Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Estreich v Zaccardelli & Ors [2012] NSWIRComm 47 Hearing dates: 17 May 2012 Decision date: 31 May 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: Matter No 1929 of 2011 (1) Leonardo John Zaccardelli is convicted of an offence under s 20 of the Occupational Health and Safety Act 2000. (2) Leonardo John Zaccardelli is fined an amount of $2,000 with a moiety to the prosecutor. (3) Mr Zaccardelli shall pay the prosecutor's costs as agreed or assessed. Matter No 1930 of 2011 (1) Christopher Charles Galea is convicted of an offence under s 20 of the Occupational Health and Safety Act 2000. (2) Christopher Charles Galea is fined an amount of $1,800 with a moiety to the prosecutor. (3) Mr Galea shall pay the prosecutor's costs as agreed or assessed. Matter No 1931 of 2011 (1) Danilo Prelevic is guilty of an offence under s 20 of the Occupational Health and Safety Act 2000. (2) Pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 Danilo Prelevic is discharged on the condition that he enter into a good behaviour bond for a period of 12 months. (3) Mr Prelevic shall pay the prosecutor's costs as agreed or assessed. Matter No 1932 of 2011 (1) Scott Russell De Gail is guilty of an offence under s 20 of the Occupational Health and Safety Act 2000. (2) Pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 Scott Russell De Gail is discharged on the condition that he enter into a good behaviour bond for a period of 12 months. (3) Mr De Gail shall pay the prosecutor's costs as agreed or assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Prosecutions for breach of s 20 of the Occupational Health and Safety Act 2000 - Construction industry - Pleas of guilty - Sentencing - Worker suffered serious burn injuries and psychological injury as a result of a "practical joke" - Fellow workers prosecuted - Objective and subjective factors considered - Penalties imposed on two workers - Other two workers discharged on the condition that they enter into a good behaviour bond for a period of 12 months - Costs Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Cases Cited: Inspector Martin v Russell Larkham [2003] NSWIRComm 31 WorkCover Authority of New South Wales (Inspector Gordon) v Gregory Ronald Wallis (unreported, matter no. CT 1011 of 1995, 14 August 1996, Fisher P, Glynn and Hill JJ) Category: Principal judgment Parties: Inspector Pamela Estreich (Prosecutor in all matters) Leonardo John Zaccardelli (Defendant in Matter IRC2011/1929) Christopher Charles Galea (Defendant in Matter IRC2011/1930) Danilo Prelevic (Defendant in Matter IRC2011/1931) Scott Russell De Gail (Defendant in Matter IRC2011/1932) Representation: Mr B Docking of counsel (Prosecutor in all matters) Mr K Zoutendijk, solicitor (Defendant in Matter IRC2011/1929) of Marsdens Law Group Ms C Stevenson, solicitor (Defendant in Matter IRC2011/1930) of Shaddicks Legal Pty Limited Mr D Prelevic - in person (Defendant in Matter IRC2011/1931) Mr M Heffernan, solicitor (Defendant in Matter IRC2011/1932) File Number(s): IRC 1929 of 2011 IRC 1930 of 2011 IRC 1931 of 2011 IRC 1932 of 2011 Judgment 1These matters concern the prosecution of four workers under s 20 of the Occupational Health and Safety Act 2000 ("the Act") in connection with a workplace "practical joke" that went horribly wrong. The "joke" ended with a worker suffering burns to both legs requiring debridement and skin grafts as well as psychological injury. 2Section 20 of the Act provides: 20 Duties of employees (1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work. (2) An employee must, while at work, co-operate with his or her employer or other person so far as is reasonably necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person. Maximum penalty: (a) in the case of a previous offender-45 penalty units, or (b) in any other case-30 penalty units. 3The incident resulting in the injuries to Mr Gianni Catanzaro occurred on 23 April 2010 at a work site at Kotara. Mr Catanzaro was employed by "R&D Panelform, A Limited Partnership" ("R&D Panelform"). R&D Panelform engaged other workers at the site in pouring tilt-up concrete panels as part of a construction project. These workers included Leonardo Zaccardelli, Christopher Galea, Danilo Prelevic and Rhys Vella. Other R&D Panelform workers were working at the same work site on 23 April 2010, but not on the concrete pour, namely, Scott De Gail and Russell De Gail. 4On the date of the incident, Mr Zaccardelli was left to look after the concrete pouring at the site and was the supervisor, in his role as "head concreter". Mr Denis Vella, the director of R&D Panelform Pty Ltd was not at the site on the day of the incident, but had worked there on previous days. 5Mr Catanzaro was due to get married the following day and the workers wanted to play a "practical joke" on him. It was discussed that Mr Catanzaro was to be "egged". 