District Court New South Wales Medium Neutral Citation: SafeWork NSW v Ultra Refrigeration Pty Limited; SafeWork NSW v Romolo Prestia [2021] NSWDC 149 Hearing dates: 20 April 2021 Date of orders: 30 April 2021 Decision date: 30 April 2021 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendants are convicted. (2) The appropriate fine for the corporate defendant, Ultra Refrigeration Pty Limited, is $200,000.00 and that will be reduced by 25% to reflect the early plea. (3) Accordingly, I order the corporate defendant, Ultra Refrigeration Pty Limited, pay a fine of $150,000.00. (4) The appropriate fine for the individual defendant, Romolo Prestia, is $20,000.00 and that will be reduced by 25% to reflect the early plea. (5) Accordingly, I order the individual defendant, Romolo Prestia, pay a fine of $15,000.00. (6) Pursuant to s 122 (2) of the Fines Act 1996 (NSW), 50% of the fines imposed are to be paid to the prosecutor. (7) The defendants to pay the prosecutor's costs as agreed in the sum of $55,000.00. Catchwords: CRIME – work health and safety – risk of death or serious injury – duty of persons undertaking a business or undertaking PROCEDURAL – reasonably practicable – likelihood of risk – knowledge of risk – what the defendant ought reasonably have known SENTENCE – 25% reduction for the utility of the plea. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Home Building Act 1989 Home Building Regulation 2014 Work Health and Safety Act 2011 (NSW) Cases Cited: Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35 Bulga Underground Operations v Nash (2016) NSWLR 338 Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Kirk v Industrial Commission of New South Wales (2010) 239 CLR 531 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474–5 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Limited & Anor (No.3) (2005) 147 IR 117 Nash v Silver City Drilling (NSW) Pty Limited (2017) 93 NSWLR 338 Orbit Drilling v The Queen (2012) 35 VR 399 R v McNaughton (2006) 66 NSWLR 566; Attorney General of NSW v Tho Services Limited (in liquidation) [2016] NSWCCA 221 R v Miria [2009] NSWCCA 68 R v Thomson (2000) 49 NSWLR 383 SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 Texts Cited: SafeWork Australia Code of Practice, How to Manage Work Health and Safety Risks (December 2011) NSW Department of Training document entitled 'Supervisions of Apprentices and Trainees in the Workplace' Fair Trading NSW's brochure entitled 'Disconnections and reconnection of fixed electrical equipment' Category: Sentence Parties: SafeWork NSW (Prosecutor) Ultra Refrigeration Pty Ltd (Defendant) Romolo Prestia (Defendant) Representation: Counsel: Mr P Gow (Prosecutor) Mr D Chin SC and Mr C Parkin (Defendant) Solicitors: Department of Customer Service (Prosecutor) Mr W Ellicott, Access Law Group File Number(s): 2019/0033745 and 2019/00337428 Judgment 1. On 25 October 2017 at KFC Restaurant, Campbelltown Road South, Woodbine, New South Wales, Ultra Refrigeration Pty Ltd ('Ultra Refrigeration'), being a person conducting a business or undertaking, who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) ('the Act') to ensure so far as was reasonably practicable the health and safety of workers engaged at work in the business or undertaking, did fail to comply with that duty and the failure to comply with that duty exposed workers, in particular Andrew Azzopardi ('Mr Azzopardi') and Matthew Maiolo ('Mr Maiolo') to a risk of death or serious injury contrary to s 32 of the Act. 2. On 25 October 2017 at KFC Restaurant, Campbelltown Road South, Woodbine, New South Wales, Romolo Prestia ('Mr Prestia'), being an officer of Ultra Refrigeration, who had a health and safety duty under s 27(1) of the Act to exercise due diligence to ensure the company complied with its duty under s 19(1) of the Act, failed to comply with his duty and the failure to comply with that duty exposed workers, in particular Mr Azzopardi and Mr Maiolo to a risk of death or serious injury contrary to s 32 of the Act. 3. The offence carries the maximum penalty of $1,500,000.00 for the corporate defendant and $300,000.00 for the individual defendant. 4. On 7 December 2020 the defendants entered pleas of guilty. 5. The prosecutor tendered a bundle of documents (Exhibit A) which included the Summons and Agreed Statement of Facts which forms the basis of the background set out below. The defendants tendered an affidavit of Romolo Prestia sworn 14 April 2021 (Exhibit 1). 