Industrial Relations Commission
New South Wales

Medium Neutral Citation:

Morrison v Liddell Coal Preparation Pty Ltd [2011] NSWIRComm 46

Hearing dates:

22 March 2011

Decision date:

15 April 2011

Jurisdiction:

Industrial Court of NSW

Before:

Staff J

Decision:

1. The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence, as charged.

3. The defendant is fined an amount of $90,000 with a moiety thereof to the prosecutor.

4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. In addition, the defendant shall pay the sum of $23,090 representing the costs arising from the investigation of the offence.

Catchwords:

OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 8(1) of the Occupational Health and Safety Act 2000 - Coal Mining Industry - employee suffered an electric shock - objective seriousness - reasonably foreseeable risk to safety - existence of simple and straightforward remedial steps - number of layers of safety in place - comprehensive risk and safety management plan in place - general deterrence - specific deterrence - measures introduced to eliminate risk - subjective factors - good corporate citizenship - plea of guilty to amended application for order - maximum discount for utilitarian value of plea - PRINCIPLES - penalty - COSTS

Legislation Cited:

Coal Mine Health and Safety Act 2002
Coal Mine Health and Safety Regulation 2006
Crimes (Sentencing Procedure) Act 1999
Occupational Health and Safety Act 2000

Cases Cited:

Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29
Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8
Inspector Olive v Transfield Pty Limited [2001] NSWIRComm 295
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464
Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337
Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465
Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364
R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326
R v S Y & Anor [2003] NSWCCA 291
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189
WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383

Category:

Principal judgment

Parties:

Rodney Dale Morrison (Prosecutor)
Liddell Coal Preparation Pty Ltd (Defendant)

Representation:

Mr D Chin of counsel (Prosecutor)
Mr BD Hodgkinson SC with Mr D Jordan of counsel (Defendant)
Crown Solicitor's Office (Prosecutor)
Sparke Helmore (Defendant)

File Number(s):

IRC 1713 of 2009

Judgment

1Liddell Coal Preparation Pty Ltd ("the defendant"), operated the Liddell Coal Preparation Plant ("the Plant") situated within the Liddell Colliery holding located in Ravensworth in the State of New South Wales. The Plant processes coal received from the adjoining open cut coal operation ("Liddell Open Cut Mine"), for transport to the market.

2On 15 November 2007, Mr Paul Anthony Deakin, a preparation plant technician employed by the defendant, suffered an electric shock when he touched a live high voltage electrical circuit when accessing the UTL 3.3/3 cabinet. The electrical circuit was contained within a high voltage, 3300 volts, switchboard consisting of three cabinets located in a switch room. This switchboard supplied power to a motor which operated a conveyor for the transportation of coal.

3Mr Deakin was subjected to an electric shock current at approximately 1.15 amperes with a peak value of current flowing through Mr Deakin of 1.6534 amperes.

4As a result of the electric shock, Mr Deakin felt "a bit shaky" and sat down. He was transported to Muswellbrook Hospital for assessment. He was discharged a few hours later. He returned to work for his next scheduled shift. He was fortunate not to have suffered serious injury.

5Mr Deakin had been employed by the defendant at the Plant for 27 years.

6The defendant was charged, in an amended application for order, under s 8(1) of the Occupational Health and Safety Act 2000 (" OHS Act "). Section 8(1) provides:

8 Duties of employers

(1) Employees

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work,

(e) providing adequate facilities for the welfare of the employees at work.

7The defendant was charged with failing to ensure the health safety and welfare at work of its employee, Paul Anthony Deakin.

8The particulars of the charge were that:

1. The Defendant should have prevented, but failed to prevent, the Employees' access to and physical contact with a live 3.3kV high voltage electrical circuit contained within a cabinet marked UTL 3.3/3 ("the UTL 3.3/3 cabinet"), located in the Unit Train Loader Switch room at the Premises, in that the Defendant should have, but did not conduct, require, implement, and train employees in, a system for issuing high voltage permits that restricts access to 3.3kV high voltage electrical plant, such as the UTL 3.3/3 cabinet, to employees or persons who are trained in high voltage switching operations and procedures and qualified to access high voltage plant.

2. The Defendant should have installed, but failed to install, an interlock system that prevented the door of the UTL 3.3/3 cabinet from being opened until the electrical power that fed into that cabinet was completely isolated, including by preventing the release of any key that opened the door to the UTL 3.3/3 cabinet until the electrical circuit within thecabinet marked UTL 3.3/1 (which fed power into the UTL 3.3/3 cabinet) was earthed and isolated.

As a result of the said failures, the Employee was placed at risk to his health and safety, namely, the risk of electric shock from exposure to a live electrical circuit.

9The defendant pleaded guilty to the charge.

Prosecutor's evidence

10Mr D Chin of counsel, who appeared for the prosecutor, tendered an agreed statement of facts. It was agreed that:

Liddell's business

5. At all material times the Plant was contained within a colliery holding, known as the Liddell colliery holding (the Liddell colliery), within the meaning of the Coal Mine Health and Safety Act 2002, and was thus also a coal workplace within the meaning of the Act.

6. At all material times, Liddell:

(a) operated the Plant as the nominated operator of a coal operation within the Liddell colliery pursuant to Part 5 of the Coal Mine Health and Safety Act 2002;

(b) operated within the Plant a Unit Train Loader (UTL) electrical switch room (the Switch Room) which supplied power to a UTL conveyor belt (the Conveyor) that transported coal extracted from the Liddell colliery; and

(c) employed approximately thirty-one employees at the Plant, including Robert Neil Gibbs - Coal Preparation Manager (Gibbs), Ian Michael O'Brien - Maintenance Engineer (O'Brien), Marcia Jane King - Occupational Health Safety and Training Coordinator (King), Murray James Henderson - Preparation Plant Technician (Henderson), Peter Charles Nepia - Preparation Plant Technician (Nepia), Michael John Frew - Preparation Plant Technician (Frew), and Deakin - Preparation Plant Technician.

