Industrial Court of New South Wales CITATION: WorkCover Authority of New South Wales (Inspector Mayell) v Claude Van Den Bruggen t-as Dolphin Antenna Service [2007] NSWIRComm 193 PROSECUTION: WorkCover Authority of New South Wales (Inspector Mayell) PARTIES: DEFENDANT: Claude Van Den Bruggen t/as Dolphin Antenna Service FILE NUMBER(S): IRC 3362 of 2006 CORAM: Staunton J CATCHWORDS: Occupational health and safety - plea of guilty - general principles - foreseeability - objective seriousness of the offence - general and specific deterrence - no prior convictions - subjective features taken into consideration - financial capacity of defendant considered - held not persuaded discretion under s 10 of Crimes (Sentencing Procedure) Act applicable - penalty imposed - orders as to penalty, moiety and costs. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v The Queen [2005] HCA 25: 18 May 2005 Nesmat Pty Ltd v WorkCover Authority of NSW [1998] 87 IR 312 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton (2000) 49 NSWLR 383 CASES CITED: R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover Authority of NSW v Ecolab Pty Ltd (1999) 90 IR 413 WorkCover Authority of NSW v McDonald's Australia Ltd and anor [1999] 95 IR 383 WorkCover Authority of NSW v Menzies Property Services Pty Limited [2004] 136 IR 449 WorkCover Authority of NSW v Walco Hoist Rentals Pty Ltd and anor (No 2) [2000] 99 IR 163 WorkCover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 WorkCover Authority of NSW (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 HEARING DATES: 1 August 2007 DATE OF JUDGMENT: 10 August 2007 PROSECUTION: Ms P McDonald of counsel SOLICITORS: Criminal Law Practice Legal Group LEGAL REPRESENTATIVES: DEFENDANT: Ms W Thompson of counsel SOLICITORS: Central Coast Business Lawyers JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Staunton J DATE: 10/8/2007 Matter No IRC 3362 of 2006 WorkCover Authority of New South Wales (Inspector Mayell) v Claude Van Den Bruggen t/as Dolphin Antenna Service Prosecution under s 9 of the Occupational Health and Safety Act 2000 JUDGMENT [2007] NSWIRComm 193 1 The defendant in this matter, Claude Van Den Bruggen, has pleaded guilty to an offence arising under s 9 of the Occupational Health and Safety Act 2000 (the Act). 2 The offence arises out of an accident which occurred on 27 October 2004. On that day, Mr Van Den Bruggen was installing free to air television antennas at the East Tower of the Telstra Towers located in Burwood. Mr Van Den Bruggen was accompanied to the site by Mr Paul Hunt, who was assisting Mr Van Den Bruggen with the installation. 3 Mr Van Den Bruggen and Mr Hunt were in the plant room of the building. Whilst attempting to feed the antenna cable from the plant room to level 7 at the site, Mr Paul Hunt was electrocuted as a result of inserting an aluminium pole into a PVC conduit which contained an energised mains cable. 4 As a consequence and following investigations by WorkCover, the defendant was charged with an offence arising under s 9 of the Act in which it was alleged the defendant: Failed to ensure that persons not in the defendant's employment, and in particular, Paul Hunt, 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 9 of the Occupational Health and Safety Act 2000. 5 The particulars of that charge are: (a) The defendant was at all material times a self-employed person, trading as "Dolphin Antenna Service" (ABN: 63 440 016 014). (b) At all material times the defendant's undertaking was the installation of a television antenna. (c) On 27 October 2004 the defendant was engaged to install the free to air television antenna in the plant room of the East Tower of Telstra Towers situated at 52 Railway Parade, Burwood in the State of New South Wales (the site) by Glenn Shirt of TA Edisons Pty Ltd (TA Edisons). (d) The site was owned by Perpetual Trustee Company Limited (ACN: 000 001 007) who act as custodian for Macquarie Office Trust (Trust). The trust is managed on a day-to-day basis by Macquarie Office Management Limited (ACN: 006 765 206) (MOML). Macquarie Assets Services Limited (ABN 88 000 005 765) (MASL) is the asset manager appointed by MOML. MASL appointed Knight Frank (NSW) Pty Ltd (ABN 88 000 005 765) as the property and facilities manager of the property. (e) The site was leased to Telstra Corporation Ltd (ABN 33 051 775 556) (Telstra). Telstra had appointed United KFPW Real Estate Services (NSW) Pty Ltd (KFPW) to manage the site for them. (f) KFPW contracted Bovis Lend Lease Pty Limited (ABN: 97 000 098 162) to refurbish the interior of the site and Bovis Lend Lease sub-contracted with TA Edisons to carry out refurbishment work at the site. (g) TA Edisons subcontracted the work of installing the "free to air" antenna at the site to the defendant. (h) On 27 October 2004 Mr Paul Hunt attended the site with the defendant to assist with the installation of the free to air television antenna. (i) Whilst attempting to feed the antenna cable from the plant room to level 7 at the site, Mr Paul Hunt was electrocuted as a result of inserting an aluminium pole into a PVC conduit which contained an energised mains cable. (j) On 27 October 2004, the defendant failed to ensure that persons not in his employment, in particular Paul Hunt, were not exposed to risks to their health and safety arising out of the conduct of his undertaking whilst they were at his place of work in that: (i) The defendant failed to implement and/or maintain a safe system of work for the installation of the free to air television antenna at the site; (ii) The defendant failed to conduct a proper risk assessment in relation to the task that was being undertaken, the installation of the free to air television antenna; and (iii) The defendant failed to provide adequate information, instruction, training and supervision of Mr Hunt. On 27 October 2004 Mr Paul Hunt was electrocuted, whilst present on the site, as a result of inserting an aluminium pole into a PVC conduit. On 27 January 2005 Mr Paul Hunt passed away at the Amity Nursing Home at Greenacre. 