6Statements of facts tendered by the prosecutor in relation to each of the defendants described the incident and events leading up to it. The defendants did not put in issue the statements of facts except in the case of Mr Prelevic and Mr De Gail as to some matters they considered required clarification, and I will deal with those shortly. A consolidation of the statements described the events as follows: Around lunchtime, Danilo Prelevic mentioned going up the road to get lunch and to also purchase some eggs. Mr Zaccardelli agreed to Mr Prelevic doing this. Mr Prelevic purchased some eggs (i.e. those subsequently used in the incident). Russell De Gail told the workers that the egging was not a good idea and he was not going to get involved. At approximately 1:30pm or 2pm, the workers were loading a truck with formwork material. When Mr Catanzaro descended from the truck, he was grabbed by Mr Zaccardelli and Mr Galea. Someone, though not Mr Galea, hit Mr Catanzaro in the groin. Mr Catanzaro was then placed against a piece of steel mesh, held in place by Mr Zaccardelli and Mr Galea, and had his hands and legs tied up with duct tape. Mr Zaccardelli then cut Mr Catanzaro's clothes off using a knife, leaving him only in his underwear. Workers then threw the eggs at Mr Catanzaro. When some of the eggs bounced off Mr Catanzaro and did not break, Mr Zaccardelli walked up with an egg and broke it onto Catanzaro's forehead. Other workers then continued to throw eggs at Mr Catanzaro while laughing about it. One or more of those present also took photographic footage of the incident on their mobile phones. After the eggs had been thrown, Mr Zaccardelli grabbed a 'jerry can' of fuel from the back of the truck parked nearby. He then proceeded to pour the fuel in a half circle on the ground near Mr Catanzaro, who was still bound. Mr Zaccardelli then called out to Scott De Gail, (who had left the immediate vicinity shortly before Mr Catanzaro was tied up, but was still at the work site) for a cigarette lighter. Scott De Gail carried a lighter as he was a smoker and he provided Mr Zaccardelli with his lighter. Mr De Gail states that he did not know what the lighter was to be used for. Mr Zaccardelli went back over to Mr Catanzaro and then lit the fuel with the cigarette lighter in front of Mr Catanzaro, starting the fire. The flames were approximately knee high. Mr Catanzaro struggled and fell, towards the fire, sustaining burns to his legs. Before the petrol was lit, none of Mr Galea, Mr Prelevic or Mr Scott De Gail intervened or helped Mr Catanzaro. Once the fire was lit, Mr Galea went looking for water to put the fire out. Rhys Vella and Russell De Gail were spectators during the incident. At all material times R&D Panelform had a workplace policy which included the requirement: "No horse-play Serious injuries can result from horse-play or practical jokes". The incident was a breach of that policy. After Mr Catanzaro hit the ground, one of his co-workers picked him up from the ground and others, including Scott De Gail, put out the fire. He was then given a spare set of clothes from the nearby truck and walked to the site shed where he had a shower and put the spare clothes on. By this time a supervisor from Taylor Constructions had seen the smoke and came over to the incident site. Mr Catanzaro was not offered First Aid by his R & D Panelform colleagues, but instead by Taylor Constructions employees. Catanzaro subsequently left the site in his own car. As a result of the fire, Mr Catanzaro suffered physical injuries in the form of partial thickness burns to both legs below the knees requiring debridement and skin grafts and also suffered psychological injuries. Mr Catanzaro is no longer employed by 'R&D Panelform, A Limited Partnership'. 