Unity Pty Limited v SafeWork NSW

[2018] NSWCCA 266

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

Hearing dates:

27 July 2018

Decision date:

26 November 2018

Before:

Beazley P at [1];
Basten JA at [2];
Wilson J at [116]

Decision:

(1)   In the matter of Unity (NSW) Pty Ltd v SafeWork NSW (2016/77902-003) – dismiss the appeal.

 

(2)   In each of the following appeals –

 

Attorney General (NSW) v Unity (NSW) Pty Ltd (2016/77902-004)

 

Attorney General (NSW) v Activate Fire Australia Pty Ltd (2016/77894)

 

Attorney General (NSW) v Hanna Plumbing Pty Ltd (2016/77856) –

 dismiss the appeal.

Catchwords:

CRIME – conviction appeal – offence of failing to ensure health and safety of workers by exposing individual to a risk of death or serious injury – whether defendant convicted of offence other than that particularised – whether measure to ensure health and safety particularised by prosecutor reasonably practicable – Work Health and Safety Act 2011 (NSW), ss 19, 32

 

EMPLOYMENT AND INDUSTRIAL LAW – industrial safety, health and welfare – worker suffered serious injuries following electrocution – defendants charged with failure to ensure health and safety of workers by exposing individual to a risk of death or serious injury or illness – defendants convicted, but injuries suffered by worker not manifestation of risk pleaded – finding not challenged on appeal – whether trial judge erred in making finding of low objective seriousness – whether trial judge erred in failing to take injury of worker into account as aggravating factor – whether sentence manifestly inadequate – Work Health and Safety Act 2011 (NSW), ss 19, 32

 

SENTENCING – aggravating factors – substantial harm, injury, loss or damage – offence of failing to ensure health and safety of workers by exposing individual to a risk of death or serious injury or illness – where worker’s injury would not have occurred had defendants taken measures which should have been taken – whether worker’s injuries should be taken into account as aggravating factor in sentencing

 

SENTENCING – prosecution appeal – residual discretion – delay – appeal lodged more than eight months after orders entered –internal bureaucratic processes relied upon as justification for delay –whether defendants suffered prejudice as a result of delay – relevance of defendants being corporate entities rather than natural persons – whether delay engaged discretion not to intervene

SENTENCING – prosecution appeal – mitigating factors – remorse – prosecutor contended defendant was sympathetic but not remorseful – remorse insufficient to establish mitigating factor under Crimes (Sentencing Procedure) Act 1999 (NSW), 21A(3)(i) – whether trial judge erred by taking remorse into account

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
Criminal Appeal Act 1912 (NSW), ss 5AE, 5D, 10
Criminal Procedure Act 1986 (NSW), ss 133, 188, 257B
Fines Act 1996 (NSW), s 6
Work Health and Safety Act 2011 (NSW), ss 3, 17, 18, 19, 30, 32; Pt 2, Div 5
Work Health and Safety Regulations 2011 (NSW), cl 291

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Director of Public Prosecutions v Lazzam [2016] NSWSC 145
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Holmes v RE Spence and Co Pty Ltd (1992) 5 VIR 119
Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
R v Hallocoglu (1992) 29 NSWLR 67
R v Irvine (2009) 25 VR 75; [2009] VSCA 239
R v Isaacs (1997) 41 NSWLR 374
R v MAK [2006] NSWCCA 381; 167 A Crim R 159
R v Ohar (2004) 59 NSWLR 596; [2004] NSWCCA 83
SafeWork (NSW) v Activate Fire Pty Ltd [2016] NSWDC 440

Category:

Principal judgment

Parties:

Attorney General of NSW (Appellant in all matters)
Activate Fire Australia Pty Ltd (Respondent in matter 2016/77856)
Unity (NSW) Pty Ltd (Applicant/Respondent in matter 2016/77902)
Hanna Plumbing Pty Ltd (Respondent in matter 2016/77894)

Representation:

Counsel:
J Agius SC/M Moir (Appellant)
C P O’Neill (Activate Fire Australia Pty Ltd)
C Magee (Unity (NSW) Pty Ltd)
No appearance (Hanna Plumbing Pty Ltd)

  Solicitors:
Crown Solicitor of NSW (Appellant in all matters)
Dettmann Longworth (Unity (NSW) Pty Ltd)
SBC Legal Services (Activate Fire Australia Pty Ltd)

File Number(s):

2016/77856; 2016/77902; 2016/77894

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2017] NSWDC 66; [2017] NSWDC 209

Date of Decision:

27 March 2017; 14 August 2017

Before:

Scotting ADCJ

File Number(s):

2016/77856; 2016/77902; 2016/77894

Judgment

INDEX					Paragraph
(1)		Background to prosecution		6
(a)		Factual background	6
(b)		Relevant legislation	10
(c)		The charges	14
(2)	Unity’s appeal against conviction			18
(a)		Ground 1 – modifying pleaded risk	20
(b)		Ground 2 – whether measure reasonably practicable	27
(c)		Ground 3 – causal link to pleaded risk	33
(d)		Ground 4 – evidence of Mr Wells	35
(e)		Conclusions – conviction appeal	40
(3)	Attorney General’s appeal – penalty (Unity and Activate)			42
(a)		Alleged errors	42
(b)		Scope of appeal	45
(c)		Grounds 1-4	52
(d)		Ground 5 – additional particular 7(f)	59
(e)		Activate – absence of remorse	62
(f)		Whether sentence manifestly inadequate	70
(4)	Attorney General’s appeal – penalty (Hanna)			84
(5)	Sentence appeals – residual discretion			88
(a)		Delay	89
(b)		Prejudice	98
(6)	Attorney’s appeal – costs			104
(a)		Costs payable by Hanna	106
(b)		Unity and Activate	109
(7)	Orders			115

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Basten JA.  I agree with his Honour’s reasons and proposed orders.

2. BASTEN JA: On 14 March 2014 Mr Dwayne Gumbleton was working as an assistant to a plumber installing a fire sprinkler system at an aged care centre in Forster, New South Wales. He lent upon an air conditioning duct under which ran an insulated electrical lighting cable. The cable rested on the sharp point of a screw which, under pressure, punctured the cable, resulting in Mr Gumbleton suffering an electric shock. His injuries included an hypoxic brain injury, burns and cardiac arrest.

3. On 11 March 2016 SafeWork NSW commenced proceedings in the District Court against three contracting parties involved in the installation of the fire sprinkler system for breach of s 32 of the Work Health and Safety Act 2011 (NSW). Hanna Plumbing Pty Ltd (“Hanna”), which employed Mr Gumbleton, entered a plea of guilty, was fined $4,250 and ordered to pay 50% of the prosecutor’s costs. [1]

   1. Safe Work (NSW) v Activate Fire Australia Pty Ltd; Safe Work (NSW) v Unity (NSW) Pty Ltd; Safe Work (NSW) v Hanna Plumbing Pty Ltd [2017] NSWDC 209 (“sentencing judgment”).

4. The other contractors, Activate Fire Australia Pty Ltd (“Activate”) and Unity (NSW) Pty Ltd (“Unity”) were convicted following a trial in the District Court. [2] Each was fined $10,000 and ordered to pay 50% of the prosecutor’s costs of the proceedings against them.

   2. Safe Work (NSW) v Activate Fire Pty Ltd; Safe Work (NSW) v Unity (NSW) Pty Ltd [2017] NSWDC 66 (“liability judgment”).

5. There are now two appeals before this Court. Unity has appealed against its conviction and sentence; the Attorney General has appealed against the alleged inadequacy of the sentences imposed on each contractor and against the limited orders for costs. After setting out the background circumstances of the prosecution, it will be convenient to deal first with the conviction appeal brought by Unity.

Background to prosecution

(a)   factual background

6. In 2013 the Kularoo Aged Care Centre in Forster, owned by Baptistcare NSW and ACT (trading as Baptist Community Services) (“the Centre”) sought tender proposals for the installation of a sprinkler system for fire protection. The tender was awarded to Unity, which in turn contracted with Activate for the supply and installation of the sprinkler system. Activate contracted with Hanna to undertake the necessary plumbing work. The overall cost was expected to be in excess of $500,000. The Centre had been built some 10 years earlier and included several buildings. The accident occurred in the final stages of the installation of the sprinkler system in the administration building. The roof space was constructed of metal trusses with sheets of metal roofing on the outside. Below was a gyprock ceiling constructed by attaching gyprock sheets to u-shaped “furring channels”, which were in turn affixed to the roof trusses. The gyprock sheets were affixed to the flat underside of the furring channels by self-tapping screws. The furring channels themselves had sharp edges and the screws protruded into the u-shaped channel.