The Switch Room

7. Electrical power was supplied to the Plant at 66,000 volts or 66kV, which was converted to 11kV by a transformer and substation at the Hunter Valley Train Loader owned by Liddell.

8. The 11kV power supply was then reticulated via overhead lines and underground cabling to the Switch Room, which contained high voltage 11kV and 3.3kV electrical switching equipment.

9. The 11kV power supply was converted to 3.3kV by a transformer and then passed to a high-voltage 3.3kV switchboard consisting of three electrical cabinets (marked: UTL 3.3/1, UTL3.3/2 and UTL3.3/3), located within the Switch Room, which supplied power to a drive motor that operated the Conveyor (the Conveyor Motor).

Paul Anthony Deakin

10. Deakin completed a TAFE Advanced Certificate in Applied Industrial Electronics in 1992, and an Electrical Fitter Mechanics Trade Course in 1971. The course on Applied Industrial Electronics related to the application of solid-state electronic components for the control and conversion of electric power, and did not involve training in high voltage switching operations. The 1971 course was the electrical trades course that qualified Deakin as an electrician.

11. In April 1997 Deakin was appointed by the then Manager of the Plant, Mr Alex Arthur, as an electrician for the UTL.

12. In September 1997 Deakin was appointed by the then Manager of the Plant, Mr Ian Pankhurst, as a Supervising Electrician at the Plant.

13. Deakin completed an "Isolation Tag and Permit Procedures" training course provided by Liddell in December 1999. Deakin also undertook a general induction assessment conducted by Liddell in June 2006.

14. As at 15 November 2007, Deakin had been employed by Liddell at the Plant for 27 years.

15. As at 15 November 2007, Deakin's role was to assist in the production and processing of coal and to perform electrical and maintenance work when required. It was a normal part of Deakin's duties to isolate high voltage electrical power to the Conveyor for the purpose of allowing contractors to perform repair work. Deakin was also expected to assist contractors with electrical issues that may arise during their work.

16. As at 15 November 2007, Deakin had the discretion to rectify electrical problems that he considered to be within his competency as they arose, including high voltage work on the UTL 3.3kV cabinets.

17. On 31 October 2006 Mr Deakin had attended Em Dee Engineering Pty Limited and completed a one-day AS3000 Course. The primary purpose of this course was to provide Liddell employees with an overview of the requirements of the Coal Mine Health and Safety Act 2002 and associated regulations which commenced on 23 December 2006, and did not specifically involve training in high voltage switching operations. Course topics relevantly included:

a. Selection and installation of switchgear;

b. Earthing arrangements, earth stakes, earthing of panel doors etc;

c. High voltage installations - sign and labelling requirements; and

d. Earthing arrangements and testing of HV installations.

18. Deakin had also been involved, prior to 15 November 2007, as part of a team that engaged in the following:

a. a risk assessment for the upgrade of the UTL on 19 April 2007;

b. the development of the Liddell UTL switch room 11kV HV Electrical Access Switching Instructions Isolation Procedure;

c. the completion of the Liddell High Voltage Switching Instructions and Permits, and

d. preparing Liddell's draft High Voltage Management Plan.

19. However, as at 15 November 2007 Deakin was not qualified to access high voltage electrical equipment in that he had not received any competency-based training in high voltage switching operations and procedures such as that provided by an electricity supply authority (eg. Energy Australia or Country Energy).

The incident on 15 November 2007

20. On 15 November 2007 the Plant was shutdown for maintenance. Several contracting firms were engaged by Liddell to carry out this work. Liddell engaged a contractor, G & D Donnelly, to repair a fault with the Conveyor Motor. G & D Donnelly sent their employee John Leslie Tout (Tout), to complete that repair job on 15 November 2007. Mr Tout was issued with a work permit by Ian O'Brien which required that power to the Conveyor be isolated at UTL 3.3/3kV cabinet. The permit required the isolation of power flowing from the UTL 3.3/3 cabinet to the Conveyor Motor, but not the isolation of power flowing into the UTL3.3/3 cabinet. The work permit was completed prior to the job commencing. At item 5 of this work permit it states "Is an isolation required? If yes, list isolation points and methods to be used to control the energy isolation." The handwritten response is "3.3/3kV at UTL".

21. On 15 November 2007, for the purpose of assisting Tout to perform the repair work on the Conveyor Motor, O'Brien instructed Deakin to ensure that the power to the Conveyor was isolated or de-energised and to show Tout the repair job that he was required to perform.

22. Prior to Tout's inspection of the Conveyor Motor, Deakin had isolated the conveyor from the UTL 3.3/3 cabinet. He did so by:

(a) turning off the Combination Fuse Switch (CFS) within the UTL 3.3/3 cabinet by, in the first instance, attaching a handle to a socket on the front of that cabinet;

(b) rotating the handle through 180 degrees to open the circuit within the cabinet; and

(c) attaching the same handle to another socket on the front of the cabinet and turning it to apply an earth to the load side of the circuit, which releases a "Castell key" which was attached to the front of the cabinet which could then be used to open the door of the cabinet and allow physical access to the electrical circuits within the cabinet.

23. The "earthing" process described above only isolated power from the load side or upper section of the circuit within the UTL 3.3/3 cabinet, which effectively isolated power flowing through to the Conveyor. It did not, however, isolate 3.3kV of electrical power flowing through the "bus bar" from the incoming side or lower section of the circuit. Thus, the door of the UTL 3.3/3 cabinet in the switch room could be opened to allow physical access to the energised or "live" incoming circuit in the lower section of the cabinet.