7The charge against Leonardo John Zaccardelli was originally pursuant to s 9 of the Act and, in the alternative, s 20. However, the prosecutor accepted a plea of guilty to the s 20 charge. That charge was in the following terms: On 23 April 2010 at Kotara in the State of New South Wales, the defendant, being an employee, while at work, failed to take reasonable care for the health and safety of a person, namely Gianni (known as 'John') Saverio Catanzaro, at the employee's place of work and who may be affected by the employee's acts or omissions at work, contrary to Section 20 of the Occupational Health and Safety Act 2000. The particulars of charge are that: 1.The risk was the risk of serious injury in the form of burns, concussion, abrasions, bruising, and psychological injuries. 2.The defendant's acts or omissions were any one or combination of the following: (a)The defendant performed any one or more of the following acts on Mr Catanzaro - grabbing him, hitting him in the groin, placing him on a sheet of mesh, tying up his hands and legs with tape, cutting his clothes off with a knife, leaving him in his underwear, throwing eggs at him, breaking eggs on him, pouring a half circle of petrol near the front of his feet, obtaining a cigarette lighter and lighting the petrol using the lighter which led to a fire. (b)The defendant did not follow a policy of "No horse-play Serious injuries can result from horse-play or practical jokes". (c)The defendant should have provided adequate supervision that prevented or reduced to the extent reasonably practicable the occurrence at work of horse-play and practical jokes. (d)The defendant, as the senior concreter and/or as the concreter whom the others did what he told them to do did not adequately prevent or reduce to the extent reasonably practicable the occurrence at work of horse-play and practical jokes. 3.Mr Catanzaro suffered partial thickness burns to both legs below the knees requiring debridement and skin grafts, as well as psychological injuries. 4.As a consequence of the acts and omissions of the defendant, as particularised above, on 23 April 2010 Gianni (known as 'John') Catanzaro was exposed to risk of serious injury and sustained serious injury. 8The s 20 charge against Mr Galea was that on 23 April 2010 at Kotara in the State of New South Wales, being an employee, while at work Christopher Charles Galea failed to: by his acts and omissions particularised below, take reasonable care for the health and safety of a person, namely Gianni (known as 'John') Catanzaro, at the employee's place of work and who may be affected by the employee's acts or omissions at work, contrary to Section 20 of the Occupational Health and Safety Act 2000. The particulars of charge are that: 1.The risk was the risk of serious injury in the form of burns, concussion, cuts, abrasions, bruising, and psychological injuries. 2.The defendant's acts or omissions were any one or combination of the following: (a)The defendant performed any one or more of the following acts on Mr Catanzaro - grabbing him, placing him on a sheet of mesh, tying up his hands and legs with tape and throwing eggs at him. (b)The defendant omitted to intervene to help Mr Catanzaro before the petrol was lit. (c)The defendant did not follow a policy of "No horse-play Serious injuries can result from horse-play or practical jokes". 3.Mr Catanzaro suffered partial thickness burns to both legs below the knees requiring debridement and skin grafts, as well as psychological injuries. 4.As a consequence of the acts and omissions of the defendant, as particularised above, on 23 April 2010 Gianni (known as 'John') Catanzaro was exposed to risk of serious injury and sustained serious injury. 9The s 20 charge against Mr Prelevic was that on 23 April 2010 at Kotara in the State of New South Wales, being an employee, while at work Danilo Prelevic failed to: by his acts and omissions particularised below, take reasonable care for the health and safety of a person, namely Gianni (known as 'John') Catanzaro, at the employee's place of work and who may be affected by the employee's acts or omissions at work, contrary to Section 20 of the Occupational Health and Safety Act 2000. The particulars of charge are that: 1.The risk was the risk of serious injury in the form of burns, concussion, cuts, abrasions, bruising, and psychological injuries. 2.The defendant's acts or omissions were any one or combination of the following: (a)The defendant purchased and contributed to the eggs for the practical joke or horse play. (b)The defendant omitted to intervene to help Mr Catanzaro before the petrol was lit. (c)The defendant did not follow a policy of "No horse-play Serious injuries can result from horse-play or practical jokes". 3.Mr Catanzaro suffered partial thickness burns to both legs below the knees requiring debridement and skin grafts, as well as psychological injuries. 