Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Ankucic v William George Young [2004] NSWIRComm 184 PROSECUTOR Inspector Petar Ankucic PARTIES : DEFENDANT William George Young FILE NUMBER: 6447 of 2002 CORAM: Staff J CATCHWORDS : Occupational health and safety - Prosecution under s 16(2) of the Occupational Health & Safety Act 1983 - Building industry - Electrical installation - Defendant self employed electrician - Domestic construction site - Defendant installed electric switches - Defendant failed to erect wall sheeting around switches - Obvious risk to safety - Risk arising from defendant's undertaking - Risk foreseeable - Plea of guilty - Risk common to building sites - Penalty - Principles - Subjective features - General deterrence - Specific deterrence - Consideration of defendant's limited financial resources - Discounts - Penalty imposed - Occupational Health & Safety Act 1983 (NSW), s 16(2) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Occupational Health & Safety Act 1983 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, (2000) 99 IR 29 Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED : Manpac Industries Pty Ltd (formerly t/a Pacific Concrete and Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312R v Rushby [1977] 1 NSWLR 594 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312 WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney [1997] NSWIRComm 44 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 HEARING DATES: 05/24/2004 DATE OF JUDGMENT: 06/25/2004 PROSECUTOR Mr R Reitano of counsel Solicitor: Ms Hamina Cameron WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr G Bennett of counsel Solicitor: Mr G Egan Lee Soames Egan JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION Coram: Staff J 25 June 2004 Matter No IRC 6447 of 2002 INSPECTOR PETAR ANKUCIC v WILLIAM GEORGE YOUNG Prosecution under s 16(2) of the Occupational Health & Safety Act 1983 JUDGMENT [2004] NSWIRComm 184 1. William George Young ("the defendant") was a self employed person carrying on his own business as an electrician. The defendant was engaged to perform electrical work at premises owned by Mr David Kas (also referred to as Mr David Kass) located at 141 Tandys Lane, Andersons Hill in New South Wales ("the premises"). 2. On 10 November 2000 the defendant installed at the premises powerpoints (electric switches) and failed to erect (or have erected) wall sheeting around them. This allowed access to the rear of the switch and the live exposed terminals contained therein until 15 November 2000. On the same day, the defendant installed new mains, a new switchboard and a new electricity box. He also connected temporary power to a granny flat, new laundry and hot water system. However, when re-connecting the hot water system, the defendant used the existing wiring as he did not have time to re-wire it. 3. Inspector Petar Ankucic ("the prosecutor of the WorkCover Authority of New South Wales") prosecuted the defendant under s 16(2) of the Occupational Health & Safety Act 1983 which is in the following terms: 16(2) Every self-employed person shall ensure that persons not in the person's employment are not exposed to risks to their health and safety arising from the conduct of the person's undertaking while they are at the person's place of work. 4. The charge against the defendant alleged that the defendant: FAILED TO Ensure that persons not in his employment, and in particular, persons working at the premises, were not exposed to risks to their health or safety arising from the conduct of his undertaking, to wit electrical installations, while they were at his place of work, contrary to Section 16(2) of the Occupational Health and Safety Act 1983. The particulars of the charge are: a) The defendant was at all material times a self-employed person carrying on business as an electrician. b) The defendant was at all material times undertaking electrical work at 141 Tandys Lane, Andersons Hill ("the premises") in the state of New South Wales pursuant to a contract entered into with David Kas, the owner builder of the premises. c) The defendant failed to ensure that persons working at the premises were not at risk of exposure to live electrical current over the period of time that the defendant was undertaking the installation of electrical wiring at the premises. d) The defendant failed to ensure that installation of the hot water system electrical circuit was properly tested to confirm that the circuit was safely installed. e) The defendant failed to ensure that an electric switch was not left with a live exposed termination in the premises. f) As a result of the said failures persons not in the defendant's employ at the premises were placed at risk of injury. 5. The defendant pleaded guilty to the amended charge. The prosecutor tendered an agreed statement which contained the following facts (formal parts omitted): 3. As at 15 November 2000 Mr William George Young (in the remainder of this document referred to as "the defendant") was a self employed person carrying on his own business as an electrician. 4. Mr David Kas was the owner/occupier and owner/builder of premises located at 141 Tandys Lane, Andersons Hill in New South Wales (in the remainder of this document referred to as "the premises"). At the premises there was a dwelling house and a separate flat and studio. 