Inspector Karen Simpson v Poonindie Pty Ltd (trading as Ted Wilson & Sons) ACN 067 774 985 [2009] NSWIRComm 18 (26 February 2009)

Last Updated: 27 February 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector Karen Simpson v Poonindie Pty Ltd (trading as Ted Wilson & Sons) ACN 067 774 985 [2009] NSWIRComm 18



FILE NUMBER(S):
1236 and 1237

HEARING DATE(S):
25/07/08


DATE OF JUDGMENT:
26 February 2009

PARTIES:
PROSECUTOR:
Inspector Karen Simpson

DEFENDANT:
Poonindie Pty Ltd (trading as Ted Wilson & Sons) ACN 067 774 985

CORAM:
Backman J


CATCHWORDS: Occupational Health and Safety - Occupational Health and Safety Act 2000 - s 8(1) and s 8(2) - pleas of guilty - fatal accident involving crane coming into contact with overhead power lines at work site - objective seriousness of offences considered - systems in place prior to offences - risk to safety and foreseeability of the risk - general deterrence - specific deterrence - consequences - remedial steps available prior to offences - respective roles of defendant and other parties not prosecuted in relation to the circumstances giving rise to the offences - whether corporate structure may impact on penalty - subjective factors considered - totality - Orders: conviction, penalty and costs.

LEGAL REPRESENTATIVES
PROSECUTOR:
Mr S Crawshaw of senior counsel, with Mr B Docking of counsel
Solicitors:
Criminal Law Practice Legal Group WorkCover Authority of New South Wales (Ms Ramya Panagoda)
DEFENDANT:
Mr J Phillips of senior counsel, with Mr J Kearney of counsel
Solicitors:
McIntosh McPhillamy & Co
(Mr M Schwab)

CASES CITED:
Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123
Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2005) 105 IR 181
Department of Mineral Resources (Chief Inspector Mackenzie) v Berrima Coal Pty Ltd and Another (2001) 105 IR 348
Inspector Stephen Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92
Inspector Stephen Cooper v Franklin Alden Coveney [2008] NSWIRComm 80
Riley v Australian Grader Hire (2001) 105 IR 143
WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80
WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia [2002] NSWIRComm 316; (2002) 123 IR 121
WorkCover Authority (NSW) (Inspector Jones) v Challita [2006] NSWIRComm 207; (2006) 153 IR 409
WorkCover Authority (NSW) v Lyndhurst (2000) 95 IR 462

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Occupational Health and Safety Act 2000


TEXTS CITED:




JUDGMENT:

- 33 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: BACKMAN J

26 February 2009

Matter No IC 1236 of 2007

Inspector Karen Simpson v Poonindie Pty Ltd (Trading as Ted Wilson & Sons)

Prosecution under s 8(2) of the Occupational Health and Safety Act 2000


Matter No IC 1237 of 2007

Inspector Karen Simpson v Poonindie Pty Ltd (trading as Ted Wilson & Sons)

Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

JUDGMENT

[2009] NSWIRComm 18

1 The defendant, Poonindie Pty Ltd (trading as Ted Wilson & Sons), has pleaded guilty to two offences under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000. The offences arose out of an incident which occurred on 24 June 2003 at a section of pastoral premises known as "Tunbridge Wells" at 4 Mile Creek via Orange in New South Wales. On that day, at about 10.50am, Damian Pusterla was electrocuted and Douglas Eslick and Wayne Sharp each received electric shocks when the chain slings from the arm of a mobile crane being operated at the time by Mr Sharp, came into contact with overhead power lines thereby electrifying the steel frame and the load attached to the crane.

2 Tunbridge Wells, at the time of the incident, was owned by Cadia Holdings Pty Ltd, a wholly owned subsidiary of Newcrest Mining Limited. Tunbridge Wells is located in an area subject to a mining lease held by Newcrest. In early May 2003, due to concerns in relation to subsidence caused by underground mining operations, Cadia requested an agricultural specialist, McMichael & Associates, to dismantle and store various livestock facilities at the site, including a shearing / woolshed. The reason for dismantling and storing the facilities was so that they would not be left within an encroaching subsidence zone and become unusable. The intention at some future stage was that the facilities would be rebuilt.

3 After securing the agreement of Newcrest, McMichael engaged the defendant to undertake the work of dismantling and storage of the facilities. Mr Sharp and Julie Sharp, in a partnership trading as B&W Welding, were contracted by the defendant to supply a mobile crane and driver to assist in the performance of the work. The defendant also contracted with a labour hire company, Alpha Workplace Solutions Pty Ltd, for the provision of workers, including Mr Eslick, to assist in the shed disassembly and transfer task. Mr Pusterla, an employee of the defendant at the time, was in charge of the site. He did not attend the site every day and, in his absence, the site was supervised by Lee Smith, another employee of the defendant.

4 Work was commenced at the site by the defendant some time in early June 2003. On 24 June 2003, at about 10.50am, Mr Pusterla was working with Messrs Sharp and Eslick who were all engaged in the task of transporting a section of the shearing shed, being a steel "A" frame end of the shed with sliding doors affixed, using the mobile crane supplied by Mr Sharp. Mr Sharp was operating the mobile crane with Mr Pusterla stabilising the freely suspended load on the right-hand side in the direction of travel and with Mr Eslick on the left-hand side, also assisting to stabilise the load. The mobile crane with attached load and with Messrs Pusterla and Eslick holding onto the load proceeded from the area where the shed was being dismantled to a materials-storage area known as the "lay-down area" near a hay shed at the site. The crane had travelled about 200 metres when the steel tray slings attached to the load and crane contacted 11 kV overhead power lines that lay at almost right angles to the direction of travel. The forward motion of the crane allowed the chain slings to make contact with both power lines electrically energising both the crane and its load and electrocuting Mr Pusterla and delivering an electric shock to Mr Eslick. Mr Sharp saw that Mr Eslick had let go of the "A" frame. He also saw that Mr Pusterla had fallen to the ground. He stopped the crane and left the cabin to stop the swinging load which was unattended. He also received an electric shock when he touched the load. He returned to the crane cabin, reversed away from the power lines, and lowered the load to the ground. He then left the crane to attend to Mr Pusterla.

Objective factors considered

5 By way of background to the incident, in mid-May 2003, Rex Wilson, one of three directors of the defendant, attended a site inspection. During the inspection, he was informed by Jim Steele, a representative of McMichael, that the intended lay-down area for the facilities was to be near, or in the vicinity of, the shearers' quarters at the site. In a statement dated 5 December 2007 tendered to the Court during the sentence proceedings, Mr Wilson said that after being informed by Mr Steele of the proposed location of the lay-down area, he had no reason to believe that the overhead power lines, where the accident happened, presented any risk to the workers because the lay-down area indicated by Mr Steele was nowhere near the power lines. He said that while at the site inspection he did identify power lines, but they were different power lines supplying electricity to the shearing shed.

