District Court New South Wales Medium Neutral Citation: SafeWork NSW v Onsite Rental Group Operations Pty Ltd [2021] NSWDC 338 Hearing dates: 24 June 2021 Date of orders: 23 July 2021 Decision date: 23 July 2021 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted. (2) The appropriate fine for the offence is $200,000 and that will be reduced by 25% to reflect a plea of guilty. (3) Accordingly, I order the defendant to pay a fine of $150,000. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) Pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's costs agreed in the sum of $42,000. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay – totality of sentence - appropriate sentence - parity Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Butters v R [2010] NSWCCA 1 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Imbornone v R [2017] NSWCCA Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117 Munro v R [2006] NSWCCA 350 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 Pfitzner v R [2010] NSWCCA 314 R v Cage [2006] NSWCCA 304 R v Elfar [2003] NSWCCA 358 R v Harrison [2001] NSWCCA 79 R v MA [2004] NSWCCA 92 R v McGourty [2002] NSWCCA 335 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Palu [2002] NSWCC 381 R v Qutami [2001] NSWCC 353 R v Wilkinson (No. 5) [2009] NSWSC 432 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 Van Zwam v R [2017] NSWCCA 127 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 Texts Cited: Australian Standard 'Cranes, hoists and winches – Safe use Part 10: Mobile elevating work platforms' WorkCover 'Work Near Overhead Lines' Code of Practice dated 2006 Category: Sentence Parties: SafeWork NSW (Prosecutor) Onsite Rental Group Operations Pty Ltd (Defendant) Representation: Counsel: Ms N Evans (for the Prosecutor) Mr B Hodgkinson SC and Mr S McIntosh (for the Defendant) Solicitors: Mr H Bell Department of Customer Service (for the Prosecutor) Mr S Penning, HWL Ebsworth Lawyers (for the Defendant) File Number(s): 2020/93076 Publication restriction: Nil JUDGMENT 1. On 28 May 2018, at 15–33 Glossop Street, St Marys, Onsite Rental Group Operations Pty Ltd ('the defendant'), being a person conducting a business or undertaking who had a health and safety duty, failed to comply with their duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) ('the Act') to ensure, so far as reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking. In the failure to comply with that duty, the defendant exposed Sheikn Khan ('Mr Khan') to a risk of death or serious injury contrary to s 32 of the Act. 2. The defendant entered a plea of guilty on 22 February 2021. The maximum penalty for an offence under s 32 of the Act for a corporate entity is $1,500,000. BACKGROUND 1. The defendant conducts a business involving the rental of industrial plant and equipment. The defendant operates from a site in St Marys ('the site'). The directors of the defendant are Bruce Olson ('Mr Olson') who is the CFO and Michael Foureur ('Mr Foureur') who is the CEO and managing director. 2. Mr Khan was employed by the defendant as a service mechanic. His duties included testing and servicing plant and equipment before and after they were hired out. 3. On 28 May 2018, Mr Khan was performing a pre-hire inspection of a scissor lift. The scissor lift was located at the rear of the site where equipment of this nature was routinely stored. This area had power lines that were 8.9 metres above the ground. 4. As part of his duties, Mr Khan had to test whether the scissor lift could extend to its full capacity. The scissor lift he was inspecting could extend 9.68 metres. In the course of carrying out his duties, Mr Khan came into contact with high voltage power lines. 5. Mr Khan sustained an electric shock and serious burns to his upper body. He sustained serious injuries and has required extensive ongoing treatment and rehabilitation. SYSTEMS OF WORK BEFORE THE INCIDENT 1. There was no written procedure in place at the site that authorised, prohibited or otherwise provided for the carrying out of pre-hire inspections within close proximity to overhead power lines. 2. There was no site-specific written safe work method statement for the task of pre-hire inspections of elevating work platforms. 3. The system of work for conducting pre-hire inspections of scissor lifts was not fully documented. Where scissor lifts had to be raised, this was carried out either inside the workshop (if there was room) or on the western side of the yard where there were no power lines overhead, called the 'go row' area. Site Plans and Signage 1. The defendant had a site map which indicated the location of power lines at the rear of the site. The site map was displayed in multiple locations throughout the site. 2. On 11 May 2018, an electronic sign with the message 'CAUTION POWERLINES ↑↑↑' was installed under the powerlines at the site. 3. There were signs titled 'Clearance for Operating Equipment Near Power Lines' situated on the scissor lift, including within the platform and close to the controls of the scissor lift. These signs made clear to the operator of the scissor lift that a spotter was required if the scissor lift was to be extended upwards in the vicinity of power lines. Training and Supervision 1. All employees were required to undertake mandatory training as part of their induction and were also given a tour of the site when they commenced employment. 2. Mr Khan was provided with specific training by way of a buddy system with Morgan Potter ('Mr Potter') who had been working for the defendant since 2015. In relation to operating machinery in close proximity to overhead power lines, workers were provided with oral instructions. Mr Khan was aware of the power lines prior to the incident. 