Workcover Authority of New South Wales (Inspector Hamilton) v Darren Thomas Andrew Smith [2006] NSWIRComm 118 (26 June 2006)

Last Updated: 26 June 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : WorkCover Authority of New South Wales (Inspector Hamilton) v Darren Thomas Andrew Smith [2006] NSWIRComm 118

FILE NUMBER(S): IRC 1939

HEARING DATE(S): 5/4/2006

DECISION DATE: 07/04/2006

PARTIES:

PROSECUTOR:

WorkCover Authority of New South Wales

(Inspector Hamilton)

DEFENDANT:

Darren Thomas Andrew Smith

JUDGMENT OF: Staunton J

LEGAL REPRESENTATIVES

PROSECUTION:

Mr P Skinner of counsel

SOLICITORS:

Moray & Agnew Solicitors

DEFENDANT:

Dr J Berwick of counsel

SOLICITORS:

Craddock Murray Neumann Lawyers

CASES CITED: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610

Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng)(1999) 90 1R 432

Ferguson v Nelmac Pty Limited (1999) 92 IR 188

Inspector Yeung v Donald Wilson trading as Wilson's Tree Service [2004] NSWIRComm 346

Inspector Yeung v Donald Edwin Wilson trading as Wilson's Tree Service [2005] NSWIRComm 158

Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464

Markarian v The Queen [2005] HCA 25: 18 May 2005

R v Gallagher (1991) 23 NSWLR 220

R v Thomspon; R v Houlton (2000) 49 NSWLR 383

R v Way [2004] NSWCCA 131

State Rail Authority (New South Wales) v Dawson (1990) 37 IR 110

Thorneloe v Filipowski (2001) 52 NSWLR 60

WorkCover Authority (Inspector Farrell) v Ross Collin Morrison [2001] NSWIR Comm 325

WorkCover Authority of New South Wales (Inspector Farrell) v David Karl Schrader (2002) 112 IR 284

WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Home Building Act 1989

Occupational Health and Safety Act 2000

JUDGMENT:

- 1 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Staunton J

DATE: 7/4/2006

Matter No IRC 1939 of 2005

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

Prosecution arising under s 9 of the Occupational Health and Safety Act 2000

JUDGMENT

[2006] NSWIRComm 118

1 The defendant, Darren Thomas Andrew Smith has entered a plea of guilty in relation to an offence arising under s 9 of the Occupational Health and Safety Act 2000.

2 The defendant is a licensed electrical contractor and trades as an electrical contractor under the name of MacMasters Beach Electrical. The defendant had agreed to carry out electrical contractor work for a Mrs Jenny Thompson at her residence located at 13 Brougham Street, East Gosford. The work was undertaken on 19 May 2004. In order to carry out the work, the defendant engaged the services of two other electrical contractors, Mr Stephen Lee and Mr Max Hill.

3 The incident that gave rise to the offence involved Mr Lee. On 19 May 2004, Mr Lee was working on an electrical circuit unsupervised. Unbeknown to him, the circuit was live and connected to the energy supply.

4 At a time when he was undertaking that work, Mr Hill was found unconscious near the site where he had been working. He had suffered a hypoxic brain injury which resulted in a cardiac arrest. He required hospitalisation.

5 Notwithstanding the presence of the live circuit and Mr Hill's unconscious state when found, the cause of Mr Hill's injuries could not be identified.

6 As a consequence of the above events, the defendant was charged with an offence under s 9 of the Occupational Health and Safety Act 2000. In relation to that offence, it is alleged that on 19 May 2004 the defendant:

DID FAIL contrary to s 9 of the Occupational Health and Safety Act 2000 to ensure that people other than the defendant's employees and including Stephen Lee ('the worker') were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking, to wit the electrical re-wiring of the premises pursuant to an agreement with the owner of the premises, while they were at the defendant's place of work, namely the premises.

7 The particulars of that charge are:

1. The defendant did not provide and maintain a safe system of work in respect of his undertaking at the premises in that:

(a) there was no site specific Safe Work Method Statement provided to the worker for the conduct of the work being conducted at the time of the accident;

(b) the conduct of electrical installation work involving electrical cabling which had not been isolated or disconnected from the electrical supply was unsafe;

(c) the defendant failed to conduct sufficiently regular checks to ensure the electrical circuits being worked upon were not energised at any time and remained that way until such work was completed as required by clause 207(3)(a) of the Occupational Health and Safety Regulation 2001;

(d) the defendant as the qualified person responsible for the work being conducted at the premises, was not present at all times to supervise the worker who was unlicensed, as required by s 14 of the Home Building Act 1989.

