Industrial Court of New South Wales CITATION: Inspector Jelley v Blue Circle Southern Cement Ltd [2009] NSWIRComm 195 PARTIES: Inspector Jelley (Prosecutor) Blue Circle Southern Cement Ltd (Defendant) FILE NUMBER(S): IRC 2345 of 2008 CORAM: Staff J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY – prosecution under s 8(2) of the Occupational Health and Safety Act 2000 – cement manufacturing industry – electrocution – objective seriousness – absence of risk assessment – reasonably foreseeable risk to safety – existence of simple and straightforward remedial steps – general deterrence – specific deterrence – measures introduced to minimise and eliminate risks – subjective factors – good corporate citizenship – victim impact statement – prior convictions – early plea of guilty – penalty – costs. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cameron v R (2002) 209 CLR 339 Capral Aluminium Ltd v WorkCover Authority of New South Wales (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 Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor [2001] 105 IR 348 Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 Inspector Olive v Transfield Pty Limited [2001] NSWIRComm 295 Inspector Rebecca Nixon v George Weston Foods Ltd [2005] NSWIRComm 287 Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182 Inspector Simpson v Tomago Aluminium Co Pty Ltd (unreported) Haylen J 27 April 2004 Matter No IRC 5351 of 2003 Inspector Victor Page v Rail Infrastructure Corporation. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 [2009] NSWIRComm 9 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312 Previtera (1997) 94 ACrimR 76 R v Mansour [1999] NSWCCA 180 R v S Y & Anor [2003] NSWCCA 291 R v Shankley [2003] NSWCCA 253 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Veen v The Queen [No 2] (1987 - 1988) 164 CLR 465 (at 477 - 478) Wong v Melinda Group Pty Ltd (1998) 82 IR 118 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd & Anor (No 2) (2000) 99 IR 163 HEARING DATES: 26 October 2009 DATE OF JUDGMENT: 20 November 2009 Ms P McDonald (Prosecutor) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Mr P Kite SC (Defendant) Blake Dawson Lawyers JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J Friday 20 November 2009 Matter No IRC 2345 of 2008 INSPECTOR CRISPIAN JELLEY v BLUE CIRCLE SOUTHERN CEMENT LTD Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2009] NSWIRComm 195 1 Blue Circle Southern Cement Ltd ("BCSC") ("the defendant"), manufactures cement and mixed products at its plant at Maldon Bridge Road, Picton, New South Wales ("the site"). 2 On 19 December 2006, BCSC engaged Bilberry Pty Ltd trading as FRH Electrical ("Bilberry"), to undertake electrical work at its site. 3 At approximately 10.00 am on 19 December 2006, Mr Christopher Newstead, an employee of Bilberry, was electrocuted, whilst performing electrical work on the MSC switchboard located in the Tower D at the site when, apparently, his head came into contact with a row of exposed live terminals. 4 BCSC was charged, in an amended application for order, under s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"). Section 8(2) provides: 8 Duties of employers (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 5 BCSC was charged with failing to ensure: that people not in its employment, in particular Christopher Newstead, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking, while they were at the defendant's place of work, contrary to section 8(2) of the Occupational Health and Safety Act 2000. 6 The particulars of the charge were that: a) On 19 December 2006 the defendant was an employer; b) On 19 December 2006 the defendant's undertaking at the site included the operation of a cement kiln and other electrical machinery and the manufacture of packaged cement and dry mix products; c) The defendant contracted with Bilberry Pty Limited trading as FRH Electrical, whereby Bilberry Pty Limited provided the services of its employees, including Christopher Newstead and Robert Fredericks, to the defendant to perform electrical work; d) On 19 December 2006 Mr Newstead was performing electrical work including the electrical installation and connection of the "Dust screw no. 2 rotary valve RV07" cell in the MSC-H1 Board and the installation and connection of new motor supply and control cables for the Dust screw no.2 rotary valve RV07; e) The defendant failed to ensure that electrical work in the vicinity of the MSC-H1 Board was carried out using a safe system of work (electrical work included the pulling of cables through the floor in the compartment below the "Control and Indication Supply" cell in the MSC-H1 Board) in that: (i) The defendant failed to ensure that the "Control and Indication Supply" cell in the MSC-H1 Board was de-energised when workers began working in the vicinity of the "Control and Indication Supply" on the MSC-H1 Board; (ii) The defendant failed to instruct Mr Newstead that a schematic diagram of the 240 volt a.c. control supply to the MSC-H1 Board was located in the switchroom where the MSC-H1 Board was located; (iii) The defendant failed to ensure a written risk assessment on the work of the electrical installation and connection of the "Dust screw no 2. rotary valve RV07" cell and the installation of new motor supply and control cables in the MSC-H1 Board had been carried out; f) The defendant failed to provide adequate labelling: (i) on the front of the doors or on the internal panel of each cell of the MSC-H1 Board which contained a 240 volt a.c. control or annunciator supply which advised the isolation point for such supplies; and (ii) near the fuse switch FS023 located on substation 3 which isolates the 415 volt a.c. main supply to the MSC-H1 Board advising that isolating the main switch will not isolate all of the electrical installation. g) As a result of the abovementioned failures on 19 December 2006 Christopher Newstead was electrocuted. 7 BCSC pleaded guilty to the charge. Prosecutor's evidence 8 Ms P McDonald of counsel, who appeared for the prosecutor, tendered an agreed statement of facts. It was agreed that: ... 4. At all material times the defendant was an employer who operated a cement plant at Maldon Bridge Road, Picton, New South Wales (the site). 5. As at 19 December 2006, the defendant employed approximately 700 persons Australia wide, and employed approximately 100 persons at the site. 6. The defendant's employees included Joseph Gordon as an electrical tradesperson and Shane Woods as an Electrical Team Leader at the site. OTHER ENTITIES. 7. Bilberry Pty Ltd trading as FRH Electrical (FRH) carried on business as an electrical contracting company. 8. FRH employed Christopher Newstead and Bob Fredericks as electricians. Both Mr Fredericks and Mr Newstead held an electrical trade licence which qualified them as electrical supervisors who could work unsupervised. Mr Newstead had worked previously at the site from time to time over the past 25 years. In the 12 months prior to the incident, Mr Newstead spent approximately 75% of his time at various Blue Circle Southern Cement plants with 50% of that time at the Maldon site (ie 35%). The usual practice understood and adopted by employees of FRH and BCSC in regard to isolation while electrical work was being carried out at the site was to identify the point of supply, lockout or tag out the points of supply and "test before you touch" (ie verify the isolation before you touch it). The responsibility was left with the electrician doing the job to perform his own isolation and testing of the isolation. 9. FRH had contracted with Blue Circle Southern Cement on a "do and charge basis" for electrical work to be performed at the site. FRH provided the services of Mr Newstead and Mr Fredericks to Blue Circle Southern Cement Ltd to perform such electrical work. 10. Health Industry Group Training Company (HIGTC) employed Christopher Lever. HIGTC had contracted Mr. Lever' s services to Blue Circle Southern Cement Ltd as a Fourth Year Electrical Apprentice. THE WORK BEING PERFORMED AT THE TIME OF THE INCIDENT. 11. On 19 December 2006, Mr Newstead and Mr Gordon were performing electrical work. The work included the electrical installation and connection of the "Dust screw no. 2 rotary valve RVO7" cell in the MSC-H1 Board (also known as the MCC-H1 Board) and the installation and connection of new motor supply and control cables for the Dust screw no.2 rotary valve RV07. This work was covered by WO 114699. 12. The work also included a continuation of a job which had previously been contracted to FRH and performed by Mr Newstead. The previous job was covered by WO 111221 and required a full current isolator to be installed at the tail end of the conveyor "CO150" to aid in breakdown repairs and cleaning. The work previously performed by Mr Newstead on this job was field work and did not involve work on the MSC-H1 Board. Originally BCSC planned that this job and in particular the switch room work would be finished by its own electrical personnel, however because of labour shortages, FRH was requested to return and finish the work. 13. The work on 19 December 2006 required Mr Newstead to pull cables through the floor beneath the MSC-H1 Board. While performing this task it appears Mr Newstead could not pull the cables through the planned location and so he attempted to pull the cables through the compartment below the "Control and Indication Supply "cell and he gained access to the Control and Indication Supply Cell. Mr Newstead was electrocuted whilst he was performing the work. THE INCIDENT. 