7. Timbers had also been lain through the roofing space to support the air conditioning system and other structures. In places the sharp points of the screws were exposed. The specific circumstances for the plumbing work were described by Mr Heinz Stalder, the director of Hanna and summarised by the judge in his sentencing judgment in the following terms:

“[14]   During this work, Mr Stalder the director of Hanna Plumbing assessed the roof space for risks to safety. He determined that when the main was to be installed that he would he need an extra manhole installed in the ceiling of the administration wing to provide a safe means of accessing the roof space and that he would remove the metal roof sheets to provide natural light, ventilation and better access to an alternate method of access to the roof space at that time.

[15]   The wiring in the roof space was assessed by Mr Stalder as ‘sloppy’. The wires were everywhere, not contained in conduit or cable trays, lying on top of one another and going in all different directions. Mr Stalder identified the risk of cutting the wires by standing on them and causing them to come in contact with the sharp edges of the furring channels. Mr Stalder did not notice the sharp points of the screws in the roof space.

[16]   Mr Stalder discussed his assessment with Mr Chapman the director of Activate Fire and David Gurtner of Unity.

[17]   He told Mr Chapman that the installation of the main in the roof space was going to take more time because the workers would have to be extra careful because of the risk posed by the location of the wires on top of the steel furring channels. He told Mr Chapman that it was worse than the Triangle (another roof space) because of the presence of the furring channels. The Triangle roof space was constructed from timber and did not present as serious a risk of cutting the wires by treading on them. The roof space was the only area constructed using the furring channels and it presented a ‘definite’ risk of the wires being cut.”

8. On 20 January 2014 Mr Chapman (from Activate) prepared an email to be sent to Mr Peter Gurtner (director of Unity) after consulting with Mr Stalder. As the sentencing judge explained:

“[20]   The email was sent on 20 January 2014 at about 11.45pm by Mr Chapman to Peter Gurtner, David Gurtner and copied to Mr Stalder. The email relevantly read, after making reference to being in the Triangle roof space earlier in the day:

I have great concerns from an EH&S prospective (sic) due to the amount of electrical cable, mechanical duct work and just the extreme difficulty within this roof space and the heat conditions in which the subcontractors are working in.

Hanna and his team have done a fantastic job and have worked extremely hard, however, extreme caution needs to be seriously taken into consideration here as I’m very concern (sic) for their safety. I have reiterated the need to make sure tool box talks are held every day and review there (sic) JSA whilst working in both roof spaces going forward for the Triangle and the administration building which is even a higher risk.

Both of us do not want to see anyone get hurt ‘As safety comes first’ but once you have an actual walk around in this roof space you would really get an appreciation on how difficult it is from both a design perspective to fabricate pipe & installation prospective (sic).

Peter, we are continuing to do the best possible job for you with the same interest in BCS but we cannot afford to question the safety aspects of these last 2 areas to be completed as one serious accident will undo all the good work which has been done to date… [3]

[21]   On 21 January 2014 Peter Gurtner replied, relevantly including the paragraph, ‘Lets ensure that we carry out those meetings as necessary and ensure the safety of the staff and workers at all times’.

[22]   After at least the end of January 2014 a tool box talk was held each morning before work commenced at the site. Present were the Hanna Plumbing employees, Mr Stalder, Dylan Stalder, Tom Rayward and Mr Gumbleton and David Gurtner. At those meetings the scope of the work to be performed and how it was going to be done was discussed. Dylan Stalder gave evidence that the risk of an electric shock from damage caused to the wires by treading on them and severing them on the furring channels was a matter that was discussed in the daily tool box talks held with David Gurtner.”

3.    I infer that the reference to “H&S” in the term “EH&S” was a reference to health and safety. Peter Gurtner gave evidence that he understood Mr Chapman’s reference to “JSA” to mean “Job Safety Analysis”. [Footnote in sentencing judgment.]

9. It was anticipated that the installation of the main pipe for the system would involve five days’ work in the roof space. The work began on Monday, 10 March 2014 and continued until the accident at about 11.30am on 14 March 2014. The work was described by the sentencing judge:

“[24]   The system of work adopted in the roof space to install the main can be described as follows. The workers removed the metal roof sheets of the administration wing to provide for natural light, ventilation and access to the roof space for workers and to allow the steel pipe that was to be installed as the main to be carried in. Access for the workers to the roof space was also provided via the manhole that had been installed in the ceiling of the administration wing as part of the works. The workers placed pieces of timber on top of the furring channels and between them to stand and walk on. These pieces of timber were referred to as ‘walkboards’. The workers then moved any wiring out of the way with their hands and secured it with pieces of timber, referred to as ‘noggins’. Noggins were pieces of timber about 90mm by 35mm and about 1200mm long that were placed against the wires and secured in place by the weight of the noggin. The noggins were recycled by moving them to a different location when the workers had completed the installation of the main in a particular area.

[25]   On the morning of the incident, Mr Gumbleton was assisting Dylan Stalder to install the main in the roof space. Dylan Stalder was a licensed plumber and Mr Gumbleton was employed as a labourer.

[26]   About 1.5m away from the manhole in the ceiling to the roof space there was a screw protruding through a piece of timber installed to support an air-conditioning duct (the duct). At an earlier point in time, a double insulated electrical lighting cable (the cable) had become positioned on top of the sharp point of the screw and underneath the duct. When Mr Gumbleton leant on the duct, the cable was punctured by the screw and electrical current was conducted through the duct. Mr Gumbleton suffered an electric shock because at the time he was touching the steel pipe that he had been installing as part of the system. The steel pipe acted as an earth and allowed the electrical current to flow through Mr Gumbleton’s body.”

(b)   relevant legislation

10. The principal object of the Work Health and Safety Act is identified as “protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant”. [4]

    4. Work Health and Safety Act, s 3(1)(a).

11. In pursuit of that object, Pt 2 of the Act identifies “Health and safety duties”. The primary duty of care is expressed, relevantly for present purposes, in the following terms:

19   Primary duty of care

(1)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)   workers engaged, or caused to be engaged by the person, and

(b)   workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3)   Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a)   the provision and maintenance of a work environment without risks to health and safety, and

(b)   the provision and maintenance of safe plant and structures, and

(c)   the provision and maintenance of safe systems of work, and

(d)   the safe use, handling, and storage of plant, structures and substances, and

(e)   the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and

(f)   the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g)   that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

12. The hearing of the charges against Unity and Activate resulted in convictions for breach of the duty imposed by s 19(1). The terminology used in s 19(1) is elucidated in ss 17 and 18, in the following terms:

17   Management of risks

A duty imposed on a person to ensure health and safety requires the person:

(a)   to eliminate risks to health and safety, so far as is reasonably practicable, and

(b)   if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

18   What is “reasonably practicable” in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a)   the likelihood of the hazard or the risk concerned occurring, and

(b)   the degree of harm that might result from the hazard or the risk, and

(c)   what the person concerned knows, or ought reasonably to know, about:

(i)   the hazard or the risk, and

(ii)   ways of eliminating or minimising the risk, and

(d)   the availability and suitability of ways to eliminate or minimise the risk, and

(e)   after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

13. Part 2, Div 5 creates offences and imposes penalties for breach of a “health and safety duty”, a phrase which includes the duty imposed by s 19(1). [5] The prosecutions in the present case were laid under s 32 which provides:

    5. Work Health and Safety Act, s 30.

32   Failure to comply with health and safety duty—Category 2

A person commits a Category 2 offence if:

(a)   the person has a health and safety duty, and

(b)   the person fails to comply with that duty, and

(c)   the failure exposes an individual to a risk of death or serious injury or illness.

Maximum penalty:

(a)   in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150,000, or

(b)   in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300,000, or

(c)   in the case of an offence committed by a body corporate—$1,500,000.

(c)   the charges

14. Proceedings against Unity, Activate and Hanna were commenced in the District Court by summons filed on 11 March 2016. In each case the charge was in the following terms:

“On 14 March 2014 at 90 Kularoo Road, Forster, New South Wales, [the defendant] being a person conducting a business or undertaking who had a health and safety duty under section 19(1) of [the Act] to ensure so far as is reasonably practicable that the health and safety of workers while the workers were at work in the business or undertaking failed to comply with that duty and the failure to comply with that duty exposed Mr Dwayne Gumbleton to a risk of death or serious injury contrary to section 32 of the Act.”