6 An agreed statement of facts has been tendered by the prosecution, which discloses the events relevant to the offence charged. The facts are as follows: [1] At all material times Claude Van Den Bruggen t/as Dolphin Antenna Service (ABN: 63 440 016 014) was a self employed person whose principal place of business is situated at 24 Ashley Avenue Terrigal 2260 in the State of New South Wales (the defendant). [2] At all material times the defendant's undertaking was the installation of television antenna. [3] On 27 October 2004 the defendant was engaged to install the free to air television antenna at the East Tower of Telstra Towers situated at 52 Railway Parade, Burwood in the State of New South Wales (the site) by Glenn Shirt of TA Edisons Pty Ltd (TA Edisons) an electrical contractor. [4] The site was owned by Perpetual Trustee Company Limited (ACN: 000 001 007) who act as custodian for Macquarie Office Trust (Trust). The Trust is managed on a day-to-day basis by Macquarie Office Management Limited (ACN: 006 765 206) (MOML). Macquarie Assets Services Limited (ABN 17 081 706 167) (MASL) is the asset manager appointed by MOML. MASL appointed Knight Frank (NSW) Pty Ltd (ABN 88 000 005 765) as the property and facilities manager of the property. [5] The site was leased to Telstra Corporation Ltd (ABN 33 051 775 556) (Telstra). Telstra had appointed United KFPW Real Estate Services (NSW) Pty Ltd (KFPW) to manage the site for them. [6] KFPW contracted Bovis Lend Lease Pty Limited (ABN: 97 000 098 162) to refurbish the interior of the site and Bovis Lend Lease sub contracted with TA Edisons to carry out refurbishment work at the site. [7] Mr Shirt was a "pre-qualified" sub-contractor to perform work for Bovis Lend Lease. [8] TA Edisons had been pre-qualified by Bovis Lend Lease to perform work for them and had been engaged by Bovis Lend Lease to perform electrical work as part of the refurbishment being undertaken. Mr Shirt is the sole Director of TA Edison and was their representative on site and was given free access to sites where Bovis Lend Lease was undertaking "re fits". [9] Mr Shirt, a qualified electrician, sub contracted the work to Claude Van den Bruggen t/as Dolphin Antennas to install a free to air television antenna. Claude Van den Bruggen was a sole trader. Both the defendant and Paul Hunt who was engaged to work with the defendant on the relevant day knew Mr Shirt through the Terrigal Fishing Club. The defendant had never before undertaken work for Mr Shirt of TA Edisons. The work he performed on 27 October 2004 was the first and only occasion. [10] Mr Hunt was a contractor who had worked with the Defendant on an intermittent basis for approximately 18 months. Mr Hunt was a qualified carpenter but held no qualifications in antenna installation. Mr Hunt was 51 years old. [11] The defendant had been in the business of installation of television antennas for 13 years on the NSW Central Coast. The business known as Dolphin Antennas was operated as a sole trader. The defendant, before commencing working in the area of installing antenna completed a TAFE Course. [12] When Mr Shirt had engaged Dolphin Antennas to install the free to air television antenna at 52 Railway Parade, Burwood, there was no documentation regarding this arrangement. It was an entirely verbal arrangement. [13] There were two supervisors from Bovis Lend Lease involved in the installation of the antenna at the site. They were Logendra Pillay and Octavio Costa. On the 27 October 2004 only Mr Costa was on site. When Mr Hunt and the defendant arrived at the site at about 9.45am they met with Mr Shirt and Mr Costa to discuss the job of installing a "free to air antenna" and the associated cabling to the building. [14] Mr Costa signed the two contractors, the defendant and Mr Hunt into the building. [15] Mr Shirt, Mr Hunt, the defendant and Mr Costa went to Level 7, to the Plant Room, and to the roof on the same level, where the antenna was to be installed. At this time the three men discussed possible locations as to where the antenna could be located and where the cabling was going to run downstairs to allow distribution to all the floors. [16] Mr Shirt then left the two contractors to start working. He left the site altogether, leaving the defendant and Mr Hunt in possession of the plant room keys. At no stage before the commencement of work or during the work performed was the defendant or Mr Hunt provided with plans of the building or the plant room. Nor were they requested to provide any risk assessment or work method statement of the work to be carried out. [17] Mr Pillay was in charge of organising the building owner's approval for this job. On the 27 October 2004 at 11:29am he sent a hand written safe work method statement written by Mr Shirt, and request for approval compiled by Mr Shirt to the building manager, John Jones of Knight Frank. The incident occurred about an hour later. The defendant did not receive a copy of the safe work method