13. At approximately 7:00am on 19 December 2006, a toolbox meeting was held in the electrical workshop of the site. Mr Woods, a supervisor at the site employed by the defendant, gave work orders to Mr Newstead, Mr Gordon, Mr Fredericks and Mr Lever. Mr Newstead and Mr Gordon were to work as one team and Mr Fredericks and Mr Lever worked as a second team. 14. Mr Fredericks and Mr Lever were assigned work order no 107142 which involved the installation of the main isolator in the MSC-H1 Board. 15. Mr Newstead and Mr Gordon were assigned Work Order no 114699 which involved the electrical installation and connection of the "Dust screw no 2 rotary valve RV07" cell in the MSC-H1 Board and the installation and connection of new motor supply and control cables for the dust screw no 2 rotary valve RV07. 16. After this meeting Mr Woods provided Mr Newstead with a pre-wired cell to install as specified by the work order and Mr Woods told him what isolation was required for the job. Mr Woods instructed Mr Newstead to isolate the MSC-H1 Board in Substation 3. The work orders did not include the isolations to be performed. 17. The MSC-H1 Board was located in the switch room in tower D at the site. Substation 3 was located at a different area of the site and was situated approximately 150 metres away from Tower D. 18. At approximately 7:20am Mr Newstead, Mr Gordon, Mr Fredericks and Mr Lever isolated and tagged the 415 Volt isolation point in Substation 3, that is, they opened the fuse switch "FS023" located on the low voltage switch board at substation 3 and placed locks or danger tags on the open fuse. 19. Mr Woods identified this isolation as being the isolation required for the work to be carried out on MSC-H1 Board. Mr Woods believed that the entire MSC-H1 Board in the switch room where the work was to be carried out would be isolated by the isolation point in Substation 3 and that there would be no live circuits in the board. This was incorrect. Isolating the 415 Volt a.c. supply to MSC-H1 did not totally isolate the MSC-H1 Board; it did not isolate the 240Va.c. control supplies or the 240Va.c. annunciator supply. 20. There was no labelling in the vicinity of the fuse switch FS023 located on Substation 3 which advised that isolating the 415 Volt main isolator on MSC-H1 did not isolate all of the MSC-H1 electrical installation. 21. Mr Newstead, Mr Fredericks and Mr Lever began work in the switch room in Tower D at approximately 7:30am. Mr Newstead and Mr Gordon removed the door of a cell they were working on (located in tier 4 on the MSC-H1 Board) and known as Dust Screw No.2 Rotary Valve RV07 at the time of the incident. Mr Gordon took it to the electrical workshop on the premises to prepare it to go back on the cell. 22. At about 9:45 am Mr Woods attended Tower D to see how the work was progressing. At about 10am, after Mr Newstead had been working for about two and a half hours, Mr Newstead was installing new control cables in the MSC-H1 Board by pulling cables through the floor in the compartment below Tier 1 at the bottom of on the MSC-H1 Board which was under the "Control and Indication Supply" cell. While performing this task, it appears Mr Newstead could not pull the cables through the planned location underneath tier 4 and so he attempted to pull the cables through the cell below the "Control and Indication Supply" cell in the MSC-H1 Board. At this time Mr Gordon was absent from Tower D. 23. The door to the "Control and Indication Supply"cell was open and there was a row of exposed live terminals of 240V a. c. on the panel behind the door of this cell. Mr Newstead opened the door. To unlock this door a flat blade screwdriver is required. Mr Gordon did not discuss the opening of the door with Mr Newstead. It is not known why this door was open. Mr Gordon has expressed the opinion that the door to the "Control and Indication Supply Cell" was opened to make access easier to the cable way. While Mr Newstead was pulling the cables it appears that his head came into contact with the row of exposed live terminals. Mr Newstead was electrocuted. 24. The exposed live terminals of 240 V a.c. were part of the additional external supply of power to the MSC-H1 board used for circuitry control. In addition there was a 240V a.c annunciator supply to the MSC-H1 board. 25. These additional external supplies of power had not been isolated. The isolation performed by the workers at substation 3 only isolated the 415V a.c. supply to the MSC-H1; it isolated neither the 240V a.c. control supplies nor the 240V a.c. annunciator supply. 26. Mr Newstead was carrying out work in close proximity (ie in the cell below) to the live exposed terminals in the "Control and Indication Supply" cell in the MSC-H1. These terminals should have been de-energised or covered with an insulating barrier, such as the door to the cell, before work was performed in their vicinity. The 240V a.c. control supply and the 240V a.c. annunciator supply were able to be isolated by withdrawing the fuse F1 in the "Control and Indication Supply" cell in MSC-H1 or by opening circuit breaker no 13 in distribution board ESDB-KC located in the KC switchroom. This was identified by a label inside the "Control and Indication Supply" cell but the label was partially obscured by wires. In order to confirm the isolation points of all the sources of supply to the Control and Indication Supply Cell, reference would need to be made to schematic diagram CL1029. The sources would then be isolated and the area tested. Neither the withdrawal of the F1 fuse nor the opening of the no 13 circuit breaker was done before Mr Newstead commenced work in close proximity (ie in the cell below) to the live exposed terminals in the "Control and Indication Supply" cell in the MSC-H1. 27. Although Mr Fredericks and Mr Lever were working in the room where the incident occurred and were in close proximity to Mr Newstead, they did not observe the incident. Nor did they observe any evidence that an electrocution had taken place. 28. First aid was applied immediately after the incident and ambulance officers were called to the scene. Mr Newstead was pronounced deceased at the scene by the ambulance officers. 29. Dr Ella Sugo, conducted the post mortem examination of Mr Newstead and formed the view that the cause of death was electrocution. PRIOR TO THE INCIDENT 30. A label was affixed to the outside of the cell of the main incomer supply (415V supply) on the MSC-H1 Board which identified the isolation point for the main supply. There was also a label on the outside of the "Control and Indication Supply" cell which stated "Control Circuit and Indication Transformers". While the isolation point for the "Control and Indication Supply" cell was labelled inside the cell, by the wording "Control Supply ESDB KC". This label was partially obscured by wires. Accordingly, there was no adequate labelling: (a) on the front of the doors or in the internal panel of each cell of the MSC-H1 Board which contained a 240V a.c. control or annunciator supply which advised the isolation points for such supplies; and (b) near the fuse switch FS 023 located on substation 3 which isolates the 415 volt ac main supply to the MSC-H1 Board advising that isolating the main switch will not isolate all of the electrical installation . 31. Consistent with standard practice, electrical schematic drawings, to which Mr Newstead had access, were located in the MCC-H1 switchroom this included schematic diagram CL1029. However, on 19 December 2009 the defendant failed to instruct Mr Newstead that a schematic diagram of the 240V a.c. control supply to the MSC-H1 Board was located in the switchroom where the MSC-H1 Board was located. 32. The defendant failed to ensure that the "Control and Indication Supply" cell in the MSC-H1 Board was de-energised when workers began working in the vicinity of the MSC-H1 Board. 33. A Job Safety Analysis (JSA) had been performed for the electrical work being previously performed by Mr Newstead prior to 19 December 2006. However, no JSA was able to be located for the task being performed on 19 December 2006 by Mr Newstead. A JSA was performed for the work being undertaken by Mr Fredericks and Mr Lever on 19 December 2006. The defendant failed to ensure that a written risk assessment had been carried out on the work of the electrical installation and connection of the "Dust screw no 2 rotary valve RV07" cell and the installation of new motor supply and control cables in the MSC-H1 Board. 34. As a result of the defendant's failures on 19 December 2006 Christopher Newstead was electrocuted. SYSTEMS OF WORK AFTER THE INCIDENT: 35. The defendant stated that a formal investigation was conducted into the incident by an external consultant engaged by their legal representatives and that the investigation is subject to legal privilege. 36. The defendant instituted an action plan to check all Motor Control Centres for occupational health and safety issues. 