15. Annexed to the summons was a statement containing the “particulars of the charge”. The statement contained particulars under a number of headings. First, it identified “Particulars of the defendant’s duty under section 19(1) of [the Act]”. None of these elements of the offence was in issue on the appeal and the particulars need not be repeated. The document also contained particulars of the failure to comply with the duty, setting out six particulars of which the trial judge upheld one and, the prosecutor alleges, should have upheld a second. The presently relevant particulars were:

“Particulars of the defendant’s duty under section 19(1) ….

…

Particulars of the risk to Mr Gumbleton:

6)   The risk was the risk of persons being electrocuted by coming into contact with live electrical wiring whilst working in the roof space of the administration wing at the premises.

Particulars of the defendant’s failure to comply with the duty under section 19(1) of the Act

7)   The defendant failed to ensure so far as is reasonably practicable the health and safety of workers, including Mr Gumbleton in that it failed to take one or more of the following reasonably practicable measures to eliminate or, alternatively, to minimise the risk to health and safety of workers:

…

c)   ensuring that the power to the administration wing of the premises was isolated and proven dead (de-energised) prior to the commencement of the installation work in the roof space of the administration wing at the premises;

…

f)   checking that a safe work method statement which included adequate safety measures such as those identified in paragraph (a)-(d) above was in place prior to the commencement of the installation work by Hanna Plumbing Pty Ltd in the roof space of the administration wing at the premises.

8)   As a result of the defendant’s failures, Mr Gumbleton was exposed to a risk of death or serious injury.

9)   The injuries sustained by Mr Gumbleton were a manifestation of the risk.”

16. An issue at trial concerned the identification in the particulars of the risk to Mr Gumbleton. The dispute was as to whether the reference to being electrocuted “by coming into contact with live electrical wiring” was limited to a person who came into “direct” contact with the live electrical wiring, or covered the case where a person indirectly came into contact with the electrical wiring by touching a metal structure which, in turn, was in contact with the electrical wiring. The judge adopted the former (limited) alternative.

17. With respect to the particulars of the alleged failure to eliminate or minimise the risk to health and safety, the judge upheld particular (c); the prosecutor’s initial complaint on the sentence appeals was that the judge should, logically, have also upheld particular (f). That contention was abandoned during the hearing of the appeal.

Unity’s appeal against conviction

18. On 27 March 2017 the trial judge delivered the liability judgment, finding Unity guilty of the offence under s 32 of the Act. A conviction was entered on 14 August 2017, following the sentencing judgment which was delivered on 20 July 2017.

19. Some eight months later, on 13 April 2018, Unity filed a notice of appeal against conviction and sentence and against the costs order, which set out the following four grounds of appeal:

“(1)   The Trial Judge erred in impermissibly modifying the pleaded risk, in circumstances where there was no amendment made by the Prosecutor to the pleaded risk.

(2)   The Trial Judge erred in finding that the measure pleaded at paragraph 7(c) of the Summons was a reasonably practicable measure.

(3)   The Trial Judge erred in finding that the measure alleged in 7(c) of the Summons was causally linked to the pleaded risk.

(4)   The Trial Judge erred in the exercise of the discretion to permit the prosecutor to call the evidence of Mr Wells.”

(a)   ground 1 – modifying pleaded risk

20. This ground raises the issue as to the proper understanding of the risk as particularised in the annexure to the summons. The dispute is quite curious: Unity complained that the particular, properly construed, concerned only direct contact between a person and live electrical wiring and that the trial judge failed to so limit the case. On the other hand, the prosecutor submitted that the trial judge did so limit the case, but that was not the proper construction of the particular. Although the prosecutor in the appeal from the sentencing judgment pleaded that this was a material error, he abandoned that ground at the hearing. Nevertheless it is necessary to address Unity’s submissions in its appeal.

21. The trial judge dealt with the issue by reference to Activate’s submissions, which were adopted by Unity. [6] The judge’s conclusion was patently inconsistent with the reading of the judgment by Unity. The judge stated:

“[112]   The issue should be determined in favour of the defendants and I will decide the case on the basis that the risk pleaded was one of electric shock caused by direct contact with live electrical wires in the event that the wires were damaged in the course of the work.”

6. Liability judgment at [96].

22. Although nothing turns on it, it is not at all clear that the last qualification (“in the event that the wires were damaged in the course of the work”) had anything to do with the pleading point. There was no evidence that live wires were exposed prior to the work being undertaken; nor was there any risk identified by reference to that situation. It is necessary to understand why Unity complains about this finding.

23. In fact, Unity expressly acknowledged that finding. The written submissions confused paragraph numbers and reversed the order of the paragraphs in the reasoning of the trial judge. Further, the submissions relied upon various points raised in the course of argument, an approach which is usually unhelpful and, unless it is clear that the reasons adopt some aspect of the argument, illegitimate as a means for demonstrating error in the judgment. When the submissions did identify the favourable finding made by the trial judge at [112],[7] the finding was described as further exacerbation of the error in the trial judge’s approach.

    7. Unity’s written submissions, 13 April 2018, par 43; wrongly numbering the paragraph as [122].

24. In the course of oral argument counsel for Unity stated: [8]

“… the only occasion [on] which Mr Gumbleton was exposed to any risk was by his leaning on the ducting in the roof that then contacted the screw which had gone through the wiring and that that wiring was energised at that time. That’s the factual scenario that the prosecution said that, it was encapsulated in the risk. So the defendant was meeting that case. And our case was that well there’s no evidence that he came into contact, direct contact, and indirect contact was not the pleaded risk. But further, there was no evidence that Mr Gumbleton was exposed to the risk because of this additional step that his Honour adds of damaging the wiring or dropping tools or walking on them.”

8.    Tcpt C/A, 27/07/2018, p 10(40).

25. Although it was necessary for the prosecutor to plead a particular risk, the precise nature of the risk was not an element of the offence. In fact the judge identified the risk in the terms relied on by the appellants. Whether the judge was correct to restrict the pleaded case to one of “direct” contact is not presently relevant. Even had he not done so, in the sense that he envisaged a case based on the risk identified by the appellant of a worker treading on loose wires running across sharp metal edges, the convictions would not be set aside. A departure from a particular strictly construed would not be objectionable unless it resulted in unfairness to the appellant. In this case, the appellant could not have reasonably been in doubt as to the scope of the case which was brought against them. The fact that the case proceeded over eight days up to final submissions before this reading of the particular was identified and relied upon demonstrates that there was no unfairness, even if, on one view, the particular had been ambiguous. So much inhered in the case presented on appeal as set out above.

26. In any event, Ground 1 must be rejected because the trial judge accepted the reading of the particular proposed by Unity.

(b)   ground 2 – whether measure reasonably practicable

27. The judge held that it was reasonably practicable to isolate and shut down the power to the administration wing whilst the installation work was undertaken in the roof space. The evidence indicated that the power circuits had trip switches known as “residual current devices” (RCDs); however, the lighting circuits did not. The judge rejected the proposition that RCDs should have been installed for all the lighting circuits. [9]

    9. Liability judgment at [130].

28. With respect to the isolation of the lighting circuit in the administration wing, the judge commenced with the proposition that such a step would have been straightforward, stating:

“[132]   The evidence was that Mr Wells and Mr Watt [staff employed at the Centre] had been trained on how to isolate the distribution boards at the facility. Mr Wells gave evidence that he had been required to do that from time to time, which he estimated to be once or twice a year during his 14 years of service with BCS.

[133]   The administration wing had its own electricity supply and it could be isolated at the distribution boards in the administration wing or at the main distribution board in the service quarters. Mr Wells gave evidence that he had isolated the power supply to the administration wing every 6 months since the completion of the building in 2004, to allow the RCDs to be tested by an electrician. The isolation of the power for the administration wing did not affect the other areas of the facility, including the residential buildings.”

29. The judge further noted that that step had been taken following the accident to allow for the completion of the installation work. [10] The work had been completed in about half a day and no significant administrative inconvenience had been caused. [11] Power had not been required in the roof space whilst that work was being carried out.

    10. Liability judgment at [134].

    11.    Liability judgment at [138], [139], [155]-[157].

30. The written submissions identified some eight findings of fact on which the trial judge based his conclusion in this respect. The submissions stated that all the findings were in error and that the judge had relied primarily on the evidence of Mr Wells, which was not first-hand knowledge as to the circumstances. To those submissions there are three answers. First, there was no real challenge to much of the evidence, and some of the findings were not in contention; secondly, several findings were inferences not drawn from the evidence of Mr Wells; thirdly, to the extent that the findings relied on evidence of Mr Wells which was inconsistent with evidence given by Mr Peter Gurtner for Unity, the judge gave reasons based on his credibility and reliability for rejecting the latter’s evidence.

