WorkCover Authority of NSW v Zisoglou

[2014] NSWDC 371

District Court

New South Wales

Medium Neutral Citation:

WorkCover Authority of NSW v Zisoglou [2014] NSWDC 371

Hearing dates:

06 November 2014

Date of orders:

06 November 2014

Decision date:

06 November 2014

Jurisdiction:

Criminal

Before:

Curtis J

Decision:

The defendant is convicted and fined

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of employers – risk of death or serious injury

SENTENCE – plea of guilty - mitigating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty

COSTS – prosecution costs

OTHER - employee electrocuted and suffers from severe and permanent brain damage

Legislation Cited:

Occupational Health and Safety Act 2000

Category:

Sentence

Parties:

WorkCover Authority of New South Wales (Prosecutor)
Bill Zisoglou (Defendant)

Representation:

Counsel:
M P Cahill appeared for the Prosecutor
A C Cassledon appeared for the Defendant

Solicitor:
WorkCover Legal Services for the Prosecutor
MacRae Lawyers

File Number(s):

2012/384731

Publication restriction:

None

1. On 11 December 2010 at Thorp Road, Woronora Mr Vassilious Nikopoulos, a 19 year old apprentice electrician employed by the defendant Mr Bill Zisoglou, suffered severe and permanent brain damage in consequence of electrocution. He suffered these injuries because Mr Zisoglou failed to ensure that energy did not pass into the electrical circuit of a house upon which Mr Nikopoulos was working.

2. Mr Zisoglou pleads guilty to the charge that, contrary to his duties pursuant to section 8(1) of the Occupational Health & Safety Act 2000 he failed to ensure the health, safety and welfare at work of his employee Mr Nikopoulos.

3. Mr Zisoglou was engaged to perform cabling work on the house. At the end of some of that work Mr Zisoglou restored the mains power to the house without checking that there was no fault in the system.

4. Australian Standard ASNSZ 3000 of 2007 required that before the power be reconnected a meter be attached to the main board and the integrity of the system tested. These tests are fundamental, and if they had been performed on this occasion by Mr Zisoglou they would have detected the escape of electricity into the pipe that Mr Nikopoulos touched, causing his electrocution.

5. The gravity of the offence is towards the upper end of the scale for two reasons. Firstly because of the nature of the possible and actual consequences, and secondly because of the ease with which the risk could have been averted. The testing would take no more than a minute.

6. In circumstances where a straightforward standard is ignored the sentence should reflect a powerful statement of general deterrence.

7. The circumstances also impose a need for specific deterrence. Although Mr Zisoglou asserted in his affidavit that he does not intend resuming work as a licensed electrical contractor, that is inconsistent with his other evidence that he expended costs in excess of $50,000 in persuading the Civil and Administrative Tribunal to reduce a life ban from holding a contractor’s licence to effectively a ban of six years.

8. The penalty must express community denunciation of the circumstances in which Mr Nikopoulos has been deprived of a normal life. This has affected not only himself but also his family.

9. In a victim impact statement by his father, Mr Nikopoulos senior says this:

“Billy requires constant care which is provided by his mother who has given up and re-arranged work to meet Billy’s needs. Additionally carers are provided by Allianz Insurers under the Work Cover scheme. Billy can now feed, dress and go to the bathroom himself, however Billy’s speech has not returned, he communicates using hand gestures. Our whole family has been affected emotionally and physically, especially Billy’s mother, stepfather, sister and brother who live with him and are constantly caring and supervising Billy’s condition. The injuries have left Billy with significant behavioural issues. He is aggressive at times and can be physical. He experiences episodes of psychosis. Billy’s condition frustrates him which leads to depressive moods.”

10. The defendant submits that the penalty should be mitigated pursuant to the Fines Act 1996 in recognition of his limited capacity to pay. In this regard he bears the onus.

11. His affidavit speaks of an income of only $52,500. He has however received large sums of capital, including $550,000 from the sale of two homes and possibly $350,000 in relation to sale of shares in a business. No evidence is given, apart from the defendant’s assertion, to confirm that it was dispersed in living expenses and in legal costs. No records are produced.

12. It is sufficient to say that the defendant has not persuaded me that the penalty should be reduced in recognition of inability to pay.

13. An appropriate penalty is in the upper range of the maximum $55,000. A penalty of $36,300 would otherwise be appropriate, however in recognition of co-operation with the authorities and the early plea of guilty he is entitled to a discount of 25%.

14. The defendant is convicted and fined $27,225.

15. I order the defendant to pay prosecution costs agreed in the sum of $15,000. Order that Work Cover have a moiety of the fine.

**********

Decision last updated: 14 December 2015