District Court New South Wales Medium Neutral Citation: SafeWork NSW v Ausgrid Management Pty Ltd [2023] NSWDC 164 Hearing dates: 5 April 2023 Date of orders: 19 May 2023 Decision date: 19 May 2023 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted. (2) The appropriate fine for the offence is $800,000.00 and that will be reduced by 25% to reflect the plea of guilty. (3) Accordingly, I order the defendant to pay a fine of $600,000.00. (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 (NSW), the defendant is to pay the prosecutor's costs as agreed in the sum of $87,052.00. 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 – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition COSTS – prosecutor's costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Electricity Act 1995 (NSW) Electricity Supply (Safety & Network Management) Regulation 2014 Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2017 (NSW) Cases Cited: Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 Kirk v Industrial Commission of New South Wales [2010] HCA 1 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 Muldrock v The Queen (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Ausgrid Management Pty Ltd (Defendant) Representation: Counsel: Mr M Cahill (for the Prosecutor) Mr C Magee (for the Defendant) Solicitors: Department of Customer Service (for the Prosecutor) Herbert Smith Freehills (for the Defendant) File Number(s): 2021/234413 Publication restriction: Nil Judgment 1. On 2 April 2019, at 116 Riverview Street, Riverview, in the State of New South Wales, Ausgrid Management Pty Ltd being a person conducting a business or undertaking who had a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) ('WHS Act') to ensure, so far as was reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking, did fail to comply with that duty and the failure to comply with that duty and such failure to comply exposed workers, in particular Robert Nicholls, to a risk of death or serious injury contrary to s 32 of the WHS Act. Background 1. SafeWork NSW initiated these proceedings pursuant to s 230(1)(a) of the WHS Act against Ausgrid Management Pty Ltd (ACN 615 449 548) ('the defendant'). 2. The corporate structure of the defendant is contained in [2]-[15] of the Agreed Statement of Facts ('ASOF') and the defendant was the appointed agent of certain companies carrying on a public-private partnership known as the Ausgrid Operator Partnership (ABN 78 508 211 731) ('the partnership'). 3. The partnership was licensed under the Electricity Act 1995 (NSW) to operate the transacted electricity distribution network / system known as the Ausgrid electricity distribution network / system ('the Ausgrid network'). The defendant supplied agency and employment services to the partnership. Independent Pricing and Regulatory Tribunal Safety Alert 170517 - 1 May 2017 1. On 17 May 2017, the Independent Pricing and Regulatory Tribunal ('IPART'), exercising its functions as the safety and reliability regulator for electricity distribution systems / networks in New South Wales, issued Safety Alert 170517 which was titled 'Live low voltage work'. It reads as follows: 'Live low voltage work In the past 12 months, IPART has been notified of multiple incidents relating to the undertaking of live low voltage (LV) work. The incidents have included accidents involving actual and potential life-threatening injuries to electrical workers and have raised concerns about the management of workers safety in relation to live work. Network operators have a legal obligation to take all reasonable steps to ensure that the design, construction, commissioning, operation and decommissioning of its network are safe. Where live work is being considered, network operators should where reasonably practicable, eliminate the hazard of live work and associated risks by de-energising as a first preference. Where it is reasonably practicable to de-energise or otherwise eliminate the hazard or associated risks with live work, the formal safety assessments must identify the treatment or controls to be applied in line with the standard hierarchy of controls. This means that physical or engineering controls should be used in preference to procedural managerial controls. Networks must also: - ensure that they have appropriate planning processes and procedures in place to ensure safety in a live work situation - have control measures incorporated into live work procedures - ensure that the responsibilities, accountabilities and authority levels of personnel or contractors with respect to the work are identified, and - ensure that anyone involved in planning or undertaking the work is trained and competent. These obligations are explicitly addressed in AS 5577 Electricity network safety management systems and in most cases apply to work undertaken by network personnel as well as contractors such as Accredited Service Providers. The networks' management of the risks associated with live work, identified through incident reporting and inspections or investigations may be used to inform future audit of safety management systems.' (see PTB tab 3) Incident on 29 January 2019 1. On 29 January 2019, the defendant instructed a work crew to perform work at 7F Kawana Street, Bass Hill, in the State of New South Wales. 