6 On 26 May 2003, the proposed location of the lay-down area for the facilities was changed and a new lay-down area was selected. On 29 May 2003 Mr Steele advised a Cadia representative by email that:

the sheep yards and woolshed will be stacked either in or near the hayshed for reconstruction at a later date if desired.

7 Transporting the facilities, including the dismantled shearing shed to the hay shed required the workers to pass directly under the power lines. The change of location of the lay-down area was never communicated to Mr Wilson. The new location was, however, advised to the defendant's representatives on the site at least by 13 June 2003. Although Mr Wilson and Mr Pusterla were in telephone contact between about 13 June 2003 until 23 June 2003, a period of some 11 days, Mr Pusterla did not inform Mr Wilson of the new location of the lay-down area and Mr Wilson did not make any enquiries of Mr Pusterla or anyone else in that regard.

8 As a result of what Mr Wilson, in mid-May 2003, had been led to believe was the lay-down area, he prepared a quotation addressed to McMichael, setting out the defendant's estimated costs for the supply of materials and labour, "to demolish and remove materials as discussed". The quotation also referred to the intended destination of the facilities in general terms, namely, "to near shearers quarters".

9 On 4 June 2003 Mr Wilson prepared a written safety management plan (the Plan) and a written safe work method statement (SWMS) for the work the defendant had contracted to perform at the site. Both documents were prepared in circumstances where Mr Wilson was unaware of the changed location of the lay-down area. According to the Plan the work was to be supervised by the defendant's site supervisors (Mr Pusterla and, in his absence, Mr Lee) and the installation of scaffolding and the removal of "larger items" was to be in association with the crane operator and a scaffolding installer. The workers (consisting of the defendant's employees and the labour hire workers from Alpha) were required to assist these operators in their respective tasks when requested, with the site supervisors providing overall instruction.

10 In his statement dated 5 December 2007 Mr Wilson said that he gave Mr Pusterla verbal instructions on 5 June 2003 in relation to an aspect of the Plan concerning assistance to be rendered to the crane operator. The statement reads:

It was anticipated that if the crane operator needed any additional assistance or equipment i.e. a qualified dogman, then the crane operator would provide as such or request to be provided with a dogman. What this meant was that because [the defendant] did not have the expertise to operate the mobile crane we relied upon the expertise of the specialist contractor to conduct the work in accordance with the relevant standards and mine site requirements. For instance, I was not aware of whether a qualified dogman was required to undertake the work assisting the mobile crane operator to lower the frames of the shed from the standing position to the ground. I would have expected the mobile crane operator to advise Damian if the qualified dogman was needed. If he had so requested, he would have been provided with a dogman. Likewise, no supervisor neither from McMichael & Associates nor Newcrest had required that a dogman was needed for the work, as outlined in the Safe Work Method Statement or the Safety Management Plan.

11 The Plan also set out the defendant's responsibilities at the site. These included the following:

TWS senior management will be responsible for the overall execution of the contract, including all OHS&R responsibilities. Primarily, Rex Wilson will be responsible for the overseeing of the project works, with delegation of day-to-day on-site responsibilities to the (daily) nominated site supervisor.

Rex Wilson will initially undertake identification of site hazards, and the resultant HAZASSESS document will be reviewed (regularly, minimum daily) by the nominated (daily) site supervisor.

Compliance with OHS&R requirements, including Site Safety Rules is the responsibility of all TWS staff on site, but specifically will rest with the daily site supervisor following initial implementation of OHS&R Project Management Plan. A copy of the Site Safety rules will be issued to all TWS staff on induction to the site, and a copy will be maintained in all vehicles on site. Should TWS establish a site office, a copy of all documentation will be maintained there, along with basic first aid facilities.

12 Under the heading "Site Safety Rules" in the Plan the following direction appeared:

All staff are to be aware of electrical (and other services) hazards as located and marked out (and unidentified services not known or identified).

13 According to the agreed facts, no separate HAZASSESS document was created for the site prior to the incident on 24 June 2003. According to Mr Wilson, the HAZASSESS document was the SWMS prepared on the same day as the Plan. The agreed facts also reveal that the defendant did not seek any maps, plans or instructions, or itself prepare any plan in relation to the presence of overhead power lines at the site, and it did not mark out the overhead power lines.

14 The SWMS identified several possible hazards at the site. Overhead power lines were not nominated as a hazard.

15 Mr Wilson, in his statement of 5 December 2007, said that he told Mr Pusterla to notify him of any variation to the method of work outlined in the SWMS. Mr Wilson said he spoke to Mr Pusterla, "every couple of days usually by telephone". He said that he had told Mr Pusterla on many occasions that he was to contact him if the work changed. He said he, "cannot explain why Damian did not notify me of the alteration to the work method, since he had previously proven to be a reliable employee and supervisor. Such an oversight was out of character for him". Mr Wilson conceded however that the SWMS did not identify the overhead power lines as a risk to safety, but he said this was because he, "was not aware that the work area extended to a position underneath them."

16 Mr Wilson attended the site on two more occasions on 6 and 10 June 2003. At that stage, the shearing shed was still being dismantled and the transportation of its component parts had not commenced. Mr Wilson was aware that the following day, 11 June 2003, McMichael undertook some safety inspections, and on 12 June 2003, Cadia representatives attended the site to undergo a random safety inspection. After the inspection Cadia made a request that the scaffolders wear safety harnesses.

17 According to Mr Wilson, there were three significant departures from the defendant's Plan, none of which it was made aware prior to the incident. The first was that the location of the lay-down area was changed without his knowledge. The second was that Mr Pusterla did not advise him of the change of location. The third departure, according to Mr Wilson, was the decision to transport the large section of shearing shed to the lay-down area instead of dismantling it before transport. Mr Wilson said this was contrary to the planned method of work set out in the SWMS which he had explained to Mr Pusterla during an induction. Mr Wilson also said he told Mr Pusterla that the shed was to be transported using a forklift. A crane was to be used for lowering the frame. Later, in his statement, Mr Wilson said that it was Mr Sharp's idea to alter the planned work method. According to Mr Wilson:

"Mr Sharp was the licensed owner and experienced operator of the mobile crane which was contracted to attend the site. He had complete control of the operation of the crane and his knowledge and expertise is why he has contracted to carry out the works. It was he who should have seen the high voltage lines as he approached them coming into the area or working around the area, and he at least needed to have walked the transport route with a view to identifying the risks."

18 In oral submissions, senior counsel for the defendant said that the defendant was not, "blaming the deceased", but rather that it had great confidence in him that he would, "do his job properly in accordance with the directions and the instructions he had been given at the induction and at other times by reference to the safety documents".

