Industrial Relations Commission of New South Wales in Court Session CITATION: Inspector Jones v Buddy Charbel Challita; Inspector Jones v Mr Pump Pty Ltd [2005] NSWIRComm 385 PROSECUTOR WorkCover Authority of New South Wales (Inspector Jones) DEFENDANT (IRC4/7537) PARTIES: Buddy Charbel Challita DEFENDANT (IRC4/7538) Mr Pump Pty Ltd FILE NUMBER(S): IRC 7537 and IRC 7538 of 2004 CORAM: Staff J CATCHWORDS: Occupational Health & Safety - Prosecutions under s 20(1) and s 8(1) of the Occupational Health & Safety Act 2000 - Construction industry - Operation of concrete placing boom - Overhead electricity cables - Fatality - Failure to take reasonable care for health and safety of people as employees - Acts or omissions at work - Failure to maintain safe system of work - Failure to conduct any proper risk assessment - Plea of guilty - Offences proven - Penalties imposed Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Occupational Health & Safety Act 2000 Alcatel Australia Ltd v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 Inspector Neil Buggy v Weathertex Pty Limited (2003) 127 IR 60 Inspector O'Neil v Amway of Australia [2005] NSWIRComm 295 Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons) (2001) 104 IR 204 Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 Markarian v R (2005) 215 ALR 213 Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61 CASES CITED: Page v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 R v Moon (2000) 117 A Crim R 497 R v Sharma (2002) 54 NSWLR 300 R v Thomson, R v Houlton (2000) 49 NSWLR 383 Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 Wong v Melinda Group Pty Ltd (1998) 82 IR 118 WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 WorkCover Authority (NSW) (Inspector Kelsey) v University of Sydney (unreported, Matter No CT 1280 of 1995, 2 April 1997) WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23 WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96 HEARING DATES: 09/01/2005 DATE OF JUDGMENT: 10/26/2005 PROSECUTOR Mr M Cahill of counsel Solicitor: Ms L Barnes WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: FIRST DEFENDANT Solicitor: Mr L Abboud Leslie E Abboud SECOND DEFENDANT Mr B Cross of counsel Solicitor: Mr J Xenos Xenos Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staff J 26 October 2005 Matter No IRC 7537 of 2004 INSPECTOR ALAN JONES v BUDDY CHARBEL CHALLITA Prosecution under s 20(1) of the Occupational Health & Safety Act 2000 Matter No IRC 7538 of 2004 INSPECTOR ALAN JONES v MR PUMP PTY LTD Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 JUDGMENT [2005] NSWIRComm 385 1 Mr Buddy Charbel Challita, who I will refer to as the first defendant, was employed by Mr Pump Pty Ltd, the second defendant, as a "boom pump operator" and was licensed to drive a concrete placing boom. The second defendant carried on business as a supplier of concrete pumping and placing services, including the provision of a truck with a mounted concrete placing boom, and a crew to set up and operate the equipment to various builders undertaking construction work on sites in and around the Sydney metropolitan area. 2 On 8 January 2003, the second defendant was placing concrete at 10 Stanley Street, Putney. The first defendant was assigned to drive and operate the concrete placing boom and Mr Marcel Budwee was employed by the second defendant to assist. The first defendant positioned the concrete placing boom in the driveway at 10 Stanley Street, Putney, with the rear of the concrete placing boom extending beyond the front boundary of the site, across the footpath to the gutter line. 3 A combination of low voltage, street lighting and high voltage power lines, were slung immediately adjacent and parallel to the front boundary of the site. The low voltage mains were slung at a height of 6.6m above the footpath. The street lighting mains were slung at 7.2m above the footpath. The high voltage mains were slung at 9.5m above the footpath. Each of these sets of power lines passed directly over the rear of the concrete placing boom once it was in place and set up in the driveway of the site ready for the concrete placing boom to be deployed. A tree was located in the north west corner of the site adjacent to the front boundary and to the power lines referred to above. 4 During the concrete pour, a storm passed through the Putney area consisting of rain, light hail and very strong wind conditions. The very strong wind conditions persisted when the first defendant commenced the "take down" procedures for the concrete placing boom. 5 As the first defendant commenced to fold the first of the three sections of the boom to a closed position which required the boom to be slewed towards the front boundary of the site, the boom came into contact with the foliage of the tree. As a consequence of the very strong winds, the power lines were blowing back and forth within the foliage of the tree. At about this time, Mr Budwee was observed lying on the ground near the rear of the truck. A post mortem revealed injuries to Mr Budwee's right hand and right foot consistent with electric burns which caused fatal injuries to Mr Budwee. 6 As a result of the accident, the first defendant was charged with an offence arising pursuant to s 20(1) of the Occupational Health & Safety Act 2000 ("the OH&S Act") and the second defendant was charged with an offence arising pursuant to s 8(1) of the OH&S Act. 7 Section 20(1) of the OH&S Act provides as follows: 20 Duties of employees (1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work. 8 Section 8(1) is in the following terms: 8 Duties of employers (1) Employee An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 9 In relation to the first defendant, it was alleged that he: FAILED TO take reasonable care for the health and safety of persons who were at his place of work and who may have been affected by his acts or omissions at work, in particular Marcel Budwee (Budwee), contrary to section 20(1) of the Act. As a result of the defendant's failure Budwee, and others, were placed at risk of injury and Budwee suffered fatal injuries. 10 In relation to the charge brought against the second defendant, it was alleged that it: FAILED TO ensure the health, safety and welfare at work of all its employees, and in particular, Marcel Budwee, (Budwee) contrary to section 8(1) of the Act. The particulars of the change are: (a) The defendant failed to maintain a safe system of work with respect to the set up and/or the operation of the concrete placing boom at the site. (b) The defendant failed to conduct any or any proper risk assessment at the site, including but not limited to an assessment of the risks associated with the overhead electricity cables located adjacent to the street frontage of the site. (c) The defendant failed to provide its employees at the site, and in particular the deceased, Budwee, with adequate training, instruction and supervision. 11 A plea of guilty was entered by each defendant. 12 The prosecutor filed an agreed statement of facts with respect to each offence. As both charges arise from the same factual matrix, there is a degree of overlap between the agreed facts tendered. However, there were some significant differences and limitations in respect of the agreed facts relating to the first defendant. By arrangement with the parties, the hearing of each of the proceedings concerning penalty was conducted concurrently, although the evidence given with respect to each of the proceedings was confined to those proceedings and was not to become evidence in the other proceedings. As there is a substantial factual matrix which is common to all of the proceedings, it is convenient to determine each of them within the one judgment. 13 It is convenient to set out the agreed statement of facts regarding the second defendant, excluding formal parts: The (Second) Defendant 2. The defendant, MR PUMP PTY LIMITED [ACN: 098 458 283], is and, at material times, was a corporation with its registered office situated at 164 Parramatta Road, Camperdown in the State of New South Wales. The Owner Builder 3. At all material times Mr Chiau Thuan Teh (Mr Teh) and his wife Carly Ka Lee Hong were the owners of the site known as 10 Stanley Street, Putney in the State of New South Wales (site). 4. At all material times Teh was the holder of an Owner-Builder's Licence with respect to the construction of a two storey free standing residential premises (the works) at the site. The Project Manager 5. Dewcape Pty Limited (Dewcape) is and, at all material times, was a corporation whose registered office is situated at 3 Amaroo Avenue, Strathfield in the State of New South Wales. 6. At all material times, Dewcape carried on business in the State of New South Wales as a Project Manager in the construction industry. 7. At all material times, Dewcape employed Andrew Ishak (Mr Ishak) as its 'Project Manager' and Site Supervisor. The Truck Mounted Concrete Placing Boom 8. At all material times the defendant carried on business in the State of New South Wales as a supplier of concrete pumping and placing services, including the provision of a truck-mounted concrete placing boom together with a crew to set up and operate the equipment. The equipment supplied by the defendant, from time to time included a truck-mounted concrete placing boom bearing NSW registration number QZV 674 (concrete placing boom). 9. At all material times, Buddy Challita (Mr Challita) was licensed to drive the concrete placing boom and certified to undertake the safe operation of the concrete placing boom, including both the 'set up' and 'take down' of the equipment. 10. At all material times, the defendant employed Mr Challita as a 'boom pump' operator. 11. At all material times, the defendant employed Marcel Budwee (Mr Budwee) as a linesman/labourer, to assist Mr Challita in the set-up and operation of the concrete placing boom. 12. In about November 2002 the defendant developed and introduced a Safe Working Method Statement (SWMS) and Risk Assessment for the operation of the concrete placing boom. The SWMS included three separate references to the risks presented by 'Power Lines' and nominated safe working distances for working in the vicinity of power lines, including a 3 metre safe working distance for cables carrying voltage up to 132,000 volts. 13. On 2 December 2002, the defendant provided Mr Challita with training, including training with respect to the content and use of its SWMS. In particular, Mr Challita was trained to complete the SWMS as part of the set up of the machine and instructed that he was to review the SWMS with the Site Supervisor. 14. In addition, at all material times, the concrete placing boom bore a number of warning notices relating to operation of the boom in the vicinity of power lines, including specific references to the need to avoid operation in the vicinity of overhead powerlines, the need to maintain safe working distances from overhead powerlines and the nomination of a 3 metre safe working distance for powerlines up to 132,000 volts. 15. The defendant has not produced any records confirming that Mr Budwee was trained prior to 8 January 2003 in the use of the SWMS it introduced in about December 2002 and/or that Mr Budwee was trained prior to 8 January 2003 with respect to the risks associated with the deployment of the concrete placing boom in the vicinity of overhead powerlines. 