2. The work to be performed was a low voltage pole changeover ('changeover'). 3. The work crew consisted of Mr Troy Roberts ('Mr Roberts'), Mr Brandon Huxley ('Mr Huxley'), Mr Jay Miller ('Mr Miller') and Mr Kevin Dawes ('Mr Dawes'). 4. Shortly after the work crew arrived on site on the day of the incident, Mr Miller carried out an Electric Hazard Assessment Conversation ('HAC'), a risk assessment which confirmed that live work controls could be implemented to perform the changeover in accordance with the defendant's electrical safety rules. 5. Mr Huxley and Mr Roberts reviewed and signed onto the HAC. 6. The defendant permitted its overhead workers to use a temporary cross arm as support for the conductors at a level above the level of the new permanent cross arm. 7. The defendant also permitted the work crew during the transfer of the energised (live) conductors from the existing pole to the replacement pole, to use the 'coach screw' method, which involved working from the basket of an Elevated Work Platform ('EWP') to perform the changeover. 8. The coach screw method was commonly adopted by workers employed by the defendant to perform changeovers. This method involved the lifting up of energised conductors which were placed onto coach screws installed on either side of the distribution pole, above the height of the temporary cross arm. 9. Mr Roberts, working in the EWP, removed the existing 'tiger tail' insulation pipes on the phase conductors in preparation for the changeover. 10. After lifting one of the two overhead conductors onto the coach screws that had been installed on the replacement pole, Mr Roberts commenced the process of lifting the second overhead conductor. During this process, Mr Huxley, who was the nominated safety observer, saw that Mr Roberts' body appeared to make contact with a live conductor. 11. The work bucket of the EWP was immediately lowered to the ground and Mr Roberts was removed from the work bucket and first aid administered. 12. Mr Roberts suffered burns to the front and back of his body, injuries which were consistent with contacting an exposed live conductor. 13. Mr Roberts returned to work on 8 April 2019. Steps taken in response to the incident on 29 January 2019 1. On 31 January 2019, the defendant issued a safety alert number SP0284-5-620 with the subject: 'Electric shock low voltage change over'. 2. On about 4 February 2019, the defendant initiated an investigation into the work procedure identified in the safety alert. It issued another safety alert number SP0284-5-622 with the subject: 'Temporary support of live conductors against either side of a pole, resting on coach screws or nails has been put on hold until further notice'. 3. In about February 2019, a working group was established within the defendant's field management services branch ('Field Services Working Group') to 'consider live LV change over practices within Ausgrid and options for performing Live Low Voltage pole changeovers'. 4. The Field Services Working Group met on 21 February 2019. 5. On 15 March 2019, the Field Services Working Group prepared a draft position paper entitled: 'Position Paper - Live change over practices'. The draft was updated on 29 March 2019. 6. On 25 March 2019, 'Ausgrid - Health & Safety Lessons Learnt' was published. System of work as at 2 April 2019 1. As at 2 April 2019, a low voltage changeover was the kind of work that the defendant permitted its overhead line workers to undertake with the relevant plant and equipment. 2. As at 2 April 2019, the defendant's documented work health and safety management system included the following documents relevant to low voltage cross arm changeovers: * SafeWork Method Statement SWMS OH001 Version 7.1 - LV Pole Changeover dated 5 June 2015; * SafeWork Method Statement SWMS OH005 Version 7.1 - Low Voltage Pole Hardware Erect/Remove/Replace (Existing Pole) dated 2 March 2016; * SafeWork Method Statement OH006 Version 6.2 - Low Voltage Insulating Covers - Erect/Remove dated 12 December 2013 and 1 March 2019; and * SWMS OH 013 Version 9.1 - Overhead Services Changeover dated 2 March 2016. 1. In addition to its work health and safety management system, the defendant's electrical network safety management system included the following documents relevant to low voltage cross arm changeovers: * The Electrical Safety Rules 2015/0 as amended, which included Part 9.5 Procedure: Low voltage work - live low voltage; * TS620 Universal Standards Vol 1 Overhead Line Work dated April 1994 which included Part 10: 'Work on Live Low Voltage Lines'; * Network Standard NW000-S00734 NS209 Operating Cranes & Plant in Proximity to Overhead power Lines dated 28 May 2015; * Distribution Guideline DG 69A Working Live on Low Voltage Overhead Lines - Use of Insulating Covers and Pipes dated 7 December 2005; * Distribution Guide DG 255 Role of the Observer for Observed Work dated 7 November 2013; and * Network Technical Guide NW000-T0089 Electrical Temporary Insulating Covers and Screens dated 20 April 2018. Circumstances leading to the incident on 2 April 2019 1. On 15 August 2018, arrangements were made for an electricity distribution pole forming part of the Ausgrid network to be replaced. The pole, formerly numbered GL95480 ('the Old Pole'), was located adjacent to premises at 116 Riverview Street, Riverview, in the State of New South Wales. 