5. The defendant was and is a trained and qualified electrician and as at 15 November 2000 had in excess of 26 years experience as an electrician 6. In about early July 2000 Mr Kas commenced building renovations to the house at the premises. The renovations involved both the renovation of an existing part of the house and the building of a new part of the house. 7. Mr Kas contracted with the defendant to have the defendant perform electrical work at the premises. This work involved the re-wiring of certain sections of the electrical wiring in and around the existing house and the installation of new wiring in and around the existing house as well as in and around the new extensions. 8. The defendant was the only electrician who was responsible for the electrical work being undertaken at the premises during the renovations except for the installation of the new mains which came from the NorthPower pole to the existing house at the premises. 9. The defendant began work at the premises in about July 2000. The defendant worked at the premises completing the electrical work between July 2000 and April 2001. The defendant did not work full-time at the premises. He worked at the premises when the next part of the electrical work was required to be completed and/or when he was asked to attend the premises to undertake specified work. 10. The defendant employed a labourer to work with him at the premises at various times when he was working there. The labourer did not perform any electrical work or work that was required to be undertaken by a qualified electrician. 11. On 10 November 2000 the defendant installed at the premises power points (electric switches) and failed to erect (or have erected) wall sheeting around them. This allowed access to the rear of the switch and the live exposed terminals contained therein until 15 November 2000. 12. On 10 November 2000 before leaving the premises, the defendant spoke to Mr Kas and some of the carpenters who were working at the premises at that time. The defendant told the carpenters that he did not want to leave the power points live (that is, connected to the electricity) and with exposed live terminals. The carpenters told the defendant that they needed temporary power to continue on with the work. On 10 November 2000 the carpenters told the defendant that they would put the boards (the wall sheeting) behind the power points but that was not done before the defendant reconnected the power and left the premises and had not been done as at 15 November 2000. 13. On 10 November 2000 the defendant also installed the new mains, new switchboard and new electricity box. On that day he also connected the temporary power to the granny flat, new laundry and hot water system. When reconnecting the hot water system the defendant used the existing wiring as he did not have time to rewire it. 14. When the defendant connected the hot water system he should have tested it to confirm that the circuit was safely installed. The defendant carried out a visual inspection. The testing should have included testing of the insulation of the cable and of the element. The testing should also have included resistance testing, earth testing and polarity testing. On 10 November 2000 when the defendant connected the hot water system he did not test it because he considered it was only temporary and he assumed it was only going to be there for a few days. At that stage the defendant understood he would be returning early in the following week to complete the work he was doing and to do what he was doing on a permanent basis. 15. On 10 November 2000 the defendant was proposing to return to the premises on 13 November 2000 to do further work but was informed prior to 13 November 2000 not to attend the premises to perform that work until 15 November 2000. 16. On 15 November 2001 (sic) John Hunter, Mark Reiss and David Goss were carpenters working at the premises. Robert Greaves was a plumber working at the premises on that day. On 15 November 2000 Andreas Pinter was a labourer working at the house. On 15 November 2000 Steven Hughes and Sonia Turner were plasterers working at the premises. On 15 November 2000 John Hunter, a builder, was working at the premises. All of the (sic) were whilst at the premises at risk of exposure to live electrical current. 17. On 15 November 2000 the defendant went to the house to continue his work on the electrical wiring. 18. On 15 November 2000 Inspector Vierow, an inspector appointed under the 1983 Acts and the 2000 Act and Mr David Doust a Regional Electrical inspector employed by NorthPower conducted an inspection of the premises. Annexure "A" are five photographs taken by Inspector Vierow on 15 November 2000. Annexure "B" are four photographs taken by Mr Doust on that day. 19. On 15 November 2000 when Inspector Vierow attended the premises he observed the premises were undergoing renovation or extension. Inspector Vierow, amongst other things, observed the following: a. A Vulcan Everhot hot water service serial number 43784, model number V681250 with the cover removed showing the electrical connections. A blackened mark was on two red wires and formed part of the electrical connection; b. A double power point that had a white cable attached to the back that showed the metal connection points. There was a yellow power lead plugged into the power point; c. A power board with four female electrical plug points and a white power lead with a male plug, was located on the floor in the near vicinity of the double power point; d. A metre box on the outside of the house that had a number of loose wires hanging in the back of the box and three unsecured switches in the same area. 20. Mr Doust observed, amongst other things, that a new board had been installed at the main switchboard and three circuit breakers were located behind the panel. The circuit breakers were suspended only by the conductors to which they were attached. The sub main supplying the studio/flat was connected directly to the installation main switch without over current protection. He also observed a new light and power circuit connected in the premises with no wall sheeting or shrouds at the fittings – that is exposed terminations. 