16. In about November 2002 Mr Teh contracted Dewcape to act as the Head Contractor with respect to the construction works at the site. 17. As part of its obligations as Head Contractor, Dewcape was required to retain and supervise subcontractors required to undertake the construction works. These obligations extended to site safety and as part of its management of site safety Dewcape provided a 'Site Specific Safety Management Plan' (SMP). 18. It was part of Mr Ishak's duties as Dewcape's Project Manager and Site Supervisor to implement the SMP at the site. In particular, the SMP provided by Dewcape for the project required Mr Ishak to monitor the activities of subcontractors to ensure that the subcontractors met relevant occupational health and safety requirements, including the provision and utilisation of adequate SWMS or plans. 19. The works were commenced in about December 2002. The Set-Up 20. In early January 2003, Mr Ishak contacted Jeff Chehine-Nehmetallah (Mr Chehine), an employee of C & A Chehine, the partnership usually retained by Dewcape for concreting works on Dewcape's sites. It being early January, C & A Chehine were still on holidays, but Mr Chehine agreed to assist, personally, with the concrete works. 21. As Dewcape required the services of a concrete boom pump to pour concrete footings at the site, Mr Chehine contacted the defendant on 7 January 2003 and arranged for the defendant to provide a concrete placing boom and crew at the site on 8 January 2003. 22. On 8 January 2003 Mr Challita was assigned by the defendant to drive and operate the concrete placing boom for the purpose of placing concrete at various construction sites, including the subject site. Mr Budwee was assigned by the defendant to assist Mr Challita. 23. After completing work at another site, Mr Challita drove the concrete placing truck to the subject site, together with Mr Budwee, arriving at the site between about 1.00 pm and 1.30pm on 8 January 2003. 24. On arriving at the site, Mr Challita parked the concrete placing boom at the front of the site, alighted from the vehicle and had a discussion with Mr Ishak about where to set up the concrete placing boom for the pour. 25. Mr Ishak nominated an area within the confines of the site as the area in which the concrete placing boom was to be set up for the purposes of the pour. But, Mr Challita rejected that area as unsuitable because he could not adequately deploy the stabilisers and also because it was area that had been filled. 26. Mr Ishak insisted that the pour proceed and asked Mr Challita to nominate an alternative set up area. 27. As an alternative, Mr Challita nominated the driveway of the site, extending out past the front boundary of the premises, as a suitable area in which to set up the concrete placing boom. This site was nominated subject only to the observation that he could not deploy the boom from that position without damaging a tree located on the site adjacent to the front boundary of the premises. The boom could not be deployed in the opposite direction [ie away from the tree] because of the proximity of a telegraph pole. 28. Mr Ishak made a telephone call to Mr Teh to discuss the possibility of damage to the tree. 29. Following the telephone discussion Mr Ishak and Mr Challita agreed that the concrete placing boom be set up in the driveway of the site. 30. Mr Challita then positioned the concrete placing boom in the driveway with its rear extending beyond the front boundary of the site across the footpath to the gutter line. After positioning the truck 'in the driveway' of the site, Mr Challita and Mr Budwee deployed the stabilisers and prepared to deploy the concrete placing boom. 31. At no time did Mr Challita consult the SWMS supplied by the defendant, a copy of which was located in the driver's cabin of the concrete placing boom. 32. At no time did Mr Ishak require Mr Challita to provide him with a SWMS. 33. At no time did Mr Ishak require Mr Challita to conduct a risk assessment with respect to the set-up and/or operation of the concrete placing boom pump in the driveway of the premises, nor did Mr Ishak perform a risk assessment on behalf of Mr Pump. 34. However, a combination of Low Voltage, Street Lighting and High Voltage powerlines, or mains, were slung along the street frontage of the premises immediately adjacent to the front boundary of the premises, including the driveway. The Low Voltage mains (LV mains) were slung at a height of 6.6 metres above the footpath. The Street Lighting mains (SL mains) were slung at 7.2 metres above the footpath. The High Voltage mains (HV mains) were slung at 9.5 metres above the footpath. 35. Each of these sets of wires passed directly over the rear of the concrete placing boom once it was in place and set up in the driveway of the site ready for the boom to be deployed. 36. The concrete placing boom was 3950mm high when located at rest. Therefore, once the truck was set up in the driveway of the premises, the boom was already within the safe working distances referred to above before Mr Challita commenced deployment of the boom. 37. Once the concrete placing boom was ready for deployment, Mr Challita connected the remote control and then stood away from the machine with Mr Budwee. He progressively unfolded the boom and slewed it so that it was facing towards the rear of the site. During this operation Mr Challita encountered problems with the tree that was located in the northwest corner of the site adjacent to the driveway and Stanley Street. 38. Mr Challita then advised Mr Ishak that they were ready to pour the concrete. Approximately 20 minutes later the concrete arrived and they commenced to pump the first truckload of concrete. The first 30 cubic meters were pumped within an hour to an hour and a half then Mr Ishak ordered the next truckload of concrete. 39. During the concrete pour a storm passed through the area consisting of rain, light hail and very strong wind conditions. Attached, marked with the letter 'A', is a copy of a Certified Extract from the Bureau of Meteorology dated 3 June 2005 for that day. 40. Towards the end of the concrete pour it was decided that the remaining section of the footings could be poured from the chute of the concrete delivery truck. 41. Mr Challita enquired of Mr Ishak where he could blow the concrete out of the boom and Mr Ishak said in the footings. A sponge was then placed into the lines and the lines were then blown out into the footings. After the initial procedure, Mr Challita gave Mr Budwee the sponge that came out of the line to clean so they could then blow the lines once again. 42. Mr Challita then got up into the cabin of the truck and pressed the accelerator to build up the air so he could engage the power take off (PTO) and retract the boom. 43. At this time, Mr Chehine and Mr Budwee were standing on the side at the rear of the concrete placing boom. Mr Chehine was hosing his boots and Mr Budwee was flushing water through lines associated with the concrete placing boom. 44. Mr Challita walked around, climbed up to the area where the remote control for the boom connects to the vehicle, operated the remote so as commence folding the boom towards its closed position and also commenced to slew the boom towards the tree adjacent to the front boundary of the site. 45. As Mr Challita slewed the boom towards and into the foliage of the tree, Mr Challita saw the power lines blowing back and forth also within the foliage of the tree. Mr Challita says that at this point he became concerned about the boom coming too close to the powerlines and that he called out to Mr Budwee for his assistance. There was no answer. 46. Mr Challita then turned to his right and, out of the corner of his eye, saw Mr Budwee lying on the ground. 47. At about the time that Mr Challita called out to Mr Budwee, Mr Chehine was walking to rear of the truck when he heard a 'cracking snap noise'. Mr Chehine then turned and also saw Mr Budwee lying on the ground. 48. On observing the location of the boom in comparison to the overhead powerlines referred to above at or about the time of the incident, Mr Chehine, Mr Ishak and a number of independent witnesses all place the "end" of the boom, with the second stage still partially deployed, within the foliage of the tree and, at the same time, within the safe working distance of 3 metres from the overhead wires referred to above. 49. A post mortem conducted by Dr Johan Duflou of the Department of Forensic Medicine on 10 January 2003 revealed evidence of injuries to Mr Budwee's right hand and Mr Budwee's right foot consistent with electrical burns. Dr Duflou concluded that the cause of death was electrocution. 50. An investigation was carried out by Energy Australia which concluded, in all the circumstances, the most likely explanation for the electrocution was contact with, or a flashover from, the 11kV, or HV, mains running adjacent to the front boundary of the site as the boom was being slewed through the foliage and/or branches of the tree referred to above. Attached hereto, marked with the letters 'B' and 'C' respectively, are an Investigation Report prepared by Keith Newland of Energy Australia, undated, and a Fatal Shock Investigation Report dated January 2003. 51. On 8 January 2003, officers from the New South Wales Police – Forensic Services Group, Chatswood Crime Scene Section attended the site and took a number of photographs. Copies of those photographs are annexed hereto and marked 'D'. 52. On 9 January 2003, Inspector John Gjaltema attended the site and made observations contained in an Incident Factual Report dated 15 January 2003 which is attached and marked with the letter 'E'. 53. On 9 January 2003, whilst at the site, Inspector Gjaltema took a number of photographs which are attached and marked with the letter 'F'. 14 The differences in the agreed statement of facts in respect of the first defendant were that par 31, par 36, par 37, par 45 and par 48 were deleted. I will return to consider whether the matters of fact that are in dispute have been established later in these reasons. 15 In addition to the documents annexed to the agreed statements of facts, the prosecutor tendered in its case in respect of the first defendant an incident report form of the WorkCover Authority dated 10 January 2003, prepared by the first defendant. Attached to the report form was a typewritten statement dated 10 January 2003, prepared by Mr Challita. The statement, in part, included the following: On the 8th of January 2003 Marcel and I were working at a Job site at 10 Stanley St Putney. After finishing the job, I blew the concrete out of the pipeline. Once I did this I began to fold the boom. As I was doing this Marcel was cleaning out the back pipe with water. This is done, so when the boom is completely closed we can blow it out with a sponge and water. This is our normal routine once a job is completed. As I was turning the boom to put it in its position, I had to pass through the branches of the tree to avoid hitting the powers (sic) lines. At this point the weather was getting worse and a strong wind had occurred. Due to the bad weather the power lines were swinging towards the boom. The tree was also blowing and the boom was shaking. I did not see any ark (sic) nor did I hear any loud noises, which would have given me an indication that I was in any danger because I was 1-1.5 metres away from the power lines. I then called out to Marcel so he can (sic) watch out for me, so I could fold the boom fully and not damage the tree more than I should or hit any power lines. I looked to my left and I saw Jeffrey the concreter standing behind the pump on the road. I asked him where Marcel was for I needed his help. He replied, "I don't know where he is". I then looked to my right and called out Marcel's name and there was no response. I turned to see where he is (sic) and with the corner of my eye I witnessed Marcel on his back shaking. I put the remote control down on the oil tank and jumped off the truck to land on the floor beside Marcel. I then lifted his head up and placed his head on my lap. Jefferey came beside me and I asked him to call the Ambulance quickly. 