2. The works to be performed in relation to the Old Pole involved: * high voltage work, including the changeover of high voltage overhead conductors; * the changeover of energised (live) low voltage overhead conductors; and * the replacement of the low voltage service lines from the Old Pole to the four premises serviced by that pole. 1. The changeover of the low voltage overhead conductors from the Old Pole to the new pole was scheduled to be performed with the low voltage conductors and mains energised with low voltage electricity. 2. The work crew assigned by the defendant to perform this work included Mr Peter Booker ('Mr Booker'), Mr Ben Collins ('Mr Collins'), Mr Robert Nicholls ('Mr Nicholls') and Mr Ryan Pike ('Mr Pike') ('the work crew'). 3. As at 2 April 2019, Mr Pike was employed by the defendant as a Field Supervisor. He had been employed by the defendant and its predecessor, a statutory corporation then known as Energy Australia ('Energy Australia'), since 2006. He had a Certificate III in ESI (Electricity Supply Industry) - Power Systems - Distribution Overhead. 4. As at 2 April 2019, Mr Booker was employed by the defendant as a line worker. He had been employed by the defendant and Energy Australia since 2006. He had a Certificate III in ESI - Distribution. 5. As at 2 April 2019, Mr Collins was employed by the defendant as a line worker. He had been employed by the defendant and Energy Australia since 2010. He had a Certificate III in ESI - Power Systems - Distribution Overhead. 6. As at 2 April 2019, Mr Nicholls was employed by the defendant as a line worker. He had been employed by the defendant and Energy Australia, since 2010. He had a Certificate III in ESI - Power Systems - Distribution Overhead. 7. The defendant's work health and safety management system did not have a formally documented safe work method which set out the step-by-step procedure to be followed to perform a changeover of an energised low voltage cross arm. 8. The defendant allowed its work crews to adopt different methods to support energised conductors during a live changeover. These methods included: * Affixing a new permanent cross arm to the pole and cutting and sleeving the conductors and reaching the conductors around the new permanent cross arm; and * Using a temporary cross arm to provide support for some or all of the low voltage conductors above where the new permanent cross arm would be affixed. 1. As at 2 April 2019, the draft position paper dealing with live change over practices in the Ausgrid network had been finalised by the Field Services Working Group but had not at that time been considered by the defendant. 2. As at 2 April 2019, there was no requirement for the allocation of tasks within the work crew to be formally documented, including which worker would physically perform the live changeover from an EWP. There was also no requirement for there to be an observer role for live work. 3. On 2 April 2019, the work crew met at the defendant's depot in Gore Hill to discuss the changeover to be performed at the Old Pole. It was decided that: * Mr Pike and Mr Nicholls would work aloft in two EWPs on the changeover of the energised (live) conductors; * Mr Booker and Mr Collins were to be safety observers on the ground; * Mr Collins, in addition to his observation duty, would prepare the tools and materials and disconnect the electrical services provided by the Old Pole. Incident on 2 April 2019 1. The work crew arrived at the Old Pole site in Riverview at around 8:20am on 2 April 2019. Mr Booker started performing a HAC. 2. Mr Pike, who was a Field Supervisor at the time of the incident, was the most senior member of the work crew. After the incident, Mr Pike, Mr Booker and Mr Collins all agreed that Mr Pike was effectively the site supervisor. 3. No consideration was given by the work crew to de-energising the overhead conductors prior to the commencement of the work. 4. Temporary insulation was put in place on each of the energised overhead conductors between the Old Pole and the new pole. 5. Immediately prior to the incident, Mr Booker and Mr Collins were standing about 10 metres away on the other side of the street observing Mr Nicholls and Mr Pike each working aloft in separate EWPs. 6. Mr Nicholls started to perform the changeover. He installed a 4 shackle Thew & McCann temporary cross arm and placed each of the four energised conductors onto the temporary shackles. The shackles were uninsulated and became energised once the live conductors were placed onto them. 7. At the time of the incident, Mr Nicholls was in one EWP positioned between the Old Pole and the new pole. He was preparing to install a new permanent cross arm on the new pole. Mr Pike was in the other EWP nearer to the Old Pole, with his back to Mr Nicholls. Mr Pike was re-tensioning the Phase B conductor so as to bring it back up to the same height as the other conductors. 8. The phase B energised conductor was not insulated in and about the areas Mr Pike and Mr Nicholls were working. 