District Court New South Wales Medium Neutral Citation: SafeWork NSW v Elgas Limited [2021] NSWDC 101 Hearing dates: 24 March 2021 Date of orders: 31 March 2021 Decision date: 31 March 2021 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 Elgas Limited is convicted. 2 I impose a fine of $425,000 for the s 19(2) offence. 3 I impose a fine of $100,000 for the s 19(1) offence. 4 The offender is to pay the prosecutor's costs of the proceedings, as agreed or assessed. 5 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine in respect of each charge is to be paid to the prosecutor. Catchwords: CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury SENTENCING – objective seriousness – deterrence - aggravating factors – mitigating factors – good prospects of rehabilitation – plea of guilty – remorse Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 Category: Sentence Parties: SafeWork NSW (Prosecutor) Elgas Limited (Defendant) Representation: Counsel: M Cahill (Prosecutor) Y Shariff SC (Defendant) Solicitors: SafeWork NSW, Department of Customer Service (Prosecutor) MinterEllison (Defendant) File Number(s): 2017/373865 2017/373875 Publication restriction: None Judgment 1. Elgas Limited (the offender) appears for sentence after it pleaded guilty to two offences pursuant to s 32 Work Health and Safety Act 2011 (the Act) in that: 1. it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed a worker in its business or undertaking, David Orrock, to a risk of death or serious injury; and 2. it failed to comply with the health and safety duty it owed pursuant to s 19(2) of the Act and thereby exposed other persons, Natalie Remnant, Callum Remnant and Griffin Hughes, to a risk of death or serious injury. 1. The maximum penalty for each offence is a fine of $1.5 million. Facts 1. The parties tendered an Agreed Statement of Facts that can be summarised as follows. 2. The offender conducts a business involving the distribution of Liquefied Petroleum Gas (LPG). The business involves the use of LPG tanker trucks to fill LPG cylinders (cylinders) and LPG tanks (tanks) kept on business and residential premises. Cylinders were defined by the offender as having a capacity of up to 210kg of LPG and tanks were defined as having a capacity of more than 210kg of LPG. 3. The offender engaged Samuels Transport Services Pty Ltd (Samuels Transport) to provide the labour of truck drivers to operate its tankers on an hourly rate. In the relevant period, Samuels Transport employed Mr Orrock and Gerard Thomas as truck drivers, who were assigned to the offender to work as tanker drivers. 4. As at 10 December 2015: 1. Mr Orrock had been employed by Samuels Transport for four years and had been delivering LPG for the offender since June 2013; and 2. Mr Thomas had been employed by Samuels Transport for two years and had been delivering LPG for the offender for about 20 months. 1. At all material times the offender provided training to the tanker drivers, consisting of Tanker Driver Induction Training, followed by "In Truck" training and an assessment. The training took about three weeks to complete, working as an offsider to an accredited driver observing the process and then undertaking the relevant tasks under supervision. 2. Mr Orrock underwent the offender's training program between about 14 June 2013 and about 5 July 2013, before being assessed as competent to drive and operate a tanker to deliver LPG to cylinders and tanks at residential and commercial premises. 3. Mr Thomas underwent the offender's training program between about 23 March 2014 and about 15 April 2014, before being assessed as competent to drive and operate a tanker to deliver LPG to cylinders and tanks at residential and commercial premises. Mr Thomas' training was supervised by Mr Orrock. 4. Once a driver had been assessed as competent to operate a tanker by the offender, it did not undertake any review of a driver's competency to perform in situ filling of cylinders and tanks using the delivery equipment on the tanker or periodically supervise a driver doing so. 5. The offender owned an LPG tanker truck, registration number ZXK 275 (the tanker), fitted with LPG handling, transportation and delivery equipment. The offender was responsible for inspection, maintenance and repair of the equipment attached to the tanker. 6. During the course of their employment both Mr Orrock and Mr Thomas were assigned by the offender to drive and operate the tanker to deliver LPG. 7. The tanker was fitted with a low flow hose. The low flow hose had a pumping capacity of 70 to 90 litres per minute. The low flow hose was suitable for filling cylinders and tanks. 8. The tanker was also fitted with a high flow hose. The high flow hose had a pumping capacity of 200 to 220 litres per minute. The high flow hose was suitable for filling tanks but not suitable for filling cylinders, ie a vessel of under 210kg capacity. 9. Both hoses were fitted to the truck on retractable hose reels that operated hydraulically for all but the last 2-3 metres of retraction. If the hydraulics of a retractable hose reel was not working, the hose could be rewound manually. 