statement prior to the incident. [18] After carrying out the work of installing cables and a splitter system on four (4) floors of the office block and cables to five (5) levels, the defendant and Mr Hunt entered the plant room located on level 7 of the building. After looking for a suitable means of pulling the coaxial cable up from the floor below an empty pipe was located in the plant room near the mains board. Cable was inserted into the pipe by Mr Hunt to about 2-3 feet in length. At that point the pipe obstructed the further progress of the cable. The defendant told Mr Hunt that he would go down to the next level to see if the cable had protruded past the concrete. He requested Mr Hunt to tap the pipe so that he could locate it on the floor below. The defendant anticipated that the pipe may have had a plug that was preventing the cable from feeding through the pipe. Mr Hunt picked up a one metre rubber-tipped aluminium pole or rod. The pole had been assigned for use as an antenna. While the defendant was located on the floor below it appears that Mr Hunt used an aluminium pole to be used in the antenna installation to try to free the cabling. Unknown to Mr Hunt and the defendant at the time the disused PVC pipe being used by Mr Hunt and the defendant to feed the cable in fact contained live electrical cabling leading to the mains switchboard. Mr Hunt's actions with the pole had removed the outer insulation casing of one of the cables causing him to come into contact with the live wire. The accident occurred at approximately 12.30pm. [19] When he was on level 7 Mr Van den Bruggen became concerned when he heard nothing from above. At approximately 12.30 pm Mr Hunt was found by the defendant holding the end of the aluminium pole which had been inserted into an electrical riser hole. The defendant kicked the pole from Mr Hunt's hand, which caused Mr Hunt to fall back on the floor. The defendant went back downstairs to call for help and then returned to the plant room to commence CPR. [20] Emergency service staff attended the scene a short time later, transferring Mr Hunt to Concord Hospital for medical attention. [21] Mr Hunt was resuscitated at the scene and survived three months in Concord Hospital, in what his treating doctor described as a vegetative state. He died as a result of the injuries sustained on the day on 27 January 2005. [22] An investigation into the incident was under taken by Inspector Ken Marshall of Energy Australia he found that : "The rod penetrated a 120mm sub main to the roof mechanical distribution board, energizing the rod. Paul Hunt was in an earth situation and in contact with the rod received an electric shock. The sub main was protected by a 300 amp circuit breaker." [23] Inspector Ken Marshall of Energy Australia also advised that the accident could have been prevented by: "The use of correct insulated material e.g. yellow tongue to penetrate between floors, detection of electrical cables in work area, isolation of cables as required, if cables cannot be isolated then another area to be selected for penetration between floors." [24] Joe Benati, the electrician who repaired the cable at the request of Knight Frank stated that the conduit where Paul Hunt and Claude Van den Bruggen had placed the pole was in his opinion easily identified as an electrical riser hole because of the cables that were coming out of it. [25] Neither Mr Hunt nor the defendant held electrical qualifications. Neither identified the conduit as an electrical riser hole. [26] The Defendant fully co-operated with WorkCover in its investigation of this matter. [27] The Defendant has no prior convictions under the Occupational Health and Safety Act 2000 or associated legislation. 7 In addition the agreed statement of facts, the prosecutor has also tendered a bundle of documents including the following as indexed: (1) Factual inspection report written by Inspector Richard Mulder, dated 1 December 2004; (2) Twenty one photographs taken by Inspector Nathan Hamilton on 27 October 2004 relevant to the incident; (3) Statement of Inspector Nathan Hamilton dated 27 October 2004, including further photographs of the scene of the accident; (4) Additional photographs taken on the day of the incident; (5) WorkCover statement confirming the defendant has no prior convictions. 8 On behalf of the defendant, an affidavit of Mr Claude Van Den Bruggen, sworn on 4 July 2007, was tendered. Mr Van Den Bruggen detailed his employment history prior to commencing the antenna installation business, his training and experience with antenna installation and the business he has operated for some thirteen years undertaking such work. Mr Van Den Bruggen also deposed to the events on the day of the accident involving Mr Hunt and actions taken following the incident. As well, the defendant's personal circumstances, including his current financial position, are outlined. The financial statements of the defendant's business, Dolphin Antenna Service, are also annexed to his affidavit. Personal testimonials were provided on his behalf from: (a) Ms Sharon Pearce. Ms Pearce is the Social Secretary of the Terrigal Fishing Club. (b) Mr Robert Price. Mr Price is the Director of George Brand Strata Pty Limited and has retained Mr Van Den Bruggen's services for the past 14 years. (c) Mrs Helen Van Den Bruggen. Mrs Van Den Bruggen is Mr Van Den Bruggen's former wife. (d) Mr Donald Nicholls. Mr Nicholls is the Secretary and Vice President of the Terrigal Fishing Club. (e) Mr Jeff Hunt. Mr Hunt is the brother of Mr Paul Hunt who died as a result of the accident. 