9. Mr Pike was finishing the crimping of the sleeve on the phase B conductor when he heard a noise coming from Mr Nicholls' direction. Mr Pike looked over his shoulder and saw Mr Nicholls standing on the EWP 'with his head cocked up' and his back towards Mr Pike. Mr Pike called out Mr Nicholl's name. He then saw Mr Nicholls 'drop' into the EWP. The new permanent timber cross arm Mr Nicholls was preparing to install also dropped into the EWP. 10. Following the incident, Mr Pike stated that he thought that Mr Nicholls had positioned the EWP too high and that when standing, Mr Nicholls was too close to the energised conductors. 11. Following the incident, Mr Collins observed, by reference to a photograph, that the holes that had been drilled into the new pole to accommodate the new permanent cross arm were 'too low', meaning that the temporary cross arm in place at the time of the incident (and therefore the energised conductors) was 'too low'. 12. After seeing Mr Nicholls drop into the EWP, Mr Booker and Mr Collins crossed the street to the rear of the Ausgrid truck to which Mr Nicholls' EWP was attached. Mr Booker started lowering the EWP while Mr Collins used his mobile phone to call '000' and activated the 'emergency button' in the cab of the truck. Mr Pike lowered his EWP to the ground and joined Mr Booker and Mr Collins at the other truck. 13. Mr Booker, Mr Collins and Mr Pike worked together to get Mr Nicholls out of the EWP and started performing CPR on him. Paramedics arrived shortly afterwards and conveyed Mr Nicholls to Royal North Shore Hospital. 14. Mr Nicholls suffered burns on his left forearm and upper arm and his right upper back, injuries that were consistent with contact having been with an energised electrical apparatus. 15. Mr Nicholls died in hospital at 12:45pm on 3 April 2019 as a result of the injuries sustained in the incident. Systems of work following the incident on 2 April 2019 1. Immediately following the incident on 2 April 2019, the defendant put a 'pause' on all low voltage live work with limited exceptions and commenced a 'Live Work Review Project'. 2. The changeover of a low voltage cross arm since the incident is now work that the defendant directs to be performed de-energised. Risk 1. The risk is described in Annexure "A" to the Summons in the following terms: '[25] The risk was a risk to workers, in particular Mr Pike and/or Mr Nicholls, of death or serious injury as a result of sustaining an electric shock consequent upon contact with uninsulated, energised ('live') low voltage electrical apparatus.' The defendant's failure to comply with duty under s 19(1) of the WHS Act 1. The defendant had a duty under s 19(1) of the WHS Act to 'ensure' the health and safety of its workers, so far as reasonably practicable. The duty requires the identification of risks in the workplace, so far as is reasonably practicable. The duty requires the identification of risks in the workplace and the adoption of measures to eliminate or minimise them, so far as is reasonably practicable (see Kirk v Industrial Commission of New South Wales [2010] HCA 1 at [34]). The duty is positive, nondelegable and requires duty holders to search for, detect and eliminate, so far as is reasonably practicable, risks to safety. 2. The defendant failed to ensure so far as is reasonably practicable the health and safety of workers, in particular Mr Pike and/or Mr Nicholls in that it failed to take 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 risk: 1. Undertaking an appropriate risk assessment or verifying that an appropriate risk assessment had been undertaken in relation to the performance of low voltage cross arm changeovers ('the task'). Such a risk assessment should have identified the risk and the measures for elimination the risk, or, in the alternative, if it was not reasonably practicable to eliminate the risk the measures for minimising the risk such as: 1. Performing the works, in particular the transfer of the low voltage overhead conductors/mains de-energised and proved de-energised; or 2. Performing the works, in particular the transfer of the low voltage overhead conductors/mains, with the low voltage overhead conductors/mains energised. 1. Based on the outcome of the risk assessment referred to in sub-paragraph (a): 1. Where the work is to be performed de-energised, planning, scheduling and performing the work at the site: * with the low voltage overhead conductors/mains de-energised and proved de-energised; and * in accordance with a consolidated, formal, documented safe work method statement or work method for "de-energised" cross arm changeovers which sets out, step-by-step, the sequential process to be followed by the line workers in the conduct of the task; or 1. where the work is to be performed energised: * planning, scheduling and performing the work at the site with the low voltage overhead conductors/mains energised; and * providing and implementing a consolidated, formal, documented safe work method statement of work for 'live' cross arm changeovers which sets out, step by step, the sequential process to be followed by the line workers in the conduct of the task, including the following controls: 1. resourcing requirements to ensure adequate supervision during the works; 2. the conduct of pre-start hazard identification discussions; 3. types and methods of deployment of temporary insulation; 4. maintenance of accepted safe distances between workers and live conductors; 5. method of temporary support to be used in the transfer of the low voltage overhead conductors/mains, including the design and/or make and model of temporary cross arm if this method is to be used; 6. the approved method of installation for the mode of temporary support, if any, to be used in the transfer of the low voltage overhead conductors/mains; 7. the role and responsibilities of safety observers, and means of communication with the workers performing the tasks; and 8. safe plant and equipment to perform the tasks. 