19 In my view, it was the defendant's responsibility to ascertain the exact location of the lay-down area and to identify the risk to safety posed by the overhead power lines. It was not enough, in the circumstances, for the defendant to rely on its employees to notify it of any departure in the work method or the change in location of the lay-down area. Moreover, Mr Wilson's information about the original location of the lay-down area was conveyed to him informally and was imprecise in its description. That information was conveyed to him in mid-May 2003. The evidence suggests that the defendant's representatives at the site were made aware of the exact location of the lay-down area on 13 June 2003. This suggests that for a period of 11 days, during which Mr Wilson was in regular contact with Mr Pusterla, the defendant made no enquiries about the proposed transportation route of the dismantled component parts of the items. Nor, during this period did it make any enquiries as to the mode of transportation. The documentation prepared by the defendant for the proposed work at the premises made one very general reference to the lay-down area, which was "transport of materials to near shearers quarters", in the quotation dated 22 May 2003. The Plan and the SWMS contained identical descriptions of the works to be performed. With regard to the shearing shed, the documents contained the following instructions:

Removal of internal electrical materials / Disconnection of power to building / Removal/identification of shed wall iron / Removal of shed sliding door / tracks / Removal / identification of shed roof iron / Removal / identification of steel purlins / Removal / identification of trusses and steel posts / Cutting out of timber flooring in pier sections

20 According to Mr Wilson, that work method was not followed on the day of the incident. He said that it was intended that the workers use a forklift truck to transport the component parts, once they had been dismantled, to the lay-down area, and that this was in accordance with the method of work as set out in both the Plan and the SWMS. According to the agreed facts only one forklift was initially present at the site but it was not suitable for the work because it became bogged in mud. A replacement all-terrain forklift was acquired but it too became bogged on the morning of the incident because of ongoing inclement weather. At some stage after that, a decision must have been made to transport the items by crane. The Plan and the SWMS both envisaged the use of a crane for the removal of larger items. The agreed facts record that the defendant did not require the crane operator, Mr Sharp to provide a dogman to work with him at the site and Mr Sharp did not make provision for a dogman. The agreed facts also record that the defendant did not designate any person to act as an observer or spotter while the mobile crane was being operated at the site and nor did Mr Sharp. Finally on this issue, the agreed facts record that the defendant did not ensure that power lines at the site were clearly marked with "tiger tails" on occasions when the mobile crane was in operation.

21 Again it was the defendant's responsibility to take positive steps to ensure that it was aware of the work method utilised, which included the mode of transportation on 24 June 2003. The fact that Mr Sharp may have been remiss in transporting the items under the overhead power lines, using workers who had no qualification as dogman, for example, does not excuse the defendant's failure to ensure that the system of work in force on the day was safe for the workers. The Plan contained only general instructions concerning the use of "crane lifting equipment" and neither it nor the SWMS made any specific mention of the use of dogmen associated with the crane's operation. It was the defendant's obligation for example to undertake an adequate site-specific risk assessment in relation to the operation of the crane and its intended work on the day of the incident. Its obligations were not discharged by relying on an informal, imprecise indication of the lay-down area given several weeks before the incident, without making any subsequent inquiries as to the final intended destination of the items, and the mode of their transportation.

22 Nor was it incumbent upon the crane operator to take sole responsibility for the safety of the defendant's workers, including those workers under contract from Alpha, who were involved in transporting the section of the shed utilising the crane at the time of the incident. Even if, as Mr Wilson suggested, Mr Sharp was an experienced operator of the mobile crane, there was no evidence that he had particular experience operating a crane in the vicinity of overhead power lines or that he had particular expertise and / or training in the occupational health and safety aspects involved in such an operation. Similar observations were made by this Court in Inspector Stephen Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92 at [15]. As I have stated in these sentencing remarks, the original lay-down area was indicated to the defendant through Mr Wilson in general terms only. There was sufficient time for Mr Wilson to make further enquiries as to both the location of the actual lay-down area and the mode of transportation used. The evidence was that the area had received heavy rainfall which resulted in the forklift truck originally planned for the removal of the items becoming bogged and unable to be used for the task. A site map annexed to the agreed facts, and to Mr Wilson's statement of 5 December 2001, clearly shows the overhead power lines involved in the incident dissecting the site from North to South. These are matters about which the defendant could have and should have made further inquiries. Workers can, and do, sometimes place themselves in precarious positions as did Mr Pusterla and Mr Eslick at the time of the incident. The legislation recognising this contingency requires a defendant to be pro-active in searching out and detecting risks in order to ensure the safety of personnel at a work site. The proper approach was set out by Hill J in WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 (at 85):

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.

Systems in place prior to offences

23 This is not to say that the defendant had not taken steps with a view to ensuring the safety of its employees and contract workers at the site. It had prepared the Plan and the SWMS both of which contained measures and instructions dealing specifically with the safety of the workers during the operation which they were undertaking at the site. According to the agreed facts Mr Wilson attended the site on three occasions, on 22 May 2003 when he conducted the site inspection and on 6 and 10 June 2003. Mark Wilson, another of the defendant's directors returned to the site on 11 June 2003 in order to conduct electrical work which was unrelated to the overhead power lines. On 5 June 2003 Mr Pusterla and his co-supervisor, Mr Smith, received an induction in relation to the work to be undertaken at the site by Mr Wilson at the offices of the defendant. On 6 June 2003 Mr Wilson conducted site inductions during which the defendant's employees and other personnel at the site had the site safety rules explained to them. Mr Eslick was inducted to the site on his initial attendance. At that time he was shown the defendant's Plan and the SWMS. Mr Wilson, in his statement of 5 December 2001, said that the defendant's employees present at the site had received occupational health and safety training. Mr Pusterla, some three weeks before the incident, had undergone one days training at the defendant's expense to obtain a "green card" in the construction industry (OH&S Construction Card). Mr Wilson was aware prior to the incident that Mr Eslick had received an induction by Cadia. When Mr Wilson contacted Alpha to request workers for the site he asked for skilled workers and informed Alpha that the defendant required at least one worker, who had been fully inducted into the Cadia mine site, to be on site at all times. He also asked for workers who were familiar with the defendant and its requirements. Mr Wilson also said that on 5 June 2003 he orally instructed Mr Pusterla that the SWMS was to be reviewed daily. He also said he told Mr Pusterla to notify him of any variation to the method of work outlined in the Plan and in the SWMS. I note in this regard that under the heading "Other Notes" on page 2 of SWMS the words appear, "Advise Safe Work Method procedure variations / improvements."

24 These matters show that the defendant did direct its attention to worker safety during the course of its undertaking at the site. Because of this it is appropriate for the Court to take the matters into account in mitigation of the otherwise objective seriousness of the offence.