2. The defendant failed to provide such supervision and instruction in relation to the conduct of the electrical work being conducted as was necessary to ensure the worker's safety at all times.

3. The conduct of the work of electrical wiring to the stove circuit of the premises when power to that circuit had not been isolated was unsafe and involved risk of injury to the worker.

8 An agreed statement of facts was tendered by the prosecution, which discloses the events that gave rise to the offence. They are as follows:

[1] At all material times the defendant, Darren Thomas Andrew Smith was a self- employed person of 13 Wards Road, Bensville in the State of New South Wales.

[2] At all material times the defendant was a licensed electrical contractor, Licence No. 49426C and conducted the business of electrical contracting under the trade name, MacMasters Beach Electrical.

[3] At all material times the defendant engaged the services of Stephen Lee ('the worker') and Max Hill ('Hill') to conduct electrical contracting work in respect of contracts undertaken by the defendant in the course of the business known as MacMasters Beach Electrical.

[4] Both the worker and Hill worked fulltime for the defendant and were paid on an hourly rate basis. Payments were made to both the worker and Hill by cheque following submission of invoices from them to the defendant setting out details of their hours and entitlement.

[5] Both the worker and Hill provided their own tools in respect of the work they conducted on behalf of the defendants business and the defendant provided the materials required in respect of the contracts undertaken.

[6] The owner of the premises, Mrs Jenny Thompson, at some time prior to 19 May 2004 had obtained and agreed with the defendant on a quote to carry out a complete rewiring of the premises.

[7] Prior to 19 May 2004 the defendant reached agreement with Mrs Thompson to conduct the work at the premises in accordance with a quote provided to her.

[8] The defendant engaged the worker and Hill to carry out the work at the premises pursuant to the defendants agreement with Mrs Thompson.

[9] At all material times the worker was not a licensed electrical contractor. The worker was engaged by the defendant as a trades assistant on the basis that he was required to work in conjunction with a qualified tradesman under close supervision.

[10] At all material times Hill was not a licensed electrical contractor. Hill was engaged by the defendant as a trades assistant on the basis that he was required to work in conjunction with a qualified tradesman under close supervision.

[11] At all material times the worker had undergone a technical course of training as well as practical training over a number of years but had not yet completed his training.

[12] At all material times the work undertaken in respect of the job at the premises involved a total rewire of the premises, which was a relatively old cottage.

[13] It was the defendants practice to meet the worker at the job being conducted each morning in order to go through details of the job and the manner in which it was going to be carried out.

[14] In respect of the job at the premises on 19 May 2004 the defendant had attended there initially in the morning at around 7.30am when he provided details to the worker and Hill as to what was required. He then left the premises and returned at about mid-morning and then left again and returned at approximately 1.30pm and left shortly afterwards.

[15] The defendants practice when he visited the job site on each occasion was to walk around the site with the trades assistants and supervise their work and make sure that they were conducting it properly.

[16] During the afternoon of 19 May 2004 the worker was engaged in wiring power circuits under the house. This involved drilling up through the bottom plate and cutting in power points.

[17] At all material times on 19 May 2004 Hill was conducting the work of wiring up new lights and stripping out old metal conduit and old light circuits from the ceiling of the premises.

[18] The defendant, when he attended the premises at around 1.00 to 1.30pm, delivered some additional material for the worker and Hill which was needed for the job. He then left the premises to go to another job.

[19] At all material times after the defendant left the premises at about 1.30pm, both the worker and Hill worked without the supervision of a licensed tradesman.

[20] The worker had been working in the lounge room of the premises for about 10-15 minutes prior to being found injured and was heard by Mrs Thompson to say to Max Hill I've only got the stove circuit to do.

[21] At about 2.45pm on 19 May 2004 Hill was requiring some assistance with the work he was carrying out inside the house and he went outside the premises in order to find the worker and obtain his assistance. At this point he saw the worker lying face down on the front lawn of the premises in an apparent state of sleep. Hill then attempted to wake the worker by shaking him but received no response and when he checked the workers eyes they were open and he was bluish in colour and a check of his pulse revealed that it was faint.