4.As a consequence of the acts and omissions of the defendant, as particularised above, on 23 April 2010 Gianni (known as 'John') Catanzaro was exposed to risk of serious injury and sustained serious injury. 10The s 20 charge against Mr De Gail was that on 23 April 2010 at Kotara in the State of New South Wales, being an employee, while at work Scott Russell De Gail failed to: by his acts and omissions particularised below, take reasonable care for the health and safety of a person, namely Gianni (known as 'John') Catanzaro, at the employee's place of work and who may be affected by the employee's acts or omissions at work, contrary to Section 20 of the Occupational Health and Safety Act 2000. The particulars of charge are that: 1.The risk was the risk of serious injury in the form of burns, concussion, cuts, abrasions, bruising, and psychological injuries. 2.The defendant's acts or omissions were any one or combination of the following: (a)The defendant provided a lighter to Leonardo John Zaccardelli during the practical joke. (b)The defendant omitted to intervene to help Mr Catanzaro before the petrol was lit. (c)The defendant did not follow a policy of "No horse-play Serious injuries can result from horse-play or practical jokes". 3.Mr Catanzaro suffered partial thickness burns to both legs below the knees requiring debridement and skin grafts, as well as psychological injuries. 4.As a consequence of the acts and omissions of the defendant, as particularised above, on 23 April 2010 Gianni (known as 'John') Catanzaro was exposed to risk of serious injury and sustained serious injury. Application of s 20 11The predecessor provision to s 20 of the Act was s 19 of the Occupational Health and Safety Act 1983. The application of that provision was considered by the Full Court of the Industrial Court of New South Wales (Fisher P, Glynn and Hill JJ) in WorkCover Authority of New South Wales (Inspector Gordon) v Gregory Ronald Wallis (unreported, matter no. CT 1011 of 1995, 14 August 1996), where it was stated at 7-8: Section 19(a) ... does not ... impose a strict or absolute liability on an employee; it requires only that an employee shall take "reasonable care" for the health and safety of persons at work who may be affected by his acts and omissions at work. However, in our opinion, the test to be applied under the section in determining whether or not an employee has failed to take reasonable care in any act or omission which may affect another's health or safety is an objective and not a subjective one. In other words, actual intent by the employee is not a necessary ingredient of contravention of the section. Nor, in our view, need the act or omission be a deliberate one. The section is mandatory and imposes a positive duty - to take reasonable care. Nevertheless, while the test is objective and "intent" is not necessary, all relevant circumstances must be taken into account in determining whether "reasonable care" was taken. For example, matters such as the employee's state of knowledge, qualifications, expertise, experience and status as foreman, site supervisor or manager, are relevant to this issue. The question in this case therefore comes down to whether or not the respondent in his capacity as an employee, was guilty of an act or omission which an informed and objective observer, having regard to all of the circumstances, would reasonably have foreseen would affect the health and safety of Mr Saleh. 12See also Inspector Martin v Russell Larkham [2003] NSWIRComm 31, which followed Wallis. I am bound to adopt the approach in Wallis. Mr Zaccardelli 13Mr Zaccardelli, 49, entered a plea of guilty to the charge. There is no doubt that he is guilty of an act that an informed and objective observer, having regard to all of the circumstances, would reasonably have foreseen would affect the health and safety of Mr Catanzaro. Mr Zaccardelli was the principal offender in what occurred. He was the most senior R&D Panelform person on the site, he agreed with Mr Prelevic to "egg" Mr Catanzaro, he and Mr Galea grabbed Mr Catanzaro and tied him to steel mesh, he cut the clothes off Mr Catanzaro leaving him in his underwear, he threw eggs at Mr Catanzaro and broke an egg onto Mr Catanzaro's forehead, he grabbed a "jerry can" of fuel and proceeded to pour the fuel in a half circle on the ground near Mr Catanzaro who was still bound, he obtained a lighter from Mr De Gail, he lit the fuel in front of Mr Catanzaro and started a fire causing Mr Catanzaro serious injury, he failed to provide Mr Catanzaro with any first aid assistance and he breached R&D Panelform's policy regarding "horse-play". 