Inspector Sandra McCarthy (nee Shaw) (WorkCover Authority of New South Wales) v Siva and Jeya Pty Ltd and Mathiaparanam
[2015] NSWDC 396
•18 August 2015
District Court
New South Wales
Medium Neutral Citation: Inspector Sandra McCarthy (nee Shaw) (WorkCover Authority of New South Wales) v Siva & Jeya Pty Ltd and Mathiaparanam [2015] NSWDC 396 Hearing dates: 18 August 2015 Date of orders: 18 August 2015 Decision date: 18 August 2015 Jurisdiction: Criminal Before: KEARNS DCJ Decision: I fine the company the sum of $80,000 with a moiety to the prosecutor. I fine Siva the sum of $8,000 with a moiety to the prosecutor. The company is to pay the prosecutor’s costs in the sum of $75,000. Siva is to pay the prosecutor’s costs in the sum of $25,000.
Catchwords: Sentencing; foreseeability; use of flammable material with explosive potential; no prior convictions Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Fines Act 1996 Category: Sentence Parties: Inspector Sandra McCarthy (nee Shaw) (WorkCover Authority of New South Wales) (Prosecutor)
Siva & Jeya Pty Ltd t/a The Blue Elephant Restaurant and Siva Kumaran Mathiaparanam (Defendants)Representation: Mr C Magee, instructed by DLA Piper Australia, appeared for the prosecutor
Mr D O’Neil, instructed by Gnana-Karan Solicitors, appeared for the defendant
File Number(s): 12/163779; 12/163807
Judgment
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I have found the defendants guilty of the offences charged in the summonses. The findings are in relation to several of the particulars spelled out in the summonses. The defendants have been convicted. The matters are before me for sentence.
THE FACTS
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The facts are sufficiently set out in the judgments delivered on 5 February 2015. There is no need to repeat them. The parties are familiar with them.
THE SENTENCING
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I bear in mind the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act. I also bear in mind the purpose of the Health and Safety legislation, in particular ensuring the safety, health and welfare of others on workplace premises. I bear in mind also such aggravating and mitigating factors in s 21A of the Crimes (Sentencing Procedure) Act as may be relevant.
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I start my analysis with a consideration of the gravity of the offence. This may be determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home, and the measures available to the defendants to avoid the risk.
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Foreseeability is established. Siva himself was aware of the dangers associated with working with methylated spirits. Specifically, he was aware of the risk of fire from the refilling of burner pots. That knowledge is also the company’s knowledge. This level of foreseeability establishes that the company could foresee the likelihood of the risk occurring and the likelihood of serious injury if the risk did occur. Means were readily available to obviate or eliminate the risk. They included replacing the unsafe system in the use of methylated spirits by the use of fuel gel. Additionally, they included the provision of information, training, instruction and direction as to the risks in using methylated spirits in the refilling of burner pots. They included also the provision of a documented risk assessment and giving Anisha directions in relation to that.
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There was debate in the submissions about the seriousness of the breach in the context of whether the company had in place any safe systems of work. I am satisfied that the company did have a system in place in relation to the operation of the bains-marie. The system applied to a number of employees who set up or operated the bains-marie. The problem was the system miscued because it failed to pick up Anisha. The system failed also because it allowed the storage of methylated spirits in the adjacent kitchen, and it allowed the filling of burner pots at the tables near potential ignition sources, instead of in the cages. Anisha had not been trained or given any information, instruction or direction in the operation of bains-marie except to a limited extent.
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Guru Singh explained the process to Anisha and Premesari told Anisha how to fill the burner pots. This however was not within any system of the company, as Siva maintained the position that the operation of the bains‑marie was no part of Anisha’s duties and he accordingly provided her with no information, training, instruction or direction. He was presumably ignorant of others having done so to the extent that they did. What we have here then is a system in place, but no oversight or checking or supervision of the system to see whether or not it was functioning properly. This is a matter of significant seriousness, particularly as the use of flammable material with explosive potential was involved.
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I need to consider both specific and general deterrence.
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Specific deterrence is a factor, especially as the company continues to operate the restaurant and also the bar and functions. The effect of specific deterrence is ameliorated to some extent by the fact that fuel gel is now used and the company has put in place some safe work procedures that were not in place before the incident. Also relevant is that these matters were attended to very soon following the incident.
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General deterrence needs to be considered. The use of bains-marie is common. To what extent methylated spirits is now used as heating fuel generally I do not know. I expect it would be relatively low, especially with the convenience and availability of fuel gel. To some extent that ameliorates the impact of general deterrence. Nevertheless, those with work practices, and particularly restaurants, involving the use of flammable materials need to be reminded of the risks and of the consequences of not complying with the statutory obligations.