10. The offender instructed the tanker drivers that the high flow hose must not be used to fill cylinders. The Tanker Driver Training Manual (Manual), a version of which was provided to Mr Orrock and Mr Thomas at the commencement of their training, [1] contained the relevant instruction: In the interests of safety, it should be stressed that the Bulk Hose [i.e. the high flow hose] must only be used for filling tanks, and no cylinders (up to and including 210 kilograms). With the bulk hose filling at a much faster rate (at 2-3 times the flow), there are a number of issues if it is used to fill cylinders: (i) Damage to the back check valve The back check valve in a cylinder is a safety mechanism for preventing gas leaks. The high flow of the bulk hose can deform check valves and render them useless. The added risk is that this damage cannot be seen inside the valve. (ii) Potential for overfilling the cylinder Having reached 85% level when filling, the reaction time when stopping the flow of LPG through the hose is much more critical with a faster flow. There is little room for error if filling a cylinder with the bulk hose, leading to the potential for overfilling. 1. In February 2015 the tanker drivers were instructed at a weekly meeting that overfilling of cylinders was a serious safety breach. From time to time, the offender also published bulletins to the effect that the overfilling of cylinders was a serious breach of operational safety that could lead to catastrophic consequences. The tanker drivers were required to acknowledge in writing that they had received these types of instructions. 2. The tanker was fitted with three emergency shut down buttons that would shut down all LPG equipment and close off all gas valves. A remote control emergency shut down button was also made available to the drivers. They were instructed to carry it as a safety measure when filling cylinders and tanks and that in an emergency situation, such as a gas leak, to "ACTIVATE EMERGENCY SHUT DOWN. Control any gas leaks, eliminating the fuel source, if safe to do so". 3. Mr Thomas stated in the course of the investigation that prior to 10 December 2015 he had used the high flow hose to undertake in situ filling of cylinders, because the hydraulic rewind system of the low flow hose was not working. 4. Mr Orrock stated in the course of the investigation that prior to 10 December 2015 he could not identify a time when he had used the high flow hose to fill a cylinder. 5. Both Mr Thomas and Mr Orrock stated that: 1. they knew that the Manual stated that the high flow hose should not be used to fill a cylinder; 2. the manual retraction of the low flow hose was physically demanding and frustrating; and 3. the use of the high flow hose was a method of getting the job done, albeit contrary to the offender's written instruction. 1. On 10 December 2015 Mr Orrock drove the tanker and was scheduled to make 30 deliveries of LPG by undertaking in situ filling of tanks and cylinders. Mr Orrock did not experience any difficulties with the high flow hand gun assembly. The hydraulic rewind system for the low flow hose was operating intermittently at first and then stopped working, requiring the whole length of hose deployed (not just the last 2-3m) to be rewound manually. 2. At about 3.51pm Mr Orrock attended an address in Muswellbrook, where Ms Remnant and her family resided (the premises). The delivery of LPG was scheduled for 11 December 2015 but was brought forward by Mr Orrock because the tanker was due to be inspected and repaired on that day. At the time, Ms Remnant, her two sons and her partner's son were at home, two of whom left before the explosion occurred. The premises were located next to Muswellbrook Public School. 3. Mr Orrock used the high flow hose to fill a 45kg cylinder at the premises because the hydraulic rewind system on the low flow hose was not working and he did not want to rewind the hose manually. There were two cylinders of the same size at the premises located just beside a carport at the front of the premises. 4. There were two potential ignition sources nearby, being a gas hot water with a pilot light and an electric air conditioner with a condenser. Both ignition sources were sufficiently distant from the cylinders in compliance with the relevant Australian Standard. 5. Ms Remnant and one of her sons, Callum, met Mr Orrock in the vicinity of the cylinders. Mr Orrock had already commenced attaching the high flow hose hand gun assembly to one of the 45kg cylinders. A conversation took place at which time the parties to it remained in the vicinity of the cylinders. 6. Callum left the premises. Ms Remnant stayed and spoke to Mr Orrock while he continued working. 7. Mr Orrock began filling the cylinder. Mr Orrock and Ms Remnant observed leakage of LPG during that process. The precise cause, source and location of the leakage is not known. 8. The offender's LPG Tanker Procedures Certificates and Maintenance Manual provided for the procedure that should have been followed by Mr Orrock in the circumstances. 