21. Inspector Vierows investigation revealed that on 15 November 2000 the defendant failed to ensure that persons working at the premises were at risk of exposure to live electrical current. Further the investigation revealed that the defendant had failed to ensure that the installation of the hot water system electrical circuit was properly tested to confirm that the circuit was safely installed. Further, the investigation showed that an electrical switch at the premises was exposed and live. 22. The defendant co-operated with the informant in its investigation. 23. The defendant has no prior convictions. Annexure "C" is the defendants Statement of Prior Convictions. 6. The agreed statement of facts annexed nine colour photographs taken by Inspector Maurice Vierow on 15 November 2000 showing various aspects of the renovation of the house. 7. The evidence of the defendant consisted of an affidavit of the defendant who was not required for cross examination. In his affidavit Mr Young described completing an apprenticeship in 1972 as a licensed electrical fitter/mechanic and his employment with various companies. In 1982 he commenced his own electrical contractor's business in Sydney where he worked for the following ten years with his major clients being the State Government of New South Wales and MBF. 8. Mr Young stated he did not carry out any electrical work for approximately four years whilst he cared for his ill mother and father who are now both deceased. It is only since the death of his father that Mr Young resumed electrical contracting work and took on the job at Tandys Lane for Mr Kas. 9. In relation to the testing of the hot water system, Mr Young said: 11. Insofar as the hot water system is concerned, the work performed on the hot water system was merely a re-connection, it was not an installation. The hot water system had been operating properly prior to my commencement of work at these premises on an existing circuit. The reason that the hot water system was disconnected was to enable the changeover to a new switchboard. The hot water system, like all other circuits in the house, was just simply disconnected to enable this to take place. 12. The visual inspection indicated that following the re-connection the hot water system was operating correctly. As I was intending to return on Monday and it was only a temporary connection, I formed the view that a complete "mega test" was unnecessary at this stage. 10. In relation to the electric switches, Mr Young said: 13. Insofar as the matter of live exposed terminations in the premises is concerned I was advised by Mr Kass, the owner of the premises, that there was a need for temporary power for the use of the tradespersons, in particular the plasterers. In the final analysis, I now believe the plasterers did not come until some time later. In any case, I agreed to switch the power on to a power point to enable power to be provided for the tradesmen, providing that the power point was properly shrouded. As I understood it, the carpenters present at the time, in particular John Hunter, was going to connect the appropriate boards to and about the power point to properly shroud it and prevent any sort of access to it. To the best of my recollection the following conversation took place: John Hunter: We have no power to work with. David Kass: What can we do about that? I said: We have one power point wired, but we need a cover put on to enable it to be switched on. David Kass: We will do it straight away." I understood John Hunter went away to get material to do this. Following this I went back to the meter box and switched the power on. I tested the outlet to ensure the power was on and that the polarity was correct. I switched on the power to the power point on the basis that the shroud was to be put in place. In addition doors were leaning against the wall in front of the power point, four at the front and one at the back; this prevented access to the power point. Power was obtained by the carpenters from the power point by means of a builders' power box (protected with ELCB) which was connected to the power point by lead and plug. To obtain a shock from the power point you have to actually get your fingers in behind and connect with the terminal, being the entry point of the earth, positive and neutral wires. There were no live wires sticking out from the power point and certainly nobody would have been affected by electricity by simply brushing past or connecting items to the power point for use. The workers and tradesmen at the site were mature and experienced persons. 11. Mr Young then referred to his financial position as follows: 14. Apart from the job at the Kass residence at 141 Tandys Lane and the occasional job, I have not had any income for the last four years. I currently have a line of credit with Suncorp which I have drawn on to the extent of $150,000 to sustain myself and meet expenses. The line of credit is secured against my house. 