14It was undoubtedly foreseeable, in lighting a fire around Mr Catanzaro, that in attempting to avoid the flames he might fall into the fire given he was tied by his hands and legs to a length of steel mesh. Moreover, R&D Panelform's policy warned in advance there could be serious injuries from horse-play or practical jokes. 15Horse-play or practical jokes in the workplace should not be tolerated. The penalty in this case should include an element for general deterrence. 16In my opinion, having regard to the objective seriousness of the offence Mr Zaccardelli deserved a penalty at the maximum of $3,300 or close to it. However, there are matters that dictate why that should not be so. Firstly, there is the fact that Mr Zaccardelli was charged under s 54 of the Crimes Act 1900 for lighting a fire in close proximity causing grievous bodily harm by a negligent act to Mr Catanzaro and to which he pleaded guilty and in respect of which he was convicted. Mr Zaccardelli was given an eight months suspended sentence, a $2,000 fine and ordered to pay court costs of $79.00. To the extent that conviction overlaps with a conviction under s 20 of the Act, Mr Zaccardelli should not be penalised again in respect of any act or omission for which he has previously been punished. The overlap arises out of that part of particular 2(a) of the charge that states "pouring a half circle of petrol near the front of his feet, obtaining a cigarette lighter and lighting the petrol using the lighter which led to a fire." 17Secondly, there are a number of subjective features of the offence that call for some leniency: (a)Mr Zaccardelli was terminated from his employment with R&D Panelform, a company he had been with for many years; (b)he is repaying $16,133.71 to R&D Panelform's workers compensation insurer as reimbursement for the cost of Mr Catanzaro's workers compensation claim; (c)in addition to the workers compensation debt, Mr Zaccardelli was fined $2,000 in the Local Court proceedings; (d)Mr Zaccardelli entered an early plea of guilty to the charge, although I note the prosecution's case was strong; (e)in light of the reimbursement of workers compensation, material indicating Mr Zaccardelli had apologised to Mr Catanzaro and his obvious remorse for what had occurred, the Court is satisfied the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 have been met; (f)Mr Zaccardelli has no previous convictions and is a person of good character; (g)there will be legal costs of $5,000-$8,000 plus the cost of a filing fee of $1,596; (h)Mr Zaccardelli cooperated with WorkCover in its investigation of the incident to the extent he participated in a record of interview and answered questions put to him, although it is an offence to refuse or fail to answer questions or otherwise furnish information requested unless the person has a reasonable excuse; (i)Mr Zaccardelli is a person of limited means. 18In addition to the foregoing matters, in relation to specific deterrence I note the penalty imposed on Mr Zaccardelli by the Local Court. That should serve as a significant deterrent to any repeat offence so that any element I impose for specific deterrence should be minimal. Mr Galea 19Mr Galea, 29 years of age at the time of the incident, was employed by R&D Panelform as a truck driver. Mr Galea played a lesser role than Mr Zaccardelli in the treatment of Mr Catanzaro, but nevertheless a significant role. Mr Galea assisted in grabbing Mr Catanzaro, placing him on a sheet of mesh, tying up his hands and legs with tape and throwing eggs at him. Mr Galea failed to intervene to help Mr Catanzaro before the petrol was lit. Further, Mr Galea did not follow a policy of "No horse-play. Serious injuries can result from horse-play or practical jokes". Mr Galea's actions may be distinguished from those of Mr Zaccardelli in that Mr Galea was not involved in obtaining the petrol and lighting the fire. Further, once the fire was lit, Mr Galea went looking for water to put the fire out. 20Objectively, one would regard Mr Galea's conduct as less serious than that of Mr Zaccardelli. However, having regard to the need to avoid punishing Mr Zaccardelli twice for the same conduct I have discounted the penalty in light of the conviction in the Local Court. In broad terms this then results in parity between the objective seriousness of Mr Zaccardelli's offence and that of Mr Galea, except for the fact that Mr Galea moved to extinguish the fire - a belated recognition of the stupidity of what had occurred, but nevertheless a mitigating factor. 