37. Based on information provided to Inspector Pennings during the interview process, the following measures regarding MSC-H1 Board have also been taken: (i) The front of the door of "Control and Indication Supply" cell of has been labelled to clearly identify the external control supply; (ii) A label has been placed on the main switch for MSC-H1 to advise that it does not isolate the control supply; (iii) There has been a replacement of the exposed terminals in the "Control and Indication Supply" cell with terminals having a rating of at least IP2X. All terminals are located behind locked covers. (iv) The defendant has ensured that all labelling reflects the electrical drawings; (v) The indication transformer has been removed from the "Control and Indication Supply" cell and the existing indication lights supply has been replaced with one that is supplied directly from each cell; (vi) The MCC was tested for any external supplies, be it interlocking or control supplies; (vii) The lockouts were traced out and marked on the layout drawing so that it gave a quick overview of all identified external supplies in the board; (viii) The defendant has produced a specific isolation procedure for MSC-H1 that is accessible to all electricians; (ix) Any other exposed terminals that were identified on the MCC have been replaced; (x) Electrical drawings in the switch room where the incident occurred have been correlated and replaced with permanently marked up electrical drawings; (xi) Test before you touch signage has been strategically placed in the switch room and on the front of MSC-H1; (xii) New doors have been placed on the switch room for quick egress in case of emergency. 38. Since the incident, the defendant has updated and reinforced the requirement for a risk assessment in the form of a Job Safety Analysis, Stop and Assess or Standard Operating Procedures (which are based on a JSA) to be completed on all jobs. 9 Also tendered by the prosecution were: (a) 37 colour photographs taken by Inspector Jelley and Inspector Pennings on 19 and 20 December 2006 showing : (i) Tower D at the site: (ii) the MSC-H1 switchboard; (iii) the 240 volt contacts for control circuits situated in two of the cabinets; (iv) various labels in the switchboard (some partly obscured by wiring); (v) safety lock padlocks and danger tags; (b) two factual inspection reports of Inspector Pennings dated 22 December 2006; (c) Blue Circle Southern Maldon Works Site Map; (d) extracts from technical reports of Mr James Lawson, electrical engineer with the Plant (Policy Programs) Team, Hazard Management Group at WorkCover New South Wales dated 5 July 2007; (e) a prior conviction certificate for the defendant recording three prior convictions under the Occupational Health and Safety Act 1983 before the Local and the Chief Industrial Magistrate's Court and a conviction before the Chief Industrial Magistrate's Court under the Factories, Shops and Industries Act 1962 (Repealed). Evidence for the defendant 10 Mr P Kite SC, who appeared for the defendant, read affidavits of Ross William Dill, General Manager, Occupational Health and Safety, with the defendant, and Graham Anthony Kirkby, Operations Manager at the defendant's Picton site. Neither was required for cross-examination. 11 Mr Dill commenced employment with Boral Ltd ("Boral") as General Manager, Occupational Health and Safety, on 3 July 2006. Boral is the ultimate holding company of the defendant. Mr Dill detailed his qualifications and employment history, including various managerial and directorship roles. As General Manager for Occupational Health and Safety for Boral, Mr Dill is responsible for the development of strategies in relation to safety and health issues across all Boral businesses, providing advice and assurance to the Management Committee and Board ("the Board") in relation to health and safety issues, and providing updates to the Board on the progress across divisions in implementing health and safety initiatives. 12 Mr Dill stated that Boral is the largest supplier of building products and construction materials in Australia, comprising seven key operating divisions, including BCSC, which forms part of its cement division. BCSC was registered as a company in 1976 and was acquired by Boral in 1987. Mr Dill's evidence was that BCSC is a leading producer of cement in Australia and supplies bulk cement, cement blends, bagged cement and dry mixes to customers. It employs approximately 700 employees across its operations. 13 Mr Dill annexed to his affidavit a copy of Boral's Occupational Health and Safety Policy and stated that the Policy applied at the site at the time of the incident. Mr Dill also detailed Boral's 14 Best Practice Elements, which were designed to enable each business to develop occupational health and safety management systems to address specific needs of the business. As General Manager of Occupational Health and Safety, Mr Dill conducted the Best Practice Elements assessment reviews of Boral's various divisions. 14 Mr Dill also noted that Boral had in place High Consequence Protocols which set out the minimum standards that divisions must apply to a set of specific hazards that are associated with serious injuries and fatalities. These protocols are required to be integrated into divisional occupational health and safety planning and auditing activities. The four High Consequence Protocols address mobile plant, equipment safeguarding, isolation, and working at heights, and are in addition to each division's own risk identification and management processes. Mr Dill stated that these are currently being reviewed and research is ongoing regarding confined spaces and vehicle operations. Boral's aim is for each division to develop and implement an Occupational Health and Safety System which overarches all of the operations within the divisions while still allowing some flexibility to tailor to specific needs. 15 In approximately September 2007, Ms Nicole Lawler, Sustainability Manager, was engaged by the defendant to develop a nationally consistent Health, Safety, Environment and Quality Management System ("HSEQ System") for BCSC. A copy of a diagram showing the layers of the HSEQ System was annexed to Mr Dill's affidavit. Also annexed was a copy of the index to a National Health, Safety, Environment and Quality Manual which sets out the components of the national system. The development of the system involved extensive consultation across all BCSC sites on their existing OHS systems and processes. OHS advisors from each site were, and currently are, involved in the process of developing and implementing National Standards which support the HSEQ System. Mr Dill stated that approximately 110 National Standards have been identified as the core requirements of the HSEQ System and the System is being developed for certification. Mr Dill's evidence was that as at the beginning of October 2009, over 69 Standards were complete and ready for implementation. A copy of the Status Report was annexed to his affidavit. 16 Mr Dill's evidence was that he was made aware of the incident involving the death of Mr Christopher Newstead when he received a call from the General Manager for Human Resources for the Cement division on 19 December 2006. It was initially thought that the incident involved a heart attack. The following day, the site received further information from the police that Mr Newstead's death could have resulted from an electrocution. Mr Dill attended the site on 20 December 2006 to provide assistance. Individual Boral Board members were formally made aware of the incident in the December OHS Board Report. The incident was also reported to the Boral Management Committee on 18 January 2007. Mr Dill stated that Boral sincerely regretted that this incident had occurred and that Boral has taken extensive measures to target electrical safety across all of its operations. 17 BCSC was required to report to the Board on the incident in late January 2007. BCSC informed the Board that all BCSC sites had been directed to: (a) ensure that all risk assessments and isolation procedures address the risk of multiple power sources to switchboards; (b) ensure supplementary power supplies are clearly identified in switchboards and isolation plans; (c) ensure new risk assessments are carried out when there is a change to any aspect of the job; (d) commence identification and replacement of exposed terminal strips with closed strips where possible; (e) reinforce the "test before you touch" principle with employee and contract electricians; (f) review emergency response, equipment and training. 18 BCSC also informed the Board that an electrical engineer from Group Engineering Services would lead the project to review progress of the above initiatives. 19 According to Mr Dill's affidavit, BCSC has carried out a significant amount of work across its sites following the incident. This has included site audits, switchboard replacement, elimination of operator access to live parts; revised labelling of equipment; supply of low voltage rescue kits; upgraded drawings; development of new job procedures, and standard specifications for new switchboards including IPX2 rating. Approximately $3,000,000 has been spent on improvements to electrical switchboards and wiring at the BCSC Galong and Marulan sites. Additionally, more than $200,000 has been spent upgrading, replacing and removing existing electrical equipment at the Berrima site, and additional capital expenditure has been planned. 