3. A high-risk work licence is required to operate work platforms over 11 metres and requires competency-based training for platforms under 11 metres. Mr Khan did not have either of these certificates. 4. Mr Khan was not required to hold a high-risk work licence due to the legislative exemption for a person who carries out high-risk work solely for the purpose of maintenance, servicing, testing or moving plant within the workplace. 5. Aaron Kesby ('Mr Kesby') had worked on the site for fifteen years and was the leading hand on site. He had direct supervision of three service mechanics including Mr Khan. He provided verbal instruction to these workers on safety-related matters. 6. The defendant held daily pre-start meetings at the beginning of each working day which all workers were required to attend. The defendant also held monthly toolbox talks for the entire site. Site Audits 1. Prior to the incident, the defendant had in place a comprehensive system whereby Timothy Starr ('Mr Starr'), a highly trained and experienced national safety manager, would personally inspect and audit the site for risks. These audits occurred at least once per month from July 2016 onwards. SYSTEMS OF WORK FOLLOWING THE INCIDENT 1. Immediately following the incident and in response to an improvement notice issued by SafeWork NSW, the area directly beneath the overhead power lines was barricaded and the defendant gave instructions to workers about not parking equipment under the power lines at the site. SENTENCING 1. The penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the Act. 2. 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; 6. to denounce the conduct of the offender; and 7. to recognise the harm done to the victim of the crime and the community. 1. 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 (2005) 228 CLR 357. 2. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [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 judgement without any attempt to state precisely how any given factor has influenced the judgement.' OBJECTIVE SERIOUSNESS OF THE OFFENCE 1. 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 (NSW) (1999) 90 IR 464, 474–5. 2. 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 [31]. 3. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 at [81]. 4. 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. 5. 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 Ltd (No. 3) (2005) 147 IR 117. 6. The Court of Criminal Appeal examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd ('Nash v Silver City') [2017] NSWCCA 96. Justice Basten at [34], under the heading 'Assessment of Risk' said: '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 an event 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 upon an assessment of all those factors.' 1. His Honour further observed at [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, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known.' 1. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: '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 failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring 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 mitigation steps could have been taken.' 1. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272. 2. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]–[18] (Latham J). 3. The defendant's duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the Act; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 4. The pleaded measures admitted by the defendant to be reasonably practicable steps which it ought to have implemented, but failed to do so, in breach of their duties under s 19(1) of the Act would have virtually eliminated, and at least significantly minimized, the risk. These admitted failures are set out at paragraph 10 of Annexure A to the Amended Summons as follows: 1. Installing fencing across the rear of the site to prevent items of plant being stored near the power lines; or 2. Stowing, and requiring the stowing of plant capable of being elevated, including scissor lifts, in other locations on the site, away from the power lines; or 3. Developing and enforcing a written safe work procedure that reiterated that the task of conducting pre-hire inspections of equipment was not to be conducted in the vicinity of the overhead powerlines at the site. 1. The plea of guilty further encompasses admissions by the offender that: 1. The risk was one of serious injury or death: Annexure A to the Amended Summons [9]; 2. An employee of the defendant, Mr Khan, was exposed to the risk: Annexure A to the Amended Summons [11]; and 3. The injuries sustained by Mr Khan on 28 May 2018 were a manifestation of the risk: Annexure A to the Amended Summons [12]. 1. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ). 2. At the time of the incident, there were signs titled 'Clearance for Operating Equipment Near Power Lines' situated on the scissor lift, including within the platform and close to controls of the scissor lift. These signs made it clear to the operator of the scissor lift that a spotter was required if the scissor lift was to be extended upwards in the vicinity of the power lines. 3. It is not in dispute that Mr Khan had been trained in the use of scissor lifts as part of his induction. He was further trained in the buddy system, and shown how to do pre-hire inspections, and had been working for the defendant operating scissor lifts since 2017. It is an agreed fact that Mr Khan was, prior to the incident, aware of the position of power lines. 