21Whilst it may not have been foreseeable on Mr Galea's part that Mr Zaccardelli would light a fire causing Mr Catanzaro's serious injuries, it was foreseeable that engaging in horse-play of the kind that occurred on 23 April 2010 could result in injury; Mr Catanzaro was tied by his arms and legs to a piece of steel mesh. The likelihood of him falling over in such a condition and injuring himself was obvious. 22In relation to general deterrence I take the same approach to Mr Galea as I have in relation to Mr Zaccardelli. In relation to specific deterrence I include an element for this in the penalty. 23In relation to subjective factors, there are fewer of them in Mr Galea's favour than was the case with Mr Zaccardelli. I have had regard to the early plea of guilty (albeit in the face of a strong prosecution case), the fact that Mr Galea has no prior convictions, that he cooperated with WorkCover in its investigation of the offence by answering questions put to him, that he is a person of good character and that there will be legal costs of $5,000-$8,000 plus the cost of a filing fee of $1,596. 24The Court is not satisfied the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act regarding remorse have been met because no evidence was adduced in this respect. Mr De Gail 25Mr Scott De Gail was 23 years of age at the time of the incident and was employed by R&D Panelform as a labourer in the lifting crew. 26Mr De Gail told the workers that the egging was not a good idea and he was not going to get involved. Mr De Gail's involvement concerns the provision of the lighter to Mr Zaccardelli. The statement of facts indicated the following in that regard: Mr Zaccardelli then called out to Scott De Gail, (who had left the immediate vicinity shortly before Mr Catanzaro was tied up, but was still at the work site) for a cigarette lighter. Scott De Gail carried a lighter as he was a smoker and he provided Mr Zaccardelli with his lighter. Mr De Gail states that he did not know what the lighter was to be used for. Mr Zaccardelli went back over to Mr Catanzaro and then lit the fuel with the cigarette lighter in front of Mr Catanzaro, starting the fire. 27Mr M Heffernan, solicitor for Mr De Gail, submitted: At the beginning of that process he [Mr De Gail] was in the vicinity of the people grabbing Mr Catanzaro as the event was described, a lot of people were spectators then, other people not facing charges before this Court. Shortly after that, when things seemed to get a little more physical, Mr De Gail said that is not for him and that he was not comfortable and he went back to his father's van parked about 20 metres away at the work site, from that particular activity. 28Mr Heffernan referred to the record of interview of Mr De Gail by WorkCover and a series of questions and answers. Mr De Gail said he did not see the whole incident and "did not know how the petrol got there and only saw it after the fire had taken place." 29Mr De Gail said in his record of interview that as soon as he saw the fire he ran over and tried to douse the flames with a bottle of water and tried to assist in pulling Mr Catanzaro away from the fire. 30I find it difficult to believe that Mr De Gail was unaware to the extent he claimed of what was occurring and that he did not know what the lighter was to be used for. Mr De Gail saw Mr Catanzaro grabbed and tied up, saw he was not struggling, saw eggs being thrown at Mr Catanzaro, and he saw the fire and the threat it represented to Mr Catanzaro, but the one thing he claimed he did not see was Mr Zaccardelli retrieve a jerry can of petrol and he did not know a fire was going to be lit around Mr Catanzaro. This was because he had walked over to his father's van, which he claimed was 15 to 20 metres away from the scene of the incident. However, despite this Mr De Gail conceded Mr Zaccardelli called out to him to "pass his lighter" and he threw it to Mr Zaccardelli "from a few metres away". It is unlikely that Mr De Gail would have thrown his lighter a distance of 15-20 metres, so either Mr De Gail was a lot closer to the incident than he claimed, or Mr Zaccardelli had approached the van where Mr De Gail was standing. Mr Prelevic indicated from the bar table that Mr De Gail was not 15-20 metres away but was standing in the vicinity of Mr Zaccardelli. 