24. While Tout was dismantling and inspecting the Conveyor Motor, and after a discussion between Deakin and Tout about the possible causes of the fault, Deakin went alone to the Switch Room to check for loose or malfunctioning electrical connections for Tout, and to obtain a radio and danger tags for Tout.

25. Deakin opened the door to the UTL 3.3/3 cabinet and reached out his with right hand to check a bolt and nut on the lower right (blue) terminal of the internal circuit, whilst resting his left hand on the lower left (metallic) corner of the cabinet.

26. In doing so, Deakin believed that the use of the Castell key to open the door of the UTL 3.3/3 cabinet in the manner described above would have isolated all the circuitry therein. Deakin had previously seen that power entered from the lower section of the UTL 3.3/3 cabinet.However on the day of the incident he mistakenly believed that the power entered from the top of the UTL 3.3/3 cabinet, whereas the power in fact entered from the bottom of the cabinet and departed from the top of the cabinet. As described above, the use of the Castell key only isolated the outgoing power at the top of the UTL 3.3/3 cabinet. Deakin did not test the circuitry "for dead" prior to accessing the circuitry. No High Voltage testing equipment was available in the Switch Room at the time, although such equipment was located at the open cut mining operation which was over a kilometre away from the Switch Room. Deakin carried a personal 240 volt tester which was not designed to test for electricity above 240 volts.

27. The Liddell UTL Switch Room 11kV HV Electrical Access Switching Instructions Isolation Procedures issued 25 August 2006 required a 'Test for Dead' for all work conducted on the 11kV plant.

28. Upon touching the blue terminal, Deakin received an electric shock with the current flowing from his right hand, across his chest and through his left arm to earth via his left hand which was in contact with the metal cabinet. An earth leakage protection device tripped power off in approximately 107 milliseconds which then stopped all incoming power. Deakin received burns to both hands as a result of the electric shock. Deakin was subsequently taken to hospital and received treatment for his burn injuries.

29. Deakin was subjected to an electric shock current of approximately 1.15 amperes with a peak value of the current flowing through Deakin of 1.6534 amperes. As a result of the electric shock Deakin felt "a bit shaky" and sat down. He was going to notify his co-ordinator when a co-worker entered the switching room to see why power had been cut off. Deakin asked that co-worker to lock the cabinet and then informed the team co-ordinator that he had received an electric shock. In the result, Deakin suffered an electric shock that exposed him to the risks of cardiac arrest, breathing arrest, severe burns and ventricular fibrillation.

No interlock system

30. Deakin was able to open the door of the UTL 3.3/3 cabinet in the Switch Room and make physical contact with energised or "live" circuitry in the lower section of the cabinet. He was able to do so without first isolating the incoming power from the UTL 3.3/1 cabinet.

31. Liddell did not have any interlock or other electrical isolation system which prevented Deakin's access to energised or "live" circuits within the UTL 3.3kV cabinets.

No permit system

32. The Service and Installation Rules of New South Wales 2006 (the Rules), which took effect from 1 January 2007 (superseding a 1999 edition of the Rules), constituted the applicable and recognised industry code. The Rules, inter alia, set out minimum operating requirements for customers taking supply of electricity at voltages higher than 1000V, such as the requirement to maintain an access permit system to monitor all persons accessing high voltage electrical installations, and to ensure that only persons trained in high voltage switching operations and procedures are able to access high voltage installations. Annexed and marked "A" is a copy of the Rules.

33. The Australian Standard - Maintenance of electrical switchgear (AS 2467-1981) ("the Standard"), which was in effect as at 15 November 2007, recommended the use of a permit system for access to high voltage electrical equipment. Annexed and marked "B" is a copy of the Standard.

34. As at 15 November 2007 Liddell had - in draft form only - a 'High Voltage Management Plan - LCPP HSEC 1TD 3.05.5' ("the Plan"). The Plan had not been implemented and made available to the workforce at that time. The Plan set out a system for issuing Work Permits for access to high voltage electrical equipment, ie. any electrical plant above 1000 volts. The Plan required that persons to be authorised to receive such Work Permits must have received formal training by an electricity supply authority, (such as Energy Australia or Country Energy). Annexed and marked "C" is a copy of the Plan.

35. Liddell did not require Deakin to complete or obtain any work or access permit prior to isolating the UTL 3.3/3 cabinet on 15 November 2007. At that time, Liddell had in place a high voltage permit form ("LCPP HSEC 4.01.1-02.1") that was limited to 11kV plant and omitted any reference to the 3.3kV plant (despite any electrical plant above 1000 volts being considered high voltage). Accordingly, Liddell's practice at the time was not to require the use of any permit system for employees accessing 3.3kV plant, including the UTL 3.3/3 cabinet.

After the incident

36. After the incident on 15 November 2007, the UTL 3.3 cabinets were altered with a new interlock system which prevented access to those cabinets while the circuits within those cabinets were 'live' in that the doors to cabinets 3.3/3 and 3.3/2 could not be opened unless and until cabinet 3.3/1 was first isolated - which had the effect of cutting electrical power to the other cabinets.

37. On or about 20 November 2007 an improvement notice was issued to Liddell under section 91 of the Act requiring the implementation of the Plan. Liddell subsequently complied with such notice by implementing the Plan at the Plant.

38. In or about January 2008, Deakin and other employees of Liddell undertook training in high voltage switching operations and procedures with an electricity supply authority (Country Energy).