[22] At all material times prior to the worker being found by Hill on the front lawn of the premises, the worker had been conducting work involving the electrical wiring under the house.

[23] Shortly after the worker was found unconscious, an inspection of the wiring under the house upon which the worker had been working revealed that the electrical circuit situated under the house in respect of the stove was live or energised.

[24] The worker was attended by ambulance officers and taken to Gosford Hospital where he was diagnosed as suffering from a hypoxic brain injury which resulted in cardiac arrest and subsequent lack of blood flow to the brain. However, the cause of the injury could not be identified.

[25] Since undergoing a period of rehabilitation the worker has been able to resume some part-time selected duties work with the defendant.

9 The prosecution has also tendered, without objection, a bundle of documents comprising:

(i) A Factual Inspection Report prepared by Inspector Vic Page, dated 24 May 2004;

(ii) A NSW Police Service COPS Report (Event Reference No: E 2060808372), dated 7 July 2004; and

(iii) A Safe Work Method Statement prepared by Mr D Smith, dated 24 March 2003.

10 Also tendered by the prosecution were a number of photographs of the premises where the incident occurred, which have assisted me in understanding the nature and layout of the work site at which the accident occurred and the circumstances in which the incident took place.

11 The defendant has no prior convictions. On behalf of the defendant, an affidavit was tendered without objection on which brief oral evidence was elicited.

Relevant principles

12 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account.

13 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]:

....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.'

14 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474.

15 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646.

16 On the issue of foreseeability, the Full Bench in Capral also stated:

The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:

... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.

17 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows:

... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

18 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]:

... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c).

19 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure:

... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender.

20 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]:

Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. ... (emphasis added)

21 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]:

... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...

22 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to.

General considerations

23 As the defendant has no prior convictions, the maximum penalty which can be imposed is $55,000.

24 Despite the fact that Mr Lee was found lying face down in an unconscious state at a time when, as it later became apparent, he was working on a live electrical current, there is insufficient evidence to establish beyond reasonable doubt that Mr Lee actually suffered an electric shock.

25 In my view, it is not necessary for me to determine beyond reasonable doubt a causal relationship between the risks to safety to which the defendant has pleaded and any specific injury that arises or potentially arises. They are matters which require to be considered as part of the objective seriousness of the offence.

26 Decisions of this Court have made it abundantly clear that the mere occurrence of an accident causing injury to an employee is not in itself sufficient to establish the commission of an offence. This well established proposition was expressed by the Industrial Relations Commission in Court Session in State Rail Authority (New South Wales) v Dawson (1990) 37 IR 110 and particularly as follows at pp120-121:

Although s15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some casual nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J in McMartin v The Broken Hill Proprietary Company Limited ((1998) unreported) to the effect that 'it is necessary that a casual nexus be shown between such a breach and the fact of detriment to safety.'

27 The above approach was further considered and affirmed in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 1R 432 at 449-450 as follows:

However, a number of decisions of the Court have demonstrated, appropriately in our view, that the mere occurrence of an accident causing injuries to employees of the defendant is not sufficient in itself to prove the commission of an offence under s15(1). It is necessary to establish both a relevant 'failure' on the part of the employer and a causal relationship between the conduct of the defendant and the consequent risk to the health, safety or welfare of its employees. (my emphasis)

28 What is important to remember about the above authorities referred to is that they are all decisions where, at first instance, the defendant had entered a plea of not guilty, arguing the absence of a causal nexus between the defendant's failures as particularised and the consequent risks to safety arising. That is not the case here. In this matter the defendant has entered a plea of guilty to the offence as particularised and, in doing so, concedes that those particulars, at the relevant time, constituted risks to the safety of Mr Lee.

29 By reference to the above authorities, there needs to be established a causal relationship linking the defendant to the safety detriments identified and the consequent risk to health and safety arising to the worker concerned. By entering its plea, the defendant has embraced without demur his failures as pleaded and, in doing so, has accepted the causal link between them and risks to the health and safety of Mr Lee that arose as a result of the failures particularised. As was stated by Walton J Vice-President in WorkCover Authority (Inspector Farrell) v Ross Collin Morrison [2001] NSWIR Comm 325 at [43]:

It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident.