20 On 21 February 2007, Robin Town, General Manager for Human Resources for Boral, issued a memorandum to all executive general managers for Boral requesting that various steps be undertaken across the operating divisions. These steps included a review of existing procedures for working safely on and with electrical equipment, a review of all existing circuit and line diagrams to ensure that all sources of power supply are identified and documented, reinforcement with all employees and contractors that appropriate risk assessments must be completed before work is undertaken and must be followed during such work and any change to the proposed work would usually require a revised risk assessment, and reminding employees and contractors that work should not take place on live equipment except in exceptional circumstances and then by qualified people following appropriate safe work processes. 21 Mr Dill attached examples of various divisions in Boral addressing the issue of electrical safety, including a memorandum sent on 22 February 2007 by Mr John Douglas, the Executive General Manager for the Australian Construction Materials division of Boral, and a further memorandum sent on 27 February 2007 by Mr Keith Mitchelhill, the then Executive General Manager of the Clay and Concrete division of Boral. Each division was required to report back to the Board to update them on the progress of the electrical safety issues. 22 In December 2007, four key safety focus areas were signed off by the Board for 2008: the goal of zero harm, 100 per cent compliance against the Best Practice Elements, Contractor Safety Management, and Electrical Safety Management. 23 According to Mr Dill, each division of Boral continues to report to the Board in relation to safety, particularly electrical safety. The Cement division, which includes BCSC, reported to the Board that its Lost Time Injury rates were at an all time low and electrical safety initiatives included capital expenditure of $1,200,000 for electrical upgrades in Galong, and $1,800,000 in Marulan. Mr Dill emphasised in his affidavit that approximately $11,000,000 had been dedicated in capital resources and related activities in relation to electrical safety initiatives and upgrades across Boral's divisions. 24 Mr Dill also listed Boral's financial and non-financial contributions to a range of charities and community organisations, including: (a) Boral is the largest corporate fundraiser for the Juvenile Diabetes Research Foundation including sponsorship of the "Walk to Cure Diabetes"; (b) Outward Bound Australia; (c) Taronga and Western Plains Zoos including "Backyard to the Bush" and "Youth at the Zoo" programs; (d) Building Communities, a World Vision/Boral initiative commenced in 2005 following the Boxing Day tsunami. Boral's initial commitment was $1,000,000 and whilst their relationship with World Vision has now ended, Boral continues to pursue a number of community building activities in Bayah, Indonesia. Boral management in Indonesia is also working with local charities on these and other initiatives, and (e) financial and other contributions for natural disasters including the 2009 Victorian Bushfire Appeal. 25 Additionally, BCSC also makes financial and non-financial contributions to the community and charitable organisations, including: (a) the provision of product and materials to the Channel Nine program "Domestic Blitz" which helps deserving families in the community; and (b) BCSC is a key member of the Cement Industry Federation, the national body representing the Australian Cement Industry. 26 Mr Kirkby is employed by BCSC as an Operations Manager at the site. He has been employed by BCSC since approximately 1996 and listed the various roles he has performed at the company and his relevant qualifications. 27 Mr Kirkby acknowledged the Newstead family's loss and set out the various measures undertaken by BCSC to prevent any such incident from occurring again. 28 As Operations Manager, Mr Kirkby is responsible for overseeing the operations at the site including safety, production, environment, financial performance and human resources issues. The Department Heads at the site, known as the Senior Management Team, report to him. 29 Mr Kirkby detailed the site's works operation explaining it is a cement making and packaging factory where the production of clinker and raw materials is made into cement and despatched as bulk cement. The site produces a total amount of approximately 400,000 tonnes of cement produce per annum. At the time of the incident, approximately 107 employees worked at the site. At present there are approximately 101 employees. Most of the employees are organised into three operating departments, the Engineering and Maintenance Department (consisting of electrical and mechanical tradespersons who are responsible for maintenance across the site), the Cement Production Department (responsible for production of product on site), and the Packing and Despatch Department(responsible for packaging and bulk despatch). At the time of the incident, the electrical team at the site consisted of an electrical engineer, a team leader, an electrical planner and eight electricians. Generally, the site had approximately three electrical apprentices on site. Currently, the electrical team consists of nine employees. 30 At the time of the incident, Mr Kirkby was working at the Prospect offices of BCSC. His evidence was that he attended a verbal briefing to staff at the Prospect site within days of the incident occurring, at which time he was informed of the incident. After his commencement in the position of Operations Manager, Mr Kirkby stated that he had discussions with the electrical engineer to obtain an update on various electrical safety initiatives and held a briefing on site to update personnel on the status of the post incident measures. 31 Mr Kirkby described the actions taken when the incident occurred. First aid was administered by Mr Chris Lever, an apprentice, Mr David Pickford, the first aid officer, and Mr Lennard Young, the safety and training advisor, all of whom had current first aid certificates. It was initially thought that Mr Newstead had suffered a heart attack, as there were no signs of electrocution. Upon receiving notification of the incident the Ambulance Service of New South Wales, the police and the WorkCover Authority of New South Wales ("WorkCover") were immediately notified. In the afternoon, a briefing session was held with all personnel at the site to inform them of the incident and arrangements were made for a counsellor to attend the site to provide counselling. 32 On 20 December 2006, a specifically written isolation procedure for the MCC-H1 switchboard in Tower D was developed and implemented through a toolbox talk with the electrical team on 21 December 2006. On the same day, additional labels were attached to the outside of the cell containing the 240V control supply which identified the isolation point for the control supply. Mr Kirkby annexed to his affidavit a copy of a Safety Alert issued across all Boral sites to notify them of the incident. 33 Mr Kirkby described the continuing contact with the Newstead's family since the incident and the provision of financial assistance by Mr Trevor Kemp, the Acting Works Manager, and Mr Warren Angel, the Human Resources Manager. Mr Angel has remained in contact with Mrs Newstead and contacted her on the first and second anniversary of Mr Newstead's death to offer BCSC assistance. 34 Post incident measures outlined by Mr Kirkby included inspections of all Motor Control Centres at the site by Mr Ben Cassenego, a licensed electrical supervisor. As a result of these inspections, detailed drawings were produced for every switchboard identifying all supplies of electricity in an easy to read format. Copies were located in each switchroom. Mr Kirkby attached an example of such a drawing to his affidavit. 35 In late February 2007, Mr Mike Beardsell, the National General Manager for BCSC, commenced an electrical safety review of all of BCSC's operations, co-ordinated by Mr Ian Paterson, a Senior Electrical Engineer in the Group Engineering Services division of BCSC. This became known as the "Paterson Review". The review focused on eight priorities for each BCSC site to address immediately including reviewing electrical boards to identify multiple sources of electricity being fed into the switchboards, reviewing operator access to electrical switchboards, reviewing exposed live parts for compliance with IP2X (a reference to an International Protection Code which requires that a barrier must not allow a standard jointed finger to touch any live parts), reviewing labelling on switchboards, rescue kits, review of access of electrical drawings, switchboard replacement, and residual current devices. 36 From March 2007, the site introduced a Low Voltage Isolation Permit for all electrical work on site which requires an isolation to be performed. The Permit is to be completed by the BCSC employee who is in charge of the work. Any persons who are required to work in the area which has been isolated must sign onto the work permit as part of the work party. A copy of the permit form was annexed to the affidavit. Training and random audits were conducted two to four times per month to ensure the permits were properly completed. When contractors were involved, the lead BCSC electrician was required to complete the Permit and then witness the isolations being performed. The Permit now forms part of the Low Voltage Electrical Isolation Manual. Mr Kirkby stated that he would continue to personally check that the Permits were being followed correctly. 