6. Both offences relate to the same incident and the circumstances of each offence are particularised in their respective Agreed Statement of Facts. The facts against Ultra Refrigeration and Mr Prestia are materially identical and so have been summarised together below. BACKGROUND 1. Ultra Refrigeration conducted a business or undertaking of supplying, installing and maintaining air conditioning and commercial refrigeration systems. Mr Prestia was the sole director and secretary of Ultra Refrigeration. 2. Mr Prestia was a qualified air conditioning technician and he had worked in the industry for thirty years, however, he was not an electrician. 3. Stephen Palumbo ('Mr Palumbo') was employed by Ultra Refrigeration as the 'Service Operations Manager'. He had worked for Ultra Refrigeration since 2012 and held no qualifications in air conditioning or refrigeration. 4. Mr Azzopardi and Mr Maiolo were employed by Ultra Refrigeration as apprentice air conditioning and refrigeration technicians. At the time of the incident, Mr Azzopardi was 21 years old in his fourth year of apprenticeship and Mr Maiolo was 15 years old in his first year of apprenticeship. THE INCIDENT 1. The incident occurred at KFC Restaurant Woodbine, a fast food outlet ('KFC Woodbine'). KFC Woodbine experienced a fault in its air conditioning system and contacted Ultra Refrigeration. 2. On 11 October 2017, Craig Trembath ('Mr Trembath'), an employee of Ultra Refrigeration, attended KFC Woodbine and diagnosed a fault in the electrical system of the store's air conditioning. Mr Trembath was an air conditioning and refrigeration technician, but he was not an electrician. A 'work solution' was prepared to replace a three-phase circuit breaker, contactors and overloads and this was communicated to Mr Prestia and Mr Palumbo that day. It was intended that Mr Trembath would return and perform the works. 3. On 25 October 2017, Mr Trembath rang in sick. Between 6:30am and 7:00am, Mr Palumbo remotely allocated the work at KFC Woodbine to Mr Azzopardi and Mr Maiolo. At 7:00am, Mr Azzopardi arrived at KFC Woodbine with Mr Maiolo and they were instructed to go to Fairfield Electrical Supplies to collect the parts for the job which were pre-ordered. Mr Azzopardi and Mr Maiolo both went to obtain the new parts and returned to KFC Woodbine around 9:00am. 4. KFC Woodbine was due to open at 10:00am. Mr Azzopardi told the store duty manager that he needed to turn the power off but the manager requested that they not do so, to prevent the entire store being without power. 5. Mr Azzopardi had been told by Ultra Refrigeration to turn off live installations before working on them, however, he commenced work on the main switchboard in light of the store manager's request without isolating the power. 6. Shortly before 9:24am, Mr Azzopardi removed the faulty three-phase circuit breaker from the main switchboard. The new circuit breaker was the wrong size and Mr Azzopardi attempted to manipulate the busbar terminals to allow it to fit. In doing this, the tip of steel pliers came into contact with live power and created a loud 'arc flash explosion'. 7. The tip of the steel pliers Mr Azzopardi was holding melted under the temperature from the arc flash and the insulated handles were blackened. The area around the main switchboard where the arc flash explosion occurred was also blackened. 8. Mr Azzopardi was temporarily blinded and transported to Campbelltown Hospital and then Concord Hospital where he underwent surgery and required skin grafts to treat burns to his exposed hands and all of his fingers. His eyes were stinging for numerous days. Mr Azzopardi was not wearing protective gloves or goggles, but he was wearing a long sleeve jumper which insulated his arms, long pants and safety boots. 9. Mr Maiolo, who had been standing behind Mr Azzopardi, sustained no physical injury due to his distance from the arc flash, however, he suffered shock. OBLIGATIONS AND GUIDANCE MATERIAL 1. Guidance material that was available to the defendants include SafeWork Australia Code of Practice, How to Manage Work Health and Safety Risks (December 2011); NSW Department of Training document entitled 'Supervisions of Apprentices and Trainees in the Workplace'; and, Fair Trading NSW's brochure entitled 'Disconnections and reconnection of fixed electrical equipment'. 