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District Court 2 September 2016

Safe Work NSW v Essential Energy P/L

[2016] NSWDC 219

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS DUTY OF EMPLOYERS RISK OF DEATH OR SERIOUS INJURY

Citation: Safe Work NSW v Essential Energy P/L [2016] NSWDC 219
Court: District Court of New South Wales
Date: 2 September 2016
Judge: Judge AC Scotting

Background

The defendant, a major electricity network operator responsible for maintaining infrastructure across 95% of New South Wales's geographic area, was prosecuted following the death of one of its employees. On 2 September 2013, a work crew was carrying out the removal of de-energised 11kV bottom circuit conductors strung between power poles at a site near Bulahdelah. The top circuit conductors running along the same poles remained energised throughout.

The deceased employee, working as a Safety Observer and Ground Assistant, took hold of a section of the de-energised bottom conductor that had been lowered from a pole. Unknown to those on site, the lowering of that conductor had increased tension along the wire, causing a section of it approximately 450 metres away to make contact with, or come into very close proximity to, the energised top conductor. The resulting electrical current passed through the wire the deceased was holding, and he was fatally electrocuted.

The defendant pleaded guilty to failing to comply with its health and safety duty as a person conducting a business, thereby exposing a worker to a risk of death or serious injury, contrary to sections 19 and 32 of the Work Health and Safety Act 2011. The sentencing hearing proceeded on an agreed statement of facts.

  • What was the appropriate fine, having regard to the objective seriousness of the offence and the statutory maximum of $1.5 million?
  • What weight should be given to the defendant's mitigating factors, including its early guilty plea, genuine remorse and contrition, and post-incident remediation?
  • What discount should apply to reflect the utilitarian value of the early guilty plea?
  • How should victim impact statements be treated in the sentencing of a corporation for a work health and safety offence?
  • What costs order was appropriate?

Decision

Objective seriousness. The court assessed the offence as being of significant objective seriousness. The risk that materialised was death, and that risk eventuated in the worst possible outcome. The defendant's own safety rules required a minimum safe approach distance of 700mm from live conductors and mandated the use of a Safety Observer, yet the system of work failed to account for the mechanical interaction between de-energised and energised conductors across multiple spans.

Mitigating factors. The court accepted a range of mitigating circumstances. The defendant had no prior convictions, cooperated with the Safework NSW investigation, and entered an early guilty plea. The court was satisfied that the defendant had demonstrated genuine contrition and remorse, noting the immediate safety alert issued on the day of the incident, the subsequent industry-wide prohibition on overhead conductor work unless all conductors were de-energised, the practical support provided to the deceased's family (including salary continuation, counselling, and working bees), and the attendance of senior executives at the funeral.

Discount for guilty plea. Applying the principles in R v Thomson and Houlton and R v Borkowski, the court determined that a 25% discount was appropriate to reflect the timing and utilitarian value of the early plea. The court noted that the plea also indicated remorse.

Victim impact statements. The deceased's wife and three children presented victim impact statements, which were read aloud in court. The court accepted the prosecution's submission that the harm caused to the family was an aspect of harm done to the community, and treated the statements as relevant to the determination of appropriate punishment under section 28(4) of the Crimes (Sentencing Procedure) Act 1999.

Penalty. The court determined that the appropriate fine before discount was $400,000, which was reduced by 25% to $300,000. Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was directed to be paid to the prosecutor. The defendant was also ordered to pay agreed prosecution costs of $30,000.

Orders Made

  • The defendant was convicted of the offence under section 32 of the Work Health and Safety Act 2011.
  • A fine of $300,000 was imposed (reflecting a 25% discount from a base fine of $400,000).
  • Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was directed to be paid to the prosecutor.
  • The defendant was ordered to pay the prosecutor's costs in the agreed sum of $30,000.

Key Takeaways

  • Under sections 19 and 32 of the Work Health and Safety Act 2011, a person conducting a business faces a maximum fine of $1.5 million where a failure to comply with a health and safety duty exposes a worker to a risk of death or serious injury.
  • A 25% discount from the base penalty was available for an early guilty plea, consistent with the range in R v Thomson and Houlton, with the timing of the plea being the primary determinant of where within the 10-25% range a case should fall.
  • Victim impact statements from a deceased worker's family members were treated as relevant to sentencing in a corporate prosecution, on the basis that harm to the family constituted harm to the community under section 28(4) of the Crimes (Sentencing Procedure) Act 1999.
  • Post-incident remediation, including the immediate issuing of a safety alert and the adoption of that alert by comparable industry operators, was accepted as a mitigating factor demonstrating genuine contrition.
  • Section 122(2) of the Fines Act 1996 permitted the court to direct that 50% of the fine be paid to the prosecuting authority, which the District Court exercised in this case.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 21A(2)(d), 21A(2)(g), 21A(3)(f), 21A(3)(g), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22, 22A, 27, 28(4), 29, 30, 30A
- Fines Act 1996 (NSW), ss 6, 122(2)

Cases
- Veen v R (No 2) (1988) 164 CLR 465
- R v McNaughton (2006) 66 NSWLR 566
- Baumer v R (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No 5) [2009] NSWSC 432
- Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37