37 Since the incident, the electrical engineer at the site has developed a specific Electrical Safety Manual which deals with electrical hazards and how such hazards should be eliminated or controlled. A copy of the manual was annexed. The electrical engineer conducted training with all electrical personnel and new employees are taken through the manual personally by the electrical engineer. He also conducted general electrical safety awareness sessions in June 2007. 38 In early 2008, Mr Peter Zwal, an electrical consultant, was engaged by BCSC to create a uniform system for safety management of the electrical installations across all BCSC plants in Australia, known as the National Electrical Safety Management System. This system comprises a hierarchy of uniform documents which relate to electrical safety across all aspects of electrical installations. The National Electrical Safety Management System comprises a BCSC National Standard on the Management of Electrical Installations, a copy of which was annexed to Mr Kirkby's affidavit. This included the introduction of regular switchboard audit/inspections. It is planned that the National Electrical Safety Management System will be rolled out across all BCSC sites by the end of 2009. 39 A review of the site's high voltage operating systems also took place and resulted in formal high voltage safety rules being developed in mid 2007 to control access to, operation of and work which is performed on the High Voltage Transmission and Distribution Network at the site. Only authorised persons are able to conduct high voltage switching operations at the site and prior to authorisation, the electrician must have completed an external course in "Safe Working Practices Course for Access Permit Issuers" conducted by Energy Australia. 40 Since the incident, further electrical training has been undertaken by personnel including review and refresher training of the on the Job Safety Analysis System ("JSA"). All site electricians have been reminded that they are required to conduct a JSA before each job is carried out. This has been reinforced to the whole workforce by a Plant Notice dated 5 March 2007 which was issued by Mr Young, the Safety and Training Advisor. 41 According to Mr Kirkby's evidence, the management of contractors was also reviewed in 2007 and 2008. In June 2009, a new BCSC Standard for Contractor Management was implemented at the site, which focused on the processes which were to be followed in relation to the engagement and ongoing management of contractors. 42 At the beginning of 2007, BCSC commenced at a national level, the development of National OHS Standards across all BCSC sites. The aim is for a consistent and uniform set of Standards. The Standards are being progressively rolled out across the BCSC sites. Monthly meetings are held to discuss progress and any issues that may arise. 43 Furthermore, in April 2009, a BCSC National Health and Safety Standard in relation to risk management was introduced at the site. A Job Safety Environment Analysis ("JSEA") process has now replaced the JSA process. The JSEA now incorporates environmental considerations when performing tasks. A JSEA is required for all work activities and tasks which are complex and/or require the involvement of two or more persons. Mr Kirkby also detailed the requirements regarding work orders. 44 The first round of training for the new Risk Management Standard for the site was conducted in September and early October 2009. Further training is being scheduled. Mr Kirkby stated that all employees and contractors are required to be inducted prior to being allowed to work on the site. For contractors, the induction process takes approximately one hour and is conducted by an authorised person. Evidence of relevant licenses and qualifications are obtained from the contractor and affixed to the induction record. The employee induction process takes approximately two and a half hours. It is conducted by the Safety and Training Advisor and is refreshed every two years or after a long absence. 45 Mr Kirkby stated that audits are now conducted of the Occupational Health and Safety Management System at the site annually by Safety Advisors from other BCSC sites. The audits consist of a safety system documentation review, site inspections and discussions with employees in relation to compliance with the system. All action items identified are placed in the site's Action Plan and are prioritised for close out. Additionally, monthly workplace inspections conducted by Team Leaders were introduced in August 2007. Any issues identified are either rectified immediately or entered into "Site Safe", a record system for hazards and incidents at the site. 46 Since August 2008, the leadership team has been required to conduct "safety conversations" with personnel on site. The aim is to move the site culture from one of compliance to safety standards toward one of "belief" in the need for safety. In 2009, the site was required to perform one "safety conversation" per fortnight. It now forms part of the staff members' key performance indicators in their annual performance appraisal. 47 Toolbox talks are conducted on a daily or weekly basis depending on the department and focus on issues such as safety or environment issues from the previous day. These are conducted daily for the electrical and mechanical department. The site also has a dedicated OHS Committee and as at 16 September 2009, 43 personnel at the site have current first aid training. 48 Mr Kirkby stated that BCSC fully cooperated with the investigation conducted by WorkCover into the incident and is an active member in various industry groups. This includes being an active member in the Cement Industry Federation ("CIF"), the national body representing the cement industry. The CIF facilitates the sharing of information amongst participants and is a lobby group for the cement industry. In particular, safety incidents which occur at member sites are shared across members. Mr Kirkby gave an example of a recent incident at a member group site that resulted in a review of all BSCS sites (including the site) of loading bulk tankers at heights. At the site, as a result of this incident, a team was appointed to review the current loading facilities and to implement design solutions to improve safety. This initiative has included expenditure of over $1,000,000 across the various BCSC sites. 49 BCSC also participates in industry groups such as the "SIRF Round Table". This is a national organisation that facilitates group discussions with industry partners on a wide range of topics at specific forums including issues of safety. 50 Mr Kirkby outlined the BCSC's community involvement. This includes a community liaison committee ("CLC") which meets every six months to discuss issues such as safety performance, environmental performance, new projects and any other issues of relevance to the local community (for example, levels of employment). On 18 July 2007, the next CLC meeting after the incident, the CLC was informed of the incident. 51 Every two years, the site hosts an open day for the community where money is raised for a local organisation. The last open day was conducted in July 2008, when approximately $1,055 was raised for the local Queen Victoria Memorial Home (a nursing home) in Picton. This amount was matched by the site. In addition, the site supports a number of local charities and organisations including Picton Scouts, Picton High School - sponsorship of the school art prize and the 50 Golden Years Anniversary and Fete; Wollondilly Anglican College Country Fair sponsorship; Buxton Volunteer Rural Fire Brigade; Thirlmere Festival of Steam and Jarvisfield Netball Club Inc. Relevant principles 52 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: [I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion." [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: [I]t 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" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27: Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence. [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: 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. [13] It is also necessary to consider the damage and injury 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 which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]). [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: [B]oth 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, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (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 indicate with some precision the circumstances which had led to the exceptional course being adopted. [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: [I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). Consideration 53 The primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the agreed statement of facts, and the evidence. 