16 A statement of Mr G McDowell, a resident of 2 Stanley Street, Putney, who observed the scene shortly after the accident was tendered. Mr McDowell's evidence was directed to his estimate of the distance of the boom of the concrete pump from the overhead electric wires. Mr McDowell also gave his opinion of the weather on 8 January 2003. Mr McDowell's stated that there were "extreme winds" and that the boom was approximately 6ft from the overhead electric cables. Mr McDowell was not called to give evidence and it is not clear whether his reference to the electric cables is to the low voltage lines or the high voltage lines. 17 A statement was also tendered of Mr Darryl McIntosh. Mr McIntosh's evidence was that he arrived after the accident had occurred and estimated that the boom of the concrete pump was between 600mm and 900mm away from the wire, but there was a fair bit of movement in the wire due to the weather. Mr McIntosh clarified his reference to the "wire" to be a reference to the low voltage wire. 18 A statement was also tendered of Mr J Chehine-Nehmetallah. Mr Chehine-Nehmetallah was working for another employer at the site on the day of the accident. A photograph, together with two sketch diagrams indicating various dimensions and operations of the pump truck were also tendered. Extracts of an electronic record of interview conducted by the New South Wales Police with the first defendant on 7 February 2003 were tendered. 19 The prosecutor also provided to the Court a victim impact statement of Jacquelyn Budwee, the sister of Mr Marcel Budwee. 20 Mr L Abboud solicitor, who appeared on behalf of the first defendant, tendered an affidavit of Mr B C Challita sworn 31 August 2005. The first defendant deposed to the circumstances surrounding his attendance at the site on 8 January 2003. 21 Mr Challita stated that upon arriving at the site he spoke to Mr Ishak, the Project Manager and Site Supervisor, who was employed by Dewcape Pty Limited and the following conversation took place: Mr Challita: "I am Buddy. Where did you plan for us to park the pump? Mr Ishak: "Over here". whilst pointing to a site that was comprised of land fill. Mr Challita: "There is no way was (sic) can park the truck there, it will sink and there is no room for the outriggers to open." Mr Ishak: "Why?" Mr Challita: "We cannot do the job. You will need to get a line pump." Mr Ishak: "Please, I have to pour the job today because we are running behind. It should have been done before Christmas". Mr Challita: "This is not my problem", as I proceeded to walk away towards the truck. Mr Ishak: "Please, please, you have to help me". Mr Challita: "I can only possibly do the job if I can park it on the driveway and to do that I have to break the fence and hit the tree". Mr Ishak: "We can't touch the tree, there is a bond on it. Let me call the architect". Mr Challita: "Don't worry about it. We're leaving". Then Mr Ishak rang someone and said: Mr Ishak: "It is alright you can hit the tree, the concrete is more important". Mr Challita: "The tree is your responsibility and don't order the concrete until I have actually opened the boom and confirmed the job can be done safely". 22 Mr Challita stated that he parked the truck on the driveway and opened the four outriggers and stabilised them on timber. He then looked up above the boom and saw that he was about 3m away from the low voltage lines. Mr Challita's evidence was that he did not think to physically measure the distance, but to his experienced eye, the low voltage lines were about three metres above the boom. He believed that if he pulled the boom into place, he would be able to pull it out level and not get any closer to the low voltage lines. 23 Mr Challita stated the boom was always going to be 6m to 7m away from the high voltage lines. Mr Challita opened the boom, and as he anticipated, it brushed through the tree without damaging any branches, or causing any destruction. He stated that the tree was his only concern as he did not want to damage it. Mr Challita's evidence was that the test opening was successful and he knew that he could retract the boom using the same course and get the job done. 24 He deposed that at this stage of the operation, he did not have any concern regarding the power lines as he believed he was at least 3m away from the low voltage lines and some 6m to 7m from the high voltage lines. Mr Challita's evidence was that the storm hit suddenly at about 5.00 pm and it was quite ferocious. At that time, the boom was fully extended and at least 20m from any power lines. Mr Challita commenced to blow the concrete out of the line using a sponge. Mr Challita then gave Mr Budwee the sponge to clean and fill the pipeline with water so it could be cleaned thoroughly and began to retract the boom. 25 Mr Challita stated that he had retracted stage two and three of the boom into the closed position and slowly started to turn the boom towards the tree. His evidence was he stopped when he saw the high voltage lines swing too fast because of the wind. He was about three metres from the high voltage lines when he stopped. Mr Challita called Mr Budwee to assist him but there was no answer. His evidence was he looked over his left and right shoulder and saw Mr Budwee "lying on the floor" (sic). 26 Mr Challita rushed to his assistance and found Mr Budwee shaking. He was breathing heavily and looked like he was having a fit. An ambulance arrived within five minutes. 27 Mr Challita deposed that he then looked up at the boom and noticed it was still far away from the power lines, some 3m away, stating that the position of the boom at that time was the closest he got to the high voltage lines. 28 Mr Challita was not aware of how Mr Budwee died until about a week after the accident. He felt quite depressed and upset at the death of Mr Budwee and still has nightmares and flashbacks of seeing him shaking on the ground. 29 Since the accident Mr Budwee has not done any concrete pumping work either using a line pump or a boom pump. His evidence was he changed his line of work to train to do fencing which has resulted in less income for him and his family and the work is more physical and demanding. 30 Mr Challita stated he could never go back to pumping concrete. 31 Mr Challita's evidence was that he had a disposable income of about $500 - $600 per week. He assists his wife with a mortgage by contributing $250 per week. The remainder of his income is spent on food and clothing for his family. Mr Challita annexed his 2005 income tax return. 32 Mr Abboud asked Mr Challita some additional questions relating to a record of interview provided to the Police. Mr Challita clarified his evidence in respect of the distance between the boom and the electric wires to be a reference to the low voltage wires, which were the first set of wires closest to the boom. 33 During cross-examination, Mr Challita agreed that he had operated as a licensed concrete pumping truck operator for in excess of five years and was aware of the code of practice in relation to the operation of pump trucks. He agreed that the code of practice establishes a safe working distance of three metres up to 132,000 volts. 34 It was further acknowledged by Mr Challita that his employer had provided him with a safe working method statement which contained a requirement for a risk assessment and set out the safe working distances with respect to electricity cables. The truck also carried a warning sign which stated that it was unlawful to operate the equipment within 3m of power lines. Mr Challita acknowledged that he was familiar with the sign prior to the accident and that the truck also carried a sticker setting out safe working distances, nominating "3m up to 132,000 volts". The truck also carried warning signs setting out an electrocution hazard and to be aware of overhead electrical cables. 35 Mr Challita agreed that these were minimum safe working distances because of the danger that electricity could arc or be conducted through the arm down into the body of the truck and affect persons on the ground. 36 Mr Challita agreed that the truck was 3,950mm high from road level to the top of the arm of the boom and the cables were located at 6.6m above the ground. Mr Challita further agreed that if 3,950mm is deducted from 6.6m, you would be within the three metre range by about 350mm. It was further agreed by Mr Challita that the moment the truck was parked under the wires, it was within the three metres safe working distance. 37 Mr Challita also agreed that in order to operate the boom, he was required to lift it out of its cradle to enable it to be slewed sideways. This first step of opening the arm further breached the minimum safety standards. Mr Challita's evidence was that he undertook a risk assessment before he moved the arm, but it was not written and he decided to proceed a further 50mm within the safe working area, despite having undertaken that risk assessment. 38 Mr Challita agreed that after he had completed the job and was bringing the boom back, the wind was blowing so strongly that he had to hold on to the truck. The boom arc was swinging around in the air as were the cables. 39 Mr Challita was referred to the statement he provided to the WorkCover Authority in which he indicated that the boom was one to 1.5m away from the power lines and agreed that this was contrary to what was contained in his affidavit. However, he stated that this was when the wind was blowing. He agreed that both the cables and the arm of the boom were swinging and that he was sure there was an apparent danger. He agreed that there was nothing to prevent him from leaving the arm extended until the weather conditions settled, nor from ringing Energy Australia and seeking a power outage. Mr Challita further agreed that there was nothing to preclude him from ringing his employer to seek advice once it became apparent that there were power lines and he was unable to park inside the confines of the property. 40 Mr Challita confirmed that his income for the last financial year was $14,713. He also stated that he had no interest in the family home, it being owned by his wife. It had a value of approximately $700,000 - $800,000 with a mortgage of $500,000. 