30 The incident that occurred on 19 May 2004 involving Mr Lee highlighted the clear obligation on the part of the defendant to ensure that a safe system of work was in place for the task of performing electrical wiring work. Given the well known risks associated with working on electrical circuits, serious injury was foreseeable if those risks were not addressed.

31 As was stated by the Full Bench in Capral at 650 ‘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’.

32 As has been set out in the agreed facts, Mr Smith was involved in the business of electrical contracting work. Mr Smith was self-employed but he also engaged Mr Lee and Mr Hill as electrical trade assistants to help carry out the work. Neither Mr Lee nor Mr Hill were licensed electrical contractors. They were both in the process of completing TAFE courses in electrical trades and were retained on the basis that they were to conduct the work under the supervision of a qualified tradesman.

33 As the agreed facts disclose, Mr Smith was not present at the worksite at all times in order to supervise Mr Lee and Mr Hill. He was there at the commencement of work in order to give Mr Lee and Mr Hill general instructions and then called in a couple of times during the day. In my view, leaving unqualified tradesmen to undertake electrical work largely unsupervised would certainly heighten the possibility of potential risks to safety arising. As the offence particulars plead, inter alia, the failure by Mr Smith to supervise Mr Lee 'at all times' was in contravention of s 14 of the Home Building Act 1989.

34 Reference to s 14(2) of the Home Building Act 1989 provides for a maximum penalty of 200 penalty units in the case of an individual such as Mr Smith. However, the prosecutor was not pressing any offence specific to the Home Building Act in the proceedings before me but, as I would understand it, relies on those provisions to reinforce the defendant's failure of adequate supervision as pleaded referable to s 9 of the Occupational Health and Safety Act 2000.

35 In assessing the culpability of the defendant, it is a relevant consideration that the work being performed by Mr Lee at the relevant time was work involving considerable risk if proper precautions were not in place. Specifically, the system of work in working on electrical rewiring required controls in place to guard against the well recognised hazard of electrical shock.

36 The defendant was well aware of that identified hazard. That much is evident by a Safe Work Method Statement prepared by the defendant in March 2003 in relation to a project undertaken involving an identified hazard of 'electric shock' as part of general construction work being undertaken at that time.

37 The defendant's identified method of dealing with the identified hazard of 'electric shock' was to:

Ensure all electrical appliances are regularly inspected and tagged.

38 While that above-mentioned Safe Work Method Statement dealt with the use of electrical appliances in general construction work, it clearly identified the widely recognised hazard that electrical work involves and the need to have controls in place to address it. Mr Smith has acknowledged that in his affidavit as follows:

Annexed hereto and marked "A" is a true copy of a Work Method Statement Document which I now utilise on all my jobs.

This document has been taken from the WorkCover website.

It is now my regular practice, in consultation with workers on site, to go through this work method statement with specific reference to particular hazards that might exist on any site.

39 In relation to the factual circumstances giving rise to the offence as particularised, the Police COPS Report succinctly reported as follows:

Energy Australia personnel contacted and attended scene. Stated nothing suspicious located, however, noted that stove wire would have been 'live' if circuit breaker in the on position. Voltage from the wire was 246 volts. Correct procedure would have been to have circuit breaker in the off position, and tagged to ensure no person turned switch back on. It appears this procedure has not been followed.

40 Given all of the above, it is clear there was a potential risk for serious injury to arise in the work being undertaken by Mr Hill. In isolation, the potential for ‘serious consequences’ is not conclusive of the nature and quality of the offence, but it is clear that such a factor should be considered when assessing the ultimate culpability of a defendant.

41 As was stated in Capral at 646, the existence of a reasonably foreseeable risk of injury ‘will necessarily result in the offence being more serious in nature’. As such, the starting point for the determination of culpability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. ( Lawrenson Diecasting at 476).