The risk to safety and foreseeability of the risk

25 The risk to safety is particularised in both charges as a "risk of fatalities or persons suffering electrical shock injuries due to plant or materials coming into contact with overhead power lines". This jurisdiction has presided over many hearings under the occupational health and safety legislation in which accidents involving live overhead power lines have occurred. Those accidents have often resulted in fatal injuries. The risk to safety posed by live electricity is both extremely serious and obvious. I adopt here, the observations I made on this issue in Inspector Stephen Cooper v Franklin Alden Coveney [2008] NSWIRComm 80 (at [10]):

The dangers of working near live power lines are obvious. Many cases have come before this jurisdiction following accidents involving exposure to live power conductors, including overhead power lines and electrical apparatus, often with fatal consequences. There is a wealth of information in the public domain aimed principally at the safety of persons working in proximity to live electricity. The statement of facts tendered in these proceedings refers to some of that information. A document entitled "Interim Guide for Operating Cranes & Plant in Proximity to Overhead Power Lines," which reproduces approach distances to live overhead electrical apparatus, as applied by former regulation 133A of the repealed Construction Safety Regulations 1950, details safe working distances for cranes working near overhead power lines. For voltage not exceeding 132,000, the minimum approach distance is three metres. A WorkCover publication, "Safety Guide - Moving Plant on Construction Sites" (published April 2000) suggests an examination of precautions necessary to prevent persons, appliances or loads coming within a certain nominated distance to overhead power lines. That publication also nominates three metres as the minimum approach distance to overhead power lines with a voltage not exceeding 132,000. Two Australian Standards, AS 2550.1 - 2202 "Cranes, Hoists and Winches - Safe Use Part 1: General Requirements" and AS 2550 - 2002 "Cranes, Hoists and Winches - Safe Use Part 5 Mobile Cranes (and cranes generally)" (commenced 24 June 2002) also set out approximate separation distances to be maintained while working in proximity to live power conductors. A number of regulations in the Occupational Health and Safety Regulation 2001 set out various requirements, methods of risk control, and identification of hazards when working with or near live electricity. Regulation 41(4) provides that a controller of premises must ensure that persons working in or undertaking maintenance on the premises (apart from those persons undertaking electrical work) are prevented from coming within an "unsafe distance" from any overhead electrical power lines and live electrical installations unless a risk assessment determines otherwise. Regulation 64(1) requires that an employer must ensure that risks of injuries arising from electricity at a place of work are eliminated, or controlled where elimination is not reasonably practicable. Regulation 64(2)(e) requires that persons at work and their equipment etc do not come into close proximity with overhead electrical power lines, except if the work is done in accordance with a written risk assessment and safe system of work and the requirements of the relevant electricity supply authority.

26 All of the material cited in the above extract was publicly available prior to the commission of the offences. Most of the material was annexed to the prosecutor's agreed facts. Other relevant documentation annexed to the agreed facts included a WorkCover publication entitled "Electrical Hazard Awareness for Operators of High Machinery". In the document, three steps are nominated as necessary to be taken before work commences in the vicinity of power lines. The first step is to identify hazards. To ensure safety when working near overhead power lines, the document recommends doing three things:

Look around and identify the location of overhead power lines;

Talk to the person in control of the work location about any work areas which may be hazardous;

Check maps from the local electricity distributor that show the location of overhead (and underground) power lines.

27 The second step emphasises the importance of assessing the risks. The third step, referred to as "Fix the Problem", outlines important safety measures to be observed when working near overhead power lines. It is appropriate to set out the third step in full:

You should ensure that people at work, their equipment (tools and plant) or materials do not come within close proximity to overhead power lines unless:

· A written risk assessment has been completed and a safe system of work implemented; and
· The relevant safety precautions and worker training, including WorkCover Codes of Practice and the electricity distributor's requirements, have been implemented and complied with.

If working in close proximity to overhead and underground power lines is unavoidable and the risk assessment has been completed, the following should be considered to control the risks and ensure work safety:

· Have the power switched off by the local electricity distributor. Consider all conductors alive unless it is positively known they have been de-energissed, isolated and earthed by the local electricity distributor.

If this is not possible:

· Have temporary protection, e.g. 'tiger tail' covers, fitted to remind workers of the presence of low voltage power lines on a site; and
· Where appropriate, provide ground barriers to warn workers of the presence of power lines.

Where the hazard cannot be removed or reduced, then establishing work rules or safe work procedures and practices may be the only option. All workers should be involved in developing these rules to protect their own health, safety and welfare. It is important that all workers be trained in 'the rules', prior to work commencing. These safe practices may include:

· Nominating a trained power line 'observer' or 'spotter', who is not to perform any other tasks while they are observing the work being carried out to ensure safe distances are maintained;
· Workers and their equipment should not approach overhead power lines any closer than the following:

Power lines with voltages up to 132 000 volts	e.g. low voltage and high voltage distribution and subtransmission lines, usually on poles	3m
Between 132 000- 330 000 volts	e.g. Subtransmission and transmission lines on either poles or towers	6m
More than 330 000 volts	e.g. transmission lines usually on towers	8m

28 A recent statement, which I adopt in these sentencing reasons, as to whether the risk to safety is, or was, reasonably foreseeable in the particular circumstances of an offence, may be found in the observations of Boland J, President, in Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 at [369]:

In determining whether a defendant should have reasonably foreseen a risk of injury, it is not necessary to show that a reasonable person placed in the defendant's position would have foreseen as a possibility the particular chain of cause and effect involved in the happening of the defendant's accident or, in other words, the precise risk of injury or how it occurred. It is sufficient that the risk is one of a class of risk that in a general way the defendant should have foreseen or it was reasonable to foresee in a general way the kind of thing that occurred.

29 In the present proceedings, the evidence was that on the day of the offences, the new lay-down area for the component parts of the shearing shed had been known for 11 days. The defendant had, therefore, adequate time to inform itself, and should have informed itself, of the new location of the lay-down area. The defendant, through Mr Wilson, was also aware of the existence of the power lines running in a north/south direction on the property. With regard to the mode of transportation, although it was initially intended that a forklift truck be used, it became bogged in the mud due to heavy rainfall and could not be used to transport the items. The particulars of both offences, to which the defendant has pleaded guilty, assert that it failed to undertake an adequate site-specific risk assessment in relation to the operation of the mobile crane, and it failed to have in place an adequate safe working method for the dismantling and transporting of the shearing shed. It also failed to obtain a drawing that showed the location of all overhead power lines on the site and an accompanying explanation of the required clearances of those power lines. It failed, before the crane commenced operation, to conduct a site inspection for overhead power lines along the transportation route from the shearers' quarters to the new lay-down area. The available literature on the dangers of working near overhead power lines suggests that the minimum approach distance should be three metres where the voltage does not excess 132,000. All these matters compel the conclusion that the risk to safety, as particularised in the charges, was objectively reasonably foreseeable.