4. In his affidavit dated 21 June 2021 (Exhibit 1), Mr Fourer deposes at [52] that Mr Khan had operated the scissor lift for pre-hire or pre-delivery inspections on approximately 137 occasions prior to the incident. The defendant concedes that the risk of a scissor lift coming into contact with overhead power lines was a foreseeable one. However, there is no evidence before me that Mr Khan was aware of the risk that is pleaded, nor that he knew exactly how high the platform could be elevated, or that he knew of the actual height of the power lines. 5. The defendant submits that the prospect of Mr Khan, an experienced worker who was familiar with the worksite, having worked for the defendant at the St Mary's site since 2017, and was specifically aware of the power lines, raising the scissor lift into the power lines was less so. The defendant's breach, it is submitted, is founded in the fact that despite the extremely low prospect of the risk 'coming home', it was nevertheless remotely possible. 6. Prior to the incident the defendant had attempted, it accepts, unsuccessfully, to eliminate or minimise the risk, and had taken the following steps: 1. Employed an experienced and highly qualified National Safety, Health, Environment and Quality ('SHEQ') Manager, Mr Starr, who reported directly to Mr Fourer, to oversee the defendant's compliance with its work health and safety responsibilities; 2. Provided support to Mr Starr through Mr Neil Webster ('Mr Webster') and Mr David Faultless as SHEQ Advisors; 3. Through Mr Starr and others, managed the wide and complex variety of safety risks associated with the defendant's business; 4. Through Mr Starr and Mr Webster, conducted regular inspections and internal audits of the St Mary's site, on an almost monthly basis; 5. Through Mr Webster, identified, at a corporate level, that the power lines presented a risk, which resulted in the installation of a variable message sign; 6. Provided Mr Khan, and others at the St Mary's site, with on the job training including: 1. an induction comprised of a computer session focused on the defendant's policies and procedures; 2. a site walk around conducted by a senior employee, during which Mr Khan was informed of the existence of the power lines and the risk that they presented; 3. "buddy system" training, which involved Mr Khan being provided with oral instructions by Mr Potter, a service technician who had worked at the St Marys site since 2015, about the safe use of plant and machinery in proximity to power lines; 4. providing workers, including Mr Khan, with oral instructions in relation to the safe use of plant and machinery in close proximity to the power lines at the site; 5. assessed Mr Khan as competent; 6. provided supervision through Mr Kesby, a leading hand with 15 years' experience; 7. displayed a 'site map' at various locations at the St Mary's site, which clearly indicated the location of the power lines; 8. showed Mr Khan, and others, the 'site map' during induction; 9. implemented and enforced a system of work for the checking and maintenance of scissor lifts that involved technicians elevating scissor lifts inside the workshop or on the western side of the workshop (the 'go row' area), being neither close or proximate to the power lines; 10. implemented a Safe Work Method Statement for 'Servicing Equipment' that identified, in respect of the 'Position Vehicle' task, the risk of 'electrocution' and required that the operator 'Ensure sufficient clearance from the live power lines for all activities'; 11. placed a variable message sign under the power lines, which read 'CAUTION POWER LINES'; and 12. placed, within the platform and close to the controls of the scissor lift, a sign that made clear to the operator that a spotter was required if the scissor lift was to be extended upwards in the vicinity of any power lines. 1. The objective seriousness of an offence under s 32 of the Act is considered in the context of the graduation of offences contained in ss 31–32 of the Act: Nash v Silver City at [54]–[56]. The matters relevant to objective seriousness for a s 32 offence include: * The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize. In this instance, the consequences were catastrophic: Ibid [34]; * The availability of steps to eliminate or minimise the risk: Ibid [53]; * Whether those steps are complex, burdensome or mildly inconvenient if mitigating steps could easily have been taken, the offending will be more serious: Ibid [53]; * Whether the risk was known or ought reasonably have been known to or identified by the offender; * Whether the risk was an obvious or clear one; and * The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ). 1. The following matters are relevant to determining the culpability of the defendant: 1. The risk of a worker being seriously injured or killed as a result of raising the scissor lift underneath power lines, is something the prosecutor submits was an accident waiting to happen, and in particular that the scissor lifts were stored underneath power lines. 2. Contrary to that, the defendant submits that the unfortunate truth is that, for whatever reason, Mr Khan acted inconsistently with the safety procedure for the maintenance of the scissor lift which was in place at the St Marys site. Mr Khan was trained in the procedure, which did not involve raising the scissor lift beneath the power lines. 3. Nonetheless, the defendant had an overriding obligation to ensure that all the procedures that were in place at the site were enforced. There were no site specific written induction procedures. 