12. Mr Young said that he had never been accused of safety breaches in his life and had been a relief safety officer appointed by a safety committee at a very large aluminium smelter in Queensland which employed approximately 2,200 employees. 13. Mr G Bennett of counsel who appeared for the defendant tendered a white multi point power outlet board mounted on a steel square with a white electric wire connected to the rear of the outlet board. Consideration 14. The primary consideration in sentencing is the gravity of the offence viewed objectively: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474; Fletcher Constructions Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81. 15. In Fletcher Constructions the Full Bench at 77 observed: We have recently considered the principles applicable in sentencing offenders in relation to breaches of s 15 of the OH&S Act in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464. These principles are equally applicable in the present case, and we adopt them for the purposes of this appeal. Relevantly they are in the following terms (at 474-475): However, in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence': see Independent Cargo & Wool Services Pty Ltd v Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, CT 92/1041, 10 March 1994) at 4; Inspector Hannah v Wonar Pty Ltd (unreported Fisher CJ, Glynn and Cullen JJ, CT 90/1214, 30 June 1992) at 9; Inspector Mauger v P Ward Civil Engineering Pty Limited (unreported, Fisher CJ, CT 994/1212, 21 December 1995) at 8-9. It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to considerations of the nature and quality of the offence. 16. Later, the Full Bench at 79-80 said: In the case of an offence under s 15(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: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT 90/1214, 30 June 1992) at 9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant: see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. In Inspector Hannah v Wonar Pty Ltd , the Full Bench indicated (at 9), properly in our view, that "a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences". 17. The objective features of an offence relate to the facts concerning that offence whereas the subjective features relate to the facts concerning the offender. Therefore, the primary factor to be considered is the objective seriousness of the offence. What the offender did in breaching the terms of s 16(2) of the Act, for example, the seriousness of the risk to health and safety thereby created, is of primary significance in evaluating the seriousness of the offence. Subjective features, if they exist are an intrinsic part of any assessment of penalty and must be given appropriate weight in the sentencing process where they tend to mitigate the seriousness of the offence. 18. There are a number of considerations involved in determining the objective seriousness of the offence that is the subject of these proceedings. Firstly, the defendant was aware that no cover was put around the electric switch to prevent any sort of access. Secondly, the defendant switched on the power not knowing whether a cover had been put in place or not and he took no steps to actually identify whether a cover had been placed on the switch after he turned the power on so as to eliminate the risk to safety. 19. Counsel for the defendant referred to the relative difficulty in reaching behind the power point which the Court was told was some 27 mm from a number of wooden doors leaning against a wall. 20. I do not accept that in these circumstances the space between the power point and the door leads to a finding that there was no appreciable risk, nor that persons would not access that area. Access may have been effected unintentionally by equipment that was used by employees coming in touch with the live wires or the wooden doors may have been moved exposing the live wires. 21. The duty imposed by the Act upon employers and those who are self employed is to ensure that their undertaking does not create a risk to the health and safety of persons, be they employees or otherwise, that may arise from that undertaking. 22. In WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312 Walton J Vice-President put it this way at [50]: In short, the duty is to be proactive. This duty was, in my view, correctly and forcefully stated by Bauer J in WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, CT94/1037, 13 April 1995, at p 18) approved recently by a Full Bench in Profab (at par 37) and in Riley v Australian Grader Hire (2000) 103 IR 143 at par 15): "... the Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry." 23. As the defendant has acknowledged through his plea, liability under s 16(2) includes a "failure to ensure". 24. The maximum penalty under the Act for breach of s 16(2) for a natural person being a first offender is $55,000. Any penalty to be imposed must generally be such as to compel attention to occupational health and safety generally so as to ensure the workers whilst at work will not be exposed to risks to their health and safety: see Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, (2000) 99 IR 29. 25. It is also appropriate to have regard to the foreseeability of the risk in assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Lawrenson Diecasting at 476; Capral Aluminium Ltd at 81. 