1. Providing adequate training and/or instruction to workers assigned to the conduct of the change-over of low voltage overhead conductors/mains in relation to the performance of such works. 2. Verifying that workers assigned to the conduct of the change-over of low voltage overhead conductors/mains are instructed and/or trained in the performance of such works. 3. Verifying, periodically, that workers assigned to the conduct of the changeover of low voltage overhead conductors/main are competent to perform such works. 4. Providing adequate supervision for workers engaged in the conduct of the changeover of low voltage overhead conductors/mains so as to ensure, as far as is reasonably practicable, the safe performance of such works. 1. As a result of the defendant's failure to take any one or more of the reasonably practicable steps as set out above, on 2 April 2019, the workers, namely Mr Pike and /or Mr Nicholls, were exposed to a risk of death or serious injury whilst at work in the defendant's business or undertaking. 2. On 2 April 2019, as a consequence of making a phase-to-phase contact with energised ('live') electrical apparatus, whilst in the course of performing the changeover of energised ('live') overhead conductors/mains from the electricity distribution pole formerly numbered GL95480 to the new, replacement electricity distribution pole, Mr Nicholls received an electric shock resulting in serious injury followed by his death. 3. The fatal injuries suffered by Mr Nicholls were a manifestation of the risk. Sentencing 1. The penalty to be imposed must be one which will give overall effect to the policy of the WHS 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 WHS 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 WHS Act. 2. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('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 consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120 at [27]: '…The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of offending.' 1. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474-5. 2. The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks. 3. 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. 4. 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 ('Capral Aluminium') at [81]. 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. 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]. 7. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). 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 a 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. 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. 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). 4. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS 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: Ibid [34]; * The availability of steps to eliminate or minimise the risk: Ibid [34]; * Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] and [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. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the WHS 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. The following matters are relevant to determining the culpability of the defendant: 1. As at 1 December 2016, when the current business arrangements relating to the leasing and operation of the transacted 'Ausgrid' electricity network took effect: 1. the defendant adopted the work procedures, practices and standards previously adopted by the statutory corporation; and 2. the employment of personnel previously employed by the statutory corporation including the members of the work crew involved in the subject incident - namely, Messrs Pike, Booker, Collin and Nicholls - was transferred to the defendant. 1. It was part of the defendant's business or undertaking to supply and supervise both: 1. the workers who did the planning and the scheduling of electrical trades work on the network - including maintenance tasks such as the replacement of electricity distribution poles and/or cross-arm changeovers; and 2. the workers assigned to do electrical trades on the network - such as Messrs Roberts, Huxley, Miller and Dawes who were allocated by the defendant to undertake the distribution pole changeover at Kawana Street, Bass Hill, on 28 January 2018 (i.e. the previous incident); and Messrs Pike, Booker, Collins and Nicholls who were allocated to perform the distribution poles changeover on 2 April 2019 (the subject incident). 1. The workers were influenced and/or directed in the work in which they performed on the network by the defendant in that: 1. the defendant allocated the workers to perform work on the network; and 2. the defendant provided the workers with detailed work procedures, training instructions and directions by the defendant regarding the manner in which the work was allocated to the by the defendant was to be performed; and 3. the workers were subject to supervision by the defendant in the work allocated to them by the defendant. 