41 In re-examination, Mr Challita agreed that the correct distance between the cables and truck was 2.65m. 42 The second defendant tendered an affidavit of Isaac Tohme, the sole Director of the second defendant. Mr Tohme stated he bought his first boom pump in 1997. The business grew steadily. In 2000 he started a new company under the name of the second defendant. Mr Challita was employed as a boom pump operator in July 2002. He was licensed to drive the concrete placing boom. Mr Tohme supervised Mr Challita for one week before he was employed. At the same time, he decided to employ Mr Budwee as linesman. Mr Tohme had known Mr Budwee since he was a little boy and as he was unemployed, offered him the position. 43 Mr Tohme deposed that in October 2002, he decided to review his occupational health and safety procedures. He conferred with others in the industry and then developed his own Safe Work Method Statements ("SWMS"). In November 2002, Mr Tohme developed a SWMS and risk assessment for the operation of the concrete boom. The SWMS outlined a procedure to be followed in steps and also made provision for potential hazards to be identified. The SWMS identified risks presented by power lines and outlined safe working distances for working in the vicinity of power lines including a 3m safe working distance for cables carrying voltage of up to 132,000 volts, 6m for above 132,000 volts and 8m for above 330,000 volts. Copies of the SWMS were kept in the cabin of the pump truck and the first defendant was instructed to complete an SWMS at each job with the site supervisor prior to the commencement of work. A copy of the SWMS statement was annexed to Mr Tohme's affidavit. 44 Mr Tohme stated that on 2 December 2002, he went through the company's safety policy with Mr Challita. A copy of the company's safety policy signed by Mr Tohme and Mr Challita was annexed to his affidavit. On the same day, Mr Tohme also went through the SWMS with Mr Challita. Mr Challita advised Mr Tohme that he was familiar with everything discussed both in the safety policy and the SWMS. In addition to the SWMS, Mr Tohme used another SWMS to train Mr Challita. Mr Challita and Mr Tohme wrote down all the possible hazards that could occur in each step of the procedure. This SWMS was not signed by Mr Challita or Mr Tohme, but was used in training exercises to demonstrate the potential hazards. A copy of this document was also annexed to Mr Tohme's affidavit. 45 Mr Tohme also instructed Mr Challita that when he arrived at a particular job site, he was to give the foreman, the site supervisor, or the builder a copy of the SWMS that had been signed by himself and Mr Budwee, as well as insurance papers and monthly log books. 46 Mr Budwee was also trained in occupational health and safety in December 2002. His training was even more detailed than that of Mr Challita because he did not have the same years of experience in the industry as had Mr Challita. 47 On 30 September 2002, Mr Challita and Mr Budwee were sent by the second defendant to undertake an occupational health and safety construction and induction course with an organisation called "Training with Clout". 48 Mr Tohme stated that he placed a number of warning notices on the concrete boom relating to the operations of the boom near power lines, with the specific reference of the need to avoid operation in the vicinity of overhead power lines, the need to maintain safe working distances from overhead power lines and the nomination of a 3m safe working distance for power lines up to 132,000 volts. He also discussed with both Mr Challita and Mr Budwee, at regular intervals, the potential risks associated with each job. Discussion also took place prior to the commencement of each new job, particularly in respect of any safety considerations arising as a result of the job, its location or the location of the work site. Both employees were advised to contact Mr Tohme if they encountered any problems on a job site which had not been foreseen. This occurred from time to time and Mr Tohme's practice was to leave where he was working and travel to the site of the job to give them instructions as to how the work was to be conducted in general terms and with particular consideration to their safety. 49 Mr Tohme deposed to the conversation that took place in respect of the job at Putney which was as follows: Mr Chehine-Nehmetallah: "Would you be able to do a job for me tomorrow in Putney? They are pouring the footings of the house." Mr Tohme: "I can get the machine there, but it would be at about 1.00pm or 1.30pm. But Putney is a difficult area, it's very hilly and it might be hard to set up the machine." Mr Chehine-Nehmetallah: "It's no problem, you drive into the site, you don't have to park on the street." Mr Tohme: If the machine is parked inside, is the ground level?" Mr Chehine-Nehmetallah: "Yes it is." Mr Tohme: "Is there 6 or 7 metres of space to open the outriggers?" Mr Chehine-Nehmetallah: "Yeah you've got plenty of room." Mr Tohme: "If the machine is parked inside, is there any overhead power lines to worry about?" Mr Chehine-Nehmetallah: "No". Mr Tohme: "Have you seen the site?" Mr Chehine-Nehmetallah: "Yes I have." Mr Tohme: "I can do it, the machine will be freed about 1.00pm, I can get it over there then." Mr Chehine-Nehmetallah: "That's good." 50 Mr Tohme stated that he engaged Mr Challita and Mr Budwee to carry out the job at Putney. He attended the site upon receiving a phone call from Mr Challita at about 6.00 pm on 8 January 2003 after the accident. 51 Mr Tohme attached to his affidavit the second defendant's tax returns for the financial years ended 2002, 2003 and 2004 respectively. He stated that he receives a salary of $1,100 gross per week from the second defendant. 52 Mr Tohme deposed that at the time of the accident, the second defendant had four employees including himself. The second defendant now only employs his wife to do bookkeeping and himself. Mr Tohme stated that any fine imposed upon the second defendant would have a significant effect upon him as business has slowed down in the last six months due to the downturn in the building industry. Mr Tohme has a mortgage of $500,000 with the Commonwealth Bank on a factory in Belfield and $80,000 on vehicle loan expenses. 53 In oral evidence, Mr Tohme stated that, as a result of the accident, he finds it very hard to sleep as he keeps thinking about the young boy that died. 54 During cross-examination Mr Tohme acknowledged that there was nothing to preclude him from asking for a site plan to be provided in respect of the work at Putney showing the services in safe areas. However, Mr Tohme said there was no such document that would show where the truck was to be parked. 55 Mr Tohme stated that the company no longer has any employees apart from himself and does not engage contractors. He now operates the truck solely on his own. Submissions of the Prosecutor 56 Mr M Cahill of counsel, who appeared for the prosecutor, helpfully provided a detailed written outline of submissions. In relation to the first defendant, counsel submitted that I would be satisfied, beyond reasonable doubt, indeed without a doubt, on the basis of the evidence and in particular on the contents of the typewritten statement provided by Mr Challita on 10 January 2003 that the contention that he never passed closer than 3m to power lines was incorrect. 57 Mr Cahill submitted that the decision in Markarian v R (2005) 215 ALR 213 does not require this Court to depart from the settled jurisprudence of this jurisdiction regarding sentencing for offences against the OH&S Act reflected in leading authorities such as Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 and Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326. Counsel submitted the underlying principles remain that, in determining sentence, a judge must find a balance between the objective seriousness of the offence and subjective factors favourable to the defendant such that the ultimate penalty, whilst not oppressive "… ensure(s) that the allowance afforded for subjective factors does not produce a sentence which failed to take account of the objective gravity of the offence": Lawrenson Diecasting. 58 In respect of the first defendant, it was submitted that the present case falls within the most serious category of breaches of s 20(1) of the OH&S Act because the first defendant knew the existences of the wires and the gravity of the risk that they constituted. The first defendant was also aware of the weather conditions prevailing at the time of the accident. Counsel submitted that there was a need for general and specific deterrence: Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [71] - [80]. 59 In respect of the second defendant, counsel submitted as to the objective seriousness of the offence, this is a case where there was not only a foreseeable risk but the risk was known to the second defendant. It was a risk that involved the potential for serious injury. The prosecutor conceded that the accident occurred in circumstances where the second defendant had taken some steps towards putting in place safe work methods and supervision but contended such steps were inadequate. In respect of the second defendant, Mr Cahill submitted that it was incumbent upon the Court in sentencing the second defendant to have regard to the "notorious reputation" of the building industry with respect to breaches of the OH&S Act, submitting that general deterrence was a matter of some significance. 60 In respect of specific deterrence, Mr Cahill contended that the Court could not be satisfied that the second defendant was not utilising sub-contractors and that there should be an element in respect of specific deterrence. Mr Cahill acknowledged that there were clear expressions of remorse by Mr Tohme on behalf of the second defendant. In respect of the financial circumstances of the second defendant, counsel submitted that, in view of the lack of clarity in the documents and the evidence of Mr Tohme, there must remain some significant doubt as to what value the company's income tax returns provided and therefore what conclusions the Court could draw as to the real financial circumstances of the corporation. 61 Mr Cahill observed that the onus is on a defendant who seeks the benefits of any discretion pursuant to s 6 of the Fines Act 1996 ("the Fines Act") to put before the Court clear and adequate evidence to enable the Court to draw the conclusions the defendant seeks. Mr Cahill also observed that the second defendant had failed to conduct any meaningful audit or obtain site diagrams with services marked upon them with clear directions as to where, for example, trucks could have been set up and directions given about what steps were to be taken if such diagrams could not be complied with. 62 It was acknowledged that each defendant is entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the subject offence which included co-operation with the WorkCover Authority of New South Wales. It was submitted in the present case that the first defendant has shown little insight into the seriousness of his breaches of safety and little contrition or remorse. The prosecutor acknowledged that the each defendant had entered a plea at an early stage and were entitled to a discount for the utilitarian benefits of the plea. Mr Cahill also conceded that neither defendant was previously recorded and that the Court was entitled to take this matter into account in their favour. The prosecutor sought that each defendant pay the costs of the proceedings together with a moiety. Submissions of the First Defendant 63 Mr Abboud commenced his submissions by strongly submitting that the first defendant had shown remorse and contrition. Mr Abboud referred to the first defendant's evidence that he still has nightmares and flashbacks of the accident and that he gave up his position as a pump operator. 