9. Mr Orrock stated to SafeWork NSW during its investigation into the incident that: 1. The leak began when he started to disconnect the high flow hand gun assembly from the cylinder, so in response he re-attached it and this action temporarily stopped the leakage; 2. He then attempted to disconnect the high flow hose from the safety adaptor, leaving the safety adaptor attached to the cylinder to prevent any further leak from it; 3. LPG leaked from the connection between the safety adaptor and the cylinder filler stem and from between the high flow hose and the safety adaptor; 4. He then re-attached the hose and the safety adaptor to the cylinder, which again temporarily stopped the leak; 5. He then ran to the tanker to shut off the pump to stop the flow of LPG; 6. He did not use any of the emergency shut down buttons, including the remote control emergency shut down, which he usually carried in his shirt pocket; 7. He returned to the cylinder to check that he had closed it off by hand and closed the valve off; 8. He decided to turn the pump back on to "give it a blast of LPG" and lock the check valve down with a Stillson wrench; 9. He returned to the tanker and turned the pump back on and retrieved a Stillson wrench; 10. He returned to the cylinder and began to tension the check lock valve with the Stillson wrench, a process that is not provided for in the offender's training material. 1. At about the last time when Mr Orrock returned to the cylinder, Ms Remnant began to leave the carport area. At about this time the gas ignited and engulfed Mr Orrock and Ms Remnant in flames. 2. Mr Orrock suffered burns to 50% of his body and later suffered blood clots as a complication from his injuries. He has not returned to work after the incident. 3. Ms Remnant suffered burns to between 60% and 75% of her body. Her injuries have resulted in scarring to her face, arms and feet. 4. Griffin Hughes remained in his bedroom during the explosion and was uninjured. 5. The explosion and subsequent fire caused the complete destruction of a ski boat on a trailer, a motor vehicle and extensive damage to the premises and the School. 6. Following the incident, the Northern New South Wales Management Team met on 22 February 2016 to consider the processes in place and to implement initiatives to enhance safety. As a result of that meeting the offender conducted a review of its records relating to driver induction and training, the introduction of weekly safety spot checks to be conducted on at least one vehicle delivering LPG and a review of all vehicle defect notifications to ensure that all outstanding notifications were dealt with. 7. In or about February 2015 the offender developed a Standard Operating Procedure (SOP) for delivery at a customer's premises relating to the task of filling customer tanks and printing delivery dockets. The SOP was not used for training generally, nor was it promulgated generally for use by the tanker drivers in delivering LPG. The information in the SOP was contained in the Tanker Procedures Certificates and Maintenance Manual and the Tanker Driver Training Manual. 8. In or about July 2015 the offender issued revision 6 of the Manual that included the introduction of competency based assessments on a three year cycle for existing drivers. 9. In the period since the incident, the offender has developed a series of SOPs that are used both in general training of its tanker drivers and in the competency based assessment of those drivers. Existing drivers are now required to undergo training in relation to the SOP and to undertake competency base re-assessment on its three year cycle. This involves training on the updated version of the SOP. The Offender's Case on Sentence 1. The offender read an affidavit of Anthony Paul Gilbert affirmed 23 March 2021. Mr Gilbert was not required for cross-examination. The content of Mr Gilbert's affidavit can be summarised as follows. 2. Mr Gilbert describes himself as the Head of Elgas. He has had that position since January 2017. He first commenced work for Elgas in 1991, before leaving in April 2000 to work for another company, returning to work for Elgas in March 2006 as a General Manager. 3. The offender is the largest supplier of LPG in Australia. The offender is part of a multi-national group of companies. The offender reports work health and safety performance to the Head of Health Safety and Environment South Pacific on a monthly basis. The offender has its own work health and safety management system which is used in conjunction with the parent company's work health and safety management system. The offender employs its own work health and safety team comprising of a number of dedicated safety professionals. 4. The offender's business in Australia involves acquiring LPG from local and international gas production facilities, bottling and transporting LPG to customers. The offender operates a number of LPG storage facilities. The offender uses bulk tankers to transport LPG to customers by road. The offender operates a major storage facility in Port Botany which is licensed as a Major Hazard Facility (MHF). The offender also operates another MHF site in Blacktown. 5. The offender has 79 depots across Australia and New Zealand and approximately 385,000 fixed installation customers across Australia. About 25 of those depots and 175,000 customers are in New South Wales including in the Newcastle, Muswellbrook and Singleton areas. 