54 The work being conducted on the day of the incident was electrical work on the MSC-H1 Board. Relevant voltages to it included the 415 ac main supply and the 240V ac control supplies and the 240V ac annunciator. The work involved the installation and connection of new motor supply and control cables for the dust screw No 2 rotary valve RV07 cell. This was located in tier 4 on the MSC-H1 Board. The need to isolate the MSC-H1 Board had been identified and instructions about the necessary isolation were given by Mr Woods who was employed by the defendant as the Electrical Team Leader at the site. Mr Woods erroneously believed that by isolating the 415V ac supply at Substation 3, it would isolate all power to the MSC-H1 Board. Isolation of the 415V ac power supply did not isolate the 240V ac control supply and the 240V ac annunciator supply to the Control and Indication Supply cell. There was no labeling in the vicinity of the fuse switch at the Substation, which indicated that the isolation of the 415V ac did not result in the total isolation of the MSC-H1 Board. This meant that there were live terminals in the Control and Indication Supply cell. 55 Mr Newstead, in order to carry out the work, opened the door to the Control and Indication Supply cell. Although there is no evidence as to why this was done, Mr Gordon, who was working with Mr Newstead, thought that it may have been to gain easier access to the cables that had to be pulled up from the bottom of the cell. The usual safety practice adopted at the site was that an electrician would "test and touch" before performing the work. However, in respect of the work being undertaken by Mr Newstead, there did not appear to be any substantial work being performed in the Control and Indication Supply cell. This resulted in Mr Newstead's inadvertent exposure to the live terminals. 56 The risk, in the circumstances of this offence, arose from multiple power sources to the switchboard. The risk crystallised into the incident through, firstly, working directly on live equipment, and secondly, from working near a live terminal. 57 Mr Kite submitted that in determining the objective seriousness of the offence, it was relevant that the failures or omissions on BCSC's part were not in the nature of a deliberate or intentional disregard for safety. Senior counsel submitted this was not a case where there was a total disregard for safety or lack of safety systems. I agree with this submission. There were a number of layers of safety in place at the time of the incident. The agreed statement of facts discloses: (a) Mr Newstead held an electrical trade licence which qualified him as an electrical supervisor who could work unsupervised; (b) Mr Newstead had worked previously and relatively frequently at the site from time to time over the past 25 years; (c) in the 12 months prior to the incident, Mr Newstead spent approximately 75 per cent of his time at various BCSC plants with 50 per cent of that time at the Maldon site (ie 35 per cent); (d) the usual practice understood and adopted by employees of FRH and BCSC in regard to isolation while electrical work was being carried out on the site was to identify the point of supply, lockout or tag out the points of supply and "test before you touch" (ie verify the location before you touch the area in and around which work is to be performed); (e) the work being performed by Mr Newstead on 19 December 2006 was the continuation of a job previously contracted to FRH and performed by Mr Newstead which involved the installation of an isolator at the bottom of a conveyor to aid in the safe isolation of the conveyor. A JSA was performed for this previous work; (f) a meeting was held at 7.00 am on the morning of 19 December 2006 and Mr Woods, a supervisor at the site, assigned work to, amongst other people, Mr Newstead. Mr Newstead was told what isolation was required for the job (ie isolate the MSC-H1 switchboard in Substation 3). Mr Woods incorrectly believed that this isolation would isolate the entire MSC-H1 board and there would be no live circuits on the board; (g) at 7.20 am Mr Newstead, and others, isolated and tagged out the 415V isolation point for MSC-H1 which was located in Substation 3. The MSC-H1 switchboard upon which Mr Newstead was to perform work was located in the Tower D switchroom; (h) consistent with standard practice, electrical schematic diagrams for the MSC-H1 switchboard, were located in the MSC-H1 switchroom. They were also available on the site's intranet; (i) at 9.45 am Mr Woods attended the Tower D switchroom to see how the work was progressing; (j) at about 10.00 am, Mr Newstead was installing new control cables in the MSC-H1 board by pulling cables through the floor compartment at the bottom of MSC-H1. It appears Mr Newstead could not pull the cables through the planned location underneath tier 4 and so he attempted to pull the cables through the cell below the Control and Indication Supply cell in the MSC-H1 board; (k) Mr Newstead was working underneath the Control and Indication Supply cell. There was a label on the Control and Indication Supply cell which indicated "Control Circuit and Indication Transformers". The isolation point for the Control and Indication Supply Cell was labelled inside the cell by the wording "Control Supply ESDB KC", although the labelling was partially obscured by wires; (l) the door to the Control and Indication Supply cell was opened by Mr Newstead with a flat blade screwdriver. It is not known why it was opened; (m) when Mr Newstead was pulling cables it appears that his head came into contact with a row of exposed live terminals located in the Control and Indication Supply cell and was electrocuted. 58 BCSC conceded that there was a serious risk of injury. The risk of a worker undertaking electrical work on a live switchboard being electrocuted was obvious and foreseeable, and potentially could result in the most serious consequences. The risk was foreseen by the defendant. It erroneously determined that all power to the MSC-H1 Board would be isolated by the isolation point in Substation 3 and that as a result of this isolation there would be no live circuits in the MSC-H1 Board. Furthermore, the system of work it had in place and the labelling placed on the MSC-H1 Board were deficient and did not control the risk. The defendant should have known that there were multiple sources of power to the MSC-H1 Board. This was evident in the electrical diagrams which were located in the switchboard. It was not simply a failure to instruct Mr Newstead that schematic diagrams for the 240V Control and Indication Supply were located in the switchroom and that Mr Newstead had access to such diagrams. The defendant, through its supervisor, Mr Woods, was mistakenly of the view that the isolation of the 415V ac power isolated the whole Board. Mr Newstead was informed of this mistaken view. 59 The multiple power sources were not sufficiently evident. The 240V ac control and annunciator supply could have been isolated by the removal of a Fuse 1 in the Control and Indication Supply cell, or by opening circuit breaker no 13 in distribution board ESDB-KC which was located in the KC switchroom. Although there was a label which stated "F1 Control and Supply ESDB-KC" within the Control and Indication Supply cell, this was obscured by wires. To confirm the isolation points of all sources of power to the Control and Indication Supply cell, it was necessary to refer to the schematic diagrams. 60 The absence of a risk assessment of the work that Mr Newstead was performing meant that it was unclear what analysis was undertaken of the work he was doing and the risks associated with that work. There was an absence of ensuring that risk assessments considered the risks posed by multiple sources of power to the switchboard. I find that Mr Newstead relied on incorrect advice provided by Mr Woods in respect of the isolation of the Board. It is not a case where Mr Newstead was acting on a frolic of his own, or was negligent. 61 It follows that the risk to Mr Newstead arose not from a failure to identify a single foreseeable risk, but through the interaction of a combination of factors as I have set out above. 62 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 Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29 at 81; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at [27]. It was a foreseeable risk that if electrical work was undertaken on a switchboard which had not been fully isolated, a worker could be electrocuted. 63 The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the accident is relevant in assessing the seriousness of the offence: see Kembla Coal and Coke (at [27]). The defendant introduced the following remedial steps after the incident: (i) devised a simple written isolation procedure for the MSC-H1 Board; (ii) placed additional labels to the outside of cells containing the 240V ac control supply which identified the isolation point for the control supply; (iii) placed other labels advising that isolating the main switch to the MSC-H1 Board does not isolate the control supply; (iv) undertook of proper risk assessments and job safety analysis of how electrical work would be performed. There was nothing particularly complicated or impractical about these steps. 64 Although damage or injury to employees does not, of itself, dictate the seriousness of the offence or penalty, a breach where there was every prospect of serious consequences, may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury, may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral at [94] - [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 (at 428); Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. In the present case, Mr Newstead was electrocuted. 65 The seriousness of the risk, its foreseeability, and the ease of removing that risk, renders this offence, as submitted by the prosecutor, to be a serious breach. In my view, the offence falls within the mid range of seriousness. 