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The defendants have no prior convictions so the maximum penalty available in the case of the company is $550,000 and in Siva’s case $55,000.
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The defendants rely on a number of subjective matters. The first is the defendant’s record in the industry where bains-marie have been used extensively and there has been no other incident in respect of that record. The next is the breach in this case was not a result of no system, it was a result of a system not including Anisha. This was because of Siva’s limited comprehension of the extent of his duty under the legislation. It was not any wilful or reckless conduct on his part or the part of the company. The submissions acknowledge error in that regard. I have discussed this submission earlier. Its force is tempered by the fact that the system that was meant to be in place was from time to time breached in practice. In this regard I have referred to the storage of the methylated spirits and the filling of the burner pots at the tables.
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The next thing relied on is that the company did act immediately following the incident to improve its systems. It also ceased the use of methylated spirits as a heating fuel and switched to gel fuel.
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The next thing that the company relied on was that it was a good corporate citizen, particularly within the local community. In this regard the company relied on a number of recent letters from educational and other institutions that are included within exhibit DX1. I note to some extent they relate to Siva personally. However, it is convenient to roll them up as applying to both defendants. They do support a view that the company is a good corporate citizen.
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The defendants then rely on contrition and remorse. The first manifestation of that was exhibit DX2, which is as follows:
“19/5/2015. Your Honour, I am sorry that the incident happened in my restaurant and that Anisha was hurt. I wish I had done more to prevent this incident. I deeply regret that Anisha was injured.”
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It is signed by Siva. It will be seen that it is dated on the date the sentence hearing was first listed. It comes late. It is not supported by other actions on the part of the defendant. It is of little value. It is arguable that it does not even comply with s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, which requires evidence that the defendant has accepted responsibility for its actions.
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The defendant relied on the costs that they will face and the Fines Act. As a result of the information contained in the affidavit of Siva’s wife, I am satisfied that I have a reasonably complete picture of the defendant’s finances so far as assets and liabilities are concerned. There does however remain a gap. Exhibit DX1 is a copy of the company’s tax return for the year ended 30 June 2014. It reveals salary and wages of $108,220. It also reveals payments to associated persons of $83,625. Subpoenaed documents include PAYG payment summaries, exhibit PX2, tab 2.
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For the financial year ended 30 June 2014 the document for the company reveals payments of $108,222. That corresponds with the tax return. That figure approximately is made up of payments to five individuals in the sums of $40,444, $30,368, $21,450, $7,200 and $4,824. There is a gap of $3,976. That is of no significant moment for the purpose of this exercise. The point is that the company has continued to operate its restaurant and bar and also functions both at the site and outside. It is inconceivable that it has done so with only five staff, some of whom were not employed during the whole of the financial year.
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When Anisha was injured on 1 January 2011, the company then had three full time staff and about 10 casual employees. Admittedly, that is not the same time as the financial year ended 30 June 2014.
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It is inconceivable, however, that the defendant could have continued to operate its business of the restaurant, the bar and its functions without a staff about the same size that it had when Anisha was injured in January 2011. Records in relation to functions show that it catered for nearly 100 functions either at the site or outside in the year ended 30 June 2014. The staff must have been employed. Payments to staff for the operation of the restaurant, the bar and the functions could not be accommodated by the figure of $108,222 nor can they be accommodated by the payment of $83,625 to associated persons as staff are not associated persons of the company.
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Gaps have been left unplugged by the defendants and they are who were the staff, what were they paid and from what source were they paid. The source was not disclosed in material that has been put before me. The gaps are not plugged by the submission the defendant gave all its records to the accountant. This is because it is the defendant’s onus to put this material before me. The defendants could have obtained the material from the accountant. Alternatively the accountant could have produced the material or explained it did not exist or that he no longer had it. Accordingly I do not think that the defendants may rely on the Fines Act and the defendants also ask that costs be taken into account in assessing penalty. There may be occasions where it is appropriate to do so and I have done so in other cases. I do not think that this is such a case. The defendants face significant costs. Combined they are to pay the prosecutor’s costs in the sum of $100,000. In addition they have their own costs to pay. I do not think, however, it is appropriate to take this into account in circumstances where the defendants seeking this favour have left me with a gap in the evidence as to the resources available for the payment of staff.
ORDERS
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I fine the company the sum of $80,000 with a moiety to the prosecutor.
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I fine Siva in the sum of $8,000 with a moiety to the prosecutor.
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The company is to pay the prosecutor’s costs in the sum of $75,000.
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Siva is to pay the prosecutor’s costs in the sum of $25,000.
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Decision last updated: 27 June 2016
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