General deterrence

30 The present circumstances provide yet again another illustration of the dangers associated with working in the vicinity of overhead power lines. For the purposes of giving weight to the principle of general deterrence in these sentencing reasons, I adopt my remarks in Inspector Stephen Cooper v Franklin Alden Coveney at [22]:

"The circumstances of this tragic accident reveal the need to implement adequate controls in order to ensure that persons undertaking work in the vicinity of power lines can perform the work safely and without incident. The wealth of public information emphasising the obvious hazards, and setting out detailed systems of risk assessment and management, attest to industry recognition of these obvious hazards. Despite this information, workers continue to be exposed to risks to their safety, and accidents associated with live electrical apparatus continue to occur."

31 Because of the very serious dangers posed by working near power lines, it is imperative that employers implement and promulgate effective measures to ensure workers can work safely and without fear of injury. It was not good enough for the defendant to leave it to the judgment of an employee, or a contract worker at the site, as to when the work may be performed safely. This is so even if the employer had formed the view that the worker placed in charge of others at the site in a supervisory capacity had training, experience and relevant qualifications. As to an acceptable system of work in these circumstances, I adopt the comments of Walton J, Vice-President, with whom Wright J, President, agreed in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia [2002] NSWIRComm 316; (2002) 123 IR 121 at [77] [78]:

The passages cited from Genner Constructions serve to illustrate the fundamental failing in the system of work provided by the defendant in the current proceedings. The Court in Genner Constructions and in Newstart 150 emphasised that for a system of training to be adequate in accordance with an employer's obligations under the Act, what must be shown is that the "system" is "sufficiently systematic or comprehensive", contains appropriate detail and, importantly, is "sufficiently promulgated to its workers who are themselves adequately trained in their implementation". In Genner, these observations were made in a context where the particular method of work (in that case the method of work providing for the entering and exiting of trucks to a worksite) was not the subject of consideration on appeal. In Newstart 150, there was both a failure to provide a safe method of work and a consequent failure to properly train the workforce (see [67] - [69]).

Thus, in order to meet the requirements of s15 of the Act, the system of work must be "coherent and systematic" so that all employees who are performing work on any given site can properly understand what is being required of them. That is, to reiterate what was stated by the majority in Cullen v State Rail Authority (at 219):

In order to ensure such a system was safe as required by s15, it was necessary for it to lay down, and to police, specific rules and procedures designed to guard against and prevent, amongst other dangers, the type of accident which occurred in the present case.

Specific deterrence

32 Specific deterrence also falls for application here. The defendant employs about 22 people, including two working directors. According to the agreed facts, the defendant's main areas of operation are in the areas of electrical, pumps, filtration and irrigation. Although the defendant also undertook general civil construction, it had not worked on the dismantling and removal of a shearing shed before June 2003. Notwithstanding the defendant's good industrial record and the safety measures it has implemented following the incident (two issues which will be discussed in more detail shortly), the defendant continues to undertake contract electrical work and general industrial contracting work. It also continues to use specialist sub-contractors to perform works thought to be outside its expertise. Mr Wilson conceded in his affidavit sworn on 22 July 2008 that the work performed by the defendant, "... can often be hazardous". It has been observed many times in this jurisdiction that construction work is often performed in a hazardous work environment which has the potential to expose workers to risks to their safety unless appropriate measures are taken to protect them: see generally for discussion of specific deterrence, WorkCover Authority (NSW) (Inspector Jones) v Challita [2006] NSWIRComm 207; (2006) 153 IR 409 at [32] to [35].

Consequences

33 Mr Pusterla's tragic accident also illustrates the degree of seriousness of the risk to safety of persons working in the vicinity of overhead power lines. There can be little doubt that the likely or probable consequence of the defendant's offences, which involved risks to the safety of workers by reason of the work performed in the vicinity of overhead power lines, could result in serious, even fatal, injuries.

34 In the present circumstances, the defendant placed some reliance on what was effectively contended to be a departure from the work method initially proposed. That initial work method however was deficient for the reasons set out in some detail in this judgment. The presence of the overhead power lines was obvious and known to the defendant prior to the offences. It was clearly important to know with precision where the intended lay-down area for the component parts of the shearing shed would be located. A general informal indication of where the intended location might be was, in the circumstances, simply not sufficient.

Remedial steps available prior to offences

35 The agreed facts outline a number of additional safety measures implemented by the defendant after the incident. One measure nominated was the undertaking of a risk assessment of all overhead conductors at the site. The defendant also revised its Plan and its SWMS. The final documents issued were more detailed, site-specific and prescriptive than the earlier documents in use before the incident. The overhead power lines were specifically identified in the revised Plan as a possible hazard, and safety controls were outlined in a HAZASSESS document. That document sets out, in step-by-step detail, the system of transportation of the materials. In relation to the overhead power lines, the following directive appears:

Overhead Power lines: No wire cables or chains are to be used during the transporting process. Whenever working near power lines, maintain a minimum 10 metres clearance no matter what the task. The only place for this distance to be lessened is the marked transport route, as the mast (2.5 metres height) will only provide approximately 8 to 9 Metres clearance. Safety barriers, warning tape, signs indicating overhead power lines, review at each daily toolbox meeting etc are all ways of reiterating the necessary awareness of the dangers regarding the lines.

36 The measures illustrate the defendant's genuine commitment to providing a safe working environment for its employees and those workers under its supervision at the site. The extent of the defendant's efforts in that regard is a subjective factor that the Court will take into account in mitigation of the penalties to be imposed. As an objective feature of the sentencing process, however, they highlight the fact that readily available measures could have been attended to and implemented by the defendant prior to the incident.

Respective roles

37 The defendant contends that a number of other parties should also bear "some significant responsibility" for the incident and the circumstances that gave rise to it.

38 In considering the issue, regard must be had to the relevant principles formulated in this jurisdiction as to the correct approach to be taken by a court in assessing the culpability of a defendant, against the culpability of other persons, natural or corporate, who have not been prosecuted in relation to the particular incident which gave rise to the charge or charges against that defendant.

39 Some authorities which have dealt with the respective culpabilities of other responsible parties who have not been prosecuted were collected and summarised by Walton J, Vice-President, in the Department of Mineral Resources (Chief Inspector Mackenzie) v Berrima Coal Pty Ltd and Another (2001) 105 IR 348:

"[191] In Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312, a Full Bench of the Court considered that the absence of prosecution against other parties upon whom a defendant had reasonably relied meant that the sentence imposed upon the defendant gave rise to a justifiable sense of injustice (at 322-323).