64 Mr Abboud submitted that the family of the first defendant were present in Court and that the first defendant had attended the funeral of Mr Budwee and then attended the home to offer his sincere apologies and condolences for the accident. 65 Mr Abboud submitted that the job was delayed by the requirement for further concrete to be brought to the site in order to finish the job and this resulted in the job not being concluded before the storm hit. Mr Abboud submitted that the first defendant, as he was retracting the boom, realised the serious threat to safety posed by the electrical wires and stopped the procedure to get help. Mr Abboud observed that there was no professional builder on the site whilst the work was being carried out as it was an owner/builder site. It was contended that the pump operator is usually under the direction of a builder. Mr Abboud submitted that the first defendant's wife had been married previously and owned the family home prior to the marriage with the first defendant. The first defendant contributes to the mortgage. Mr Abboud observed that the first defendant has now left the industry and that he should receive a discount for the utilitarian value of the plea. 66 Finally, Mr Abboud submitted, taking all of the factors into account, I should give consideration to utilising s 10 of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act"). Submissions of the Second Defendant 67 Mr B Cross of counsel, who appeared for the second defendant, made the following submissions: (a) The primary factor to be considered in determining the appropriate sentence is the objective seriousness of the offence charged: Morrison v Powercoal Pty Ltd & Anor (No 3) [2005] NSWIRComm 61. Consideration of the objective seriousness of the offence involves an objective assessment of the nature and quality of the offence: Lawrenson Diecasting Pty Ltd as applied in WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) (2000) 100 IR 23; Inspector O'Neil v Amway of Australia [2005] NSWIRComm 295. (b) It was submitted the risk to safety was identified by the second defendant and safety procedures and instructions were developed to address the risk. The second defendant reviewed his occupational health and safety procedures and developed his own SWMS which identified the risk presented by power lines and outlined safe working distances for working in the vicinity of power lines including a three metre safe working distance for cables carrying voltage of up to 132,000 volts, 6m for above 132,000 volts and 8m for above 330,000 volts. (c) The safety procedure was not a "paper system" that was not implemented and maintained in daily operations. Copies of the SWMS were kept in the cabin of the pump truck and the first defendant was instructed to complete a SWMS at each job with the site supervisor prior to the commencement of the work. (d) The second defendant seriously questioned Mr Chehine-Nehmetallah about the safety of the site and whether there were overhead power lines. This information was conveyed to the first defendant. (e) The second defendant should receive some recognition when the objective seriousness of the offence is assessed in that a number of other parties played a significant part in the offence: WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284. As part of its obligations as head contractor, Dewcape Pty Ltd was required to retain and supervise subcontractors required to undertake construction work. Dewcape's Project Manager, Mr Ishak, was required to monitor the activities of subcontractors to ensure that the subcontractors met relevant occupational health and safety requirements including the provision and utilisation of adequate SWMS or plans. (f) The nature of the company and its financial means should be considered in mitigation of penalty: WorkCover Authority of New South Wales (Inspector Farrell) v Schrader; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284. (g) The Court is obliged to consider other subjective factors that may mitigate the seriousness of the offences committed by the second defendant pursuant to s 21A(3) of the CSP Act, in particular, s 21A(3)(e), s 21A(3)(f), s 21A(3)(h), s 21A(3)(i) and s 21A(3)(m) which provide: (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, … (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, … (m) assistance by the offender to law enforcement authorities (as provided by section 23). (h) The second defendant has a good industrial record and no previous convictions, has demonstrated a strong commitment to workplace safety and has accepted responsibility for the accident and the injuries suffered by its employee. It has ceased employing anyone other than Mr Tohme and his wife. The second defendant entered an early plea of guilty and co-operated fully with WorkCover and Energy Australia. (i) The second defendant is entitled to a discount for the utilitarian value of the plea pursuant to s 22 of the CSP Act. Relevant Principles 68 The process of sentencing has been recently reviewed by the High Court in Markarian. In a joint judgment, the majority, consisting of Gleeson CJ, Gummow, Hayne and Callinan JJ, and McHugh J, in a separate judgment, held that the "instinctive synthesis" approach to sentencing is the general approach that should be adopted. This view accords with the view expressed by the New South Wales Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [57] and in R v Sharma (2002) 54 NSWLR 300. 69 The joint judgment and the judgment of McHugh J counselled against the adoption of a rigid mathematical "two-tier approach to sentencing". However, the decision in Markarian does not disapprove of the adoption of a "two stage approach" to sentencing where there is express legislative provision for a matter to be taken into account on sentence and a clear intention that it be specifically reflected in the sentencing process, for example, a discount for the utilitarian benefit of a plea: Markarian at [27]. 70 The decision of the High Court in Markarian does not change the law regarding the significance of the "objective seriousness of the offence" in the sentencing process. 71 In my view, the decision in Markarian does not require this Court to depart from the settled jurisprudence of this jurisdiction regarding sentencing for offences against the OH&S Act reflected in leading authorities such as Lawrenson Diecasting Pty Limited; Warman International Limited v WorkCover Authority of New South Wales and Morrison v Powercoal Pty Ltd & Anor (No 3). 72 The Court should consider the maximum penalty and then assess the various objective and subjective factors against the maximum in making its assessment of the appropriate penalty to be imposed. In R v Moon (2000) 117 A Crim R 497 Howie J, with whom Fitzgerald JA agreed, Whealy J dissenting observed at [70]: The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence. 73 The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered and affirmed by the Full Bench in Capral Aluminium Ltd v WorkCover Authority of New South Wales at 646 where the Full Bench stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: "... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation…" 74 It is also necessary to consider the damage and injuries suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries suffered, or which may have been suffered, and the gravity of the offence": Capral at 650. 75 The issues of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken is set out in Capral at [71] - [80] where the Full Bench in particular endorsed the remarks of Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388: "…the fundamental duty of the Court in this important area of public concern ... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace." 76 And later, the Full Bench observed both aspects of deterrence 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) 99 IR 163 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 indicated with some precision the circumstances which had led to the exceptional course being adopted." 77 It is also necessary to have regard to general matters going to aggravation, mitigation and the other factors identified in s 21A of the CSP Act relevant to the defendants. Consideration 78 Neither defendant has any prior convictions. Accordingly, the maximum penalty in respect of the offence committed by the first defendant is $3,300 and in respect of the offence committed by the second defendant, a corporation, $550,000. 79 I have considered the factual circumstances giving rise to the offences before me, and I am satisfied the respective offences of both defendants are objectively in the mid range of seriousness. I have formed this view in light of the fatal injuries suffered by Mr Budwee. I find that each defendant entered pleas at the earliest opportunity and that such pleas were appropriately made. 80 The first defendant's failure was to take reasonable care for the health and safety of persons who were at his place of work and who may have been affected by his acts or omissions at work, in particular, Mr Budwee. I am satisfied beyond reasonable doubt that, on the available evidence, once the concrete boom pump was parked in the driveway of the site below the low voltage power lines, the top of the boom was within the 3m safe working distance, even at rest and that once the boom commenced to operate, it was inevitable that the boom would pass within the minimum safe working distance of the low voltage power lines. The evidence establishes that the top of the boom was approximately 3,950mm above the level of the footpath and that the low voltage wires were about 6.6m above the footpath. This resulted in the boom at rest being 2.65m from the low voltage power lines. If it was necessary to raise it another 50mm, it follows that when the boom pump was parked in the driveway, the top of the boom was within the three metres minimum safe working distance even at rest. The first defendant did not undertake any written risk assessment, nor did the first defendant consult the SWMS supplied by the second defendant which contained specific references to risks associated with the operation of the concrete placing boom in the vicinity of overhead electrical mains and a table identifying, in detail, safe working distances. 