2. Section 14 of the Home Building Act 1989 ('the HBA') specifies that electrical wiring work, as defined under sch 1 cl 1 of the HBA, must not be performed by an unqualified person, however, an unqualified person may do electrical wiring work on an electrical installation but only, inter alia, if a qualified supervisor is present. SYSTEMS OF WORK BEFORE THE INCIDENT Electrical Work 1. Ultra Refrigeration had procedures in place at the time of incident, including Electrical Safety Policy, SWP011 Electrical Safety and Electrical Safety Tips. They also had an on-site procedure to isolate mains and follow directions. However, there was no safe work method statement or a comprehensive work health and safety management plan to provide guidance and procedures to ensure apprentices should not have been allocated certain work that they were unqualified to do. 2. Ultra Refrigeration did not employ an authorised electrician after 27 July 2017 following the resignation of Thomas Benefer ('Mr Benefer'), Ultra Refrigeration's former electrician. All employed apprentice electricians could only carry out electrical work under the supervision of a person with a prescribed qualification. Following Mr Benefer's resignation, Ultra Refrigeration 'engaged' Mr Benefer for a short time to provide 'mentoring' of Ultra Refrigeration's workers, supervision by telephone and site visits. Mr Prestia continued to direct Ultra Refrigeration to engage in electrical work with the knowledge that the company no longer employed a licenced electrician. 3. Ultra Refrigeration relied on Mr Palumbo who was not qualified to carry out electrical or refrigeration and air conditioning work, to quote jobs, order electrical parts and allocate work tasks to workers of Ultra Refrigeration. Mr Palumbo quoted and accepted the electrical installation work at KFC Woodbine and was aware the work involved the main switchboard. The work required an electrician and could not be carried out by apprentices who were unqualified without a qualified supervisor. 4. Mr Azzopardi received limited direct face-to-face supervision as an apprentice and lacked confidence in removing panels from a main switchboard but was capable and competent in isolating electrical installation. This was the first circuit breaker Mr Azzopardi replaced on a main switchboard. Qualifications and Supervision 1. Ultra Refrigeration did not ensure Mr Azzopardi had the necessary qualifications to perform electrical wiring work, nor did they provide adequate supervision to Mr Azzopardi and in turn, Mr Azzopardi was not qualified to supervise Mr Maiolo. 2. Mr Prestia did not provide Ultra Refrigeration with the essential supervision, qualifications and up-to-date knowledge of work health and safety matters and industry guidelines involving apprentices and their supervision. Mr Prestia did not provide Ultra Refrigeration with appropriate resources in terms of persons with the prescribed qualifications and/or experience to supervise apprentices. 3. Mr Prestia directed that work was allocated to apprentices who were not qualified or experienced to carry it out without the supervision of a person who had the prescribed qualification or experience. 4. The electrical work allocated to Mr Azzopardi and Mr Maiolo was electrical work that could only be performed by them with a qualified supervisor who was actually present with them. Mr Azzopardi was not a licenced air conditioning and refrigeration technician and even if he had been, he would still not be authorised to perform the work of replacing the three-phase circuit breaker. 5. Neither Ultra Refrigeration nor Mr Prestia conducted a risk assessment with regard to directing unsupervised and unqualified apprentices to work off-site and the appropriate control measures to address those risks. SYSTEMS OF WORK FOLLOWING THE INCIDENT 1. As a result of this incident and SafeWork NSW improvement notices, Ultra Refrigeration developed a SafeWork Method Statement and an Employee Qualification List. 2. Having learned that replacing circuit breakers in switchboards and replacing contactors and overloads was the responsibility of licensed electricians, Ultra Refrigeration changed its procedures so that only licenced electricians performed those duties. Ultra Refrigeration has also conducted training about safe working, and implemented 'lockout kits' on electrical devices, prohibited any work on switchboards, and provided identification cards that set out whether a particular worker can work on electrical modules. THE NATURE OF THE DUTY 1. The nature of the duty is one that requires a 'person conducting a business or undertaking' ('PCBU') to ensure as far as reasonably practicable the health and safety of workers at the workplace. The duty included ensuring, so far as is reasonably practicable, the provision and maintenance of safe plant, safe systems of work and the provision of information, training and instruction or supervision necessary to protect persons from risks to their safety: s 19(3) of the Act. 2. The duty required the defendant to identify risks in the workplace and adopt measures to eliminate or minimise them: Kirk v Industrial Commission of New South Wales (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 3. The notion of reasonable practicability is informed by the considerations found in s 17 of the Act. The defendants, by their pleas of guilty, have admitted that the measures to ensure safety pressed by the prosecutor would have been reasonably practicable. 