9 No oral evidence was received in the proceedings. Relevant principles 10 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 11 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA 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]: .... it 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 were intended to provide 'further guidance and structure to judicial discretion.' 12 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474. 13 Further, as was said in Morrison v Powercoal Pty Limited [2003] 130 IR 364 at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: ... 14 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646. 15 On the issue of foreseeability, the Full Bench in Capral also stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms: ... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. 16 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43] we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 17 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 (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]: ... it 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). 18 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 19 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added) 20 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ... The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice... Considerations 21 The defendant has no prior convictions and as such, the maximum penalty that may be imposed is $55,000. 22 As confirmed in the agreed facts, Bovis Lend Lease Pty Ltd (Bovis) was the head contractor carrying out refurbishment work at the Telstra Towers. TA Edisons, whose sole director and representative was Mr Shirt, was the approved electrical sub-contractor onsite. TA Edisons in turn engaged Mr Van Den Bruggen to carry out the installation of free to air television antennas at the East Tower of the Telstra Tower buildings. 23 Mr Van Den Bruggen was accompanied on the day of the incident by Mr Hunt. Mr Hunt was a friend of Mr Van Den Bruggen and had assisted the defendant with antenna installation on a casual basis for 18 months. Unlike Mr Van Den Bruggen, Mr Hunt was a carpenter by trade and did not have extensive experience or qualifications in antenna installation. 24 Before commencing the work it was essential Mr Van Den Bruggen ensured the job was properly risk assessed, a system of work was put in place to address the risks identified and, in particular, Mr Hunt was adequately instructed as to how to do the job expected of him in installing the antenna cable. 25 The task being undertaken by the defendant and Mr Hunt was not without risks to safety. From the photographs before me, Mr Van Den Bruggen would have been aware of the extensive electrical circuitry in the plant room and the need to ensure the antenna cable was kept a distance of 15cms from the electrical conduits because of the dangers live circuitry presented. As para [18] of the agreed facts only too tragically illustrates, any system of work that did not address that issue clearly gave rise to real and foreseeable risks to the safety of persons engaged in laying the antenna cable. 26 As was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of foreseeability within the context of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). 27 Mr Van Den Bruggen did not prepare a safe work method statement prior to commencing work at the site. Likewise, neither Bovis nor Mr Shirt provided the defendant with electrical circuitry drawings of the building that would have assisted the defendant in choosing a safe location for the antenna cable. It is unclear whether it was Mr Van Den Bruggen's practice to seek such drawings beforehand to formulate a safe method for antenna installation. However, Mr Van Den Bruggen was aware of them and, as he deposed: [15] Almost invariably in residential blocks, there is a specification within the electrical drawings for an access point for cabling from the roof level down to the top floor for the purposes of an antenna system. This is usually marked within the drawings for the electrician or the builder. 28 Prior to commencing the work, Mr Van Den Bruggen did have discussions with Mr Shirt and Mr Costa, a Bovis representative, about the installation of the antenna and the associated cabling. This would appear to be consistent with Mr Van Den Bruggen's usual practice, which was to have "…the opportunity to talk to the electrician about any issues to do with the splitter system or the insulation of the antenna or the position system generally". Following the discussions, Mr Shirt and Mr Costa took Mr Van Den Bruggen and Mr Hunt to the roof of the building and the plant room on the roof. As Mr Van Den Bruggen explained: [22] When Mr Hunt and I arrived at the site on the morning of 27 October 2004 we were met by Mr Shirt and the project manager, Mr Costa, an employee of Bovis Lend Lease. Mr Hunt and I were given tags and then in the company of Mr Shirt and Mr Costa we proceeded to each floor. We were then taken to the plant room located on level 7 and given a key to access that room. We were shown the possible locations of where we could run a cable. This included the back of the room where cabling from the satellite dishes entered through the floor and where the mobile phone cabling was located. We decided to return to that area when the work on the separate floors was finished. We would have remained in the plant room for approximately 10 minutes. We