42 It is also relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable.

43 There can be little argument, in my view, that the steps to be taken to de-energise the live wire were well known to the defendant prior to 19 May 2004 and readily and easily able to be addressed. As well, as the evidence discloses, the defendant was well aware of the need to have a site specific Safe Work Method Statement for the work to be undertaken. He had done one before. As that document discloses, the purpose of such a document is to identify potential hazards or risks to safety in the particular workplace and how to safely control them. There is no doubt, in my view, that if such a task had been done on 19 May 2004, the potential hazard of working on a live wire would have been identified and the safety control of ensuring the electrical circuitry of the premises was de-energised at all times and the circuit breaker properly tagged would have been done.

44 Further, there is no evidence to explain away Mr Smith's failure to properly supervise his unqualified tradespeople. It was his responsibility to do so and he was well able to. He has acknowledged his awareness of that requirement prior to 19 May 2004.

45 Given the facts and circumstances of this matter and the principles to which I have referred, I assess the offence as objectively serious and will determine penalty on that basis.

46 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that:

We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process.

47 The nature of the industry in which the defendant operates is one with real and potential risks to safety. Working with electrical components and circuitry with the potential for them to be live if proper controls are not observed is ever present. In the circumstances, I consider general deterrence cannot be ignored as a relevant factor in my penalty considerations.

48 In respect of specific deterrence, the Full Bench held in Capral at 644-645:

In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act.

49 The defendant continues to operate albeit as a small business. I accept he has taken steps to put in place remedial measures designed to ensure that, in the future, his systems of work in dealing with electrical circuitry properly address potential hazards such as live wires. He has acknowledged his responsibility to be present 'at all times' in relation to unlicensed contractors. As well, he now has a Safe Work Method Statement for each job undertaken. Such steps should temper the weight I give to specific deterrence in my sentencing considerations.

50 In exercising my sentencing discretion, it is clear that the defendant's financial position is a factor to be given due consideration. That submission is premised on s 6 of the Fines Act 1996 which states as follows:

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and

(b) such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. (emphasis added)

51 On behalf of the defendant, a brief outline of his financial position was provided. The defendant is a married man with three children under six years of age. He and his wife have a family home with a current mortgage of approximately $300,000. The combined income of the defendant and his wife in the last full financial year was some $66,000. Further, the defendant's own income for that year was approximately $20,000. It is a picture of limited financial means.

52 The defendant continues to operate his electrical contracting business. It is, on any view, a small operation. In addition to himself, he engages one sub-contractor as required.

53 In WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 the Full Bench cited, with approval, the decision of Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed:

... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence.

54 There will be circumstances, however, where it is appropriate that the quantum of penalty imposed be reduced in light of a defendants limited means or impecuniosity. In the decision of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Farrell) v David Karl Schrader (2002) 112 IR 284 his Honour held at para [86]:

Having regard to the aforementioned authorities regarding the relevance of the financial means of a defendant, I shall significantly reduce the amount of the fine which would have otherwise been ordered to be paid by the defendant due to the defendant's limited means and impecuniosity.

55 Finally, in relation to a defendant's ability to pay, I note the observation of the Full Bench in Obing at [51] as follows:

... where a defendant desires to plead incapacity to pay as a determinative issue in the imposition of penalty, it behoves the defendant to discharge the onus that such a submission invokes by placing before the Court all of the information it relies upon in support of that submission in order for the Court to give that information proper consideration in the exercise of its sentencing discretion.

56 In the circumstances, the information before the Court going to the defendant's limited means is scant to say the least.

57 No formal evidence was placed before the Court such as to permit me to make a more considered appraisal of Mr Smith's financial circumstances. Nevertheless, the information given as detailed above was not challenged by the prosecutor and I am prepared to accept it as an accurate description of the defendant as a person of limited means.

58 In the determination of penalty, the defendant is entitled to have taken into account the plea of guilty entered. In assessing the impact of the plea, the Court is guided by the decision of R v Thomspon; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. I assess that discount at twenty five per cent.

59 I accept there are subjective features that further assist the defendant in my penalty considerations. As I understand it, Mr Smith has actively assisted Mr Lee in his rehabilitation to the workplace. He has taken steps to address the workplace issues that the offence has highlighted. Further, while there was no statement to confirm it, there was equally no submission stating that Mr Smith had refused or failed to cooperate with WorkCover inspectors in their investigations. For my purposes, I believe I am entitled to conclude that proper cooperation was forthcoming.