31. The supposed unreasonableness of the precaution, as identified by Unity and Activate at the trial, was primarily based on the need to isolate all power sources passing through the roof of the administration wing. However, the judge rejected that proposition, holding that the general power outlet circuits were all protected by trip switches and isolation of those circuits would not have added much more protection for a worker. [12]

    12. Liability judgment at [145].

32. Ground 2 is rejected.

(c)   ground 3 – causal link to pleaded risk

33. The submissions in support of this ground did not relate to the causal connection between the proposed precaution and the pleaded risk, but the alleged lack of causal connection between the pleaded risk and the injury to Mr Gumbleton.

34. The pleaded risk involved the possibility of a worker coming into contact with a live electrical wire; the proposed precaution, namely to deactivate the relevant electrical circuits, would clearly have addressed that risk. Whether Mr Gumbleton’s injury was a materialisation of the pleaded risk was, as the judge noted, relevant to penalty, but not to conviction. Ground 3 is without substance.

(d)   ground 4 – evidence of Mr Wells

35. The complaint with respect to the admission of Mr Wells’ evidence as to the steps which could be taken to isolate the electrical circuits depended on the failure of the prosecutor to provide a statement of his proposed evidence in the brief served on the appellants prior to the trial.

36. On 30 November 2016 the trial judge delivered reasons for extending the time for service of the proof of evidence of Mr Wells and giving directions as to when he should be called. [13] The judge noted the requirement of the practice note that a brief of evidence be served on defendants within 14 days of the service of a notice of appearance. The proceedings had commenced on 14 March 2016 and the brief appears to have been served before July 2016. The appellants were first put on notice that an employee of the Centre was to be called at about 4.20pm on Wednesday, 23 November 2016 and were served with an unsigned copy of a statement at about 12.45pm on the second day of the trial, being 29 November.

    13. SafeWork (NSW) v Activate Fire Pty Ltd [2016] NSWDC 440 (“SafeWork (2016)”).

37. The judge observed that there was power for the Court to dispense with the requirement as to service, on terms, pursuant to s 188 of the Criminal Procedure Act 1986 (NSW). The judge referred to the guidance as to the exercise of that power given by Adamson J in Director of Public Prosecutions v Lazzam. [14] The judge then identified the basis of the objection by the appellants, but concluded that, in the circumstances, the appellants would not be prejudiced, both because of their current state of knowledge of the issues and the evidence served. The judge said that the ability to isolate the power in the administration area had been specifically pleaded; that there was evidence in the brief from Mr Dylan Stalder after the incident that the power to the administration area was or could be isolated with minimal inconvenience; Unity had actual knowledge of how the work was done after the incident; the possible inquiries about Mr Wells which had been foreshadowed by the solicitor for Activate involved mostly “fishing expeditions” which were not warranted; and due to the delay in completing the trial, there would be a significant period between the service of the statement on 29 November 2016 and the resumed hearing when Mr Wells would be called. [15] In fact the proceedings were not completed on 2 December but were adjourned to March 2017. Mr Wells was in fact called on 6 March 2017.

    14. [2016] NSWSC 145 at [29]-[38]; SafeWork (2016) at [9].

    15.    SafeWork (2016) at [18]-[21].

38. It is not in dispute that the judge had power to waive compliance with the practice note. Nor is it in dispute that the exercise of the power was an essentially discretionary matter which was the subject of a procedural ruling by the trial judge. Further, there is no error of principle, mistake of fact or unreasonableness in the decision relating to the ruling. Unity did not seek to raise any further issue as to prejudice before Mr Wells was called on 6 March; nor has it demonstrated that it suffered any prejudice due to the late service of the statement. In the circumstances, that is unsurprising.

39. Ground 4 should be rejected.

(e)   conclusions – conviction appeal

40. Although Unity appealed against conviction, sentence and the costs order, the grounds of appeal were restricted to the four challenges to the conviction. The challenges to the sentence and the costs order were consequential upon success with respect to the conviction. As the appeal against conviction should be dismissed, the other challenges fall away.

41. Unity’s appeal should be dismissed.

Attorney General’s appeal – penalty (Unity and Activate)

(a)   alleged errors

42. Six of the grounds of appeal regarding penalty were common to both appeals. They were, in substance, that the sentencing judge erred in:

1. reading down the pleaded risk so that it only applied to electric shock as a result of direct contact with live wiring and not to indirect contact;

2. assessing the objective seriousness of the offence as low rather than mid-range;

3. finding that the injuries sustained by Mr Gumbleton were not a manifestation of the risk;

4. failing to take the injuries sustained by Mr Gumbleton into account as an aggravating factor;

5. finding that the proposed precautionary measure in par 7(f) had not been made out, and

6. imposing a manifestly inadequate sentence.

43. With respect to Activate, there was an additional ground, namely that the sentencing judge had taken into account remorse, which was not established on the evidence.

44. In the course of the hearing, senior counsel for the Attorney vacillated as to which grounds were pressed, but eventually abandoned grounds (1), (3) and (5) accepting that they constituted challenges to findings made in the judgment on liability, which were to be accepted for the purposes of the appeal against sentence. However, whilst not contending that the judge erred in not treating Mr Gumbleton’s injuries as a manifestation of the pleaded risk, he maintained that the injuries constituted an aggravating factor (ground (4)).

(b)   scope of appeal

45. The written submissions on both sides focused on the correctness of the approach adopted by the trial judge of reading down the allegation of risk as involving only direct contact between a worker and a live electrical wire. The respondents contended that that issue had been resolved against the prosecutor with the verdict of guilty and could not be reopened on sentence. The respondents submitted that grounds (1)-(4) were not available. Whilst withdrawing grounds (1) and (3), the Attorney maintained reliance on Grounds (2) and (4). There remained an issue as to the scope of the appeal against the sentences.

46. An assessment of the scope of the appeal may conveniently commence by identifying the approach adopted by the sentencing judge. Having set out the factual background, and summarising the cases presented by each of the defendants, the judge turned to consider the objective seriousness of the offence. It was in this section of the reasons that the critical findings appear. He commenced with the statement:

“[59]   Each of the defendants was aware of the risk of the workers suffering an electric shock in the roof space and that extra precautions were required to minimise the risk.”

He further noted that the defendants took some precautions, but “failed to appreciate that the risk could be minimised by isolating the power to some of the power cables that were present in the roof space.”[16] That step he described as one which could easily have been undertaken by the Centre staff “at no cost to the defendants or [the Centre] and without inconveniencing the work.”[17]

16. Sentencing judgment at [60].

17. Sentencing judgment at [60].

47. The judge then noted that the likelihood of the risk materialising was “low”,[18] but the gravity of the risk was “significant” and included a risk of death. [19] The judge continued:

“[63]   I am not satisfied beyond reasonable doubt that the injury sustained by Mr Gumbleton was a manifestation of the pleaded risk. The electric shock to Mr Gumbleton occurred in circumstances that were not reasonably foreseeable. The positioning of the lighting cable on top of the screw could not be seen by the works from within the roof space. … I am satisfied that the cable came into that position when the duct was installed and the cable had not been penetrated [by the screw on which it rested] until Mr Gumbleton lent on the duct. Whilst it is true that Mr Gumbleton would not have suffered an electric shock if the defendants had isolated the power to the roof space, the risk posed to Mr Gumbleton that came home was not the result of the work being undertaken. The pleaded risk was one of direct contact with the live electrical wiring and not indirect contact through a latent defect in the stalled fittings in the roof space.”

18. Sentencing judgment at [61].

19. Sentencing judgment at [62].

48. The respondents correctly identified the statement of “the pleaded risk” as reflecting the finding made by the judge in his reasons for convicting them. The question is not whether the Attorney is entitled to challenge that finding, but rather the extent to which he could take issue with the attendant inferences in challenging the inadequacy of the sentences.

49. The respondents’ submissions that the Attorney could not “reagitate” findings of fact on a sentence appeal and that he was “bound by the findings of law and fact upon which the conviction was made” derive from principles articulated in cases where sentencing has followed a jury verdict. However, none of the authorities referred to by the respondents addressed the relevant principles. These have generally been expressed in terms of constraints upon the fact-finding by a judge in determining the appropriate sentence. In a statement of relevant principles in R v Isaacs,[20] this Court stated that ‘[t]he primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury.” This passage was expressly approved by the High Court in Cheung v The Queen. [21]

    20. (1997) 41 NSWLR 374 at 378C (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ).