1. As at 19 January 2019, the defendant permitted its overhead line workers to adopt a variety of undocumented methods to support the 'live' overhead conductors during the changeover of those conductors from an extant cross arm to a new cross arm - including - where relevant - the selection of a temporary cross arm. The methods of support as at 29 January 2019 included: 1. the use of a temporary cross arm of various approved designs to provide temporary support for the conductors at a level above the level of the new permanent cross arm; and/or 2. the 'coach screw' method in which energised ('live') conductors were lifted up and placed onto coach screws installed on either of the distribution pole above the height of the replacement arm. 1. On 29 January 2019, whilst in the course of conducting a 'live' voltage cross arm change over using the Coach Screw Method and in the absence of temporary low voltage insulation of the kind and to the extent used in both the demonstration performed for IPART on 25 September 2018, Mr Roberts sustained burns to the front and back of his body consistent with Mr Roberts' body making simultaneous contact with an uninsulated/exposed part of the energised('live') B phase overhead conductor and an uninsulated/exposed part of the energised ('live') A phase conductor resulting in a phase to phase fault. 2. It is a matter of serendipity, not good management that Mr Roberts suffered a non-fatal electric shock as opposed to electrocution. 3. On 4 February 2019 the defendant announced a temporary suspension of the coach screw method, and issued an Ausgrid Safety Alert which described the 'immediate action to be taken to eliminate or control the risk [of potential exposure to live conductors]' in the following terms: 'Temporarily supporting live conductors against either side of a pole, resting on coach screws, is put on hold, until further notice (sic). Use of other methods for temporary support of live conductors must ensure that conductors are: * secured at all times; and * covered with temporary insulation where they are, or will be, in contact with a pole or uninsulated pole hardware.' 1. Various working groups were established 'to consider live LV change over practices within Ausgrid and options for performing Live ow Voltage pole changeovers' (ASOF [28]). These groups identified a key issue or risk in the following terms: 'There is an increased likelihood that the line worker may not fit effective temporary insulation around a live exposed conductor and any conductive parts of the cross arm.' 1. As at the date of the incident, the defendant's WHS system did not include appropriate risk assessments as part of planning processes to determine whether low cross arm changeovers should be performed with energised and de-energised low voltage conductors. Nor did a requirement exist that if the work was to be performed de-energised, the defendant had to plan and schedule the work with the low voltage conducted de-energised and proved de-energised, and in accordance with a consolidated documented sequential process to be followed by the workers. 2. In addition to the failure to provide for planning and scheduling of work to commence with a risk assessment based on the fundamental question - whether work on low voltage network should be performed 'live' at all, the systems in place did not mandate a consolidated, documented SWMS which set out the sequential work method required in the conduct of the low voltage cross arm changeover. 3. The defendant accepts that it failed to take the reasonably practicable measures as set out in paragraph 26(a)-(f) of Annexure A of the Amended Summons, and as a result failed to eliminate or minimise the risk. 4. The Electricity Supply (Safety & Network Management) Regulation 2014 requires NSW electricity network operators such as the defendant to have a safety management system in place, measure the system's performance and publish those measurements annually. 5. As at the time of the incident, the defendant maintained an Electrical Network Safety Management System ('ENSMS') as a condition of its network operating licence. 6. The ENSMS is a collection of strategies, policies, standards, procedures, formal safety assessments and plans which apply to the safe design, construction, commissioning, operation, maintenance and decommissioning of the defendant's electricity network. 7. I accept that as at the time of the incident, there were multiple factors for determining if the work involved in a cross-arm changeover should be done live or de-energised, and that there are uniquely differing risks and controls for works to be carried out live or de-energised. 8. I also note that in performing work on the Ausgrid network, the impact of the loss of electricity supply on the community can be significant as a result of the defendant's work being performed de-energised. 9. Work on the network whilst it is de-energised can create risks for end users who are reliant on critical electricity supply such as vulnerable/life support customers, interruptions to traffic signals and public transport, interruptions to essential services such as water and sewerage and also medical facilities, fire and security systems and those reliant upon heating, cooling or telecommunications. 