then walked out to look at the roof area. We were then left to do the work on the other floors of installing the splitters. No one objected to the work being carried out. 29 This relatively brief inspection with Mr Shirt and Mr Costa appears to be the only action taken by Mr Van Den Bruggen which remotely resembled risk assessment. The defendant did not ask Mr Shirt or Mr Costa for any electrical drawings and, surprisingly in my view, Mr Shirt did not, on the evidence before me, advise Mr Van Den Bruggen of the need to avoid electrical circuitry and the PVC pipe with electricity cables feeding into it from both sides. I say surprising because Mr Shirt is a qualified electrician. Following the accident, an electrician commissioned by the building property manager to inspect the accident site stated that the pipe Mr Hunt was feeding the antenna cable into was easily identifiable as an electrical riser hole because of the cables that were coming out of it. 30 Although Mr Van Den Bruggen did not have electrical expertise, he had considerable experience in installing antennas and was well aware of the risks inherent in antenna installation vis-a-vis electrical circuitry. As he said: I have never run my cabling down through conduit where there is electrical wiring. I understand from instruction I received at TAFE that I have to run the cabling at least 15 cm away from the electrical conduit. The reason is that there is otherwise the potential for a live charge to enter the TV cabling, which would then make the outlets live on each floor, exposing the residents or workers within the building to an electrical shock. 31 It is difficult to understand how the electrical cabling feeding into the PVC conduit did not put Mr Van Den Bruggen on notice to avoid that as a conduit for the antenna cable. At the very least, given his knowledge of the need to stay away from electrical circuits, Mr Van Den Bruggen should have, prior to commencing the work, asked for the electrical circuit drawings or asked about the particular PVC pipe and what its purpose was. 32 In all the circumstances and, in the absence of any proper risk assessment or safe work method system in place, Mr Van Den Bruggen's actions up to the point of leaving Mr Hunt alone in the plant room, were clearly inadequate. Further, apart from the most rudimentary instruction to knock on the PVC pipe once the defendant was on the floor below, Mr Hunt was given no clear instructions as to how to safely go about his job of assisting Mr Van Den Bruggen. 33 In relation to this incident, it must be said at this point that the actions of Mr Shirt and representatives of Bovis were also less than adequate as far as their responsibilities were concerned. 34 On behalf of Bovis, Mr Lagendra Pillay's task was explained in the agreed facts as follows: [17] Mr Pillay was in charge of organising the building owner's approval for this job. On the 27 October 2004 at 11:29am he sent a hand written safe work method statement written by Mr Shirt, and request for approval compiled by Mr Shirt to the building manager, John Jones of Knight Frank. The incident occurred about an hour later. The defendant did not receive a copy of the safe work method statement prior to the incident. 35 The failure of Bovis to provide their safe work documentation to Mr Van Den Bruggen prior to the job being undertaken was clearly inadequate. Equally, so was Mr Shirt's departure from the scene and the absence of any requirement by him for a safe work method statement from the defendant apart from discussions with the defendant as to 'possible locations of where we could run the cable'. I will return to the role of those parties in this incident in due course. 36 Ultimately however, it was Mr Van Den Bruggen's duty to undertake his own risk assessment and ensure Mr Hunt was aware of how to carry out the work safely and that he was adequately instructed and supervised in relation to that task. 37 It was not disputed that, in Mr Van Den Bruggen's absence on the floor below, Mr Hunt's actions to use an aluminium pole to push down into the PVC conduit was entirely his initiative and was not anticipated or directed to be done by the defendant. 38 It is evident Mr Van Den Bruggen placed a great deal of trust in Mr Hunt and, as a result, perhaps he was not as mindful about safety as he might have otherwise been. As he stated: Paul was a man with a lot of common sense when focused on undertaking a particular task. Because of this, it simply did not enter my head that he would do what he appeared to have done on the occasion of the accident. 39 Mr Van Den Bruggen's trust in Mr Hunt's "common sense" was misguided as far as safety was concerned. As noted earlier, Mr Hunt was not an expert in antenna installation or electrical circuitry. His occupational health and safety training was limited to a one day course conducted by WorkCover in January 2004, which he had gone to with Mr Van Den Bruggen to enable both men to work on commercial building sites. Quite apart from the obvious limitations of a one day course as the basis for ensuring adequate preparation in relation to safety for a specific job, where safety is concerned no amount of common sense can be said to be a substitute for specific risk assessment as well as adequate instruction, training and supervision for the task at hand. 40 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent injury occurring. To put it another way, one should have regard to remediation or the extent of remediation that is done post the accident, as an indication of the extent to which foreseeability of injury was readily identifiable. 