26. Mr R Reitano of counsel who appeared for the prosecutor submitted that there were a number of factors that were relevant to this aspect of the matter. Firstly, the defendant must be taken to have known about the danger posed by leaving the power points exposed and live. Secondly, he must also have known exactly what the risk associated with his failings were, he being a qualified electrician of many years standing. Thirdly, leaving those working at the premises at risk of exposure to live electrical current. 27. Mr Bennett submitted that the likelihood of someone being exposed to the live wires was remote and that the breach should be viewed as merely technical. 28. I reject this submission. In my view the presence of live wires on a domestic building site gives rise to a real danger to injury or death, the risk to health and safety thereby being foreseeable. It is difficult to think of a more obvious risk. 29. Furthermore, the existence of simple and straightforward remedial steps were well known to the defendant and could have been taken to avoid any risk to health and safety. These matters are relevant to assessing the seriousness of the offence in this case: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 36. Isolating the power to the switches was a simple task; similarly, performing a test after reconnection of the hot water system. 30. Hill J in WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney [1997] NSWIRComm 44 at 10 dealt with the relevance of the actual consequences of a breach as follows: While the gravity of the breach in a particular case may not necessarily be reflected in its actual consequences, the gravity of the consequences or likely consequences is nevertheless relevant in determining the gravity of the risk. In Hannah v Wonar Pty Ltd the Full Court stated: "The primary factor falling for consideration in relation to penalty, is the nature and circumstances of the offence. The result of the circumstances may be relevant in a very limited way, in the sense that it may illustrate the seriousness of the act or omission involved in the breach of statutory duty being assessed. Obviously a breach that was quite unlikely to lead to serious consequences, might be assessed on a different basis to a breach where there was every prospect of serious consequences." 31. It is clear from the Full Bench's consideration in Capral Aluminium that general deterrence is a major consideration in occupational health and safety cases. At [73] the Full Bench approved what Hungerford J said in Fisher v Samaras Industries Pty Ltd (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. 32. The Full Bench stated at [74]: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Ltd accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. 33. The purpose of the Act and the duty of the Court is well known. It is often referred to in judgments of this Court; that is, the prevention, deterrence and punishment of breaches of health and safety requirements. 34. The defendant is guilty of the offence charged as it was unreasonable for him to have not taken any steps whatsoever to ensure that the relevant risk was removed from his place of work in circumstances where it would have been not only reasonably practicable but, in my view, would have required very simple steps to have been taken. 35. The building industry, and in particular, the "cottage industry" is a notoriously dangerous industry and prosecutions in that industry continue to represent a significant proportion of cases coming before the Court. 36. There is a strong case for general deterrence in my view. 37. Specific deterrence is directed towards deterring the offender personally from repeating any crime that has been committed. The Court was informed that the defendant only had the occasional job in the last four years. The defendant has been a relief safety officer and is an experienced electrician having carried out electrical work since he completed his apprenticeship in 1972. In Capral Aluminium the Full Bench considered the differing purposes or aims of general deterrence and specific deterrence [71]-[80]. In respect of specific deterrence the Full Bench said at [77]: ... Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely re-active: WorkCover Authority (NSW) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future... 38. I therefore propose to include in any penalty an element for specific deterrence. 39. There are a number of subjective features that are relevant in considering an appropriate penalty. These include that the defendant has no prior convictions; the defendant entered a plea at the earliest opportunity in respect to the amended application for order and that the defendant co-operated with the WorkCover Authority of New South Wales. 40. The defendant submitted that his culpability ought to be considered in the context that the breach of occupational health and safety did not rest only on his shoulders but also on the shoulders of the carpenters. 