[192] This contention was also raised in WorkCover Authority (NSW) (Inspector Ankucic) v McDonalds Australia Ltd [2000] NSWIRComm 1123; (2000) 95 IR 383. In that case the defendants relied upon the Nesmat decision and Wong v Melinda Group Pty Ltd (1998) 82 IR 118. In Wong, the defendant was charged after a window cleaner died as a result of a fall from a building owned by it. Charges were only laid against the defendant, even though the deceased was not its employee and it had not been informed that the work was occurring contrary to its own policy. The Court concluded that these circumstances were relevant to the assessment of penalty. Of particular relevance was the "equality of treatment in terms of the relative seriousness of the offence". In the McDonalds case I considered that what the Court was paying regard to in Wong was the (at 437):

"... actual contribution of the defendant for the purposes of assessing penalty .. [having] regard to the fact that the defendant was virtually wholly removed from the causal factors for the incident or the work actually performed by the window cleaner and even lacked knowledge of the performance of the work actually performed ..."

[193] Further, I stated (at 437): "The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken.

This approach is consistent with the approach in Nesmat and Wong. Nothing in the decision in Nesmat warrants the adoption of the further approach contended for by the defendants that the Court should assess, in the context of the sentencing of the defendants, whether a prosecution should have been continued against Lennard and Mercer. Nor is it consistent with the principle of parity or the abovementioned decisions for the Court to embark upon an inquiry in sentencing proceedings which, in substance, would require the Court to make specific findings as to the culpability of such entities under s 17 and the 'nature and quality' of any offence committed by them."

[194] I note also that this analysis of Nesmat and Wong has been affirmed by Wright J, President, in Walco (No 2) where his Honour stated (at par 31):

"... In any event, as I understand the decision of the Full Bench in Nesmat Pty Ltd it was not held that the failure to prosecute a defendant which was otherwise appropriate to be prosecuted was a matter which, of itself, would mitigate the penalty. Rather, what the Full Bench decided was that in a situation where there had been a failure, in assessing a defendant's relative culpability, to consider the inter-related culpability of another party which had not been prosecuted, and that failure resulted in an inappropriate penalty being imposed, that situation itself engendered an appropriately based sense of grievance which was in turn emphasised by the failure to prosecute the other potential defendant."

[195] And further (at par 33):

"The Court was there reflecting upon a number of considerations, both objective and subjective (but particularly the former), which it concluded had not been taken into account sufficiently at first instance. Particularly relevant was the role of the other potential defendant which had not been charged and its role, both independently and contributory, in the events which had led to the defendant's conviction. Such matters, as is clear from the second last paragraph cited, were crucial to an assessment of the culpability of the defendant. The reference to the 'justifiable sense of grievance' is also relevant to the application to the appeal principles which were applicable at the time of that appeal (for example, House v The King [1936] HCA 40; (1936) 55 CLR 499 and Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509) which are different to those now applicable under s 196 of the Industrial Relations Act 1996 and, for example, Fletcher Construction Australia Ltd v WorkCover Authority (NSW) (Inspector Fisher) (1999) 91 IR 66 at 75. This analysis is consistent with the approach of Walton J, Vice-President, in WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (at 436-438).

The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. that fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them."

40 The Court proposes to apply these principles in its analysis of the respective culpabilities, if any, of other parties who were present at the site or who had some involvement in the work being undertaken at the site during the period when the work of transporting the facilities, including the shearing shed, was first devised and implemented. The first observation I would make is that the Court has before it very little evidence upon which to make an assessment of the respective contributions of other parties to the exposure of the workers to the risk to their safety posed by the presence of the overhead power lines. There is no evidence, for example, of what, if any, safety systems, procedures or training and instruction regimes were in place with regard to Mr Eslick's engagement at the site and in relation to the particular task he was undertaking with Mr Pusterla and Mr Sharp at the time of the incident. It is not enough to assert that Alpha is a labour hire company with attendant health and safety obligations under the relevant litigation. There must be shown to exist some connection between proven acts and omissions of Alpha which resulted in a risk to the safety of Mr Eslick (as well as Messrs Pusterla and Sharp), referable to the circumstances of the incident of 24 June 2003. The absence of any such evidence with regard to Alpha's role precludes the Court from undertaking an analysis of Alpha's role in the circumstances upon which the charges against the defendant were based.

41 I have already expressed a view in these sentencing reasons that Mr Sharp cannot be held responsible for the incident and the circumstances which gave rise to that incident. The defendant was responsible for devising and implementing the work method at the site, which, for reasons earlier stated, was deficient in a number of respects and directly impacted on worker safety, including the safety of Mr Sharp. Of significance, and determinative of this issue, is the fact that the Court has before it no reliable evidence upon which to assess Mr Sharp's role in the enterprise or the extent of his training, experience and qualifications in matters of safety. The Court does not know to what extent, if at all, Mr Sharp was inducted to the work site, or if he was at all familiar with the defendant's proposed work method and safety regime. There is some hearsay material concerning conversations which Mr Sharp is alleged to have had with various persons concerning the incident, which are set out in Mr Wilson's statement of 5 December 2001. It is part of the agreed facts that Mr Sharp was not shown or provided with documentation relating to the use of the crane to transport materials to the lay-down area, although he discussed the issue with Mr Pusterla and Mr Eslick. Mr Sharp was not shown or provided with a job safety analysis. Mr Sharp has not been charged in relation to the incident and he was not called to give evidence in relation to the matters in these sentence proceedings. The prosecutor conceded that Mr Sharp, in the known circumstances, could have acted with more regard to safety. The concession was made by reference to the principle that the absolute duty (to ensure safety) is a duty owed, not only to the careful and observant worker, but also to the hasty, careless, inattentive, unreasonable and, as some authorities have held, the disobedient worker. Based on the paucity of evidence as to Mr Sharp's role, the Court is unable to assess to what extent, if at all, Mr Sharp might fall into one of the above categories.

42 With regard to Mr Pusterla, the defendant has sought to rely on a passage from the Full Bench decision of Riley v Australian Grader Hire (2001) 105 IR 143, extracted from [15]:

"Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing."

43 According to the defendant Mr Pusterla, "for all purposes was representative of the company, so his negligence ultimately made the company liable". In my view, the defendant's contention is not sustainable. First, although Mr Pusterla was one of the site supervisors designated by the defendant, Mr Wilson, in his own words, had "overall responsibility" for the task the defendant had been engaged to perform at the site. The Plan proposed by the defendant for the work stated:

"[the defendant] senior management will be responsible for the overall execution of the contract, including all OHS&R responsibilities. Primarily, Rex Wilson will be responsible for the overseeing of the project works, with delegation of day-to-day on-site responsibilities to the (daily) nominated site supervisor."