    21. (2001) 209 CLR 1; [2001] HCA 67 at [14] (Gleeson CJ, Gummow and Hayne JJ); [170] (Callinan J).

50. The verdict of a jury will involve necessary findings of fact on each element of the offence. Those findings, it will be assumed, were made in accordance with directions as to the law given by the trial judge in his or her summing up. However, the findings of a jury are generally opaque, in contrast to the findings of a judge following a judge alone trial, in circumstances where reasons are required to be given, pursuant to s 133 of the Criminal Procedure Act. Where there are reasons for judgment with respect to a verdict, there are likely to be express findings of fact in relation to issues which are not essential elements of an offence.

51. The charge identified the key elements in terms of the statutory description. [22] Because it was an element of the offence that the defendants failed to take reasonably practicable steps to ensure the health and safety of workers, it was necessary to define the hazard or risk to which the worker was subjected in terms sufficiently specific to allow identification of reasonably practicable steps to eliminate or minimise that risk. As noted above, the essential element of the risk was a risk of electrocution by coming into contact with “live wires”, being wires carrying electrical current. That risk was an essential element of the offence as defined in the charge; it was sufficiently so defined for the purposes of the step which the judge found should have been taken, namely the isolation of the electrical lighting circuits in the administration wing. The debate which took place at the trial, considered in relation to Unity’s appeal against conviction, resulted in the trial judge reading down the terms of the particular to require “direct” contact with live wiring. Although the conclusion sought by the Attorney, namely that the additional constraint was unjustified in terms of the charge as formulated in the summons, did not give rise to inconsistency with the verdict, that point was not pressed. However, while the sentencing judge did not treat the injuries suffered by Mr Gumbleton as the materialisation of the pleaded risk, he expressly accepted that “Mr Gumbleton would not have suffered an electric shock if the defendants had isolated the power to the roof space”. [23]

    22. See [14] above.

    23. Sentencing judgment at [63].

(c)   grounds 2 and 4

52. The distinction relied upon by the defendants as a basis for restricting the scope of the particular should not have had a substantial effect on the assessment of culpability on sentencing. As a practical matter, it is not entirely clear where the boundary lies between direct and indirect contact with a live electrical wire. Does it matter whether the contact is through clothing, or some part of the equipment being operated by the electrocuted worker? If direct contact includes contact through clothing or equipment being used by the worker, a contact established by leaning on a piece of machinery in the vicinity could constitute a form of direct contact. It was clear that nobody thought that there were uninsulated electrical wires or wires which were likely to be dangerous unless they were damaged in the course of installing the sprinkler system. Thus both logic and context make the distinction one of little consequence in assessing culpability.

53. The risk was of electrocution; on one view, whether a current was created by a worker cutting the wire by direct contact with his or her boot on the wire lying on a sharp edge, by manipulating equipment, or otherwise, would not appear to be significant. The gravamen of the defendants’ contentions was that the precise mechanism of the injury was not reasonably foreseeable, because the wire sitting on the point of the screw was concealed under the air conditioning unit.

54. With respect to ground 2, it may be noted that the finding of “low” range objective seriousness identified in the sentencing judgment,[24] did not accord with the reasoning in the judgment on liability. A significant factor in determining the objective seriousness was the conclusion that “[t]he likelihood of the risk occurring was low.”[25] By contrast, in the judgment on liability the judge found that “[t]he likelihood of the pleaded risk occurring was moderate. It was more likely to occur in the roof space because of the presence of the furring channels and the screws.”[26]

    24. Sentencing judgment at [65].

    25. Sentencing judgment at [61].

    26. Liability judgment at [117].

55. While prosecutions for breach of occupational safety laws are rarely, if ever, brought where there has not been a serious injury or death, the test of breach of duty nevertheless remains prospective. However, there are different levels of particularity at which risks can be assessed. Prospectively, a reasonably broad approach may be appropriate; by contrast, a retrospective analysis of the precise circumstances of an injury or fatality may lead to a narrow description of the risk which materialised. While the accident may demonstrate the existence of a risk, it may not demonstrate that the risk was prospectively foreseeable, nor that the consequences were necessarily serious; generally, the precise circumstances of the accident should not be relied on to define the risk.

56. The defendants argued that the risk which had been identified before the work was undertaken involved loose wires trailing across sharp metal edges: it did not involve the risk of puncture by sharp screws protruding through the supports. The defendants contended that the latter risk, which materialised, was obscure and remote. The actual point at which the electrical wiring was punctured was not in fact visible on an inspection of the roof cavity, without obtaining a view from the level of the ceiling. However, the submission, accepted by the trial judge, that the accident was not a materialisation of the particularised risk involved a narrowing of the risk by reference to the circumstances of the accident. That approach was erroneous in principle.

57. As the Attorney submitted, the reasonable precaution accepted by the trial judge was the deactivation of the electric cabling in the roof of the administration building, other than power protected by trip switches. The risk of electrocution if that step were not taken arose from the need to work in a confined space where there was loose electrical cabling. There were potentially grave consequences should the risk materialise, including very serious injury, as Mr Gumbleton’s experience demonstrated, and death. The injury should properly have been taken into account, not as an element of the offence, but as an aggravating circumstance pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

58. Grounds 2 and 4 were available to the Attorney and should be upheld.

(d)   ground 5 – additional particular 7(f)

59. The Attorney initially challenged the failure of the trial judge to uphold particular 7(f). In circumstances where particular 7(c) was upheld, requiring the isolation of the electrical circuits, it was entirely appropriate that the statement of precautions to be taken should have included that factor. The work was likely to take place over a number of days and towards the end of the project. A decision that isolating the electrical cables should be undertaken before the work commenced on any day required both collaboration of those operating the Centre and those in charge of carrying out the work. If the direction had not been included in the statement, it might well have been overlooked.

60. The reasoning of the trial judge for rejecting particular 7(f) was brief and did not address this logical connection with the upholding of particular 7(c). However, whilst the judge was in error in this respect, the error cannot be relied on in the sentencing appeal, as was conceded in the course of the hearing. The point was in any event of little significance because the rejection of the particular is unlikely to have affected his assessment of the seriousness of the contravention. In other words, the substantive problem was the failure to identify the reasonable precaution which should be taken, not a failure to give appropriate directions in the work safety statement. If the substantive precaution had been identified, given the steps which were taken to ensure compliance with the work safety statement, it is probable that the step would have been included in that statement and compliance attained.

61. Thus the withdrawal of ground 5 does not affect the conclusions with respect to grounds 2 and 4.

(e)   Activate – absence of remorse

62. The Attorney’s final ground complained that the trial judge inappropriately found remorse on the part of Activate in considering the appropriate sentence. He submitted that the evidence supported sympathy for the injured worker, rather than acknowledgment of the defendant’s culpability in respect of the accident.

63. The point sought to be made by the Attorney was that while Mr Glen Chapman, a director of Activate, expressed sympathy for Mr Gumbleton and gave evidence of the effect the accident had had on him (Chapman) personally and on his family, and the steps he had taken to assist Mr Gumbleton, he had declined to express remorse for the commission of the offence.

64. A similar situation was considered by this Court in Bulga Underground Operations Pty Ltd v Nash. [27] The Court noted the terms in which the mitigating factor was stated in s 21A(3) of the Sentencing Procedure Act:[28]

    27. (2016) 93 NSWLR 338; [2016] NSWCCA 37 (Bathurst CJ, Hidden and Davies JJ).

    28. Bulga at [188].

21A   Aggravating, mitigating and other factors in sentencing

(1)   General

In determining the appropriate sentence for an offence, the court is to take into account the following matters:

…

(b)   the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c)   any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

…

(3)   Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

…

(i)   the remorse shown by the offender for the offence, but only if:

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

65. In Bulga a worker in an underground longwall coal mine was crushed and suffered severe injuries in the course of mining operations. After setting out the evidence of the operations manager for the company, the Court stated:

“[191]   The evidence disclosed, therefore, that the appellant had not in any way accepted responsibility for its actions. It had acknowledged the injury to Mr McNab and had made reparation for those injuries to the extent that it could. To the extent that Mr Munro was giving evidence on behalf of Bulga it must be concluded that no remorse was shown, and his final answer in cross-examination tended to show that the trial judge’s verdict was not accepted.