10. The defendant has taken significant steps since the incident to understand how the risk occurred, reviewing existing systems of work, and determining what measures needed to be implemented to ensure a similar incident does not occur. 11. Further, the defendant communicated details of the incident to all staff and reinforced that all workers had permission to 'pause' any activity that they did not believe could be done safely and implemented an organisation-wide 'pause' on all live work. It also implemented the Live Work Project which involved a thorough and systematic re-examination of the performance of all work involving LV assets or equipment to confirm that the risks to the workers undertaking live work were eliminated or managed appropriately. 12. Whilst there are some similarities between the incident on 29 January 2019 and this incident in terms of the task being performed (i.e. cross arm replacement), there were different work methods utilised by the work crews to carry out the tasks. 13. The immediate response taken by the defendant after the Bass Hill incident was to address the risks relevant to that incident and to undertake a broader review of the relevant work practices in light of it. This included issuing of two Safety Alerts, Tool Box Talks and 'Lessons Learnt' communications to the work force, and are set out at [122] of the Jones Affidavit (exhibit 1) 14. The defendant also took extensive steps to investigate the circumstances and causes of the incident, and to review and reassess its work practices relevant to pole changeovers. 1. Nonetheless, the risk was foreseeable, well known and recognized in the industry. The risk was highlighted by the Bass Hill incident in January 2019. The risk was highly likely to come home in January 2019 and at the date of this incident, and if there was contact with a worker, death was a possible event, as did occur on 2 April 2019. 2. I accept that there is in place very different systems since the incident, and that despite the defendant having been doing this work since 2016, the only two incidents are those discussed in this judgment. I also accept that the defendant did have in place systems designed to protect workers in performing the work required to be done, but those systems failed, twice and that is completely unacceptable in an inherently dangerous industry. 3. The defendant concedes that they should have put more effort into ensuring that the systems were followed, and should have examined if: 1. It is safe to do the task de-energised? Or 2. Due to the weight of other factors, the works need to be done 'live'. 1. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was extreme, given the previous incident on 29 January 2019, and the steps available to avoid the risk were reasonably straight forward and available to the defendant. Victim Impact Statement 1. The prosecutor tendered a Victim Impact Statement of Ms Emma Denise Peel ('Ms Peel') dated 27 March 2023. It became exhibit B. 2. Ms Peel's statement set out the devastation that she, and the children that she and Mr Nicholl's had loved and enjoyed, has suffered since Mr Nicholl's passing. 3. The statement speaks of the loss of a 39-year-old father and partner and the enormous gap that is now present in their lives. Ms Peel and the children had to leave the area, their home and community after Mr Nicholls' death because of the constant reminders of not having him with them. Ms Peel had to leave the employment that she had and enjoyed, as her world crumbled, and she has not been able to return to work, such is her grief. She has been on anti- depressant medication for years to help her cope with the loss of Mr Nicholls. 4. It is clear that friends and family of Ms Peel, Mr Nicholls and the children are also suffering as a consequence of Mr Nicholl's most untimely death. The heartbreak is such that simply driving around with the children in the car has become extremely difficult, as their agony is triggered observing workers on power poles or cherry pickers. 5. I am honoured to have read the statement provided, but I can never appreciate the suffering that has occurred as a result of Mr Nicholl's tragic accident. I send my deepest condolences to Ms Peel, her family and friends, and thank her for the courage she has displayed in making the statement. 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 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 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 of death or serious injury associated with working in and managing workplaces where live power lines are accessed. 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 WHS 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. 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. 4. Since the incident, I accept that the defendant has reflected upon its practices to identify improvements to its work health and safety systems and procedures in order to prevent such an incident ever recurring. Further, I accept that this refection and action demonstrates the defendant's insight into the offending conduct and its commitment to preventing and reoffending. 