81 As the first defendant was commencing the "take down" procedures for the concrete placing boom, having completed the work, a storm swept through the Putney area. The first defendant stated in his affidavit that he "stopped when I saw the high voltage lines swing too fast because of the wind". Between 5.00 pm and 6.00 pm on the day of the accident, wind gusts were recorded that measured from 72km per hour to 91 km per hour, with a wind gust of 91km per hour being recorded at 5.20 pm. In order to complete the "take down" procedure, it was necessary to slew the concrete boom through the tree located in the north west corner of the site. An investigation report prepared for Mr K Newland, Acting Technical Specialist - Mains and Ancillary, Energy Australia, provided, under the heading "Observations from site visit", as follows: …The tree at the north west corner of the block (left hand side at front of block - looking from the street) is approximately the same height as the 11kV mains. (The reference to 11kV mains is a reference to the high voltage mains). It is approximately 1 – 1.5 metres horizontally from the LV mains, then is cut back further, so it is approximately 2.5 – 3 metres from the 11kV mains (at rest). 82 Under the heading "Conclusions", the following appears: … The 11kV conductors were approximately 9.5 metres above the ground. The 1st stage boom (7 metres long) was not long enough (even allowing for the height of the pivot base) to come close to the 11kV mains unless it was completely vertical. However, Mr Challita and some of the neighbours stated that it was at an angle – out towards the tree. Consequently it is unlikely that the tip of the 3rd stage would have been high enough to contact the 11kV mains, unless it was not fully at rest against the 2nd stage boom. It is more likely that either the 3rd stage was still partly open and elevated above the end of the 2nd stage, or the 2nd stage boom contacted the 11kV conductor. For the truck boom to be properly stowed, and based on information from witnesses and Mr Challita, the boom needed to pass through or over a tree on the front of the block, adjacent to the location of the truck. This required the boom to be raised more than would normally have been the case while closing down the truck, to clear the foliage and branches. Assuming an electrocution occurred, it is most likely a result of a contact or flashover from the 11kV conductors. The closest low voltage conductor to the property is the neutral, so that for a LV contact to have occurred, the boom would have had to pass under the neutral and then come up again as it swung towards the back of the truck to contact a phase conductor. The broadband cables below the mains further restricts access to this area, making this less likely. It is more likely that the boom contacted the 11kV conductors, and this is consistent with Mr Challita's statement. The rubber tyres of the truck would provide insulation against 11kV for a short time, but longer than would be involved in a touch contact under wind conditions. The stabiliser legs would provide an alternative path to ground, but this would also have been a relatively high resistance path as the legs were supported by timber bearers or the concrete driveway. The truck and all parts and workers were wet from the rain, which would have increased conductivity. 83 A post mortem conducted by Dr Johan Duflou on 10 January 2003 revealed injuries to Mr Budwee's right hand and right foot consistent with electrical burns. Dr Duflou concluded that the cause of death was electrocution. 84 It is not possible to determine the precise reason for the electrocution of Mr Budwee. However, in light of the observations made by Energy Australia, the clear likelihood is that either contact was made with the power lines and the boom, or, alternatively, arcing occurred, resulting in an electric shock to Mr Budwee that proved fatal. 85 In my view, as I have already observed, this case falls within the serious category of breaches of s 20 of the OH&S Act. The first defendant knew of the existence of the electric wires and the gravity of the risk that they constituted. Furthermore, the first defendant was aware of the weather conditions prevailing at the time of the subject accident, which compounded the risk. 86 There were a number of simple steps that could have been taken which would have obviated, or at least reduced, the risk. These included: (i) a power outage; (ii) locating the pumping truck in a position which did not breach the minimum safe working distance; (iii) the appointment of a spotter whose sole task was to ensure that the boom did not breach the minimum safe working distance; (iv) the use of tiger tails to increase the visibility of the wires; (v) the use of alternative concrete pumping equipment that did not involve use of the boom; (vi) leaving the boom extended until such time as the prevailing weather conditions had eased so that the boom could be safely taken down. 87 The Full Bench observed in Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 79: In the case of an offence under s15(1) of the OH&S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence 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:… 88 The death of Mr Budwee is evidence of the gravity of the detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5. 89 In my view, general deterrence must be taken into account because, as identified by Hungerford J in Fisher v Samaras at 388, and approved by the Full Bench in Morrison v Powercoal (No 3), the offence is against the Statute of public interest and public concern and it is important to compel attention to occupational health and safety issues. It is appropriate that I include in the penalty an element for general deterrence. 90 In respect of specific deterrence, the Full Bench in Capral stated at [77]: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, CCA, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, CCA, 8 December 1995)… 91 The first defendant no longer works as a boom pump operator, having left that industry. He now works as a fencer. In my view, this is an unusual case where I am satisfied the risk of re-offending is non-existent because the offender will not have the opportunity to commit a similar offence in the future. I therefore determine that there should be no element of specific deterrence reflected in the penalty. 92 The first defendant is entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the subject offence. In Alcatel Australia Ltd v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 at 106, the Full Bench observed: We accept there are good policy reasons for the encouragement of early pleas of guilty and the giving of assistance to the WorkCover Authority in its investigation of suspected breaches of the OHS Act… 93 I accept that the plea of guilty did reflect contrition on the part of the first defendant. It is also appropriate that I take into account the remorse demonstrated by the first defendant. The first defendant is entitled to a discount with respect to co-operation with the WorkCover Authority in its investigations and has no prior convictions. 94 The first defendant is also entitled to a discount for the utilitarian benefit of the plea: R v Thompson; R v Houlton. I propose to allow a discount of 25 percent for the utilitarian value of the plea for the first defendant. 95 The first defendant raised his financial position. His evidence was that he has an income of about $500 to $600 per week and contributes $250 towards a mortgage which his wife has on the family home which is owned by her. The first defendant provided a copy of his 2005 income tax return which disclosed an annual income of approximately $14,000. 96 Section 6 of the Fines Act provides as follows: 6 Consideration of accused's means to pay (cf Crimes Act 1900 sec 440AB and Justices Act 1902 sec 80A) In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. 97 In considering the financial material provided together with the oral evidence of the first defendant, I propose to adopt the observations of Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209 where his Honour observed: … Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty… 98 Later, his Honour observed at 210: …the penalty should reflect the objective seriousness of the offence. 99 I propose to take into account the financial circumstances of the first defendant. 100 Mr Abboud submitted that I should give consideration to utilising s 10 of the CSP Act in respect of the first defendant. Section 10 relevantly provides: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. … (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 101 The application of the provisions of s 10 to an offence arising under the OH&S Act 2000 and its predecessor, has been considered in prior decisions of this Court. In Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons) (2001) 104 IR 204 the Full Bench stated at [7]: The utilisation of the beneficial provisions of the section to a defendant has been considered by the Court both at first instance and at appellate level in relation to offences under the Occupational Health and Safety Act . For instance, in Schultz v Tamworth City Council (1995) 58 IR 221 at 229 Fisher CJ commented that the use of the provision "ought to be rare indeed" and that approach was found to be pertinent and appropriate by Wright J, President in WorkCover Authority (NSW) (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 at 430-431. Again, in WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 at 101 a Full Court commented that "the operation of s 556A of the Crimes Act to such proceedings would seldom be appropriate". A recent consideration of the section and its application arose in WorkCover Authority (NSW) (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 where a Full Bench reviewed the authorities and concluded that the exercise of the discretion "must be considered as extraordinary and highly exceptional" (100 IR at 72). One of the authorities cited by their Honours was Wong v Melinda Group Pty Ltd (1998) 82 IR 118, in which s 556A was applied, as illustrating "the rare cases … where s 556A might be applied in occupational health and safety prosecutions". That view was affirmed by a Full Bench in McCarthy v Sell & Parker Pty Ltd (2000) 102 IR 355 in par 9 where their Honours observed that the approach was appropriate to apply not only in proceedings before this Court but also in proceedings before an industrial magistrate sitting in a Local Court (see also Riley v Australian Grader Hire in pars 11-13). 102 More recently, the Full Bench stated in WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 at [58]: [58] We agree with the decision of Wright J, President in WorkCover Authority (NSW) v Ecolab Pty Ltd at 430 that there is little value in considering the particular approach taken in other decisions or judgments to the exercise of discretion under s 10 of the Crimes (Sentencing Procedure) Act, as each matter turns on its own facts. However, we note that in Department of Mineral Resources v Berrima Coal , the Court gave explicit details of the "extraordinary and highly exceptional circumstances" which existed in that case which warranted the exercise of the Court's discretion under s 10 of the Crimes (Sentencing Procedure) Act . Whilst we would not wish to suggest that there are particular or defined criteria which will inevitably lead to the exercise of that discretion (as it is a wide discretion), it is pertinent to highlight the decision in Department of Mineral Resources v Berrima Coal as being one in which extensive reasoning was given to support the proper exercise of discretion under s 10 of the Crimes (Sentencing Procedure) Act , in stark contrast to the matter presently before us where there is a total absence of such reasoning. 