6. The offender engages about 1,100 workers across Australia and also operates an agent distributor network. There are currently about 50 tanker drivers in New South Wales engaged to perform in situ gas refills. One of the tankers is based at the Muswellbrook depot. 7. The offender travels about 32 million kilometres per annum filling an average of about 6.5 million vessels per year and making about 620,000 small tanker deliveries and 22,500 large bulk tanker deliveries. 8. The offender acknowledges that LPG is a registered Dangerous Good and that there is a risk of ignition during the in situ refill process when LPG mixes with air and comes into close contact with an ignition source. The offender invests significant time and resources into ensuring its work health and safety systems are robust, current and effective to minimise risks that might be present when working with LPG. 9. At the time of the incident the offender had a comprehensive health and safety program in place. This consisted of comprehensive training of the drivers in the in situ refill process and the operational safety requirements of the process. 10. At the time of the incident the offender had a comprehensive work health and safety management system (WHSMS) comprising of a number of policy documents. The offender had adopted key elements of its parent company's safety systems but has also independently developed parts of the system. The offender engaged regional supervision of its operations. Tanker drivers were included in mandatory weekly meetings, monthly safety meetings and annual national staff conferences. In the ordinary course of their work, tanker drivers had day-to-day interaction with branch management and other employees of the offender. 11. At the time of the incident, the offender had a number of work health and safety policies and procedures in place relevant to the delivery of LPG including in situ refilling of cylinders and tanks. Some of those policies and procedures were included in the Manual provided to tanker drivers and used as part of their initial training. In addition, the offender had a number of policies and procedures that sat outside of the Manual. The tanker drivers were provided with a copy of or access to the Manual and training in these policies and procedures at the time of their commencement of working for the offender, including in relation to the LPG Tanker Procedures Certificates and Maintenance Records Manual. 12. As at December 2015, the offender had over 50 policies and procedures in place that were relevant to the tanker driver's work and Mr Orrock and Mr Thomas had received training in relation to each of those. 13. A copy of the LPG Tanker Procedures Certificates and Maintenance Records Manual was placed in each tanker. This document contained a "Tanker discharge to fill customer tanks and print delivery dockets" procedure. 14. Before commencing to work for the offender, a driver had their licence and qualifications checked and a medical examination was undertaken. The tanker drivers were required to hold a Heavy Vehicle Driver's Licence and a Dangerous Goods Licence. The drivers underwent a comprehensive training and induction process through an online computer training platform. The drivers underwent theoretical and practical training covering LPG safety and all aspects of their role as an LPG delivery driver. The drivers were provided with supporting material and completed online training modules. 15. The drivers also participated in "In the Truck" training. In this phase, trainee drivers worked as an offsider to an accredited driver during the course of operating a tanker for a period of four weeks. The trainee observed the accredited driver operate the truck and conduct the in situ filling process. The trainee was required to also undertake the work under the supervision of the accredited driver who assessed their competency for the work. 16. At the beginning of their engagement, drivers were given a copy of the current version of the Manual. 17. After their initial training, drivers were required to pass competency assessment before they were permitted to work. The assessment involved confirming a driver had completed all relevant modules, was inducted into the local customer service centre and had read, understood and signed all the relevant policies and procedures. The drivers were assessed as to their knowledge of LPG, the loading and unloading procedures, driving, and knowledge of the Australian Dangerous Goods Code and other applicable Australian standards. Both Mr Orrock and Mr Thomas had completed these assessments. 18. From time to time drivers were also provided with other relevant material including Safety Bulletins. Drivers were required to attend weekly meetings at regional branches and depots of which one meeting per month was safety focused. Drivers also attended a yearly staff conference which included updates on safety and training on safety issues. 19. The tankers were designed to ensure that emergencies were controlled quickly by engineering controls such as emergency stop buttons in a number of prominent places. The drivers were required to complete an emergency scenario as part of the assessment process. 