31In the result, however, I cannot be satisfied beyond reasonable doubt that Mr De Gail knew that in providing his lighter to Mr Zaccardelli a fire was to be lit around Mr Catanzaro. 32Nevertheless, Mr De Gail knew that Mr Catanzaro was to be the subject of an egging and saw him being tied up for that purpose. Whilst he did not participate in what occurred, he was a spectator and failed to intervene in any way, by protest or otherwise, to try to prevent the so-called "practical joke" prior to the fire being lit. The failure to do so was a failure to take reasonable care for the health and safety of Mr Catanzaro: s 20. An employee is not entitled to stand by and do nothing if it is reasonably foreseeable that what is occurring may place the health and safety of another employee at risk. The fact that Mr De Gail could not, on the evidence, foresee that a fire was to be lit that might cause serious injuries to Mr Catanzaro does not mean it was not reasonably foreseeable that Mr Catanzaro might be injured by being tied to a piece of steel mesh. 33I am assured by Mr Heffernan that Mr De Gail was "mortified" by what occurred and had "learnt an incredibly valuable lesson on what to do in social and workplace situations". I accept this is so. 34If Mr De Gail had known of Mr Zaccardelli's intent to light the fire around Mr Catanzaro and in that knowledge had provided a lighter, however, reluctantly, I would have imposed a penalty towards the upper end of the range. As the evidence stands, however, Mr De Gail did not approve of the "practical joke" and he did move to douse the fire when the danger became obvious. His failure was the failure of a young man to understand that he should have intervened earlier than he did and he did not follow a policy of "No horse-play. Serious injuries can result from horse-play or practical jokes". Mr Prelevic 35Mr Prelevic was 21 years of age at the time of the incident and was employed by R&D Panelform as a carpenter. Mr Prelevic was unrepresented in the proceedings. 36It appears that as Mr Catanzaro was to be married the following day the "egging" was Mr Zaccardelli's idea and he arranged for Mr Prelevic to purchase some eggs. Mr Prelevic said he thought the workers were going to "egg" Mr Catanzaro at the end of the day. However, Mr Prelevic was not involved in grabbing Mr Catanzaro, or tying him up, or cutting off his clothes, or in pouring petrol around Mr Catanzaro. Mr Prelevic said that once he saw Mr Catanzaro being tied up he did not want to be part of it and did not throw any eggs. He said that he never expected Mr Zaccardelli to pour the petrol around Mr Catanzaro and it happened so fast he could do nothing about it. 37Mr Prelevic said once the fire was lit the wind started blowing the flames towards Mr Catanzaro and that is when he ran up to Mr Catanzaro to try and pull him away from the flames. However, because Mr Catanzaro was tied to a piece of steel mesh he spun around and fell into the flames. Mr Prelevic called for help and was assisted in pulling Mr Catanzaro from the fire. Mr Prelevic later handed Mr Catanzaro his clothes and asked him whether he was all right. Mr Prelevic said he was sorry and Mr Catanzaro replied he had nothing to apologise for. 38Mr Prelevic submitted he was very concerned about having a criminal conviction because he wanted to start his own business. He submitted that the Court should apply s 10 of the Crimes (Sentencing Procedure) Act. 39Mr Prelevic purchased and contributed the eggs for the practical joke or horse-play and in doing so he did not follow a policy of "No horse-play. Serious injuries can result from horse-play or practical jokes". Despite submitting that things happened so quickly he did not have a chance to intervene before the petrol was lit, Mr Prelevic saw Mr Catanzaro being grabbed, tied up and his clothes cut from him, saw eggs being thrown, saw Mr Zaccardelli go to obtain the jerry can, heard workers say to Mr Zaccardelli "don't do it", "this has gone too far", saw Mr Zaccardelli pour the petrol and saw Mr Zaccardelli obtain the lighter from Mr De Gail. In my opinion, whilst the opportunity may not have been great, Mr Prelevic omitted to take what opportunity there was to intervene to help Mr Catanzaro before the petrol was lit. It was open to Mr Prelevic to intervene at the tying up stage or soon thereafter. Indeed, Mr Prelevic should not have been involved in buying the eggs at the outset. 