4. The defendant further asserts that the absence of the pleaded measures should not be assessed in a vacuum, and the totality of the circumstances in which the offending conduct occurred suggests that the defendant's culpability is at the low end. I accept that the defendant operates within an inherently dangerous industry, and has developed and maintained a comprehensive safety system. Of importance, the defendant has never been charged with or found guilty of a breach of safety laws. I accept that the failure was not indicative of a systemic issue. 5. The defendant asserts that there was extensive material available to it that caused it to conclude that its system was safe and minimised the exposure to the pleaded risk for a number of reasons as follows: 1. There was warning decal contained within the platform of the scissor lift which established three different zones of safety, red, yellow and green. I accept that the decal was a written warning that the operator ought to use a spotter if she proposed to raise the scissor lift in the proximity of any power lines; 2. The scissor lift operating manual dated 1 May 2013 was available to Mr Khan, and it was inside the pouch of the scissor lift. Storage of the scissor lift in a fully lowered position was thus in compliance with the operating manual; 3. The defendant was provided, by TransGrid, who owned and operated the Power Lines, with a TransGrid Guide that contained a list of 'green' or 'permitted' activities, which included vehicle parking 'provided vehicle height is under 4.3m'. The height of the scissor lift when parked was 2.33m; 4. The WorkCover 'Work Near Overhead Lines' Code of Practice dated 2006 does not expressly prohibit the storage of the electronic work platforms beneath power lines. Rather, it establishes safe operating distances into which a person should not generally enter. Item 3.3 of the Code establishes that the approach distance of a power line up to 132kV is 3.0 metres; 5. In this instance the power lines were 132kV, and at that the time of the incident, the power lines were 8.9 metres above the ground. Thus, the mere storage of the scissor lift, in a fully lowered position, beneath the power line did not cause an encroachment. Chapter 4 of the Code contained a note of the intention of the chapter as follows: 'This chapter is not intended to cover cranes and mobile plant when they are retracted and correctly stowed when travelling on a public road or where the design envelope of the crane or item of mobile plant is less than 4.6 metres in height.' 1. The Australian Standard 'Cranes, hoists and winches – Safe use Part 10: Mobile elevating work platforms' does not expressly prohibit the storage of electronic work platforms beneath power lines. Rather, like the Code of Practice, it establishes safe operating distances into which a person should not generally enter – the distance of 6.4m from a horizontal beam onto which the conducting wires are attached as the 'spotter required zone'. 1. The defendant was in error in concluding that a system that involved the storage, but not inspection of, scissor lifts in the proximity of power lines was a safe one. However, in the context of the information available to the defendant, the system was comprehensive, and I accept, robust. 1. The defendant submits that its approach to safety before the incident was proactive and extensive. Despite the many and varied risks associated with its work, the defendant had never breached its work health and safety obligations. I accept that the prospect of an experienced worker raising the scissor lift to make contact with the power lines, which culminated in the incident, was not identified and eliminated as a cause of concern and regret, which the defendant has also accepted. 2. The Agreed Statement of Facts does not contain any criticism of the system that existed before the incident—the allegation that is made, and accepted, is that there was no specific written statement. The system that was in existence prior to the incident was that the scissor lift would be removed from the area for testing i.e. away from the power lines, and that would not expose anyone to a risk. There is no suggestion in the evidence before me, that anybody had ever performed this task in the position that the scissor lift was in at the time of this incident. 3. Thus, the incident is the only evidence of the manifestation of the risk. These circumstances are not that of a known problem with the system, nor a supervisor not paying attention. 4. Mr Khan had performed this specific task 137 times prior to the incident; [52] affidavit of Mr Fourer. He had been inducted into the site, his qualifications and training were checked, and he was informed of the 'buddy system'. When he started work at the site, he was 'buddied up' to Mr Potter: Exhibit 1, page 269. 5. In Imbornone v R [2017] NSWCCA, Wilson J stated at [57] the following: '[57] This Court has frequently said that untested out of court statements made to third parties should be treated with caution. Although it should be a principle that is well known and understood it seems necessary to restate it. The following statements are derived from the authorities: (1) Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCC 353 at [58]–[59]. (2) Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCC 381; (2002) 134 A Crim R 174 at 185, [40]–[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24]–[25]. (3) It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33]. (4) If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]–[19]. (5) Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge: Van Zwam v R [2017] NSWCCA 127; generally the circumstances in which regard would be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, 'to treat this evidence with anything but scepticism represents a triumph of hope over experience': R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380 at [44].' 