103 The Full Bench had earlier at [57] made it abundantly clear that it will only be in rare situations in which s 10 will be available to a defendant under the OH&S Act, observing that: …The Full Bench in Profab Industries expressly stated (at [26]) that "…when a defendant seeks [the exercise of the discretion under s 10] cogent reasons must … be provided by the first defendant for such exercise and also by the judge acceding to that submission." 104 The Court has recognised that there are sometimes circumstances in strict liability offences where there is, practicably, little that could have been done by the first defendant to address the risk. In my view, this is not such a case. The offence cannot be regarded as trivial and it was not suggested by the first defendant that it was, and although there are some extenuating circumstances identified, in my view, these do not lead to the discretion being exercised in favour of the first defendant. 105 In respect of the second defendant, the failure relates to not maintaining a safe system of work with respect to the set up and/or the operation of the concrete placing boom pump at the site, the failure to conduct any or any proper risk assessment at the site, including but not limited to an assessment of the risks associated with the overhead electricity cables located adjacent to the street frontage of the site and the failure to provide its employees at the site, in particular, Mr Budwee, with adequate training, instruction and supervision. 106 The risks associated with the operation of the concrete placing boom in proximity to overhead electrical mains was an obvious and well known risk that carried with it the clear potential for grave, if not fatal, injury. The subject risks were actually known to the defendant and clearly reflected in the SWMS provided by the second defendant to the first defendant and by warning notices, regarding safe working distances posted on the concrete boom and the truck itself. 107 The second defendant conceded that the gravity or otherwise of the potential risk to safety flowing from a breach of the OH&S Act is relevant as a measure of the gravity of the breach and the culpability of a defendant, and that significance will attach to a fatality arising from an accident: Inspector Neil Buggy v Weathertex Pty Limited (2003) 127 IR 60; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; WorkCover Authority (NSW) (Inspector Kelsey) v University of Sydney (unreported, Matter No CT 1280 of 1995, 2 April 1997) at 10; Capral at 650 and WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 at 428 - 429. 108 In respect of the second defendant, the risk to safety was identified and safety procedures and instructions were developed to address the risk. Upon engaging employees, Mr Tohme reviewed his occupational health and safety procedures and developed his own SWMS. The SWMS identified the risk presented by power lines and outlined safe working distances for working in the vicinity of power lines, including a three metre safe working distance for cables carrying voltage of up to 132,000 volts, six metres for above 132,000 volts and 8 metres for above 330,000 volts. Copies of the SWMS were kept in the cabin of the pump truck and the first defendant was instructed to complete an SWMS at each job with the site supervisor prior to the commencement of work. An occupational health and safety course was undertaken by the employees. 109 A consideration of the objective seriousness of the offence involves an objective assessment of the nature and quality of the offence. Walton J Vice-President observed in WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (No 2) at [34] - [35]: [34] On the other hand, the seriousness of the offence must be assessed in light of the policies and procedures which the defendant had in place. The existence of settled safety procedures and instructions is a factor which may mitigate the seriousness of an offence under the Act: see Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 342; WorkCover Authority of New South Wales (Insp. Riley) v Broken Hill Proprietary Co Ltd (1998) 83 IR 427 at 429; Department of Mineral Resources (Insp. McKensey) v Kembla Coal (at 25)… [35] However, the occurrence of the accident in this case indicates these procedures were not sufficiently comprehensive or sufficiently communicated to and understood by the employees to ensure their safety. The existence of a system on paper alone is clearly not sufficient to comply with the obligations imposed by the Act. The employer is required to ensure that its "paper systems" are implemented and maintained in its daily operations: see Sydney City Council v Coulson (1987) 21 IR 477 at 480; WorkCover Authority of New South Wales (Inspector Tyler) v Abigroup Contractors Pty Ltd (2000) 99 IR 196 at 214.… 110 In respect of this accident, the first defendant did not complete a SWMS. Management has a positive obligation of not only informing itself of proper and safe working methods but also of ensuring that proper safe working methods are followed by those persons for whom they are responsible. The second defendant relied on information provided to him regarding the site without undertaking an inspection. In my view, proceeding with the job in circumstances where the first defendant had significant reservations about the risk was indicative of a lack of proper training and supervision. This was compounded with the "take down" of the boom during high wind conditions at the time of the subject accident. 111 My observations in respect of the first defendant and the death of Mr Budwee are also applicable to the second defendant. Mr Budwee's death is manifest evidence of the gravity of the detriment to safety involved in the subject operation: Tyler v Sydney Electricity. 112 The risks were capable of being obviated by the steps that I have already set out earlier in this judgment at [86]. 113 This case highlights the much quoted principle laid down in WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace… 114 It was contended by counsel for the second defendant that it should receive some recognition, when the objective seriousness of the offence is assessed because a number of other parties played a significant part in the offence. Walton J Vice-President dealt with such a submission in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader. His Honour said at 299 - 300: In the present circumstances, the defendant's submission is untenable. The duty to be proactive falls equally upon each and every employer or self-employed person on a particular site, subject, of course, to a consideration of whether the risk emanated from the relevant "undertaking" and "place of work". However, when determining an appropriate penalty in circumstances where more than one individual or legal entity can be said to have contributed to the relevant risk, it is important to view the nature and seriousness of the defendant's offence by reference to the contribution of the defendant to the relevant risk: Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd (2001) 105 IR 348; WorkCover Authority (NSW) (Inspector Ankucic) v McDonalds Australia Ltd (2000) 95 IR 383 at 437; WorkCover Authority (NSW) (Inspector Victor Page) v Walco Hoist Rentals Pty Ltd (No 2) (2001) 99 IR 163 at par 31; Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312 and Alcatel Australia Ltd v WorkCover Authority (NSW) (1996) 70 IR 99 . 115 In Morrison v Powercoal (No 3) at [123], the Full Bench referred with approval to the observations of Hungerford J in WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316, where his Honour said: "There can be no doubt, in my view, that in determining the culpability of a defendant the role played by other parties is necessary to be considered as part of a review of the total circumstances of the case. However, it cannot, I think, be used to itself reduce the culpability of a defendant in any sharing or proportionate way of an overall penalty but only as a factor assisting in the determination of the real culpability of the defendant for the offence charged." 116 The agreed statement of facts outlines the involvement and the obligations of Dewcape Pty Ltd, as head contractor to retain and supervise sub-contractors required to undertake the construction works. Dewcape's Project Manager, Mr Ishak, was required to monitor the activities of sub-contractors to ensure that the sub-contractors met relevant occupational health and safety requirements, including the provision of an adequate Site Specific Safety Management Plan ("SMP"). Mr Ishak did not require the first defendant to provide him with an SWMS or conduct a risk assessment and the first defendant did not consult the SWMS supplied by the second defendant, a copy of which was located in the driver's cabin of the concrete placing boom truck. I accept that supervision of the subcontractors did not occur. It is appropriate therefore in determining penalty that I view the nature and seriousness of the second defendant's offence by reference to the contribution of the second defendant to the relevant risk. 117 As I have earlier discussed, the principles of general and specific deterrence must be considered in sentencing. This accident occurred in the Building Industry. In Inspector Yeung v Thiess Pty Ltd (No 2) [2004] NSWIRComm 96 at [25], Boland J wrote: The construction industry is a notoriously dangerous industry and prosecutions in that industry under the Occupational Health and Safety Act, … continue to constitute a significant proportion of the cases coming before the Commission in Court Session. There is a strong case for including an element in the penalty in this case for general deterrence. 118 I respectfully agree with his Honour's observations and propose to include an element in the penalty for general deterrence. 119 In respect of specific deterrence, the second defendant no longer engages any employees and undertakes the use of the concrete placing boom himself. In my view, this is an unusual case where I am satisfied that the risk of re-offending is extremely low as a result of the decision of the second defendant to no longer engage employees and to dispose of his second concrete placing boom. However, the second defendant does continue to operate in a dangerous industry. I therefore determine that a small element of the penalty should reflect specific deterrence. 120 Mr Cross referred to the financial means of the second defendant and the observations of Walton J in Schrader where his Honour said at [83]: …I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at par 50): "It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200 - 201." 121 The Vice President noted that this approach was subsequently adopted in Manpac Industries Pty Ltd (formerly t/a Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) where the Full Bench stated at [81] - [82]: [81] …Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority of (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714, 100 IR at 76). [82] However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209-210, Wright J, President observed: "... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty... ... When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ..." 