4. The duty is one of strict liability: s 12A of the Act. Consequently, there is no relevant mental element to the offence, whether it be reference to intent, carelessness or recklessness. 5. In Markarian v The Queen (2005) 228 CLR 357 at [31], Gleeson CJ, Gummow, Hayne and Callinan JJ set out their reasons why sentencers should have particular regard to the maximum penalties specified by statute. Their Honours stated: '…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the relevant factors, a yardstick.' Particulars of the Risk 1. The risk was the risk of workers at the premises, in particular Mr Azzopardi and Mr Maiolo, suffering serious injury or death as a result of the exposure to an arc flash explosion and/or fire and/or suffering electric shock and/or being electrocuted while performing the task of replacing a circuit breaker on a main electrical switchboard whilst it was engaged. PARTICULARS OF ULTRA REFRIGERATION'S FAILURE TO COMPLY WITH THE DUTY UNDER SECTION 19(1) OF THE ACT 1. Ultra Refrigeration failed to ensure, so far as was reasonably practicable, the health and safety of workers, in particular Mr Azzopardi and Mr Maiolo, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable to eliminate or, alternatively, minimise, if it was not reasonably practicable to eliminate, the risks to health and safety of its workers: 1. Directing and implementing systems of work to ensure, as far as was reasonably practicable, that only qualified persons under s 14(1) of the HBA were allocated or undertook "electrical wiring work" as defined under sch 1 cl 1(1) of the HBA; 2. Directing and implementing systems of work to ensure as far as was reasonably practicable, that if unqualified persons were to undertake 'electrical wiring work' under the HBA, that such persons were supervised by a 'qualified supervisor' pursuant to s 14(2)–(4), (6) of the HBA; 3. Providing information, training and instruction to workers about the requirements and obligations set out in paragraphs (1) and (2) above; and 4. Providing supervision to workers at the premises that is suitable and adequate with regard to the level of experience of the workers, the specific task being undertaken by the workers and the nature of the risks associated with the work being undertaken. 1. As a result of Ultra Refrigeration's failures, workers, in particular Mr Azzopardi and Mr Maiolo, were exposed to a risk of death or serious injury. 2. The serious injuries sustained on 25 October 2017 by Mr Azzopardi, including burns that required surgery and skin grafts to his hands and the acute post traumatic reaction suffered by Mr Maiolo, were manifestations of the risk. PARTICULARS OF MR PRESTIA'S FAILURE TO COMPLY WITH THE DUTY UNDER SECTION 27(1) OF THE ACT 1. Mr Prestia failed to exercise due diligence to ensure that the company complied with its duty under s 19(1) of the Act, because he failed to take reasonable steps to ensure that the company had, as far as reasonably practicable, ensured the health and safety of workers whilst at work in the business or undertaking, the company failed to take one or more of the following measures, which were reasonably practicable: 1. Directing and implementing systems of work to ensure, as far as was reasonably practicable, that only qualified persons under s 14(1) of the HBA were allocated or undertook 'electrical wiring work' as defined under sch 1 cl 1(1) of the HBA; 2. Directing and implementing systems of work to ensure, as far as was reasonably practicable, that if unqualified persons were to undertake 'electrical wiring work' under the HBA, that such persons were supervised by a 'qualified supervisor' pursuant to s 14(2)–(4), (6) of the HBA; 3. Providing information, training and instruction to workers about the requirements and obligations set out in paragraphs (1) and (2) above; and 4. Providing supervision to workers at the premises that was suitable and adequate with regard to the level of experience of the workers, the specific task being undertaken by the workers and the nature of the risks associated with the work being undertaken. 