Conclusion

39. In the result, Liddell contravened s 8(1) of the Act in that it, being an employer, on 15 November 2007, at the Premises, failed to ensure the health safety and welfare at work of Deakin, contrary to section 8(1) of the Act, by:

(a) failing to prevent Deakin's access to and physical contact with a live 3.3kV high voltage electrical circuit contained within the UTL 3.3/3 cabinet, in that Liddell should have, but did not conduct, require, implement, and train employees in, a system for issuing high voltage permits that restricts access to 3.3kV high voltage electrical plant such as the UTL 3.3/3 cabinet, to employees or persons who are trained in high voltage switching operations and procedures and qualified to access high voltage plant; and

(b) failing to install an interlock system that prevented the door of the UTL 3.3/3 cabinet from being opened until the electrical power that fed into that cabinet was completely isolated, including by preventing the release of any key that opened the door to the UTL 3.3/3 cabinet until the electrical circuit within the cabinet marked UTL 3.3/1 (which fed power into the UTL 3.3/3 cabinet) was earthed and isolated.

40. As a result of the said failures, Deakin was placed at risk to his health and safety, namely, the risk of electric shock from exposure to a live electrical circuit, and was injured.

11The prosecutor also tendered the following documents:

(i) 30 photographs taken by Inspector Steve Bentham showing the three cabinets, various signs, parts of Mr Deakin's body showing the effects of the electric shock, and

(ii) 35 photographs taken by Inspector Antony Smith showing the switchboard and rebuilt cabinets.

12Mr Chin read an affidavit of Steven James Millington, an Inspector involved in the investigation into the incident conducted by the NSW Department of Primary Industries ("the Department") (which was the successor to the NSW Department of Mineral Resources).

13Mr Millington deposed that the total costs sought by the Department arising from the investigation of the offence was an amount of $23,090. An itemised summary of those costs, together with all relevant tax invoices was annexed to his affidavit.

14The defendant consented to the payment of the costs of the investigation.

Evidence of the defendant

15Mr BD Hodgkinson SC with Mr D Jordan of counsel, appeared for the defendant. Senior counsel read an affidavit of Clive Gregory Taylor, who was not required for cross-examination.

Affidavit of Mr Taylor

16Mr Taylor is employed by Xstrata Coal NSW Pty Ltd ("XCN") in the position of Maintenance Manager of Liddell Coal Operations Pty Ltd ("LCO"). He commenced working for XCN on or about November 2007 as Maintenance Manager for Glendell Mine. In September 2009 he was appointed to his current position as Maintenance Manager of LCO. Annexed to his affidavit was a copy of his position description which listed his responsibilities including accountabilities for sustainable development within the maintenance department, cost performance, and fleet performance for LCO.

17Mr Taylor commenced working in the mining industry in 1986 as a graduate mechanical engineer and has worked in the industry since that time. He listed his qualifications and various roles during his career in his affidavit.

18Mr Taylor described the site where the incident took place. The Plant is a facility located 20 minutes northwest of Singleton, New South Wales. The Plant processes coal received from the adjoining open cut operation, Liddell Open Cut Mine, for transportation to market. At the time of the incident, the Plant produced semi-soft coking coal and thermal product coal. Mr Taylor described the plant associated with the Plant at the time of the incident. This included a Unit Train Loader ("UTL") Reyrolle 11 kilovolt Open Circuit Board Plant switch room (located underneath the motor room).

19The switch room contained various electrical cabinets, including the UTL 3.3/3 cabinet involved in the incident. These cabinets housed and secured the operating and earthing switches and allowed switching to occur. The switch room was secured by a locked door that could only be opened with a special abloy key. This key was only issued to appointed electricians who were employees, not contractors. Annexed to the affidavit was a photograph of an electrical abloy key. A register of key type, including abloy keys, was kept and maintained by the Commercial Manager. In addition, the cabinets located within the switch room were secured by a "deformed" tool, which was also only kept by appointed electricians. A photograph of a "deformed" tool was annexed to the affidavit.

20The switch room had several warning signs located on its front door. A photograph of the signs on the door at the time of the incident was annexed to the affidavit.

21An organisational chart showing the hierarchy of management positions within the Plant at the time of the incident was annexed to the affidavit.

22Mr Taylor stated that at the time of the incident, the Plant was managed by LCO on behalf of the incorporated Liddell Joint Venture. At the time of the incident, the nominated operator for the Plant was, and continues to be, the defendant. The defendant is owned by Liddell Joint Venture. A copy of the ownership structure was annexed to the affidavit. The ownership structure presently remains the same.

23Mr Taylor stated that from early 2008, Liddell Joint Venture has spent approximately $120 M in replacing and improving the Plant and other infrastructure with the latest technology.

24At the time of the incident, the defendant employed the majority of the workforce, including Mr Deakin. A copy of Mr Deakin's personnel file was attached to the affidavit. Mr Taylor outlined Mr Deakin's employment history with the defendant.

25Mr Deakin commenced work at the Plant in or around September 1979. A copy of Mr Deakin's Application for Employment was attached to the affidavit. Mr Deakin worked with Upper Hunter County Council for 10 years prior to commencing at the Plant. Mr Taylor outlined Mr Deakin's relevant work experience at Upper Hunter County Council.

26Mr Taylor listed the relevant training courses that Mr Deakin undertook after he commenced work at the Plant. These included "Advanced Certificate in Applied Industrial Electronics" in December 1992; "Take 5 Risk Assessment, Energy Isolation Awareness and Liddell LCPP Emergency Response Standard" on 16 March 2006; "LCPP Isolation Tag and Permit Procedures" on 10 December 1999; "Hazard Awareness" in March 1999; "Isolation Refresher" on 6 June 2006 and 9 August 2006, and "AS3000 Wiring Rules" on 31 October 2006.

27Before being allowed to perform certain functions, employees at the time of the incident, were required to gain an appointment (certificate) at the Plant which was issued by the Coal Handling Preparation Plant Manager. An individual was required to demonstrate a high level of skill, training and experience. At the time of the incident, Mr Deakin held the following relevant appointments: Supervising Electrician; Switch Gear Operator, and electrical appointment for the UTL.