66 In addition to the factors relating to the offence, the Court is required, in fixing penalty, to consider the need to deter others from committing the same crime and to deter the defendant from re-offending. In Capral at [71] - [80], the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. 67 Mr Kite submitted that in respect of the element of general deterrence, its importance has not been highlighted in this case as it has been in other cases, by a demonstration that the contravention involved a failure to observe specific provisions of a statute, or to draw attention to particular problems arising in a particular industry: Morrison v Powercoal at [101]. I consider it is appropriate to draw attention, once again, to the need for employers and contractors working with electrical installation and connections to ensure that risk assessments are undertaken before carrying out any electrical work and that a practice of "test before you touch" should be a strict requirement before any electrical work is carried out. It is therefore appropriate that I give weight to the need for general deterrence in determining penalty. 68 In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following an incident are relevant, as is the propensity for the defendant to re-offend. I accept that this is not a case which calls for the imposition of some additional specific punishment in deterring the defendant from further offending against the Act and for the purpose of compelling the defendant's attention to occupational health and safety issues so that employees and contractors are not exposed to risks to their health and safety. Since the incident, BCSC has initiated a number of measures to minimise and eliminate the risks associated with electrical safety and improve its occupational health and safety systems. All BCSC sites were required to: (a) ensure that all risk assessments and isolation procedures address the risk of multiple power sources to switchboards; (b) ensure supplementary power supplies are clearly identified in switchboards and isolation plans; (c) ensure new risk assessments are carried out when there is a change to any aspect of the job; (d) commence identification and replacement of exposed terminal strips with closed strips where possible; (e) reinforce the "test before you touch" principle with employee and contract electricians; (f) review emergency response, equipment and training. BCSC sites excluding Maldon have spent approximately $3,200,000 on electrical initiatives and upgrades. 69 At the BCSC Maldon site, the response to the incident was immediate and extensive and included, as set out in the affidavit of Mr Kirkby: (a) the immediate provision of first aid, including oxygen and a defibrillator by qualified first aid personnel; (b) counselling was made available to all personnel on site on the day of the incident and on an ongoing basis; (c) a safety alert was issued across all Boral sites notifying the sites of the incident and potential learnings; (d) extensive electrical initiatives included: (i) inspections of all Motor Control Centres at the site and creation of detailed drawings identifying all sources of supply; (ii) a review of operator access to electrical switchboards; (iii) reviewing exposed live parts for compliance with IP2X; (iv) reviewing labelling on switchboards; (v) installation of specific low voltage rescue kits; (vi) a review of access to electrical drawings; (vii) switchboard replacements; (viii) installation of Residual Current Devices; (ix) the introduction of a low voltage isolation permit; (x) the development of an Electrical Safety Manual; (xi) training for both electrical and non-electrical personnel on electrical safety; (xii) the development of a National Electrical Safety Management System which includes a National Electrical Installation Safety Management and a Low Voltage Electrical Isolation Manual which is based on the model developed by the Maldon and Berrima BCSC sites; (xiii) the development of procedures and processes for High Voltage work; (i) refresher training in JSAs and a review and modification of the JSA system to ensure that JSAs are incorporated for all Work Orders, and (j) a review of the contractor management system and the introduction of a planning checklist which includes identifying the need for a low voltage isolation permit. 70 Arising from the incident, improvements in electrical safety have also been undertaken across all Boral divisions in relation to electrical safety. In particular, a substantial sum has been dedicated in capital resources and related activities in relation to electrical safety initiatives and upgrades across the Boral divisions, which is in the range of approximately $11,000,000. 71 These extensive and comprehensive measures, together with their detailed occupational health and safety policies confirm, in my view, BCSC's demonstrated commitment to be proactive in regard to safety. However, BCSC continues to operate as a relatively large employer in a dangerous industry. I include an element in the penalty for specific deterrence. 72 There are a number of relevant subjective considerations which Mr Kite submitted were very strong. Firstly, senior counsel referred to s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 ("the CSP Act") and submitted that mitigating factors be taken into account in determining the appropriate sentence, included the following subparagraphs from s 21A(3): (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), ... (j) a plea of guilty by the offender; ... (m) assistance by the offender to law enforcement authorities. 73 I accept that the defendant is entitled to a finding of good corporate citizenship and good character. This is not a case where the defendant showed a disregard to safety and had no established systems in place. The defendant at the site: (a) used experienced and licensed electricians who were familiar with the site; (b) had in place an occupational health and safety manual; (c) conducted annual whole day course in Regulatory Safety Refresher (Electrical) Training conducted an external body; (d) had in place a risk management system, although acknowledges that there was a failure to enforce the system at the time of the incident; (e) had an active OHS Committee and other communication and consultation arrangements; (f) had training systems including induction processes for employees and contractors, and (g) had regular audits. 74 The defendant is also, as set out in the evidence of Mr Kirkby, committed to improving and enhancing its safety systems. It has commenced a program to develop a nationally consistent health, safety and quality environment and quality control system which involves extensive consultation across all BCSC's sites. This has resulted in 110 national standards being developed. The defendant, as set out in the evidence of Mr Kirkby, contributes to the community through its assistance to a number of charities and other community organisations. It is also an active member of a community liaison committee and the Cement Industry Federation. 75 I respectfully agree with the observations of Kavanagh J in Inspector Olive v Transfield Pty Limited [2001] NSWIRComm 295 at [33] that a court can give positive consideration to the corporate reputation and personal reputation of its directors and find that it has probative force to allow a measure of mitigation of penalty. Her Honour was applying the provisions of the CSP Act to corporate crimes committed under the Act. I would add that the evidence in this matter enables a conclusion to be drawn that the directors of the defendant have clearly, through discharging their duties and responsibilities, contributed in a significant way to establishing the defendant's reputation of good corporate citizenship. I propose to take such considerations into account in this matter when assessing penalty. 76 I also take into account the remorse expressed by Mr Kirkby in respect of the incident and its impact on Mrs Newstead and her family. I also note that the ultimate holding company of BCSC, Boral, also sincerely regrets the incident and has taken extensive measures to target electrical safety across all of its operations. The defendant's contrition is demonstrated by its early entry of a plea of guilty, the extensive steps it has taken after the incident as referred to in the evidence of Mr Kirkby and Mr Dill and the assistance provided to Mr Newstead's family after the incident. 77 This matter was first listed for directions before this Court on 25 March 2009. At this time, an adjournment of six weeks was sought by the defendant to obtain further instructions in relation to an extensive prosecution brief of evidence (13 volumes) and the technical nature of the particulars. The matter was adjourned to 1 May 2009. On that day, the defendant entered a plea of guilty to an amended charge filed in Court. 78 Ms McDonald conceded that in light of the circumstances of the offence and the amendments to the application, a plea of guilty was entered at the first available opportunity. I allow a discount of 25 per cent for the plea of guilty in accordance with the principles outlined in R v Thomson; R v Houlton (2000) 49 NSWLR 383. See also Cameron v R (2002) 209 CLR 339; R v S Y & Anor [2003] NSWCCA 291. 