1. The reasonable steps the defendant should have taken in exercising due diligence included one or more of the following: 1. Ensuring the company had put in place and used appropriate processes and resources to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the company's business or undertaking by: 1. Developing and implementing on behalf of the company or directing or instructing the company to develop and implement a system of work or work procedure for electrical work which specified: 1. only qualified persons under the HBA carry out electrical wiring work and that unqualified persons undertaking such work were supervised by a 'qualified supervisor' pursuant to s 14(2)–(4), (6) of the HBA; and/or 2. that workers were to be provided with supervision that is suitable and adequate with regard to the level of expertise of the workers, the specific task being undertaken by the workers and nature of the risks associated with the work being undertaken. 1. Directing or instructing the company's supervisors or managers, such as its operations manager, to not allocate tasks to apprentice workers which they are not qualified to undertake. 1. Verifying by enquiries or site inspection or inspection of documentation that one or more of the resources or processes listed in paragraph 39 above were provided, implemented and used by workers when allocating or undertaking work for, or on behalf the company at the premises. 1. As a result of Mr Prestia's failures, workers, in particular Mr Azzopardi and Mr Maiolo, were exposed to a risk of serious injury or death. 2. The serious injuries sustained on 25 October 2017 by Mr Azzopardi, including burns that required surgery and skin grafts to his hands and the acute post traumatic reaction suffered by Mr Maiolo, were manifestations of the risk. SENTENCING PRINCIPLES 1. I have had regard to the objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the Sentencing Act') for the purpose of sentencing. The purposes for which a Court may impose a sentence on an offender are as follows: 1. to ensure that the offender is adequately punished for the offence; 2. to prevent crime by deterring the offender and other persons from committing similar offences; 3. to protect the community from the offender; 4. to promote the rehabilitation of the offender; 5. to make the offender accountable for his or her actions; and 6. to recognise the harm done to the victim of the crime and the community. 1. The penalties imposed must give effect to the intention of the Act, in particular, protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: s 3A of the Act. 2. The Court is to be guided by the provisions of the Sentencing Act which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered. 1. The court is to approach a sentencing exercise on the basis of it being one of "instinctive synthesis": Markarian v The Queen (supra). 2. This approach to sentencing was reiterated by Russell SC DCJ in SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 at [109] in this way: 'The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.' 1. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 at [89]. OBJECTIVE SERIOUSNESS OF THE OFFENCE 1. The duty of the defendants requires that they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable and the defendant had the control and influence over workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks. 2. Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking into account such factors. 3. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474–5. 4. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [714]. 5. The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465. 6. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Limited & Anor (No.3) (2005) 147 IR 117. 7. In Nash v Silver City Drilling (NSW) Pty Limited (2017) 93 NSWLR 338, Basten JA explained the approach to sentencing as follows: '[34] The sentencing judge commenced his consideration with the proposition that "[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than to guard against the occurrence of which is extremely unlikely". However the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.' ….. '[42] The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.' ….. '[53] The legitimate purposes of intervention in the present case are twofold. The first purpose is to identify the proper approach to considering the objective seriousness of offences under the Work Safety Act. It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.' (my emphasis added) 1. The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, the more serious the offence will be. 2. Ultra Refrigeration admits, by its plea, failing to implement systems of work