[192]   What the appellant has done for Mr McNab is commendable but it cannot be said, overall, that the appellant has shown remorse by accepting responsibility for its failure.”

66. The approach adopted by the sentencing judge accepted the distinction explained in Bulga but went one step further:

“[71] Activate Fire and Hanna Plumbing contended that they had demonstrated remorse sufficient to make out the mitigating factor provided for by section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. … The primary evidence is an acknowledgment of the injury to Mr Gumbleton and concern for his welfare and whilst that demonstrates remorse and I will take that into account, it is insufficient to establish the mitigating factor provided for in section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999.”

67. As s 21A(1) expressly states, the list of aggravating and mitigating factors is not exclusive of other matters which may be taken into account in sentencing. The Attorney did not suggest that the judge was not entitled to take into account the sympathy expressed for Mr Gumbleton and the steps taken to assist in ameliorating his circumstances, but rather that, taken in combination, they did not constitute “remorse”. That was because remorse is a major factor in determining whether an offender is unlikely to reoffend and has good prospects of rehabilitation, factors identified in s 21A(3)(g) and (h). The Attorney relied upon R v MAK [29] where this Court said:

“In respect of [pars (g) and (h)] it is clear that remorse will be a major factor in determining whether those matters of mitigation exist: without true remorse it is difficult to see how either finding could be made.”

29. [2006] NSWCCA 381; 167 A Crim R 159 at [41] (Spigelman CJ, Whealy and Howie JJ).

68. That observation should not be taken out of context, nor treated as a statement of legal principle. It was made in relation to offences involving serious sexual assaults. The assessment of the likelihood of reoffending in relation to a failure to ensure health and safety at work may involve quite different considerations. There is no reason to doubt that individuals associated with a business may be shocked into taking greater precautions for the safety of their workers as a result of a catastrophic injury, without expressly acknowledging that the steps they had taken in the past were inadequate.

69. How these factors affected the fixing of an appropriate penalty in the present case was a matter for the sentencing judge. No error of principle was demonstrated in this respect.

(f)   whether sentence manifestly inadequate

70. The Attorney challenged the adequacy of the sentences imposed on the companies, whether the risk was that identified by the trial judge, namely a risk only of direct contact with live wires or, as more generally understood, a risk of electrocution resulting from contact with live electrical wires. The argument depended on a number of separate considerations, namely (i) identifying the objective seriousness of the offence in relation to each respondent as in the “low” range; (ii)  narrowing the nature of the risk by reference to the only particular upheld, thus lowering the likelihood of the risk materialising and diminishing the objective seriousness of the offence; (iii)  excluding the seriousness of the victim’s injuries as an aggravating factor; (iv) failing to have proper regard to the guideline provided by the maximum penalty, and (v) imposing a sentence outside an appropriate range ascertained by reference to these considerations and the sentences imposed in the past for like offences.

71. In identifying the offences for which the respondents were to be sentenced, namely contraventions of s 32 of the Work Health and Safety Act, the judge noted that the maximum penalty was a fine of $1.5 million. [30] The judge also noted that Activate had prepared a “Safe Work Method Statement”, some of the work being “high risk construction work” within the meaning of the Work Health and Safety Regulations 2011 (NSW), cl 291. [31] The safe work method statement had identified the relevant hazard as “electrocution from exposed wiring, substantial penetration of cable”. [32]

    30. Sentencing judgment at [3].

    31. Sentencing judgment at [7].

    32.    Statement of Agreed Facts, par 74.

72. In the judgment on liability, the likelihood of the pleaded risk occurring was identified as “moderate”,[33] whereas in the sentencing judgment, in discussing the objective seriousness of the offences, it was said to be “low”. [34] The judge also noted that the “gravity of the risk was significant and it included a risk of death.”[35] That was so, but it was an element of a category 2 offence under s 32, which requires “a risk of death or serious injury or illness.” That risk distinguishes the offence from a category 3 offence for which the maximum penalty, when committed by a body corporate, is $500,000. [36]

    33. Liability judgment at [117].

    34. Sentencing judgment at [61].

    35. Sentencing judgment at [62].

    36. Work Health and Safety Act, s 33.

73. In considering objective seriousness, the judge found that the accident involving Mr Gumbleton occurred “in circumstances that were not reasonably foreseeable.” The judge reiterated in the same passage in his assessment:[37]

“The risk that came home was present by reason of a combination of poor electrical workmanship and the subsequent installation of the duct. None of the defendants had the expertise to identify or predict the presence of the danger and it was not reasonabl[y] foreseeable to any of them. In those circumstances, no actual harm was caused by the defendants[’] breach of their respective health and safety duties.”

37. Sentencing judgment at [63].

74. With respect to this reasoning, the Attorney submitted that the judge had fallen into the error identified in Nash v Silver City Drilling (NSW); Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd:[38]

“[53]   The legitimate purposes of intervention in the present case are twofold. The first purpose is to identify the proper approach to considering the objective seriousness of offences under the Work Safety Act. It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

38. [2017] NSWCCA 96 (Hoeben CJ at CL and Walton J agreeing with me).

75. A similar view was expressed in Victoria by Harper J in Holmes v RE Spence and Co Pty Ltd:[39]

"The question in cases such as the present is not whether the detail of what happened was foreseeable, but whether accidents of some class or other might conceivably happen, and whether there is a practicable means of avoiding injury as a result.”

39. (1992) 5 VIR 119 at 126.

76. The culpability of the defendants was assessed on an erroneous basis that “no actual harm was caused by the offence” so that the judge had no regard to the injuries suffered by Mr Gumbleton. [40]

    40. Sentencing judgment at [74].

77. With respect to comparable cases under s 32, the Attorney identified 38 cases in the District Court in 2017 and 2018. The majority involved pleas of guilty for which discounts were allowed. Those assessed by the sentencing judges as being in the “low range” of objective seriousness involved penalties ranging from $42,400 to $90,000. For those assessed as being in the mid-range, penalties ranged from $75,000 to $500,000. Three cases involving work on construction sites were assessed as being in the high range, with penalties ranging from $412,500 to $1 million.

78. In all the cases reference was made to the importance of general deterrence, a factor reiterated in Bulga, affirming the approach adopted by the Industrial Relations Commission in Capral Aluminium Ltd v WorkCover Authority of New South Wales [41] and by the Victorian Court of Appeal in R v Irvine. [42] That factor tends to diminish the degree to which penalties for health and safety offences should legitimately vary.

    41. (2000) 49 NSWLR 610; [2000] NSWIRComm 71 at [73]-[80].

    42. (2009) 25 VR 75; [2009] VSCA 239 at [52] (Neave JA, Nettle JA and Lazry AJA agreeing); see Bulga at [178]-[182].

79. Apart from the factors already considered, it is necessary to address any questions raised at the sentencing hearing as to capacity to pay. Such questions arise in two ways. First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to “the means” of the defendant, pursuant to s 6 of the Fines Act 1996 (NSW). The sentencing judge found that Hanna Plumbing and Unity each had “a reduced capacity to pay a fine”, [43] but appears to have fixed the level of the fine primarily by reference to the culpability of the defendants.

    43.    Sentencing judgment at [76], [77].

80. For reasons set out below, this is not a case in which the Court should intervene to increase the penalties imposed on any of the respondents. Nevertheless, it is appropriate to note that the Attorney’s challenge to the penalties as manifestly inadequate should be upheld. Because the respondents are not to be resentenced, it is not necessary to identify a precise penalty in relation to Unity and Activate. Four factors should, however, be considered.

81. First, in this case each company identified and addressed the risk of electrocution; their culpability lay in not identifying and taking a reasonably practicable mechanism for ameliorating the risk. Secondly, the fine must take into account the fact that each is a small business. An affidavit of Mr Gurtner, director of Unity, dated 17 July 2018 stated that the company employed approximately five people, depending on the volume of work on hand. The turnover was said to be between $1 million and $5 million annually. (It was not clear whether employment included the use of subcontractors.) Similarly, it appears from an affidavit of Mr Chapman, the managing director of Activate, dated 19 July 2018 that Activate is also sufficiently described as a small business, run by Mr Chapman personally.

82. Thirdly, although it is conventional practice to divide objective seriousness into low, mid and high ranges (sometimes with further detail, such as “near the top of the low range”) there is no clear delineation of the scope of each range and it cannot be assumed that all judges apply the terminology uniformly. Accordingly, there is a difficulty in drawing firm conclusions from the penalties with respect to each range. Fourthly, to identify a standard range of penalties merely by reference to an assessment of objective seriousness is to discount the importance of other considerations, including evidence of steps taken to adopt better practices since the time of the offending.