28Mr Taylor stated that only the employees at the Plant who held the appointments listed above were allowed to do high voltage work, including switching. On the day of the incident, Mr Deakin accompanied Mr John Tout (a contractor that the Plant had engaged to repair a conveyor motor) to the switch room to confirm the necessary isolations, which had been done earlier that day. Mr Tout was not appointed to perform high voltage work at the Plant.

29At the time of the incident, Mr Deakin was part of the D crew. The D crew's role was to assist in the production and processing of coal. Mr Deakin was also required to perform electrical or maintenance type work, when required. When performing a production type role, Mr Deakin would report to Coal Handling Preparation Plant supervisors during a day shift, or a team coordinator during a night shift. When performing a maintenance or electrical type role, Mr Deakin would report to Mr Ian O'Brien, a coal handling preparation plant maintenance engineer. At the time of the incident, Mr Deakin was reporting to Mr O'Brien.

30Mr Taylor stated that at the beginning of each shift, Mr Deakin would find out what he was to do and his role. If he was required to do electrical work, Mr O'Brien would, in most cases, give Mr Deakin a work order. On the day of the incident, Mr Deakin was not issued with a work order. Instead, Mr O'Brien asked that Mr Deakin take Mr Tout to the switch room and confirm to Mr Tout that the necessary isolation, which Mr Deakin had done earlier that morning, was in place before Mr Tout commenced his work, as per Mr Tout's Job Safety Analysis.

31Mr Taylor detailed the systems in place at the time of the incident.

32The Plant Health, Safety, Environment and Community ("HSEC") Management System was available in hard copy and was located at the Coal Handling Preparation Plant office. It included a Liddell Coal Preparation Plant HSEC Policy and Management Plan. It also included the Liddell Coal Preparation Plant management plans; standards; policies; plans; systems; procedures; registers, and forms. Mr Taylor described in detail the relevant Policy and Management Plan. At the time of the incident, a copy of the Policy could be found on the Plant intranet. It was also displayed at the front entrance, in the boardroom, and in various offices. The Management Plan was a framework document. It set out the structure of the Plant's HSEC management system.

33At the time of the incident, the Plant required its employees and contractors to complete a permit and have it authorised before performing certain types of work. Examples of the permits relevant to the incident were detailed in the affidavit, including Work Permits and High Voltage Switching Instructions and Permit. A copy of the work permit completed by Mr Tout prior to him commencing work on the day of the incident was annexed to the affidavit.

34In or about late December 2006, the Coal Mine Health and Safety Act 2002 and Coal Mine Health and Safety Regulation 2006 came into force. This legislation imposed certain duties on colliery operators to implement specific management plans. Mr Taylor listed the relevant action items that were entered into Xstrasafe, a computer program whereby action items could be tracked. This arose from a meeting of senior staff in about early 2007. In practice, action items were identified; given an appropriate due date; allocated to a person, and details entered into Xstrasafe. Every Monday, at the Plant's weekly meeting, the entire management team would review actions that were due that day, or overdue, and put extra steps in place to ensure that they were closed out in a reasonable amount of time. As a result of the meetings, the High Voltage Management Plan and Electrical Engineering Management Plan ("EEMP") relevant to the incident, were developed.

35Mr Taylor stated that one of the action items that arose out of the 2007 meeting was to consider "the safe operation of high voltage installations throughout their lifecycle". To assist in the development of the High Voltage Management Plan, electrical expertise from PACE Engineers Group were retained to assist. At the time of the incident, the draft plan was approximately 80 per cent complete, but had not been finalised.

36Another action item that arose out of the 2007 meeting was to develop an EEMP. In or around either late 2006 or early 2007, a draft plan was being developed. It was modelled off an EEMP from one of the Plant's sister sites. At the time of the incident, the EEMP had not been completed, however a draft version of the document was available on the intranet and some parts were being put in practice at the Plant.

37Mr Taylor detailed the risk assessments, audits and inspections relevant at the time of the incident.

38The Plant used a combination of formal risk assessments and informal pre-job risk assessments. The Plant Risk Management Standard required Mr Deakin to conduct a risk assessment or job safety analysis prior to completing the type of work he performed on the day of the incident. A risk assessment was not completed, as required.

39At the time of the incident, the Plant's safety management system was monitored through a system of internal and external audits. Any action items arising out of an audit were entered into the Xstrasafe system.

40The Plant also had an inspection system. A copy of a blank monthly inspection form was attached to Mr Taylor's affidavit. This form was used during monthly electrical inspections of various locations, including the switch room.

41Mr Taylor stated that at the time of the incident, the management team including Mr Gibbs, Mr O'Brien, Mr Symes and Ms King, would meet on a weekly basis to review various documents within the Plant's HSEC management system (the Site Standards Review Meeting), in addition to the weekly Monday meetings. The purpose of the Site Standards Review Meeting was to review and improve the Plant HSEC management system documentation.

42At the time of the incident, the Plant communicated with its workforce via toolbox talks; OHS Committee meetings; noticeboards (including information on Safety Alerts); shift handover communications; weekly operations meetings, and reports.

43Employees were scheduled to attend relevant training on an ongoing and refresher basis. Relevantly, Mr Taylor noted that on 31 October 2006, the Plant's electricians, including Mr Deakin, attended a one day course on "AS3000 Wiring Rules" provided by Em Dee Engineering Pty Ltd. A copy of the course topics was attached to the affidavit. Mr Taylor detailed the relevant sections.