to ensure allocation of work in a safe manner and appropriate supervision of unqualified and inexperienced workers. It also admits that it failed to provide information, training and instruction regarding the appropriate allocation and supervision of work. 3. Ultra Refrigeration accepts that the potential consequences of the risk manifesting were high and that there were steps available to ameliorate the risks which were not unduly burdensome. However, the defendants submit that the probability of the risk manifesting in the context of Ultra Refrigeration's business was at the lower end. The basis for that submission is as follows: * Firstly, refrigeration/air-conditioning technicians are entitled to do some work which would otherwise be considered "electrical wiring work". This area of overlap is set out in sch 4 of the Home Building Regulation 2014 and includes: 'associated electrical wiring work relating to the general servicing and maintenance of an air-conditioning system, that involves any of the following—(i) testing of, and diagnosis of problems in, control and power circuits and electrical equipment and electric motors, (ii) the disconnection and reconnection of electrical components designed to be permanently connected, (iii) the replacement of electrical components on the load side of the mains supply, (iv) the repair and adjustment (in accordance with normal trade practice) of electrical components, (v) the repair, replacement or making good of cable terminations or defective electrical wiring, (vi) minor alterations to electrical wiring' * Secondly, where it is a refrigeration and air-conditioning technician who is carrying out 'electrical wiring work', the likelihood of serious injury or death manifesting is considerably lower than when other classes of 'unqualified persons' are carrying out the work because refrigeration/air conditioning technicians receive as part of their trade, training in safe work practices for the conduct of electrical work; and such technicians work in an environment where there is a constant need to adopt safe practices to guard against the risks inherent in carrying out 'electrical wiring work'. * A central feature of these safe practices is the 'fundamental rule' that one does not work on live equipment. Mr Prestia explains at [49] and [71] of his affidavit that working on mains switchboards was an uncommon occurrence for Ultra Refrigeration and thus the allocation of the appropriate person to do the work rarely arose. * It is an agreed fact that Mr Azzopardi was, at the relevant time, a fourth year apprentice who had been employed at Ultra Refrigeration for almost 5 years and he knew that he was not permitted to work on live installations. It is also common ground that he was capable and competent in isolating electrical installations. * Finally, the defendants submit that Mr Prestia has set out a variety of ways in which the need to isolate equipment, and not work on any live equipment, was continually reiterated to technicians. He also notes that this was something taught to apprentices at TAFE. The risk of electrocution and the need to isolate live equipment was also identified in Ultra Refrigeration's SWMS at the relevant time. Notwithstanding the admitted failings, if Mr Azzopardi had adhered to this 'fundamental rule' the incident would not have occurred and the risk would not have manifested. 1. It is well known that the risk of death or serious injury is significant if a person comes into contact with electricity. Electric shocks, arc flash explosions and electrocution can result in very serious injuries and death. 2. Neither of the apprentices were qualified to perform the electrical work without being supervised by a licenced electrician. At the time of the incident Ultra Refrigeration did not employ a licenced electrician, apart from Mr Benefer to whom Ultra Refrigeration consulted on an ad hoc basis. Section 14 of the HBA prohibited Mr Azzopardi from doing the work that Ultra directed him to do. 3. It is of some concern that the electrical work was allocated to unqualified workers (i.e. the two apprentices) and that this was not by chance. Ultra Refrigeration had intended that the work be done by Mr Trembath, who was also not a qualified electrician. Mr Trembath knew what the work involved, as did Mr Palumbo who had ordered the parts. When Mr Trembath called in sick on the morning of the job, it was then allocated to the two apprentices by Mr Palumbo. 4. It is an agreed fact that a 'work solution' to replace that three-phase circuit breaker, contactors and overloads, was communicated to Mr Palumbo and Mr Prestia and this was communicated to the KFC Area Manager on 13 October 2017 and clearly Mr Trembath knew what was involved as he had diagnosed the problem. 