20. Each of the low flow and high flow hoses was required to be used with a safety adaptor. A safety adaptor has two internal locking mechanisms which are designed to close shut when the gas flowing through the gun is shut off. Each cylinder was also fitted with a back-check valve which was designed to be opened by the pressure of LPG liquid being pumped into the cylinder when a filler gun is connected and to shut when the gas flow to the vessel is shut off, thereby stopping any gas from escaping from the cylinder. 21. The drivers were required to maintain a 3.5 metre exclusion zone around an in situ filling operation because any person could potentially be an ignition source, for example, by reason of static electricity on their clothing. 22. The drivers were required to conduct daily safety inspections on their tankers and had the authority to stand down vehicles if there were any safety issues. Mr Orrock and Mr Thomas received training in relation to all of these safety concerns. 23. In 2015 the offender had a safety expenditure of over $5m in Australia. The current annual expenditure is estimated to be $7m. 24. Senior management of the offender is involved in the oversight of all work health and safety matters in a structured way. 25. After the incident, senior employees of the offender visited Mr Orrock in Royal North Shore Hospital after he had been moved out of intensive care. The offender made a cash payment to Mr Orrock shortly after the incident. The offender maintained contact with Mr Orrock checking in on him periodically. 26. The offender made initial contact with Ms Remnant after the incident. She did not accept a cash payment offered to her. 27. Mr Gilbert deposed that the civil claims taken by Mr Orrock and Mr Remnant are still on foot. 28. After the incident the offender took steps to reinforce its training with the drivers. It introduced refresher training, a Triennial Competency Assessment and updates to the Manual and other safety documentation. The SOP has been elevated to be a significant focus of driver training. In addition, the offender has conducted annual audits of safety adaptors, introduced training for managers, audited a sample of 45kg LPG cylinders, introduced a trial of flame-retardant fabric for use in uniforms and reviewed its procedures for allowable tools in the hazard zone. The offender has invested over $26m on fleet upgrades and restructured its work health and safety team. 29. Mr Gilbert deposed that there has been no similar incident involving injury to a worker or a resident from an in situ refill. Since the incident the offender has completed over 4 million bulk LPG deliveries. In 2015 the offender had a total of eight lost time incidents. In 2020 it had five lost time incidents. Since 2017 the offender has had no major incidents. 30. The offender makes a broader contribution to the industry including having representations in various safety and technical committees. The offender contributes to the community through contributions to charitable and local community groups. 31. The offender has co-operated with SafeWork in respect of the incident. The offender also co-operates with SafeWork to provide technical knowledge and support relating to LPG matters and has allowed SafeWork NSW to conduct training at its MHF sites. 32. Mr Gilbert deposed that the offender deeply regrets and apologises for its failings that resulted in the incident. The offender acknowledges that the consequences of the incident have been severe and ongoing. The offender regrets the impact on Ms Remnant, Mr Orrock and their families and is committed to the constant review and implementation of its procedures to ensure that a similar incident does not occur in the future. Consideration 1. I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999. Objective Seriousness 1. The offences are of significant objective gravity. 2. The risk of the ignition of leaking LPG during the in situ refilling process was obvious and well known to the offender. The offender had taken extensive steps to minimise the risk, including through the extensive training given to the tanker drivers to conduct the in situ refilling safely. By its plea, the offender accepts that its training and supervision of the tanker drivers was inadequate because: 1. the relevant instructions to the tanker drivers were scattered throughout a number of policy documents and procedures; 2. it was reasonably practicable to compile a SOP that specified the steps to be taken, including the enforcement of an exclusion zone, the risks involved, the consequences of those risks and the steps to be taken in the event of an emergency; 3. it was reasonably practicable to train the tanker drivers on the SOP; 4. the offender failed to ensure that the relevant instructions were being followed through the supervision of the drivers during the LPG deliveries. 1. The likelihood of the risk occurring was quite high if the specified procedures were not followed. 2. The potential consequences of the risk were, as described by the offender in its own documents, catastrophic. 3. The steps that could have been taken to minimise the risk were to provide adequate training and supervision to the tanker drivers. The availability of those steps was known to the offender and the offender did provide significant levels of training. The inconvenience involved in taking the steps that the offender should have taken was minimal. 