122 Clearly, the second defendant is a small company. Mr Tohme is the sole director of the second defendant and employs no other persons, excepting his wife, who undertakes bookkeeping for the company. The Income Tax Returns for the company clearly demonstrate, in my view, that the second defendant has limited resources to pay a large fine. Certainly, a large fine will exacerbate the company's efforts to achieve a sustainable financial position and could have a negative impact on the overall viability of the company. I propose to approach this aspect of penalty in accordance with the observations of Wright J, President in Ferguson v Nelmac, set out earlier in this judgment. 123 Counsel for the second defendant submitted that the Court was obliged to consider any other subjective factors that may mitigate the seriousness of the offence committed by the second defendant pursuant to s 21A(3) of the CSP Act. 124 The following mitigating factors are appropriate to be taken into account in accordance with s 21A(3)(e) and (f): 21A(3)(e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, 125 I accept that the second defendant is a good corporate citizen and has no previous convictions. The second defendant's good character is exhibited by its focus on safety prior to the accident. This included introducing an SWMS, sending the first defendant and Mr Budwee to undertake an occupational health and safety construction and induction course, placing a number of warning notices relating to the operation of the concrete boom near power lines on the boom, particularly emphasising the need to maintain safe working distances from overhead power lines and the nomination of a 3m safe working distance for power lines up to 132,000 and ensuring that the second defendant's safety policy and SWMS were implemented by talking to employees at regular intervals about potential risks associated with each job. 126 Section 21A(3)(h) of the CSP Act provides: 21A(3)(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, 127 I accept that the second defendant has always demonstrated a strong commitment to workplace safety and that is a factor to be taken into account in its favour. 128 Section 21A(3)(i) of the CSP Act provides: 21A(3)(i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, 129 I accept that the second defendant accepted responsibility for the accident and the injuries suffered by Mr Budwee. The second defendant has ceased employing anyone other than Mr Tohme, the sole Director and his wife. 130 Section 21A(3)(m) of the CSP Act provides: 21A(3)(m) assistance by the offender to law enforcement authorities (as provided by section 23). 131 I accept that the second defendant entered an early plea of guilty and co-operated fully with the WorkCover Authority, Energy Australia and the Police. After the accident, Energy Australia requested the second defendant to provide the truck involved in the accident at the site to enable tests to be conducted. Although the second defendant was not required to do so, he provided the truck for testing to take place. 132 It was common ground that the second defendant had entered a plea at the earliest opportunity. I therefore propose to apply a discount of 25 percent for the utilitarian value of the plea in accordance with the principles set in R v Thompson; R v Houlton. 133 The second defendant is undoubtedly entitled to credit for the swift actions it took in ensuring that an accident similar in nature does not occur in the future. In Tyler v Sydney Electricity, Hill J said at 5: The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability. These considerations are, of course, non exhaustive and, amongst other things, the record of the defendant and its conduct in relation to the taking of safety precautions both prior and subsequent to the breach are also very relevant. 134 I have formed the view that the offence is a sufficiently serious one to bring it within the mid range of the scale of culpability. I make clear that the objective seriousness of the offence is moderated by the fact that the second defendant did have in place an elaborate set of systems designed to ensure the safety of its employees in their application to this case. However, the procedures which were in place were not supported by a secondary layer of safety, for example, a copy of the SWMS being provided to the second defendant by its employees in respect of each job. 135 The second defendant has demonstrated an impressive safety record and a conscientious approach to the safety in the workplace. However, in my view, there was an obvious risk to safety which was likely to cause and did in fact cause fatal injuries. 136 The prosecutor provided to the Court a victim impact statement from Ms Jacquelyn Budwee, the sister of the late Marcel Budwee. 137 In Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182, I discussed recent decisions of the New South Wales Court of Criminal Appeal and of this Court which considered Pt 3 Div 2 of the CSP Act. I observed at [136] - [139]. [136] In light of s 28(4)(b) of the CSP Act, I do not think I am constrained from taking into account the contents of the victim impact statement from Ms Gowans in coming to a conclusion as to what is the appropriate sentence in this case. The question is whether it is appropriate to do so. I accept the general reasoning of Hunt CJ at CL in Previtera, Boland J in Foamex and Haylen J in Tomago Aluminium Co Ltd. However, the legislation does leave it open, in an appropriate matter, for the Court to consider a victim's impact statement given by a family victim. [137] Mr R Debus, Attorney General and Minister for the Environment, during the second reading of the Victims Legislation Amendment Bill in the Legislative Assembly on 21 May 2003 (at page 926) commented: On the one hand, the Government supports the admissibility of victim impact statements by immediate family members, because that provides a forum for the victim's family to assist in the healing process in the aftermath of the crime that has affected them. On the other hand, the Government agrees with the views of then Justice Hunt to the extent that, to use his words: "It is ... offensive to fundamental conceptions of equality and justice ... to value one life as greater than another". That would be the result of a harsher sentence on the accused made on the basis that, in some way, the death of a person who was, say, young and surrounded by a loving family and friends is more serious than, say, the death of a person who was alone, unhappy and elderly. [138] Victim impact statements presently serve two distinct purposes. In the case of family victims, where a family member has died as a result of a breach of the Occupational Health & Safety Act 2000, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering, but it also has a role to play in the determination of the appropriate sentence to be imposed by the Court. The statement will explain to the Court the extent of the impact the crime has had on the victim's life. [139] I respectfully agree with the reasoning of Hunt CJ at CL in Previtera that a court should not, in cases involving death, permit a victim impact statement to affect the sentence… 138 A victim impact statement by Ms J Budwee was received by the Court. Ms Budwee stated that the victim impact statement was written on behalf of her father and herself. Ms Budwee described that her brother was everything to her and her father. After their mother died, Mr Budwee felt the need to help with the responsibility that his father had in looking after the family so he left school and obtained a job. Ms Budwee described her brother as having a heart of gold and that it was never going to be the same without him. Her mother had died when she was nine and the loss of her brother was going to be the hardest things that she has ever had to face in her life. 139 Ms Budwee stated that from the day that her brother died, her life changed forever. Her thoughts on life changed. There was no reason for her to live. Sleepless nights left her thinking of stupid things. What if someone else that I love dies? Why is this happening to me? Ms Budwee just wanted the pain to end. She hated being alone in the house. This continued for about seven months. Her brother's death has had an effect on her relationship with her boyfriend and her father. When she is at home with her boyfriend she feels guilt because she has left her father at home alone. Ms Budwee thinks about her brother every day. 140 The day that her brother was buried was the worst day of her life. Her brother was only 23 years old and he was too young to die. He was engaged to be married. Ms Budwee stated that the happiest days of her life will now feel so empty and so sad because her brother won't be there to share them with her. 141 Ms Budwee asked the Court to note the sense of anguish and deep suffering that she and her father have sustained and are continuing to feel, requesting that it be taken into account when considering sentence. 142 I have considered the statement from Ms Budwee and formed the view that it would not alter the penalties which I think are otherwise appropriate in these matters, in all the circumstances of the case. 143 However, it is appropriate that the Court extends it sympathy to Ms Budwee and her father and acknowledges the devastating effect that Marcel's death has had on them. 144 As was observed by Boland J in Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [43]: … to receive a victim impact statement given by a family victim … assists this Court in driving home to those responsible for workplace safety the devastating consequences that may flow from failing to ensure they provide and maintain a safe workplace. 145 Having regard to all the relevant circumstances, including, as I have already observed, the maximum penalty in respect of the s 20 charge is $3,300 and in respect of the s 8 charge $550,000, I consider an appropriate penalty in the case of the first defendant is $600. In respect of the second defendant, I consider a penalty of $65,000 should be imposed. 146 I make it clear that the penalties imposed would have been greater but for the factors in mitigation raised by the first and second defendants. ORDERS 147 The Court makes the following orders: In IRC 7537 of 2004: Inspector Alan Jones v Buddy Charbel Challita: Offence pursuant to s 20(1) of the Occupational Health & Safety Act 2000. 1. The offence is proven and a verdict of guilty is entered in this matter. 2. The defendant is convicted of an offence under s 20(1) of the Occupational Health & Safety Act 2000. 3. The defendant is fined the sum of $600 with a moiety of that fine to the prosecutor. 4. The defendant shall pay the prosecutor's costs of these proceedings in a sum as agreed, or, as assessed. In IRC 7538 of 2004: Inspector Alan Jones v Mr Pump Pty Ltd: Offence pursuant to s 8(1) of the Occupational Health & Safety Act 2000. 1. The offence is proven and a verdict of guilty is entered in this matter. 2. The defendant is convicted of an offence under s 8(1) of the Occupational Health & Safety Act 2000. 3. The defendant is fined the sum of $65,000 with a moiety of that fine to the prosecutor. 4. The defendant shall pay the prosecutor's costs of these proceedings in a sum as agreed, or, as assessed. 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.