40I recognise that Mr Catanzaro sustained serious injuries as a result of what occurred on 23 April 2010. However, Mr Prelevic was a fringe player and obviously became concerned when the incident escalated in the way it did. Mr Prelevic recognised the danger and moved quickly to remove Mr Catanzaro from the flames. Victim Impact Statement 41Mr Catanzaro provided the Court with a one-page victim impact statement. The statement described Mr Catanzaro's injuries and the effect they have had on him including constant pain, itchiness, sleeplessness and cramps. 42Mr Catanzaro described the ruinous effect on his wedding day and honeymoon of what occurred. He said his wife had to take care of him, which he hated, that he was going to the hospital every second day and his wife had to wheel him around in a wheelchair because he could not walk for a week. 43Mr Catanzaro said after the incident he was put off from his job due to the amount of recovery time he needed and since then had been unable to find full-time work. Further, he said he was unable to work in his trade for nine months after the incident and because he was limited in the type of work he could perform his income was lower than what it would otherwise have been. His wife had to sell her investment property because of his drop in income. Mr Catanzaro said the incident "ruined his life". 44Whilst the Court is unable to take the victim impact statement into account in determining sentence, one would hope the impact of the "joke" on Mr Catanzaro, his family and future might be a sobering lesson for all workers. Conviction and sentence 45I am satisfied in respect of Messrs Zaccardelli and Galea that their guilty pleas were properly entered and each are convicted of an offence under s 20 of the Occupational Health and Safety Act. 46In the case of Mr Zaccardelli I have decided an appropriate penalty to be imposed on him should be discounted by 20 per cent for the early guilty plea and by 10 per cent for his cooperation with WorkCover: see ss 22 and 23 of the Crimes (Sentencing Procedure) Act. The penalty will be $2,000. 47In the case of Mr Galea I have decided an appropriate penalty to be imposed on him should be discounted by 20 per cent for the early guilty plea and by 10 per cent for his cooperation with WorkCover: see ss 22 and 23 of the Crimes (Sentencing Procedure) Act. The penalty will be $1,800. 48In the case of Mr De Gail, whilst guilty of the offence there will be no conviction recorded. I propose to apply the provisions of s 10(1)(b) of the Crimes (Sentencing Procedure) Act, that is, an order discharging him on condition that he enter into a good behaviour bond for 12 months. 49In the case of Mr Prelevic, whilst guilty of the offence there will be no conviction recorded. Again, I propose to apply the provisions of s 10(1)(b) of the Crimes (Sentencing Procedure) Act, that is, an order discharging him on condition that he enter into a good behaviour bond for 12 months. Orders 50The Court makes the following orders: Matter No 1929 of 2011 (1) Leonardo John Zaccardelli is convicted of an offence under s 20 of the Occupational Health and Safety Act 2000. (2) Leonardo John Zaccardelli is fined an amount of $2,000 with a moiety to the prosecutor. (3) Mr Zaccardelli shall pay the prosecutor's costs as agreed or assessed. Matter No 1930 of 2011 (1) Christopher Charles Galea is convicted of an offence under s 20 of the Occupational Health and Safety Act 2000. (2) Christopher Charles Galea is fined an amount of $1,800 with a moiety to the prosecutor. (3) Mr Galea shall pay the prosecutor's costs as agreed or assessed. Matter No 1931 of 2011 (1) Danilo Prelevic is guilty of an offence under s 20 of the Occupational Health and Safety Act 2000. (2) Pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 Danilo Prelevic is discharged on the condition that he enter into a good behaviour bond for a period of 12 months. (3) Mr Prelevic shall pay the prosecutor's costs as agreed or assessed. Matter No 1932 of 2011 (1) Scott Russell De Gail is guilty of an offence under s 20 of the Occupational Health and Safety Act 2000. (2) Pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 Scott Russell De Gail is discharged on the condition that he enter into a good behaviour bond for a period of 12 months. (3) Mr De Gail shall pay the prosecutor's costs as agreed or assessed. ********** Amendments 25 June 2012 - Amended IRC 1929 of 2012, IRC 1930 of 2012, IRC 1931 of 2012, IRC 1932 of 2012 to read as IRC 1929 of 2011, IRC 1930 of 2011, IRC 1931 of 2011, IRC 1932 of 2011. Amended paragraphs: Coversheet, File Number DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 June 2012