44Mr Taylor described the steps taken after the incident. On 1 April 2010, LCO restructured its connection with the Liddell Open Cut Mine from being a contract operator to an owner operator. This prompted a review of the systems and documentation used at both Liddell Open Cut Mine and the Plant. This resulted in a single site Sustainable Development (previously known as HSEC) management system being developed.

45Mr Taylor stated that the electric shock received by Mr Deakin was limited by the operation of the earth leakage protection system tripping as designed, which tripped power off in 107 milliseconds, immediately stopping all incoming power to the UTL 3.3/3 cabinet. Mr Taylor stated that consistent with his training, Mr Deakin notified the team co-ordinator, as per the Plant policy, via the two way radio. The team co-ordinator then assisted Mr Deakin to the first aid room, where ice packs were applied to Mr Deakin's hands, therapy oxygen was given and his condition monitored. In accordance with standard procedure, Mr Deakin was transported to Muswellbrook Hospital for assessment. He was discharged a few hours later and returned to work for his next scheduled shift on 19 November 2007.

46On 6 December 2007, a risk assessment of the use of electricity at the Plant was conducted in response to the incident.

47After the incident, changes were made to the UTL 3.3/3 cabinet. An additional Fortress locking system was fitted to the panel. This system only allows access to de-energised switch gear and terminals. Mr Taylor stated it was fit for purpose and complies with AS3000, AS3007. The isolation systems address MDG40. Toughened glass windows were inserted into the UTL cabinet doors. This allows the electricians to safely view the switch gear so as to verify the isolation and earthing. Additional signage was also installed.

48Mr Taylor stated that in late March 2011, the Plant's switch room, which currently houses the UTL 3.3/3kV cabinet, will be de-commissioned. During the week of 14 March 2011, the Plant commenced commissioning hardware for a new facility, using up to and including 415V. Once commissioning of the new facility is complete, and the switch room de-commissioned, 3.3kV will no longer be used at the Plant.

49Mr Taylor listed the relevant improvements that have been implemented since the incident. These included a review of the EEMP. As a result, the Plant reviewed its isolation procedures and safe work procedures, added photographs to the written descriptions of the steps, and added sign off boxes to its isolation procedures. Since this review, the EEMP has been reviewed on a number of occasions and a copy of the current version was attached to Mr Taylor's affidavit.

50Changes to the High Voltage Work System were also implemented. Since the incident, to conduct high voltage work, employees and contractors need, amongst other requirements, to be authorised to perform the work, and to complete a recognised competency based course in high voltage work.

51Since the incident, the Plant has reviewed and updated its high voltage work permit system. This system requires, prior to any high voltage work, that electricians complete a high voltage work permit and have it signed off by an electrical engineer or their nominee. A copy of the High Voltage Work Permit currently in use at the Plant was attached to the affidavit. Since early December 2010, the Plant's High Voltage Work Permit system was replaced by an XCN wide permit system. This also requires that prior to any high voltage work, a high voltage work permit must be completed and signed off.

52Additionally, as a result of the risk assessment, a High Voltage Safety Management Plan was developed to provide an overview of the measures needed to control risks associated with high voltage electrical installations at the Plant. Mr Taylor listed the relevant measures contained in the plan, a copy of which was attached to the affidavit. These included safety rules, operating procedures, safety equipment, systems of work and qualifications and training.

53High Voltage Safety Rules were developed to support the High Voltage Safety Management Plan and provide a guide to electrical personnel. Mr Taylor stated that they have a broad application across all high voltage electrical work, are supported by procedures and are the basis for the assessment of competence.

54Mr Taylor stated that immediately after the incident, access to the UTL 3.3/3 cabinet was restricted to one key, which was held by Mr O'Brien, the Coal Handling Preparation Plant Maintenance Engineer. A short time after this, in order to get access to the UTL 3.3/3 cabinet, suitably appointed electricians were required to set out the steps they were going to take on a high voltage access permit, which had to be checked by Mr O'Brien. In September 2008, Mr Deakin and Mr Symes developed the "UTL 3.3/3 HV Isolation Procedure (Internal)" which provided safe access to 3.3kV high voltage switch equipment in the UTL 3.3/3 panel. A copy of the procedure was attached to the affidavit.

55Mr Taylor stated that as a consequence of the changes to plant, systems and documentation after the incident, the defendant either provided or arranged for relevant training to be conducted. He described some of the training courses in his affidavit. These included a course run by Country Energy in March, July and December 2008 titled "Country Energy High Voltage Safe Work Practice Course for Access Permit Issuers & Recipients". In or about April 2010, Mr Nick Hall, electrical engineer, gave a series of electrical presentations, including a refresher presentation titled "High Voltage" to electricians at the Plant. A copy of the presentation was attached to the affidavit.

56Mr Taylor stated that LCO, on behalf of the entities associated with the Plant, has contributed directly to local initiatives. In 2009, LCO contributed $11,375 towards community events and programs including the Cancer Council, Lifeline Muswellbrook Shop, Singleton Mercy Nursing Home, and the Lake Liddell Trust Area. In 2010, LCO provided a total of $13,273 to support local projects including the Hebden Rural Fire Brigade, Lifeline Muswellbrook, Hebden Wild Dog Association, and the Prostate Cancer Foundation of Australia. Mr Taylor stated that LCO has committed $24,000 towards a Community Support Program for 2011.

57Additionally, Mr Taylor stated that the Plant encourages its employees to partake in initiatives such as Movember (raising funds for Beyond Blue and the Prostate Cancer Foundation of Australia), the Sparke Helmore/NBN Television Triathlon, Quit Smoking, and Relay for Life. The Plant also provides salary sacrifice for charitable donations. The Plant's purchasing standards requires it to use local businesses where possible and hire local personnel when recruiting. The Plant also holds Community Consultation Committee forums twice a year to discuss topics such as environmental performance, complaints, progress over the preceding year, and plans for the forthcoming year.