5. In his first affidavit, Mr Jones states as follows: '[170] Ausgrid has reflected deeply on the inherent risks and consequences associated with working live or de-energised. Ausgrid has identified a range of improvements to consolidate and simplify procedures and developed enhances competency assessment and assurance frameworks. Ausgrid considers these enhancements to its system of work improve mitigation of the overall risk to workers who perform this work.' 1. The defendant acknowledges that there was some similarity to the task being performed in both incidents and considers that the outcome of the first incident needed a deeper reflection on the process to determine whether work should be undertaken energised or de-energised. 2. However, whilst the steps taken after the first instance were detailed and task-specific, unfortunately they were inadequate in the extreme. It was a matter of about 9 weeks after the first incident that the second incident occurred, and Mr Nicholls lost his life. This to my mind demonstrates a significant failing in the WHS systems of the defendant, despite what should have been a significant wake-up call after Mr Roberts sustained burns in the first incident. 3. The steps taken at that point in time are described at [119]–[124] of the Jones affidavit (exhibit 1). An objective observer might well expect that the first incident would result in a response by the defendant such that the risk is extensively minimised, and the workforce is protected. 4. Sadly, that was not the case. 5. The incident in January 2019 is not a part of the summons pleaded against the defendant, and my assessment of the culpability of the defendant is not based upon the occurrence of that incident. However, the fact that the steps taken to address the safety of workers doing this specific task, after that incident failed in a matter of months, causes me great concern. 6. I have had regard to the steps taken by the defendant after the 2 April 2019 incident, and in particular the Live Work Project, and considered the submission on behalf of the defendant that it, amongst other enhancements to the way in which the defendant conducts live work across its network, is demonstrative of the defendant's commitment and positive attitude to health and safety, and that it is improving its systems of work within its business. 7. It is common ground that the defendant is a large organisation in an inherently dangerous industry and thus both general and specific deterrence have to be considered in the assessment of culpability of the defendant. 8. The defendant concedes that there is a need for general and specific deterrence to be a factor in this determination, but that specific deterrence is something that should have a 'moderate' role in determining the appropriate penalty. 9. The tasks being performed by the defendant's workers such as Mr Nicholls can only be seen as tasks required in a very high-risk industry. I note that the defendant has been involved in programs to ensure that other members of the industry's participants are aware of the risks, and the measures that should be taken to address risks associated with undertaking live work, and in particular tasks involving LV apparatus. The process of sharing education and assessment of risks provided by the defendant is commendable, and so important in such a high-risk industry, however, there remains the need for an element of specific deterrence is still necessary in these circumstances. Aggravating Factors 1. For an aggravating factor to be established, I must be satisfied beyond a 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] (Hidden J, McColl JA and Levine J agreeing). It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. Mr Nicholl's death is an aggravating factor. The injury and emotional harm caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. Mitigating Factors 1. In Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench Held the following: 'We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.' 1. The defendant has not been subject to any prior convictions under work health and safety laws. Given the defendant is a large operation and its size and the risk profile of its industry and number of employees, I accept that significant weight should be given to this positive compliance history: s21A(3)(e) of the Sentencing Act. 2. I accept that the defendant has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act. 3. The defendant co-operated with SafeWork during the investigations: s21A(3)(m) of the Sentencing Act. 4. Mr Jones' affidavit (exhibit 1) demonstrates the acceptance of responsibility for the defendant's failures and has demonstrated remorse and contrition: s21A(3)(i) of the Sentencing Act. 5. The defendant entered a plea of guilty early, which of itself demonstrates remorse, 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 pleas in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s21A(3)(k) of the Sentencing Act. 6. Having taken all of those matters into consideration, the appropriate fine for the defendant is $800,000.00. The defendant is entitled to a discount of 25% for the utility of the early plea. PENALTY 1. I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the offence is $800,000.00, and that will be reduced by 25% to reflect the plea of guilty. 3. Accordingly, I order the defendant to pay a fine of $600,000.00. 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 (NSW), the defendant is to pay the prosecutor's costs as agreed in the sum of $87,052.00. ********** 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: 19 May 2023