5. It is also an agreed fact that Mr Palumbo's position as Service Operations Manager involved "supervising workers, scheduling their days [and] overseeing some jobs through remote communication". Ultra Refrigeration had employed Mr Palumbo to do those tasks, however, Mr Palumbo held no qualifications at all in air conditioning or refrigeration or as an electrician. Thus, it follows that Ultra Refrigeration employed and relied upon an unqualified person to allocate jobs to apprentices, such that Ultra Refrigeration's reliance upon him placed its workers at risk. The duties owed by Ultra Refrigeration and Mr Prestia are non-delegable. They cannot escape responsibility by passing the task of allocation of work to Mr Palumbo, who himself was not qualified to do the work nor supervise it. 6. I accept that Mr Prestia did not know that the work had been allocated to the apprentices. I also accept that if the apprentices were uncertain as to how to proceed, they should have telephoned Mr Prestia for advice, as has happened on many previous occasions, but did not happen on this occasion. 7. It is an agreed fact that Mr Azzopardi had not completed his TAFE qualifications nor been issued with a Certificate of Proficiency which is the full trade qualification. As such Mr Azzopardi could not supervise Mr Maiolo in any event. It appears that Mr Prestia was not aware of this. 8. Objectively, the defendants' breaches of their work, health and safety duties were serious, and consequently its culpability is high: Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35. 9. I do note however that there was another element in the chain of events. It is common ground that Mr Azzopardi knew not to perform wiring works on a 'live' system. He had intended turning the power off before he commenced the work. 10. Unfortunately, when this was communicated to the KFC Manager on duty that day, his response was that the power could not be turned off as the outlet was about to open for trading. 11. I accept that Mr Azzopardi knew that the power should have been turned off, but in circumstances where the manager asked him not to do so, he did not turn the power off. DETERRENCE 1. In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act. 2. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to work, health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J). 3. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence. 4. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) NSWLR 338 at [177]–[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium Limited v WorkCover Authority of NSW (supra): '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … [75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.' 1. Similarly, general deterrence can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks associated with working with refrigeration, air-conditioning and electricity. 2. In relation to specific deterrence, the attitude of the defendants to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendants to reoffend. 3. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors. 4. After the incident, Ultra Refrigeration began to work closely with the National and Communications Association to assist it to implement appropriate systems to ensure safety, and has continued working towards improving its safety practices. To that end, Ultra Refrigeration has new measures in place as follows: 1. Ultra Refrigeration has employed a technically trained service manager, Jarrad Russell who is a qualified technician in air-conditioning and refrigeration and he holds a supervisors licence. As a consequence of his experience and training, Mr Russell is able to distinguish between air-conditioning work and refrigeration work on the one hand, and work that must be performed or supervised by a qualified electrician. The fact that he is technically trained means technicians have an additional qualified supervisor for advice and assistance. Mr Palumbo no longer works for Ultra Refrigeration. 2. All technicians and apprentices are now either supervised by a licenced supervisor or they hold a supervisor's licence themselves. To ensure this, Ultra Refrigeration has a system in place that ensures that a copy of the current licences is kept in employee files. They now have 12 qualified air-conditioning and refrigeration supervisors and 2 qualified electrician supervisors on staff. 