On the basis of the foregoing, the total penalty would be $292,500. However, there is a very considerable overlap in the failures charged in the three offences. Applying the totality principle, I consider that the total fine should be $180,000 with the penalty for each offence being: Matter No. 98/3394: $68,400 Matter No. 98/3396: $37,800 Matter No. 98/3398: $73,800 30 Parity and consistency of sentencing was dealt with extensively in Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71. At pars 61-66 the Full Bench (Wright J President, Walton J Vice President and Kavanagh J) said: 61 The appellant submits that the sentence in this matter involves a significant disparity with other sentences imposed under the present form of the Act. It submits that Hungerford J erroneously exercised his discretion in failing to, or failing to correctly, apply the principles of parity. It is submitted that it is the responsibility of this appellate bench to correct a sentence which is out of line with the commonly accepted sentence pattern: see R v Visconti [1982] 2 NSWLR 104 at 108. In support of its submissions the appellant has provided a schedule of recent judgments and the penalties imposed thereby. The schedule initially filed was amended at the hearing. 62 It is important to observe the distinction between, and the differing application of, the principles of parity and consistency. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime and thus is not relevant in this matter. However, as Walton J, Vice-President, observed in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (unreported, IRC98/1104 and IRC98/1106, 4 February 2000 at 103): Whilst the principle of parity normally operates in relation to co-offenders or across the range of those convicted of the offence in question (see Signato v R (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which "shows consistency and not disparity in punishment in the same way as discussed by Mason J in Lowe v The Queen " where there exists common factual circumstances giving rise to the charges. It should also be noted that the Court considered parity in Warman in the context of a labour hire company and the defendant who utilised that labour. Hence, the decision in Warman would require that the defendants, even though prosecuted under different sections of the Act, shall be treated consistently in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606 … 63 When sentencing or hearing appeals by different offenders, what must be looked at is whether the sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range: see R v Morgan (1993) 70 A Crim R 368 where Hunt CJ at CL said, at 371: It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe v The Queen (1984) 154 CLR 606 at 612: "The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty." 64 In Channon v The Queen (1978) 20 ALR 1 at 18, Deane J observed: In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropriate punishment for the particular offence in the relevant circumstances. 65 As recently observed by Barr J and McInerney AJ in the Court of Criminal Appeal "each case is different, and one case does not demonstrate the limits of a sentencing Judge's discretion": R v Stahl [1999] NSWCCA 160 at 10.

66 The principle of consistency is relevant to this appeal, as it is a reflection of the notion of equal justice, a fundamental element in any rational and fair system of criminal justice. See for example R v Henry (1999) 46 NSWLR 346 at 353 where Spigelman CJ said: 12. As I indicated in Jurisic , the purpose of a guideline judgment is to foster consistency in sentencing. The importance of consistency was well expressed by Mason J in R v Lowe (1994) 154 CLR 606 at 610 - 611: "Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice." and see also R v Howland at 43 - 44 per Spigelman CJ.

31 Ledonne Constructions, SWC and AWT were, of course, corporations and the maximum penalties in each case were much greater than that which applies to the defendant. The maximum penalty in respect of the defendant is $50,000. In applying the principle of consistency of sentencing, complications in making comparisons also arise out of the guilty pleas by SWC, AWT and Ledonne Constructions compared to the not guilty plea of the defendant and there is the application of the totality principle in relation to Ledonne Constructions to be taken into account.

32 In assessing penalty I have taken into account the penalties imposed in respect of SWC, AWT and Ledonne and the need to achieve consistency in sentencing in accordance with the principles in Lowe v The Queen (1984) 154 CLR 606. I consider that the defendant's level of culpability, compared to that of Ledonne Constructions, is relatively greater. Having regard to the objective features of the offence and after discounting for the subjective factors, I consider that the appropriate penalty with regard to the offence as charged is $16,000. The prosecutor should have a moiety of the fine.

33 In relation to costs, I note that the parties are to have some discussions relating the certain charges that were laid against the defendant and subsequently withdrawn. I propose to make the usual order as to costs. If the parties are unable to agree, the matter may be restored to the list.

1. The defendant is convicted of the offence charged. 2) The defendant is fined an amount of $16,000 with a moiety to the prosecutor. 3) The defendant shall pay the prosecutor's costs as agreed. In default of agreement the matter may be restored to the list.

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