4. The extent of the harm caused was substantial. Both Mr Orrock and Ms Remnant received serious burns, involving significant pain, scarring and psychological sequelae. Mr Orrock has not been able to return to work. In addition, the incident caused substantial property damage. 5. I have taken into account the maximum penalty for each offence. Deterrence 1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180]. 2. The penalty imposed must also provide for specific deterrence. The offender still operates a large business involving the storage, transport and delivery of LPG that poses a significant risk of harm. However, that must be tempered by reference to the offender's extensive safety systems that it had in place prior to the incident and the steps it has subsequently taken to improve those systems, together with its prior good record. Aggravating Factors 1. The injury, harm and loss caused by the s 32 offences was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, the extensive injuries suffered by Mr Orrock and Ms Remnant are sufficient to establish the aggravating factor. Mitigating Factors 1. The offender does not have any significant record of previous convictions s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has one prior conviction in 1996, for which it was fined $2,500. The offender has been operating its business in Australia since 1984. The offender has an exemplary safety record considering its core business involves handling a dangerous good and there have been no previous major incidents. 2. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The steps that the offender has taken in response to the incident, demonstrates that it has good prospects for rehabilitation. Mr Gilbert deposed that the offender has substantially improved its safety system and acknowledged its failings leading to the incident. 3. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Gilbert deposed that the offender has accepted responsibility for its actions, and on its behalf, expressed contrition and remorse. The offender also took steps to assist the injured persons after the incident. 4. The offender entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The pleas were not entered at an early date in the proceedings. The case was initially pleaded quite differently and based on allegations that there was faulty equipment on the tanker, giving rise to the need to obtain expert evidence. Negotiations on the appropriate plea seem to have been on foot for a lengthy period. At the time that the sentence proceedings were heard, the matter was the oldest matter in the WHS list. I am satisfied that there is some significant utilitarian value in the plea. The appropriate discount is 15%. 5. The offender co-operated with the SafeWork investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. 6. The offender has demonstrated itself to be a good corporate citizen, by reason of its participation in industry safety initiatives and its support of charitable and community groups. 7. I have taken into account the principle of totality. The two offences arise from the same incident. For the breach of the s 19(2) duty, the establishment of an exclusion zone for other persons on the premises was an additional matter than should have been specified in the SOP and the tanker drivers trained on it. In my view, this offence was more serious because there were more people exposed to a risk of death or serious injury. For transparency in the sentencing exercise, I will nominate the appropriate fine for each offence but will reduce the fine for the s 19(1) offence to reflect the just and appropriate measure of the total criminality involved. Penalty 1. Elgas Limited is convicted. 2. I have taken into account the Victim Impact Statement prepared by Ms Remnant and read by her in Court. Ms Remnant has suffered so much more than serious burns, "horrific pain" and disfiguring scars. Her life has been changed forever and her "nightmare" continues each day. She also lost her home that was full of family memories. 3. The appropriate fine for the s 32 offence for the breach of the s 19(2) duty is $500,000 that will be reduced by 15% to give effect to the plea of guilty. I impose a fine of $425,000 for this offence. 4. The appropriate fine for the s 32 offence for the breach of the s 19(1) duty is $400,000 that will be reduced by 15% to give effect to the plea of guilty. Taking into account the principle of totality, I impose a fine of $100,000 for this offence. 5. The total fines payable for the two offences is $525,000. 6. I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine in respect of each charge is to be paid to the prosecutor. 7. The offender is to pay the prosecutor's costs of the proceedings, as agreed or assessed. 8. I grant liberty to the parties to relist the matter on the issue of costs, if no agreement can be reached on the issues on which costs are payable and a costs assessor does not have the power to determine that issue. ********* Endnote 1. The drivers received different versions of the Manual which each contained the same instruction. Amendments 31 March 2021 - Moiety order included in the decision DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2021