79 For the reasons that I have stated in dealing with the requirement for specific deterrence, I find that the defendant is unlikely to re-offend. The evidence of Mr Kirkby demonstrates that the defendant fully co-operated with the WorkCover investigation into the incident. 80 Section 21A(2)(d) of the CSP Act provides that an aggravating factor that may be taken into account in determining the appropriate sentence for an offence is the fact that the offender has a record of prior convictions. 81 BCSC has four prior convictions as follows: (i) in March 2000 - an offence under s 16(1) of the 1983 Act, where a penalty of $7,500 was imposed; (ii) in August 1999 - an offence under s 16 of the 1983 Act, where a penalty of $5,500 was imposed; (iii) in December 1991 – an offence under s 15 of the 1983 Act, where a penalty of $1000 was imposed, and (iv) in April 1978 – an offence under section 28 of the Factories, Shops and Industries Act 1962 (Repealed) where it appears that a penalty of 30 penalty units was imposed. 82 Haylen J in Inspector Rebecca Nixon v George Weston Foods Ltd [2005] NSWIRComm 287 at [23] - [26] referred to the use to be made of prior convictions in sentencing and set out the relevant principles to be applied by the sentencing judge. See also his Honour's decision in Inspector Victor Page v Rail Infrastructure Corporation. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 [2009] NSWIRComm 9 at [19]. I respectfully agree with his Honour's analysis and propose to be guided by it in dealing with this factor in determining sentence. 83 The effect of a prior criminal record where it is relevant to sentencing is not to increase the objective seriousness of the offence committed, but rather "retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted": Veen v The Queen [No 2] (1987 - 1988) 164 CLR 465 (at 477 - 478); R v Shankley [2003] NSWCCA 253 at [31]. The application of s 21A(2)(d) cannot lead to a penalty which is disproportionate to the crime, that is, there is a need to avoid sentencing an offender twice for offences already committed. 84 BCSC has been in operation since 1976. It has a significant number of employees. The last conviction recorded against BCSC was in 2000. The penalties which have previously been imposed on BCSC indicate the incidents that gave rise to the prosecutions were at the lower end of the scale of objective seriousness. In my view, it is, therefore, not open to conclude that BCSC has "manifested in the commission of the instant offence a continuing attitude of disobedience to the law": Veen v The Queen [No 2] at 477. Accordingly, the previous convictions of BCSC (including a conviction prior to Boral acquiring BCSC), does not require a more severe sentence to be imposed upon the defendant in this matter. 85 Ms McDonald sought to provide to the Court a victim impact statement of Mrs Newstead. The CSP Act relevantly provides under s 28(1): 28 When victim impact statements may be received and considered (1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. ... 86 Having regard to the charge, the particulars of the offence, the agreed statement of facts and the evidence tendered in the proceedings, I advised the parties during the proceedings that I accepted the plea of guilty by the defendant and that the defendant would be convicted. The defendant accepted this approach. 87 The Court of Criminal Appeal in R v Mansour [1999] NSWCCA 180 and Hunt CJ at CL in Previtera (1997) 94 ACrimR 76 (at [84] - [85]) stated that the Court in sentencing may bear in mind a victim impact statement and have regard to the particular effect of the deceased on members of the family. However, the Court should not give these considerations weight in determining the sentence imposed: Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [43]. See also Inspector Simpson v Tomago Aluminium Co Pty Ltd (unreported) Haylen J 27 April 2004 Matter No IRC 5351 of 2003; Inspector Sharpin v A Team Concrete (Aust) Pty Ltd & Ors [2004] NSWIRComm 182 at [138]. 88 Mrs Newstead stated that she had been happily married for 22 years prior to her husband's death. Their marriage was everything that she could have wished. Mr Newstead was a wonderful, kind, humorous, thoughtful, intelligent person. Most of all, she stated he was her soul mate and they had a great relationship in every respect. He was an excellent father to his two children, devoted, loving and loyal. Mrs Newstead spoke of going about her days and nights with a huge part of her missing. She stated it is the cruellest of realities to wake up each morning alone and lonely. Because of a medical disability, Mrs Newstead has been unable to work for over nine years. She can no longer afford private health care and continues to need ongoing medical attention which now must occur through public hospital waiting lists which at times can be long. She also has significant dental expenses due to her diseases which she is paying out of her part disability pension. 89 I have considered the statement from Mrs Newstead and formed the view that it would not alter the penalty, which I think is otherwise appropriate in this matter in all the circumstances of the case. 90 However, it is appropriate that the Court extends its profound sympathy to Mrs Newstead and her family and acknowledges the devastating effect that Mr Newstead's death had on them. 91 As was observed by Boland J President, in Foamex (at [43]), the receipt of 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." 92 Mr Kite submitted that there was a further consideration relevant to the assessment of the objective seriousness of the offence in respect of this prosecution, that being, the absence of a prosecution against the employer of Mr Newstead. Senior counsel submitted that the principles applicable to a consideration of this matter were discussed by Walton J Vice-President in Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd & Anor [2001] 105 IR 348 at [191] - [195]. His Honour referred to a decision of the Full Bench in Nesmat Pty Limited v WorkCover Authority of New South Wales (1998) 87 IR 312 and a decision of Hungerford J in Wong v Melinda Group Pty Ltd (1998) 82 IR 118 and his consideration of those authorities in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd, where his honour observed at 437: ... The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken. This approach is consistent with the approach in Nesmat and Wong . Nothing in the decision in Nesmat warrants the adoption of the further approach contended for by the defendants that the Court should assess, in the context of the sentencing of the defendants, whether a prosecution should have been continued against Lennard and Mercer. Nor is it consistent with the principle of parity or the abovementioned decisions for the Court to embark upon an inquiry in sentencing proceedings which, in substance, would require the Court to make specific findings as to the culpability of such entities under s 17 and the "nature and quality" of any offence committed by them. 93 His Honour's analysis of Nesmat and Wong was affirmed by Wright J President in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd & Anor (No 2) (2000) 99 IR 163 at [31] where his Honour observed: In any event, as I understand the decision of the Full Bench in Nesmat Pty Ltd it was not held that the failure to prosecute a defendant which was otherwise appropriate to be prosecuted was a matter which, of itself, would mitigate the penalty. Rather, what the Full Bench decided was that in a situation where there had been a failure, in assessing a defendant's relative culpability, to consider the inter-related culpability of another party which had not been prosecuted, and that failure resulted in an inappropriate penalty being imposed, that situation itself engendered an appropriately based sense of grievance which was in turn emphasised by the failure to prosecute the other potential defendant. 94 Mr Kite submitted that the assessment of BCSC's criminality under the Act was one which did not fall solely on the shoulders of BCSC. FRH, the employer of Mr Newstead, had not been prosecuted in relation to the incident. Senior counsel submitted that this is a factor which mitigates the objective seriousness of this offence. The critical factor in respect of the culpability of third parties, as observed in Wong, is the "actual contribution of the defendant." 95 The defendant's culpability should not, in my view, be assessed in a relatively favourable light against the culpability of Mr Newstead's employer. The contribution to the incident fell substantially on the shoulders of BCSC. It bore the overwhelming obligations and responsibility for safety at the site. In this respect, the failure to prosecute Mr Newstead's employer is therefore not significant. 96 In light of the defendant's prior convictions, the maximum penalty for this offence is $825,000. 97 I consider an appropriate penalty, taking into account all of the circumstances set out in these reasons is $250,000. 98 The prosecutor sought costs and a moiety of the fine, which I propose to order. ORDERS 99 The Court makes the following orders: 1. The offence is proven and a verdict of guilty is entered. 2. The defendant is convicted of the offence, as charged. 3. The defendant is fined an amount of $250,000 with a moiety to the prosecutor. 4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. ------------------------------------------- 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.