44 Secondly, although Mr Wilson had formed the view that Mr Pusterla was a competent supervisor, the evidence set out in the agreed facts suggests that Mr Pusterla was not experienced to any significant degree, either as a supervisor or with regard to the task of dismantling and removing items in the vicinity of overhead power lines. According to the agreed facts, Mr Pusterla was first employed on a casual basis by the defendant in August 2002 as a pump serviceman. His employment was made permanent in February 2003. At that time, Mr Pusterla was sent a letter of employment which set out his duties:

"The position involves the carrying out of all/any pump/related works, carrying out of fabrication of steelworks as required, and including supervision of apprentices/trades assistants/lesser qualified tradesmen, organising materials, assisting with estimating and pricing where your competence is particularly relevant, accurate and prompt submission of time and materials sheets from jobs, ordering materials as required including accurate and prompt submission of paperwork, and ensuring best service for our customers."

45 The defendant operated its business in the areas of electrical, pumps, filtration and irrigation, although it had done general civil construction work prior to the incident. Of significance is the agreed fact that, prior to the incident, the defendant had not engaged in work involving the dismantling, removal and/or reconstruction of a shearing shed. According to Mr Wilson, Mr Pusterla had acted as a supervisor on two occasions prior to the incident. He had also completed a one-day training course for his OH&S Construction Card, as required under the OH&S regulations. In addition, Mr Pusterla held trade qualifications as a fitter and turner and had been issued a TAFE Statement of Attainment in Hydraulics in December 1991.

46 Based on the available evidence as to Mr Pusterla's training, qualifications and experience in construction work, the Court is not convinced that Mr Pusterla possessed suitable qualifications or experience in the work he was performing as a site supervisor on the day of the incident. The evidence does not disclose that Mr Pusterla had any formal qualifications as a supervisor of construction work. His on-the-job training in the role appeared to consist of only two prior occasions when he acted as a supervisor. According to the agreed facts, Mr Pusterla had no qualifications with regard to dogging and had had no training in relation to acting as a spotter. He had worked as a farmer, "all his life", and had no prior experience in the type of work he was performing at the time of the incident.

47 Thirdly, it cannot be conclusively determined on the state of the evidence that Mr Pusterla's conduct leading up to and on the day of the incident was negligent. Mr Wilson had formed a view that Mr Pusterla was a competent supervisor which tends to militate against the defendant's suggestion that he was at the same time negligent. What the evidence has disclosed on this matter is that Mr Pusterla was not appropriately trained or qualified to do the work he was performing at the site. One of the particulars of the charges to which the defendant has pleaded guilty was that it allowed Mr Pusterla to work as a site supervisor without any training, qualifications or experience as a dogman, crane chaser or spotter.

48 I find therefore that Mr Pusterla's actions did not contribute to the causative facts which led to the offences with which the defendant has been charged.

49 Other entities nominated by the defendant as having responsibilities with regard to safety matters at the site at the time of the incident were Cadia and McMichael. According to the agreed facts, Cadia was a wholly owned subsidiary of Newcrest and the owner of the site. McMichael, an agricultural specialist, engaged by Cadia, contracted the defendant to undertake the work of dismantling and removal of the shearing shed and other facilities at the site. Neither entity, the Court has been informed, has been charged with an offence in relation to the circumstances which gave rise to the incident of 24 June 2003. Nevertheless, the defendant has put to the Court that each entity should be held responsible to a significant degree for the incident and the circumstances which gave rise to that incident.

50 Mr Steele, it will be recalled, had indicated to Mr Wilson in general terms the original proposed location of the lay-down area. After this, on 26 May 2003, a meeting between Cadia representatives, including Nedra Burns and Alan Linnane, a farm agistee, produced agreement that the shearing shed would be stored near the machinery shed. This new proposed site involved passage of the disassembled shed underneath the power lines. On 29 May 2003, Mr Steele sent an email to Nedra Burns informing him that the lay-down site would be near the hay shed. This site also involved passage of the disassembled shearing shed underneath the power lines. None of this information was passed on to the defendant by either Cadia or McMichael. In addition to the change in location of the lay down area, the forklift trucks could not be utilised to transport the items because of ongoing bad weather and the decision was made to use the crane. None of these matters were brought to Mr Wilson's attention although, as I have earlier remarked, they could have been easily ascertained by the defendant before the incident occurred and preventative steps could then have been taken.

51 Cadia and McMichael were aware at least from 29 May 2003, that the transportation route for the shearing shed components would involve travelling under the power lines. Cadia, as the owner of the site, and McMichael, as Cadia's authorised representative at the site, had, in my view, obligations to ensure that the workers engaged in transporting the items under the power lines could perform the work safely. There is a paucity of evidence as to what, if any, measures were taken by either party in that regard. What is known is that Cadia purported to exercise some control over the site before the incident by undertaking site inspections and requesting, on one occasion, that scaffolders wear safety harnesses. McMichael also undertook site inspections and engaged the defendant to undertake the work of dismantling and transporting the shearing shed. It may be inferred from the degree of involvement that both parties had at the site that they at least acquiesced in the decision taken by someone, or by someone in consultation with others, to transport the items under the power lines using the crane. If so, it was incumbent on both parties to take appropriate measures to ensure the task was accomplished without exposing the workers to the dangers associated with working in the vicinity of the power lines. These factors will be taken into account in mitigation of the objective seriousness of the offences with which the defendant has been charged by reference to its culpability, with respect to those offences.
Whether corporate structure may impact on penalty

52 In written submissions, the defendant contended that the Court should have regard to the fact that the corporation is a small enterprise and is the vehicle through which a few family members operate their business. It was not submitted, in terms, that the defendant should be treated as an individual for the purposes of penalty, but rather that because of the corporate structure, the fine imposed should not be oppressive. Support for the submission was sought to be found in a passage from the judgment of Walton J, Vice-President, in WorkCover Authority (NSW) v Lyndhurst (2000) 95 IR 462, in which his Honour considered a submission that the Court should treat the corporate defendant as an individual for the purposes of imposing penalty. In rejecting the submission, his Honour, at 475, said:

I should mention that I have some reservations about the application of a principle which would treat what is in fact a company as if it were an individual. The legislation in question clearly imposes a different maximum penalty depending precisely upon whether the defendant is a natural person or a corporation. However, it is unnecessary to say anything further on that point in this case. The principle as it has developed through the decisions I have mentioned confers a discretion on the Court to reduce the penalty which may otherwise have been imposed in consideration of the structure and financial position of the defendant rather than imposing a limitation on penalty. This was the approach adopted in WorkCover Authority (NSW) v Camillo Box Co Pty Ltd (unreported, Fisher P, CT95/1353, 27 February 1997) and, in my view, accords with the approach of the Full Bench in CI & D and of Hungerford J in Overtop. In each matter, the principle that a defendant may be treated as an "individual" was viewed as the application in this jurisdiction of the more general principle that a court should consider the financial and other circumstances of a defendant when deciding upon what fine to impose.