83. Bearing these considerations in mind, an appropriate penalty with respect to Activate and Unity would have been in the order of $50,000. Accordingly, the Attorney’s ground of manifest inadequacy should be accepted.

Attorney General’s appeal – penalty (Hanna)

84. The Attorney’s appeal with respect to the penalty imposed on Hanna involved somewhat different considerations. Hanna had entered a plea of guilty on the basis of an amended summons. That meant, first, that Hanna had acknowledged that the injury to Mr Gumbleton was a materialisation of the pleaded risk; further it involved acceptance of liability for failing to take the precautions set out in particulars 7(c) and (f).

85. The Attorney’s complaints in relation to the errors of the sentencing judge with respect to each of these matters having been upheld, it follows that Hanna, subject to relevant differences in its role in carrying out the work and its conduct of the proceedings, should have been sentenced on the basis of the same contraventions as the other defendants. It would, however, have the benefit of its willingness to plead before trial.

86. The evidence concerning the culpability of Hanna, as assessed by the trial judge, differed from that of the other defendants. The trial judge relied upon the fact that it had “less input” into the Safe Work Method Statement and also that it had been told that the isolation of power to the administration wing was not possible. [44] The judge was also satisfied that Hanna had a reduced capacity to pay a fine. [45]

    44. Sentencing judgment at [76].

    45. Ibid.

87. Because there will be no resentencing, it is not necessary to consider in further detail the circumstances with respect to Hanna. It is sufficient to accept that the sentencing judge imposed on Hanna a fine which was half that imposed on the other respondents. It follows that the fine imposed on Hanna was manifestly inadequate, based on the conclusions reached with respect to the other respondents.

Sentence appeals – residual discretion

88. The conclusion that the sentencing judge erred in his assessment of the objective seriousness of the offending indicates an error on a matter of principle. Accordingly, this Court should reconsider the penalties imposed, unless there are discretionary factors which would cause it not to take that step on an appeal by the prosecutor against the inadequacy of a sentence.

(a)   delay

89. There is a serious issue arising from the delay in the commencement of the appeal. As noted above, the judgment on liability was delivered on 27 March 2017 and the judgment imposing penalties and making costs orders on 20 July 2017. At that stage there appears to have been a short delay before the orders were entered on 14 August 2017, whilst the prosecutor considered requesting a referral to this Court on a question of law under s 5AE of the Criminal Appeal Act 1912 (NSW). (That step was not taken.) In any event, it should be accepted that time for considering an appeal ran from 14 August 2017, when the defendants were convicted and final orders entered. The Attorney did not file notices of appeal until 24 April 2018, more than eight months later.

90. On 4 June 2018, some six weeks after filing and serving the notices of appeal, and six weeks before the hearing of the appeal, the Attorney filed an affidavit setting out some of the procedural history in relation to the appeal. Key events were as follows.

91. Two weeks after orders were entered, namely on 28 August 2017 a senior lawyer in the Department of Finance Services and Innovation sent a letter to the defendants advising that the prosecutor was “considering its position” on an appeal against sentence under s 5D of the Criminal Appeal Act. Somewhat unnecessarily, the letter advised that if the prosecutor “seeks to appeal to the Court of Criminal Appeal … your client will be notified immediately.”

92. On 5 April 2018 the Crown Solicitor received instructions to act for the Attorney and commence an appeal. On 12 April 2018 a letter was sent to each defendant advising that the Attorney intended to appeal.

93. What happened in the intervening seven months is simply a history of bureaucratic decision-making. Whilst there is no suggestion of prevarication or unnecessary delay, there is an implicit failure to recognise the importance of a prosecution appeal being lodged expeditiously.

94. Section 10(1)(a) of the Criminal Appeal Act requires that a “person” proposing to appeal is to give a notice of intention to appeal within 28 days after the conviction or sentence. While that provision has been held not to apply to an appeal by the Attorney, or the Director of Public Prosecutions,[46] there is no doubt that delay is a material factor, the weight of which will depend on the particular circumstances of the case, in the exercise of the discretionary power to intervene. [47] The reasons for the delay in the present case gave no indication that, for example, the prosecutor was awaiting copies of the transcript or a certified judgment. Indeed, the affidavit for the Attorney revealed that the prosecutor had a full transcript for the two sentencing hearings by 15 August 2017, and had received a “short advice on prospects” from senior and junior counsel on 14 August 2017.

    46. R v Ohar (2004) 59 NSWLR 596 at [56] (James J, Studdert J agreeing), [90] (Dunford J).

    47. Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [43] (French CJ, Crennan and Kiefel JJ).

95. There was an outstanding transcript of the hearing in relation to the sentencing of Unity, which took place on 21 June 2017. The transcript of that hearing was not sought until 15 August, but was received on 20 September.

96. A “final advice” from counsel was received on 17 October 2017. However, a letter from the Minister requesting the Attorney to consider commencing an appeal was not despatched until 31 January 2018. There is an account in the affidavit of the internal departmental processes which led to that delay, but it is sufficient for present purposes to note that, given the expectation that a prosecutor will appeal expeditiously, the delay was entirely unjustified. Further, no contemporaneous information was provided to the defendants (the prospective respondents to any appeal) as to the process which was being undertaken, nor as to the decision to proceed, when taken. A further two months passed while the Department of Justice sought additional advice in relation to the proposed appeal, and briefed the Attorney. A further three weeks elapsed from the time the Attorney approved the proposed appeal to the date on which it was filed.

97. In R v Hallocoglu [48] the offender was advised in writing four days after being sentenced that the Director was considering an appeal. However, there was a 10 week delay until a notice of appeal was served. Hunt CJ at CL stated:

“This Court has often exercised its discretion not to interfere with a manifestly inadequate sentence by reason of such delay: see, eg, R v McDonald; [49] Director of Public Prosecutions of New South Wales v Garnum; [50] R v Astill. [51] In the first of those cases, it was said (at 3) that, whatever the administrative problems causing the delay, it is necessary for the Crown to eliminate them - a warning which was repeated in R v Myers. [52]

The delay in the present case was obviously enough caused by the delay in obtaining the transcript of the judge's remarks on sentence. The sentence was imposed immediately before Christmas, and the notice of appeal was signed within two weeks of the beginning of term when the judge would have approved of the transcript before its release. This Court has more recently said that the decision as to whether a Crown appeal should be taken should usually be capable of being made upon the basis of the notes taken by the Crown's representative present at the time when the sentence is imposed; to wait until the transcript becomes available - even when a letter has been sent warning the respondent that consideration is being given to an appeal - is not justifiable except in the unusual case: R v Bardo. [53]

A Crown appeal will not be dismissed simply because of delay. It will only be dismissed if that delay has caused prejudice to the respondent: R v Cuc Thanh. [54] …

Because the Crown had not had the benefit of this Court's decision in R v Bardo at the relevant time, and because no real prejudice has been demonstrated, I would not be prepared to dismiss the Crown appeal in this case by reason of the delay which occurred waiting for a transcript of the judge's remarks on sentence. The Crown should nevertheless pay heed to that decision in relation to all future Crown appeals."

No such explanation for the delay was available in the present case; indeed, the lengthier delay, in the face of long-standing warnings in this Court, lowers any burden on the respondents to demonstrate prejudice. It is, nevertheless, necessary to address the question of prejudice.

48. (1992) 29 NSWLR 67 at 79-80 (Grove and Sharpe JJ concurring).

49.    (NSW CCA, 12 December 1986, unrep) at 3-4.

50.    (NSW CCA, 9 March 1989, unrep) at 7-8.

51.    (NSW CCA, 29 January 1990, unrep).

52.    (NSW CCA, 13 February 1990, unrep) at 9-10.

53.    (NSW CCA, 14 July 1992, unrep) at 3.

54. Pham (1991) 55 A Crim R 128 at 136, 138.

(b)   prejudice

98. In the course of the hearing in this Court counsel for Unity stated that he had no evidence of prejudice, presumably meaning specific prejudice caused by the delay in filing the notice of appeal. [55] On the other hand, in his written submissions counsel relied upon the proposition that the affidavit for the Attorney not only failed to provide an adequate explanation for the delay, but also failed to provide evidence that prejudice had not resulted.