3. Refrigeration and air-conditioning apprentices are never allocated jobs involving electrical wiring work, including replacing circuit breakers on main switchboards. Apprentice electricians now receive direct supervision, that is continuous, in-person and onsite supervision for the entirety of their apprenticeship. 1. I accept that the above measures and the other steps taken since the incident, as detailed in Mr Prestia's affidavit (Exhibit 1) demonstrates that Ultra Refrigeration has refined, strengthened, and implemented a system of safe work practices which it requires all employees to follow. In particular, the fact that refrigeration and air-conditioning apprentices are never allocated jobs involving electrical wiring, has effectively eliminated the relevant risk. 2. I also accept that the incident has had a salutary effect on Mr Prestia. He has taken considerable steps to ensure that his workforce are not exposed to risks to their safety. 3. In these circumstances, I find that the need for specific deterrence is relevant but not of significant import despite the fact that the defendants remain active in the industry. AGGRAVATING FACTORS 1. Pursuant to s 21A(2)(g) of the Sentencing Act, I must take into account that the injury, emotional harm, loss and damage caused by the offending were substantial. The offence involved a grave risk on injury. The serious injuries suffered by Mr Azzopardi and Mr Maiolo (to a lesser extent) engage these aggravating factors. MITIGATING FACTORS 1. To establish a mitigating factor, the onus is on the defendants. 2. I note that the defendants do not have a record of previous convictions: s 21A(3)(e) of the Act. This is significant to my mind as the defendants operate in an inherently dangerous industry. Thus, the defendants are accordingly entitled to the lenience normally extended to 'first offenders': R v McNaughton (2006) 66 NSWLR 566; Attorney General of NSW v Tho Services Limited (in liquidation) [2016] NSWCCA 221 at [105] (Harrison J, Hoeben CJ and Campbell J agreeing). 3. Furthermore, I accept that both defendants are of good character and contribute to the community, including through the support of charitable organisations and causes and the sponsorship of sporting groups. These causes include the World's Greatest Shave, Macarthur Disability Services, Guide Dogs NSW, Kidney Health Australia and Pedal Power: s 21A(3)(f) of the Act. 4. I view the prospects of re-offending as minimal and that the defendants have good prospects of rehabilitation. The defendants have taken considerable positive remedial action to ensure that the risk does not manifest again: ss 21A(3)(g) and (h) of the Act. 5. The prosecutor concedes that the defendants are entitled to the full 25% discount on penalty due to their early pleas in accordance with the principles outlined in the guideline Judgment of the Court of Criminal Appeal in R v Thomson (2000) 49 NSWLR 383. The pleas were entered on 7 December 2020 – immediately consequent upon the prosecution's filing of substantially Amended Summonses: ss 21A (3)(k) and 22 of the Act. 6. I accept that the defendants have expressed unreserved remorse, have accepted responsibility for their actions and have acknowledged that the injuries sustained by Mr Azzopardi and Mr Maiolo were caused by their conduct: s 21A(3)(i) of the Act. I also accept that Mr Prestia and Ultra Refrigeration, through him, have a high level of insight into their conduct and, having regard to the considerable remedial steps already taken, have excellent prospects of rehabilitation. 7. I note that the defendants co-operated with the prosecutor: s 21A(3)(m) of the Act. MOIETY AND COSTS 1. The defendants accept that costs follow the event. It is also not in dispute that the prosecutor is entitled to seek a moiety of any fine imposed pursuant to s 122 of the Fines Act 1996 (NSW). PENALTY 1. I make the following orders: 1. The defendants are convicted. 2. The appropriate fine for the corporate defendant, Ultra Refrigeration Pty Limited, is $200,000.00 and that will be reduced by 25% to reflect the early plea. 3. Accordingly, I order the corporate defendant, Ultra Refrigeration Pty Limited, pay a fine of $150,000.00. 4. The appropriate fine for the individual defendant, Romolo Prestia, is $20,000.00 and that will be reduced by 25% to reflect the early plea. 5. Accordingly, I order the individual defendant, Romolo Prestia, pay a fine of $15,000. 6. 00. 7. Pursuant to s 122 (2) of the Fines Act 1996 (NSW), 50% of the fines imposed are to be paid to the prosecutor. 8. The defendants to pay the prosecutor's costs as agreed in the sum of $55,000.00. 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: 30 April 2021