53 In oral submissions, the defendant did not place reliance on its financial circumstances as a factor that might otherwise have relevance to the issue. Instead, it sought to emphasise its small size and the fact that it provided significant employment for people living in a small rural community, as matters the Court may take into account as, "other circumstances".

54 Even though not relied upon as a principle applicable to the circumstances of the offences before the Court, I should state, if it be thought necessary, that I would reject a submission that the defendant should be treated as an individual for the purposes of penalty. While the defendant's corporate structure may be considered as a small family business, it is nevertheless active in the areas of contract electrical and general industrial contracting work. It currently employs 22 persons, including Mr Wilson and his brother, Mark Wilson. Its wages bill for the financial years ending 30 June 2006 and 2007 was about $1.2 million and for contractors, including machinery hire during the same period, it was in the order of $100,000. These matters would preclude the Court from approaching the imposition of penalty on the defendant as if it were an individual facing the lesser statutory maximum. Nor can the Court consider, in the absence of evidence, whether the defendant has the means to pay a substantial fine. In any event, the Court has not been asked to consider the issue.

55 The Court will therefore approach the question of penalty on the basis that the defendant is a corporation, without prior convictions, and therefore faces a maximum penalty of $550,000. The fact that the defendant is a relatively small family business which employs locally, would not, without further evidence, warrant different treatment, in terms of the penalty to be imposed, from that of other corporations facing the same maximum penalty for offences of a similar severity.

Subjective factors

56 There are, however, a number of subjective factors which the Court is prepared to take into account in mitigation of penalty.

Pleas of guilty

57 The defendant entered its pleas of guilty to all the particulars contained in the charges before the commencement of the summary hearings. It had, at an earlier stage, entered pleas of guilty to only some of the particulars. It was not contended by the defendant that the pleas of guilty were entered at the "earliest possible time", but it was contended on its behalf that by pleading guilty to all the particulars before the commencement of the summary hearings it had saved the Court considerable time and expense. The defendant also sought to distinguish its circumstances from those which arose for consideration in Inspector Stephen Cooper v Rail Infrastructure Corporation, in which I found (at [53] [54]):

These circumstances demonstrate, in my view, that the plea of guilty was not entered at the first reasonable opportunity. It was a belated plea which was not entered until after the commencement date of the hearing, which was 2 October 2007. There was nothing to suggest on the evidence or in the material before the Court that the plea of guilty to the amended s 8(2) charge could not have been entered at an earlier stage.

Given these circumstances, I assess an appropriate discount of penalty for the utilitarian value of the plea at 10 per cent.

58 In the present circumstances, although the pleas of guilty were not entered at the first reasonable opportunity, they were nevertheless entered before hearings took place, which has saved the Court, and the parties, expending considerable resources, both in time and money. I therefore assess an appropriate discount of penalty for the utilitarian value of the pleas at 20 per cent.

59 As a separate consideration from the utilitarian value of the pleas, the defendant is also entitled to leniency in recognition of the remorse shown by the pleas.

60 The Court also takes into account in mitigation of penalty, the defendant's co-operation with WorkCover during its investigation into the circumstances of the incident. The absence of prior convictions entitles the defendant to leniency normally extended to offenders not otherwise adversely recorded.

61 I have already outlined in these sentencing remarks a number of additional safety measures implemented by the defendant after the incident. These measures will also be taken into account in mitigation of penalty. In his affidavit of 22 July 2008, Mr Wilson set out some further post-incident safety measures put in place by the defendant which will also be taken into account in the defendant's favour. These include accreditation by Sydney Water in May 2006 in accordance with the NSW government's OH&S Management System Guidelines, 4th edition. The accreditation involves undertaking government contracted works. The defendant also established a position of Safety Officer and now holds monthly meetings of all staff to discuss safety issues. Its employees were also invited to establish their own Safety Committee in order to facilitate discussion with management on safety issues. All staff have been offered and received free training in first aid at the defendant's expense.

62 I also take into account in the defendant's favour its good industrial record, particularly given the length of time it has been in business and the hazardous nature of the industry in which the defendant operates. The defendant has also demonstrated good corporate citizenship which may be illustrated by its commitment to the local community. The defendant, for example, through Mr Wilson's late father, has been actively involved in promoting tourism in central New South Wales, the Lions Save Sight Foundation, the Lions NSW Eye Bank at Sydney Eye Hospital, and in the restoration of electrical services in the aftermath of the Nyngan floods in 1990.

63 The defendant also offered assistance to Mr Pusterla's family following his tragic death, which will be taken into account in its favour. It expedited payment of death benefits to Mr Pusterla's family. It also rendered assistance to its employees following Mr Pusterla's death. A registered psychologist was engaged by the defendant to attend its depot on 27 June 2003 to provide counselling services to those employees wishing to avail themselves of the services.

64 The defendant has also expressed its sincere regret for the circumstances that gave rise to the incident and for the incident itself. As a mark of respect for the Court, all the directors of the defendant attended for the sentence hearing. The defendant also described the death of Mr Pusterla as a "massive shock" which has resulted in substantial changes to its approach to safety measures. Mr Wilson, in his affidavit of 22 July 2008, said he was shocked and saddened by Mr Pusterla's death. He acknowledged the circumstances in existence at the time of the incident as giving rise to serious and life threatening injury. These matters the Court will also take into account in mitigation of penalty.

Totality

65 The principle of totality also falls for application, because of the significant overlap between the s 8(1) and s 8(2) charges against the defendant. Both charges particularised identical breaches of safety and the same conduct formed the basis of both offences: see Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2005) 105 IR 181 at [21] to [29].

Penalty

66 In determining penalty against the defendant I have taken into account the objective seriousness of the offences, the maximum penalty, personal factors in mitigation and the absence of prior convictions, by reference to the Crimes (Sentencing Procedure) Act 1999, in particular s 21A. I have also taken into account the culpability of the defendant by reference to the culpability of other parties associated with the circumstances of the offences.

67 I consider that a fine of $100,000 should be imposed for the offence under s 8(2), and a fine of $100,000 should be imposed for the offence under s 8(1). In applying the principle of totality, I consider that a total fine of $100,000 properly reflects the criminality of the defendant in respect of both charges.

Orders

68 In Matter No IC 1236 of 2007, I make the following orders:

(1) the defendant is convicted of the offence;

(2) the defendant is fined $50,000 with 50 per cent of the fine to be paid to the prosecutor;

(3) the defendant is to pay the costs of the prosecutor as agreed, or in the absence of agreement, as assessed.

69 In Matter No IC 1237 of 2007, I make the following orders:

(1) the defendant is convicted of the offence;

(2) the defendant is fined $50,000 with 50 per cent of the fine to be paid to the prosecutor;

(3) the defendant is to pay the costs of the prosecutor as agreed, or in the absence of agreement, as assessed.

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LAST UPDATED:
26 February 2009