1. With regard to the document headed 'Statement from Morgan Potter regarding the Buddy On-Boarding he completed with Sheik Khan', the prosecutor submits that this is a hearsay document, and therefore it is a question of the weight that I might place on this evidence. I note that it was served on the evening of Monday 21 June 2021 for sentence hearing on Thursday 24 June 2021. 2. In contrast the defendant submits that I can give significant weight to this evidence, because there is additional material to corroborate this evidence; at [16] and [18] of the Agreed Statement of Facts. I accept that this is so, and have taken this evidence into account in coming to my determination of the objective seriousness of the offending. 3. Paragraph [16] of the Agreed Statement of Facts identifies the signage that was on the scissor lift. In effect, the signage amounts to a written instruction of the safe methods of usage of the scissor lift and the 'no go zone'. I accept that this signage acted as a reminder of the written procedure with regard to the elevation of a scissor lift. 4. I accept that this is not a case where it could be said that the instruction that was given to workers was done months ago. In particular there was in fact a reminder of those instructions. In this instance, the signs contained on the scissor lift were a reminder of the instructions given, whilst not in effect a written system in and of itself, it did function as a written reminder. 5. I further accept that this signage was a direct attempt by the defendant to erase the risk, the very risk that the defendant had taken many steps to identify. In those circumstances, the culpability of the defendant must be less than those defendants who failed to remind workers of the risk. 6. Paragraph [17] of the Agreed Statement of Facts details that the work done in this instance is maintenance work on hired plant and equipment. Such work involves pre-ordained checks – the 90 day check, the 12 month check, the pre-hire check etc. I accept that the checking process so described is in effect a SWMS. Such checking happens at the defendant's premises, but also out on the site where the plant is to be used. Thus, the manual serves as a SWMS for wherever the works are being done. 7. Ultimately, I accept that the offending falls within the low range, as I have assessed the culpability in the context of all the relevant mattes. As such, I can give the defendant the benefit of the facts that: 1. It had in place a system into which workers were inducted; 2. There were reminders of such system placed in the scissor lift itself, by way of signage and in particular with regard to the 'no go zone'; 3. The workers had been appropriately trained that if the scissor lift was to enter into the 'no go zone', a spotter was required; and 4. All workers were inducted into the buddy system. 1. Thus, it cannot be said that this was a failure by management to introduce an appropriate safety system, but a failure to ensure that the particulars of the system were being observed. 2. Mr Potter's notes indicate that training was provided to Mr Khan and, in as much as the manner in which he was instructed to perform the work. The evidence as to the manner in which the work was done, which the defendant asserts that it was, is unchallenged. 3. Paragraph 16 of the Agreed Statement of Facts identifies that there were signs on the scissor lift itself as to the manner in which it was to be utilised. I accept that these signs, or decals, provided a written instruction of the manner in which the task was to be performed. This clearly was a reminder of, and outlining of the written procedure to be followed. 4. Further, I accept that this case can be distinguished from circumstances where it could be said that Mr Khan was trained some time ago, but there were no reminders of that training. The situation here is quite different, as although there was no written system of performance of this exact task, the signs attached to the scissor lift served as a written reminder of the system that ought be implemented. I further accept that this was a direct attempt by the defendant to identify and erase the risk, the very risk, that manifested itself in this incident. 5. The simple act of parking the scissor lift under the power lines did not give rise to a risk. It was the act of raising the scissor lift that created the risk, not the actual power lines, or being parked underneath them. The 'no go zone' as described in Mr Fourer's affidavit (p232–233) is a vertical area, not horizontal. The risk only arose if the scissor lift was extended into the 'no go zone', whilst underneath the power lines. 6. The defendant's system, I accept, was that if it was necessary to so extend the scissor lift, a 'spotter' was to be utilised. This system was actively engaged (see [72] of Mr Fourer's affidavit), assessed and reinforced on regular occasions. I also accept that the event of the scissor lift being raised under power lines had never happened previously. 7. I accept that the systems that the defendant had in place prior to the incident, demonstrated a system of training and induction, which included the buddy-system. The reminder contained within the signage and decals, does not point to a complete failure of the management of the defendant to introduce and implement a system, it is a failure of it being observed. 