41 Following the accident, an investigation undertaken by Inspector Ken Marshall of Energy Australia revealed: The rod penetrated a 120mm sub main to the roof mechanical distribution board, energizing the rod. Paul Hunt was in an earth situation and in contact with the rod received an electrical shock. The sub main was protected by a 300 amp circuit breaker. 42 Inspector Marshall advised that the accident could have been avoided by: The use of correct insulated material e.g. yellow tongue to penetrate between floors, detection of electrical cables in the work area, isolation of cables as required, if cables cannot be isolated then another area to be selected for penetration between floors . (emphasis added) 43 In all the circumstances, it is clear that the defendant would have been able to readily implement the procedures identified by Inspector Marshall. They were, in many respects, procedures he was aware of when installing antenna cables near electrical circuitry. 44 Taking into account all of the above matters, I assess the offence as being objectively serious and I propose to address penalty on that basis. 45 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited 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. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process. 46 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 47 The dangers inherent in laying antenna cabling adjacent to or in the proximity of live electrical circuitry are ever present and illustrated all too tragically by the present case. General deterrence is clearly a relevant consideration. As Mr Van Den Bruggen continues to operate in the business of installing television antennas, specific deterrence is also relevant. No submission was made to the contrary. 48 Mr Van Den Bruggen has produced material with respect to his financial and personal circumstances. In doing so, the defendant is not raising incapacity to pay a fine but is putting his current financial position into context. 49 In assessing a defendant's position to pay a fine, the court is guided by s 6 of the Fines Act 1996 which states as follows: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration, and (b) such other matters as, in the opinion of the Court, are relevant to the fixing of that amount. 50 The Fines Act defines a fine as including any costs payable. 51 Mr Van Den Bruggen currently lives with his partner in a rented property and is the principal breadwinner in the relationship. Mr Van Den Bruggen does not own any real estate or substantial assets aside from home furnishings and his work vehicle, a VW Transporter. The work vehicle was purchased under a hire-purchase agreement. 52 Mr Van Den Bruggen further attested that: My taxable income is approximately between $20,000 and $30,000 per annum which I use to support myself and my daughter Jessica (to whom I pay $100 per week in child support) and my social activities. It is not an income that allows me to develop significant assets. By the time I have paid for my groceries, rent and utilities and paid for my daily social activities and child support, there is not much left over. 53 Tax Office Notice of Assessments for the periods of 2004, 2005 and 2006 were attached to Mr Van Den Bruggen's affidavit. After taking into account tax payable, his 2004 Notice of Assessment disclosed a net income of $8,282.50. The defendant's 2005 net income was $24,790.37 and, for the 2006 year, $22,342.51. 54 Mr Van Den Bruggen's affidavit also included financial reports and tax returns for his business for the 2004, 2005 and 2006 tax years. All of the returns for his business confirmed Mr Van Den Bruggen's income as per his Notice of Assessments. The financial statements for his business reveal that the defendant's business currently has assets valued at $84,149. That includes cash, plant and equipment as well as Mr Van Den Bruggen's motor vehicle. The 2006 statements also reveal total liabilities amounting to $11,551, comprising payables to trade creditors and unsecured loans. 55 Considering all of the above material, it seems clear Mr Van Den Bruggen is not an individual of significant financial means. The business is essentially a small, one-man operation which trades very modestly. In short, the defendant is not impecunious but his financial resources are quite limited. 56 Based on the above, I propose to adopt the approach of the Full Bench in WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New [2004] NSWIRComm 247 where the Full Bench cited, with approval, the decision of Wright J, President in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210 where his Honour observed: ... whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty ... the penalty should reflect the objective seriousness of the offence. 57 The prosecution acknowledged the defendant entered his plea at the first available opportunity and is entitled to have that taken into account in the determination of penalty. In doing so, the Court is guided by the decision of R v Thomson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration. 58 There are additional and powerful subjective features to be taken into account in favour of the defendant. 