    55.    Tcpt C/A, 27/07/18, p 61(18).

99. On 17 July 2018 Mr Gurtner, the sole director of Unity, filed a written submission, in addition to those filed by his counsel. It was an emotional document, not directed specifically at the consequences of the delay in facing the appeal, but more at the effects of the trial, which it was said had “destroyed our business, our livelihood and we are on the precipice of financial ruin as a result of costs.” The submission also referred to Mr Gurtner’s “ongoing angst, frustration and mental fatigue”. However, as noted above, evidence as to the financial position of Unity was provided by an affidavit sworn by Mr Gurtner on 2 June 2017, which was before the sentencing judge. It was clear from the description of the company’s financial position at that time that the business was precarious. [56] It may be inferred from that material that Unity continued to suffer uncertainty in its operations and that Mr Gurtner continued to suffer from the emotions described in his submission, throughout the additional period between the sentencing and the filing of the appeal.

    56.    Affidavit, pars 87-95.

100. Although little was made of it at the hearing of the appeal, there was an affidavit sworn by Mr Chapman, to which reference has also been made above, dated 19 July 2018. The affidavit was prepared in response to the appeal filed by the Attorney. Mr Chapman noted that Activate had paid the fine on 5 September 2017, some three weeks after the final orders of the trial judge. The affidavit continued:

“11.   To date the prosecutor has not sought to agree or assess costs. Activate Fire had provisioned moneys for the purposes of costs and the fine on sentence, but these funds are no longer available as they have been placed back into the business as working capital.

12.   After I paid the fine I had understood that this matter had resolved except for the issue of costs. From that date I got on with running my business and trying to return to a normal life. I recall receiving a letter [stating that] the prosecutor was considering its position on an appeal before I paid the fine. However, after paying the fine I assumed that the matter had ended.

…

17.   The prospects of the appeal (and its now filing) causes me to feel extremely anxious and distracts me from day-to-day business matters. This has caused detriment to Activate Fire but also its employees and subcontractors. The prospect of further penalties and having to revisit the traumatic events of the accident, investigation and trial has resulted in me sleeping poorly and being increasingly worried. It places a significant burden on the working capital of Activate Fire and places personal stress, anguish and frustration on me. That then unfortunately flows through to [affect] the way in which I interact with my wife and children.”

101. Although it may be said that Mr Chapman largely ignored the letter from the prosecutor warning him that the Attorney was considering an appeal, he was entitled to do so when, within a few weeks, no document had been filed.

102. This material suffices to demonstrate significant prejudice resulting from the delay in filing the notice of appeal against sentence.

103. The sentences imposed in the District Court should not be accepted as demonstrating an appropriate range in future cases. Nevertheless, the Attorney has not demonstrated that, in the exercise of its so-called “residual discretion”, the Court should intervene. Accordingly, the appeals against the penalties imposed in the District Court should be dismissed.

Attorney’s appeal – costs

104. The substance of the Attorney’s case with respect to the order for costs is that, as a matter of principle, costs should have been awarded in favour of the prosecutor in circumstances where the prosecutions have been upheld. It was not appropriate, the Attorney submitted, to reduce the award of costs on the basis that a number of precautions proposed by the prosecutor had not been accepted as reasonably practicable. At the very least, the judge should have acknowledged that the specific issues on which the prosecution failed took up a small amount of the time, both in relation to preparation and evidence.

105. Generally speaking, an appellate court would be reluctant to intervene in an assessment of the proportion of costs payable by a successful party, where the assessment depends in part on how the proceedings were run. There is an important question in this regard as to how the issue was dealt with at trial.

(a)   costs payable by Hanna

106. Hanna, which entered a guilty plea before the trial began, was ordered to pay 85% of the prosecutor’s costs. The Attorney submitted that there was no reason to reduce by any amount the costs payable by Hanna.

107. The reduction of 15% was not explained, but it reflects the diminution of the penalty for a guilty plea entered on the first day of the trial. As noted below, the costs payable by the other parties reflected the limited success of the prosecution at trial; obviously that consideration did not apply to Hanna.

108. In Nash v Silver City Drilling (NSW) Pty Ltd, [57] the Court intervened to award costs against an unsuccessful defendant in circumstances where the trial judge had declined to do so. His refusal was apparently the result of treating costs as an additional penalty. [58] That approach was rejected. It follows that a reduction in the costs recoverable on a guilty plea, by way of analogy with s 22 of the Crimes (Sentencing Procedure) Act, would be inappropriate. On the other hand, it would not necessarily be inappropriate to allow some reduction on the basis that the prosecution had accepted a plea to a more limited set of particulars than that on which it had originally relied. In other words, the defendant should not have to bear the prosecutor’s costs of so much of the case as had to be defended, but was later abandoned. Such an approach was adopted in Silver City Drilling. [59] Accordingly, there is no reason to disturb the costs order with respect to Hanna.

     57.    See fn 38 above.

     58. Silver City Drilling at [65].

     59. Silver City Drilling at [77].

(b)   Unity and Activate

109. The trial judge exercised his power under s 257B of the Criminal Procedure Act to award costs against each of these defendants. In doing so, he adopted an approach recognised as available in Silver City Drilling at [70], that it may be appropriate to have regard to the success or failure of the prosecutor with respect to discrete issues. [60] The judge concluded that such an approach was appropriate in the circumstances of the case because the prosecutor had alleged five particulars of breach of duty, but established only one. The judge also took into account the initial absence of evidence from any person at the Centre as to the ability to isolate the power in the administration wing and the inconvenience that might or might not cause. The evidence was served well after the trial had commenced, in circumstances referred to above. The judge said that the failure to serve the evidence in a timely manner “extended the hearing time.”[61]

     60. Sentencing judgment at [88].

     61. Sentencing judgment at [90].

110. There are two ways in which the appeal with respect to costs may be addressed. On the one hand, there may be a challenge to the assessment made by the trial judge on the basis that his findings and orders were otherwise correct. On the other hand, it may be appropriate to reassess an order as to costs on the basis of fresh findings made by the appeal court. Thus, when an appeal is upheld, it is common to replace the costs order made at trial. What is less common is that the appeal court will reassess the exercise of discretion by a trial judge in circumstances where an appeal has been unsuccessful.

111. So far as the sentencing appeal was concerned, the Attorney was successful in identifying certain errors in the approach adopted by the trial judge but not in having the sentences varied. With respect to the costs of the sentencing, it would not be appropriate to intervene on the basis of any change to the orders of the Court below. In any event, the bulk of the costs were undoubtedly attributable to the trial which resulted in convictions. The Attorney has no direct challenge with respect to the trial and conviction. His case with respect to costs must therefore primarily depend on demonstrating an error of principle in the way the trial judge determined the appropriate costs order.

112. The Attorney submitted that the particulars of breach which were not established could not readily be isolated from the rest of the case presented by the prosecutor and, to the extent that they could be so isolated, did not take up a substantial proportion of the hearing time.

113. There are two answers to that challenge. First, to the extent that it is correct, it does not deny the fact that the prosecutor presented a case on particular grounds which were not established. In that situation, this Court is at a serious disadvantage, as compared with the position of the trial judge, in assessing the extent to which those matters can be separately identified and a particular proportion of the costs attributed to them.

114. Secondly, it is by no means clear that the division undertaken by the trial judge was only by reference to the hearing time. It is clear from a consideration of the particulars, both of breach of duty and of reasonably practicable steps which could have been taken, that quite considerable expense may have been incurred in preparing to meet those aspects of the case which were not established. If the exercise for this Court in discriminating between the time spent at trial on different aspects of the prosecution case would be difficult, the exercise of discriminating between levels of expense incurred by the prosecution in relation to different aspects of its case before trial would be beyond practical reality. Such a challenge would rarely succeed except in a case, of which Silver City was an example, where it could be stated with a degree of confidence that the exercise of assessing costs by reference to discrete issues should not have been undertaken. That is not this case. Accordingly, the Attorney’s appeal with respect to the costs orders should be rejected.

Orders

115. The Court should make the following orders:

1. In the matter of Unity (NSW) Pty Ltd v SafeWork NSW (2016/77902-003) – dismiss the appeal.

2. In each of the following appeals –

Attorney General (NSW) v Unity (NSW) Pty Ltd (2016/77902-004)

Attorney General (NSW) v Activate Fire Australia Pty Ltd (2016/77894)

Attorney General (NSW) v Hanna Plumbing Pty Ltd (2016/77856) –

dismiss the appeal.

116. WILSON J: I agree with Basten JA.

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Endnotes

Decision last updated: 26 November 2018