8. The defendant submits that the occurrence of this incident is not emblematic of a systemic safety issue at the defendant's work place. Rather, it is a small gap in an otherwise comprehensive and through system. Contrary to that, the prosecutor asserts that this does not reduce the culpability, as the gap in the system was almost fatal given the youth of the worker. 9. I do not agree with the prosecutor's submission. In assessing the defendant's culpability, I must examine how and why the failure occurred, including whether the failure was a failure to adhere to the defendant's systems, or a failure by the defendant to adhere to its safe system. I must, and have, considered the conduct that constitutes the offence and the surrounding circumstances of aggravation and mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61] (Johnson J). Relative culpability will turn upon an overall evaluation of various factors, which may pull in different directions: Nash v Silver City [42]. 10. In light of Mr Khan's training and documented work history at the st Mary's site, I infer that Mr Khan was, on the day of the incident, experienced in the proper, established procedure for the servicing and maintenance of the scissor lift. Why he did not unfortunately follow the procedure on the day of the incident is a matter that remains unexplained. 11. Ultimately, the defendant was in error in concluding that a system that involved storage, but not inspection, of scissor lifts in the proximity of power lines was a safe one. However, I have assessed this error in the context of the information available to the defendant, in conjunction with its otherwise comprehensive and robust system. DETERRENCE 1. In fixing a penalty in relation to these offences, 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. 4. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 at [177]–[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally 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 at [74]–[75] which said: '[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. General deterrence must be a significant feature of the sentence imposed upon the defendant. It 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 in an environment where ascending vehicles and power lines mix within the workplace. 2. 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. 3. Conduct such as the defendant's must be denounced as the exposure of workers to the potential risk of serious injury or death from the action of coming into close contact with high voltage overhead power lines requires that the message of work place health and safety be front of mind to all employers at all times. 4. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend. 5. The defendant has demonstrated that they have taken this terrible incident, considered it, learnt from it, and promptly addressed their systems in a constructive way. 6. After the incident, the defendant has also invested significantly in safety, including monetarily, investing sums that run into the tens of millions. 7. I note that the defendant continues to perform the same work as it did when the incident occurred, but the extensive steps taken following the incident, and the acknowledgement of its failings, give me comfort that the prospects of rehabilitation of the defendant are very good and the need for an element of specific deterrence is minimal in these circumstances. AGGRAVATING FACTORS 1. The injuries sustained by Mr Khan were very serious. He suffered an electric shock and serious burns to his upper body. He underwent multiple surgical procedures including skin grafts and extensive debridement of burnt tissue. His suffering must be immense and I note that as a result of the incident and resulting injuries, Mr Khan requires extensive ongoing treatment and rehabilitation: s 21A(2)(g) of the Sentencing Act. MITIGATING FACTORS 1. The defendant has no previous convictions and the prosecutor fairly concedes that this is a matter that can be taken onto account as a mitigating factor. To my mind, noting the defendant has operated in an industry which is inherently dangerous, this is a significant mitigating factor: s 21A(3)(d) of the Sentencing Act. 2. Further, the prosecutor also fairly concedes, with which I agree, that the defendant has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act. 3. The prosecutor concedes, and I accept, that the defendant has shown remorse and contrition, as demonstrated in Mr Foureur's affidavit, and as such is entitled to leniency on that basis: s 21A(3)(i) of the Sentencing Act. 4. The defendant co-operated with the investigation by SafeWork and I have taken that into an account as a mitigating factor: s 21A(3)(m) of the Sentencing Act. 5. The defendant entered a plea of guilty early, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis, thus I will allow the deduction of 25% for the utilitarian value of the plea: s 22 of the Sentencing Act. 6. The appropriate fine is $200,000. The defendant is entitled to a discount of 25% for the early plea. PENALTY 1. I make the following orders: 1. The defendant is convicted. 2. The appropriate fine is $200,000 and that will be reduced by 25% to reflect the early plea. 3. Accordingly, I order the defendant pay a fine of $150,000. 4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 5. Pursuant to s 257B of the Criminal Procedure Act 1986, the defendant is to pay the prosecutor's costs agreed in the sum of $42,000. ************ 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: 23 July 2021