59 Counsel for the prosecutor conceded Mr Van Den Bruggen has expressed contrition and remorse for the incident. Mr Van Den Bruggen visited Mr Hunt regularly while he was hospitalised and continued to do so regularly until Mr Hunt passed away on 27 January 2005. Mr Van Den Bruggen stated that he was "…devastated by the accident" and that the accident is "... not something that I will ever truly get over". Mr Van Den Bruggen's remorse for the incident involving Mr Hunt was also attested to by Mr Jeff Hunt, Mr Hunt's brother, who stated in his written testimonial for the defendant: During the next three months while Paul was in hospital, Claude visited him most days, and was very remorseful and deeply regretted the situation. I know that he took it very hard; it must have been very difficult for him during this time. 60 The prosecutor has also acknowledged that Mr Van Den Bruggen cooperated with WorkCover during its investigation. 61 In addition to Mr Hunt's brother, a number of personal testimonials were tendered without objection attesting to the good character of Mr Van Den Bruggen. That is not in issue. I accept those testimonials reflect the high regard that Mr Van Den Bruggen is held in within his community and that he is of good repute and character. 62 No other persons have been charged in relation to the circumstances surrounding Mr Hunt's fatal accident. As already commented upon, there is certainly some evidence to suggest the actions of Mr Shirt and the representatives of Bovis Lend Lease are blameworthy in a number of respects. For example, as the only qualified electrician involved and the person who subcontracted the defendant to lay the antenna cable, Mr Shirt had an obligation to ensure the defendant had a proper safe work method in place in relation to the job to be performed. Likewise, as the head contractor, Bovis Lend Lease was obligated to ensure that any subcontractor on site complied with safe work methods including a proper risk assessment. By all accounts, that was not done until the job was underway and the accident had occurred. 63 Further, Mr Shirt and Bovis Lend Lease, between them, should have had the electrical circuitry drawings available for Mr Van Den Bruggen to consult as required. In saying that, I accept it was always open to the defendant to request access to the drawings. 64 In all the circumstances, as the only person charged in relation to this incident, I accept the defendant may feel a sense of injustice. Whether that sense of injustice is sustainable is a matter for consideration having regard to the facts and circumstances and the relevant authorities on this point. 65 This issue has been considered both at first instance and appellate level. See in particular, WorkCover Authority of NSW v Walco Hoist Rentals Pty Ltd and anor (No 2) [2000] 99 IR 163; WorkCover Authority of NSW v McDonald's Australia Ltd and anor [1999] 95 IR 383 and Nesmat Pty Ltd v WorkCover Authority of NSW [1998] 87 IR 312. 66 In the current proceedings, the factual circumstances do not, overall, lend themselves to the same conclusion as determined by the Full Bench in Nesmat. Critically, that there were other parties 'on whom the appellant had reasonably relied' that had caused the appellant in Nesmat to be misled as to the work circumstances prevailing. No such situation arises here. The defendant was not misled in any relevant way. Mr Shirt and Bovis Lend Lease may have failed to ensure their respective responsibilities for a safe workplace were discharged but it was the defendant's failures as particularised that gave rise to the risk to safety and the accident to Mr Hunt that followed. 67 In Walco Hoists, Wright J considered the decision in Nesmat and its relevance to the matter then before him. He said: In any event, as I understand the decision of the Full Bench in Nesmat Pty Limited 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. 68 Further, his Honour summarised, correctly in my view, the situation as follows at [34]: 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. 69 The same issue was considered by Walton J in McDonalds where his Honour said: 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. 70 In the current proceedings, the actions of Mr Shirt and Bovis Lend Lease, while deserving of censure, do not, in my view, significantly affect the assessment of the objective seriousness of the defendant's failures. Those failures stand alone, independent of the actions of Mr Shirt and Bovis Lend Lease. 71 Counsel for the defendant submitted that the circumstances of the offence were such that I should apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999, in the first instance in accordance with s 10(1)(a) (discharging the defendant without conviction and penalty) or, in the alternative, s 10(1)(b) (discharging the defendant conditionally on a good behaviour bond). 72 Section 10 of that Act relevantly provides: (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed; (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years; (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. ..................... (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition; (b) the trivial nature of the offence; (c) the extenuating circumstances in which the offence was committed; (d) any other matter that the court thinks proper to consider. 