58Mr Taylor stated that the defendant accepts responsibility for its failures in relation to the incident. He stated that the defendant recognises that it did not meet its obligations under the OHS Act and acknowledged that its failures exposed Mr Deakin to a risk to his health and safety which resulted in an electric shock injury. Mr Taylor stated that on behalf of the defendant, he was authorised to express remorse for these failures. The defendant was particularly regretful of the impact the incident had on Mr Deakin, his family, and his colleagues.

Relevant principles

59The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS Act . Their Honours stated at [8] - [15]:

[8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing.

[9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]:

'[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.'

[10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows:

'[I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence' ...

[11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows:

'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27:'

'Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.'

[12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63:

'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms:

'... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.'

[13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated:

'We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).'

[14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows:

'[B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.'

[15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]:

'[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).'

Consideration

60The primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the agreed statement of facts and the evidence.

61On 15 November 2007, the defendant was shut down for maintenance. A contractor was engaged to repair a fault within the conveyor motor. The contractor was issued with a work permit, which required that the power to the conveyor be isolated at the UTL 3.3/3 cabinet to the conveyor motor, but not the isolation of power flowing into the UTL 3.3/3 cabinet.

62Mr Deakin was instructed to assist the contractor and to ensure that the power to the conveyor was isolated and to show the contractor the repair job that was required to be performed.

63Mr Deakin was able to open the door to the UTL 3.3/3 cabinet and touch a live circuit within the cabinet. He opened the cabinet by using a "Castell key" that merely isolated the power at the top section of the circuit within the cabinet, so as to isolate power flowing from the cabinet to the conveyor motor. The door of the cabinet was able to be opened to expose the lower section of the circuit within the cabinet into which flowed the electrical power from another adjacent cabinet marked "UTL 3.3/1". The lower part of the circuit remained live and energised while the cabinet door was opened, thus creating a risk to the health and safety of Mr Deakin, when he came into contact with the lower section of the circuit.

64The risk could have been avoided by installing an interlock system that made it impossible to open the door of the UTL 3.3/3 cabinet until all the circuitry within the cabinet had first been isolated. This was done by the defendant after the incident. The installation of an interlock system required that the power be de-energised at its source before the Castell key could be used to open the door of the UTL 3.3/3 cabinet.

65Since 1 January 2007, the applicable Electricity Industry Code required the defendant to maintain an access permit system to vet and monitor persons having access to high voltage plant (paragraph 32 of the agreed statement of facts). The relevant 1981 Australian Standard for the maintenance of electrical switch gear recommended the use of such a system (paragraph 33 of the agreed statement of facts).

66As at 15 November 2007, the defendant did not have any such system in place for the UTL 3.3 kV switch gear.

67Mr Hodgkinson submitted that in determining the objective seriousness of the offence, it was relevant that the failures or omissions of the defendant were not in the nature of a deliberate or intentional disregard for safety. Senior counsel submitted that this was not a case where there was a total disregard for safety or lack of safety systems. I agree with this submission.

68There were a number of layers of safety in place at the time of the incident. They can be summarised as follows:

(a) Mr Deakin gained his electrical qualification in 1971 and an electronics qualification in 1992, although the electronics qualification did not deal with high voltage switching;

(b) Mr Deakin was appointed as a supervising electrician in 1991. In 1997 he was appointed as an electrician for the UTL. He completed the isolation tag and permit procedures provided by the defendant in 1999;

(c) Mr Deakin had been involved in high voltage switching work before he commenced employment with the defendant. He was a very experienced electrician at a time when experience itself was considered to be a significant qualification for those who obtained trade certificates many years beforehand;

(d) In 2006 Mr Deakin had attended the Em Dee Engineering Pty Ltd course and had been engaged in a risk assessment for the upgrading of the UTL on 19 April 2007;

(e) the defendant had an isolation tag and permit procedure;

(f) the defendant had permit systems in place for contractors and for accessing its 11 kV switching room, but the procedures did not apply to the 3.3 kV switching cabinet;

(g) the defendant commenced drafting a high voltage management plan in early 2007. As at 15 November 2007 it was 80 per cent completed;

(h) the defendant did have an isolation mechanism in place however the isolation mechanism only stopped the flow of electricity within the first cabinet which was isolated but it did not prevent power flowing into the third cabinet;

(i) since early 2008, the Liddell Joint Venture has spent approximately $120 M improving the Plant with the latest technology. The 3.3 kV system was replaced with a 400 volt system;

(j) in November 2007, there was an earth leakage device in place in relation to the 3.3 kV cabinets which acted as a backup safety system which acted as a tripping mechanism, which immediately reduced the current that Mr Deakin came into contact with when he accessed the third cabinet;

(k) the defendant had an extensive training regime in place which included isolation procedures, fire risk assessment, energy isolation systems, hazard awareness and isolation refresher courses;

(l) only electricians were authorised to access the cabinet. This resulted in only a small number of employees being exposed to a risk to their health and safety;

(m) a high voltage management plan was developed with the expertise of the PACE Engineers Group, an outside consultant;

(n) the defendant had a comprehensive risk and safety management plan in place.

69The defendant acknowledged that although it had access permits for its 11 kV switch gear, those permits omitted any reference to the high voltage 3.3 kV plant which it accepted was an oversight. Apparently this oversight is partly explained by the fact that the 3.3 kV plant was only occasionally accessed by electricians or contractors.

70This was a serious omission. The defendant permitted Mr Deakin to rectify electrical problems as he saw fit, including by performing work on the 3.3 kV cabinets. It was only after the incident that the defendant put in place a permit system that would have precluded Mr Deakin from performing electrical work on any high voltage switching gear.