60 Further, Mr Smith has been a qualified electrician for approximately sixteen years. He has worked on large construction sites as a supervisor and for the past six years he has worked as an independent contractor. He has had no prior involvement with any safety related workplace accidents.

61 Taking into account all the matters I have referred to, I determine a penalty in this matter of $6,000.

62 As is the usual course in such proceedings, the prosecutor sought an order for costs as agreed or assessed. In doing so, it was said such costs would be in the vicinity of $20,000.

63 No submissions were put to me on behalf of the defendant on this issue. Nevertheless, I expressed concern as to the overall financial impost that the penalty I have imposed as well as the costs order sought would have on the defendant and his family, let alone his business. The over-riding purpose of the Occupational Health and Safety Act is ultimately remedial and it is counterproductive, it seems to me, if having assessed the objective seriousness of the offence and exercised one's sentencing discretion having regard, inter alia, to the Fines Act, to then add to the penalty imposed a costs order that is punitive and harsh in its financial implications for the defendant. In effect, the costs of the proceedings becomes the penalty.

64 I have already expressed the conclusion that the defendant is a person of limited financial means. That is a factor I have taken into account in my penalty considerations.

65 The discretion inherent in the making of a costs order was considered by Boland J in Inspector Yeung v Donald Wilson trading as Wilson's Tree Service [2004] NSWIRComm 346. In those proceedings, his Honour had concluded that the defendant was 'relatively impecunious'. In considering an order as to costs, his Honour said at [53]:

Having weighed up the objective seriousness of the offence and the relevant subjective factors including, in particular, the defendant's relative impecuniosity, and noting that the purpose of costs is not punishment, I have decided the defendant will pay 20 per cent of the prosecutor's costs. As a consequence of the events of 3 July 2002, which was not all of his own making, the defendant and his young family face a period of quite severe emotional and financial hardship. I can see no point in adding to their difficulties by simply adopting the usual rule that costs follow the event. I do not consider in this case that to do so would be just and reasonable.

66 Ultimately, his Honour determined that the defendant should pay twenty per cent of the prosecutor's costs as agreed or assessed.

67 On appeal on this point, inter alia, the Full Bench stated (see Inspector Yeung v Donald Edwin Wilson trading as Wilson's Tree Service [2005] NSWIRComm 158) as follows:

[126] However, it is not in dispute the primary judge holds a very broad discretion to determine any order as to costs. Boland J exercised his discretion but did not follow the usual practice of awarding 100 percent of costs to the prosecution; rather he ordered a payment of 20 percent of the costs. The appellant does not challenge that within its discretion the court can depart from the “usual practice". The “usual approach”, the “general position” or "ordinary" approach is that costs will follow the event.

...

[133] His Honour, in our view, did not fall into error on the issue of costs. In accordance with established principle, the court must make its determination in accordance with s 6 of the Fines Act . The court must also set the appropriate penalty for the offence giving proper weight to the objective seriousness of the offence. The court must then determine the appropriate costs order. Such a consideration, in our view, may also take into account the financial situation of the defendant. In so ordering the court must then determine that the total fine and costs order be an "acceptable total" or as otherwise said "just and reasonable". If the total penalty and costs order is viewed by the court to be excessive the court must make an appropriate adjustment to the costs order. The total must not be disproportionate to the offence. Boland J took into consideration this latter step in his determination as to costs when he stated at [51]:

The prosecutor sought costs and a moiety of the fine. The defendant accepted that the usual order as to costs was that the defendant be required to pay the prosecutor’s costs in an amount as agreed or assessed. However, it was submitted, costs were ultimately in the Court’s discretion and the Court must exercise its discretion as to costs in accordance with what is just and reasonable.

68 I consider a costs order of approximately $20,000 together with the penalty I have imposed is not an 'acceptable total' or, as otherwise stated, 'just and reasonable' in the circumstances. Accordingly, I propose to exercise my discretion and modify the costs order sought.

69 In conclusion, I make the following orders:

(i) The defendant is guilty of the offence charged.

(ii) I impose a penalty in this matter of $6,000.

(iii) I allocate a moiety to the prosecution on the usual terms.

(iv) I order the defendant to pay thirty per cent of the costs of the prosecutor as agreed or assessed. Failing agreement within 28 days, the matter is to be referred to the Registrar for assessment.

LAST UPDATED: 07/04/2006