73 The application of the provisions of s10 to an offence arising under the Occupational Health and Safety Act 1983 have been considered in prior decisions of this Court and more particularly in the decision of WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 and more recently WorkCover Authority of New South Wales v Menzies Property Services Pty Limited [2004] 136 IR 449. In particular, I note reference within Profab to the comments of Wright J President in WorkCover Authority of New South Wales v Ecolab Pty Ltd (1999) 90 IR 413 and at 430 where his Honour noted the limited utility of comparing cases where provisions of the then s 556A (the statutory predecessor to s10 of the Crimes (Sentencing Procedure) Act) had been applied. On that issue his Honour stated: In my view, those matters turn purely upon their own facts and by virtue of the nature of the power that is being exercised when consideration is being given to the application of the ameliorative effects of s556A, each matter has to be considered in relation to its own particular circumstances and an analysis of earlier decisions and their particular approach to the discretion arising under the section are of limited value. (In any event, as observed by the prosecutor's counsel, a number of those matters involved significant contributory negligence by the injured worker. That is not the case here). 74 In WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Limited (2000) 100 IR 64 the Full Bench of the Court said at [21]: The judgment of the Full Court (Fisher CJ, Bauer and Cullen JJ) of the former Industrial Court in WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 at 101, is clear authority for the proposition that the discretion under s556A would rarely be available in significant offences against the legislation and any application for the benefit of the provision should be rigorously tested. 75 The need for a rigorous approach and the proper application of the provisions of s 10 to the offences under the Act is reinforced in Profab as follows: [24] Accordingly, when an application is made to a judge of this Court in sentencing proceedings under the Occupational Health and Safety Act for the exercise of the discretion under s556A, that will invariably occur in relation to a serious breach of the Act. The purpose of the statute, which is well known and often referred to in judgments of this Court, may be referred to as one for the benefit of the public generally and particularly employees at work to prevent, deter and punish breaches of health and safety requirements. Although the discretion under s556A is wide, it is not unfettered; rather, it is limited initially to a series of defined circumstances and then extended to 'any other matter which the court considers it proper to consider.' [25] The extent of reasons for decision that a judge is required to give varies. For example as observed in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 464 at 478: The extent of the reasons required will vary in light of the nature of the proceedings and the nature of the matter being decided ( see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271-273 per Mahoney JA and at 280-281 per McHugh JA and Yates Property Corporation Pty Ltd (In liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160 per Kirby P and at 182-183 per Handley JA). In sentencing, the purpose of reasons is to make clear why the particular offence warrants the sentence imposed and it is not necessary to give detailed reasons as to all of the factors and circumstances which led to a particular conclusion: see J Robins & Sons Pty Ltd v WorkCover Authority (NSW) (1998) 83 IR 338 at 340. [26] Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s556A (cf s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission. 76 In WorkCover v Menzies Property Services the Full Bench reaffirmed the approach enunciated in Profab in the following terms: [45] There is abundant, clear authority for the proposition that s10 of the Crimes (Sentencing Procedure) Act, like its predecessor s556A of the Crimes Act , will be available only in rare, limited circumstances in proceedings under the Occupational Health and Safety Act (see, for instance, Riley v Australian Grader Hire and McCarthy v Sell & Parker. ) ................... [47] We consider the statements of principle in Profab Industries, summarised in Department of Mineral Resources v Berrima Coal and affirmed in Riley v Australian Grader Hire , as to the application of s10 of the Crimes (Sentencing Procedure) Act are correct and we apply those principles in the present matter. 77 In considering the facts and circumstances of this matter directly involving the acts and omissions of Mr Van Den Bruggen and my assessment as to the objective seriousness of the offence, I am not persuaded that the provisions of s 10 are applicable in this case. The failures of the defendant must ultimately be laid at the feet of Mr Van Den Bruggen. While I do not doubt for one moment that he is of good character and that the events surrounding Mr Hunt's death would have had a profound, stressful and ultimately rehabilitative impact on him and the business, they are matters that sound more in mitigation rather than, in this case, the application of s 10. In short, the defendant's actions in relation to the offence are not such as to bring him into the range of 'exceptional circumstances' such as to attract the operation of s 10. 78 Taking into account all the factors I have referred to, I determine a penalty in this matter of $9,750. 79 I make the following orders. (i) The defendant is convicted of the offence charged; (ii) I impose a penalty of $9,750; (iii) I allocate a moiety on penalty to the prosecutor in the usual terms; (iv) The defendant is to pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment. 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. 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