41. Mr Bennett referred to Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312 where a Full Bench of the Commission (Bauer, Hill and Marks JJ) in considering a number of mitigating factors, decided that the absence of prosecution of other parties who played an instrumental part in causing the detriment to safety was a mitigating factor. In WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 Wright J President, at [31]-[34] examined the judgment of the Full Bench in Nesmat as to its application to the matters before him. At [34] his Honour said: The significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them. 42. Mr Reitano referred to the judgment of Walton J Vice-President in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (1999) 95 IR 383 at 436-438. His Honour said at 437: Embarking upon an inquiry as to whether prosecutions should have been commenced or continued against various entities, or whether those prosecutions may have been successful, would involve the Court conducting a procedure which would be, as the prosecutor submitted, tantamount to conducting a trial of the other entities. In any event, the Court would, if it adopted the contentions of approach by the defendants, be required to make unqualified adverse findings concerning an entity which had no opportunity to answer the allegations made against it. Further, the inappropriateness of the procedure is further demonstrated by reference to the nature of the material relied upon for such findings which may be inadmissible against those entities in a defended prosecution and could not be properly challenged or tested. 43. In sentencing the defendant, and in order for me to have regard to the fact that the carpenters were not prosecuted, there has to be some inter-related culpability on the part of the carpenters in the failure by the defendant. The only evidence before the Court is that given by the defendant regarding his conversation with Mr Kas, the owner/occupier and owner/builder of the premises who in response to the defendant advising that a cover needed to be put on the power point stated "we will do it straight away". The defendant's understanding was that a John Hunter, one of the carpenters, went away to get material to do this. I do not accept that the carpenters had any role which would lead to a finding that the criminality for the breach did not fall solely on the shoulders of the defendant. The legislation imposes an absolute obligation on the defendant to ensure that persons not employed by the defendant are not exposed to risks to their health and safety while at work. 44. The defendant raised his financial position. The evidence in this respect was somewhat sparse, a matter I raised with counsel for the defendant. The defendant's evidence was in the following terms: Apart from the job at the Kass residence at 141 Tandys Lane and the occasional job, I have not had any income for the last four years. I currently have a line of credit with Suncorp which I have drawn on to the extent of $150,000 to sustain myself and meet expenses. The line of credit is secured against my house. 45. This evidence does not permit an assessment to be made of the overall resources of the defendant, nor form any view about future earnings. However, based on the material, any fine will most likely be met out of the defendant's line of credit. 46. Mr Reitano submitted that the onus was on the defendant to bring appropriate evidence that would satisfy the Court in respect of the financial position of the defendant. 47. In Manpac Industries Pty Ltd (formerly t/a Pacific Concrete and Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435, the Full Court, at 467 dealt with the treatment of the financial situation of the appellant in that case and stated at [81], [82]: ... 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. The 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 (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333 and Profab Industries (49 NSWLR at 714; 100 IR at 76). 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..." 48. As I have observed the evidence regarding the defendant's financial position is sparse. I therefore propose to take into account, in a general sense, that the defendant has not had any income for the last four years, apart from the occasional job and is operating under a line of credit. 49. I propose to consider the objective seriousness of the offence as the primary factor, with the subjective factors playing a subsidiary role to the gravity of the offence itself to ensure a sentence is not produced which fails to adequately reflect the seriousness of the offence. 50. Determining an appropriate penalty in this case has not been easy. Although the procedures put in place by the defendant limited the possibility of injury and risk to health and safety, they did not eliminate them entirely and the resulting risks were potentially severe. I consider the observations of Street CJ in R v Rushby [1977] 1 NSWLR 594 are apposite in the present circumstances (at 597): "If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment." 51. In my view, the objective seriousness of the offence calls for a penalty at the mid to higher end of the range but any penalty must not be fixed at such a level that will be oppressive. 52. I have decided that an appropriate penalty in this case given its objective features, is $25,000. This amount is to be discounted by 25% for the utilitarian value of the guilty plea and by a further 10% for the subjective factors. This results in a penalty of $16,250. ORDERS The Court confirms that a verdict of guilty is entered and the defendant is convicted of the offence under s 16(2) of the Occupational Health & Safety Act 1983 as charged. Further, the Court makes the following orders: 1. The defendant is fined an amount of $16,250 with a moiety thereof to the prosecutor. 2. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or as determined in accordance with the rules of the Court. 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.