71The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [81]; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at [27].

72It was a foreseeable risk that if an electrician, although with significant experience, but without the requisite competency based training, was able to access high voltage switching gear, particularly in circumstances where he was not required to obtain a permit before accessing the UTL 3.3/3 kV cabinet, he would be exposed to a risk to his health and safety. Furthermore, physical contact could easily be made with the live high voltage circuitry by simply opening the door of the UTL 3.3/3 kV cabinet and touching the terminals in the lower section of the cabinet.

73The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the accident is relevant in assessing the seriousness of the offence: see Kembla Coal and Coke at [27].

74The defendant introduced the following remedial steps after the incident:

(i) access to the UTL 3.3/3 kV cabinet was restricted to one key which was held by Mr O'Brien, the Coal Handling Preparation Plant Maintenance Engineer;

(ii) in September 2008, Mr Deakin and Mr Symes developed the "UTL 3.3/3 HV Isolation Procedure (Internal)" which provided safe access to the 3.3kV high voltage switch equipment in the UTL 3.3/3 panel;

(iii) the defendant reviewed and updated its high voltage work permit system. Since early December 2010, the Plant's High Voltage Work Permit system was replaced by an XCN wide permit system. This also requires that prior to any high voltage work, a high voltage work permit must be completed and signed off;

(iv) undertook a further risk assessment which resulted in a High Voltage Safety Management Plan ("HVSMP") being developed to provide an overview of the measures needed to control risks associated with high voltage electrical installations at the Plant;

(v) in late March 2011, the Plant's switch room, which currently houses the UTL 3.3/3kV cabinet, was de-commissioned. A new facility, using up to and including 415V is being installed;

(vi) as a result of the EEMP, isolation procedures and safe work procedures were reviewed;

(vii) additional photographs were added to the written description of the steps which were required to be taken and the procedures followed in respect of isolation of the UTL 3.3/3 kV cabinet.

There was nothing particularly complicated or impracticable concerning these steps.

75Although damage or injury to employees does not, of itself, dictate the seriousness of the offence or penalty, a breach where there was every prospect of serious consequences, may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury, may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral at [94] - [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 428; Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]. In the present case, Mr Deakin, as a result of the earth leakage device, did not suffer serious injury.

76However, the seriousness of the risk , its foreseeability, and the ease of removing that risk, renders this offence to be a serious breach.

77In addition to the factors relating to the offence, the Court is required, in fixing penalty, to consider the need to deter others from committing the same crime and to deter the defendant from re-offending. In Capral at [71] - [80], the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that included an element of general deterrence.

78I consider it is appropriate to once again draw attention to the need for employers and contractors working with electrical circuits to comply with the Electricity Industry Code and Australian Standard. Employers and contractors must ensure that risk assessments and high voltage management plans are implemented before any electrical work is carried out. It is therefore appropriate that I give weight to the need for general deterrence in determining penalty.

79In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following the incident are relevant, as is the propensity for the defendant to re-offend. I accept that this is not a case which calls for the imposition of some additional specific punishment in deterring the defendant from further offending against the OHS Act and for the purpose of compelling the defendant's attention to occupational health and safety issues so that employees and contractors are not exposed to risks to their health and safety.

80As Mr Hodgkinson submitted, the remedial steps taken are significant mitigating factors in relation to specific deterrence. The evidence of Mr Taylor confirms that the defendant has gone significantly further than dealing with the circumstances of this incident in the development of the various plans and procedures in respect of both mechanical and engineering areas of the defendant. Furthermore, the defendant has decommissioned the UTL 3.3/3 kV cabinet.

81In addition, a substantial sum has been dedicated in capital resources and related activities in relation to electrical safety initiatives and upgrades in the defendant's Plant. These extensive and comprehensive measures, together with their detailed occupational health and safety policies confirm, in my view, the defendant's demonstrated commitment to be proactive in regard to safety. However, the defendant continues to operate as a relatively large employer in a dangerous industry. I include an element in the penalty for specific deterrence.

82There are a number of relevant subjective considerations. These include in accordance with s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (" CSP Act "), that:

(I) the offender was a person of good character,

(II) the offender is unlikely to re-offend,

(III) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,

(IV) 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),

(V) a plea of guilty by the offender;

(VI) assistance by the offender to law enforcement authorities.

83I accept that the defendant is entitled to a finding of good corporate citizenship and good character. This is not a case where the defendant showed a disregard to safety and had no established systems in place. The defendant at the site:

(a) used experienced and licensed electricians who were familiar with the site;

(b) had in place occupational health and safety systems;

(c) conducted safety training courses and sought advice from external safety experts;

(d) had in place a risk management system, although the defendant acknowledged there was a failure to enforce the system at the time of the incident;

(e) had active occupational health and safety committees and other communication and consultation arrangements including toolbox talks, shift handover communications, weekly operations meetings and notice boards with safety alerts;

(f) had regular audits.

84According to the evidence of Mr Taylor, the defendant is committed to further improving and enhancing its safety systems. It had one of its directors present during the sentencing hearing and Mr Hodgkinson advised that all of the directors had been provided with a copy of Mr Taylor's affidavit and each had expressed contrition.

85I respectfully agree with the observations of Kavanagh J in Inspector Olive v Transfield Pty Limited [2001] NSWIRComm 295 at [33] that a court can give positive consideration to the corporate reputation and personal reputation of its directors and find that it has probative force to allow a measure of mitigation of penalty. Her Honour was applying the provisions of the CSP Act to corporate crimes committed under the OHS Act . I would add that the evidence in this matter enables a conclusion to be drawn that the directors of the defendant have clearly, through discharging their duties and responsibilities, contributed in a significant way to establishing the defendant's reputation of good corporate citizenship. I propose to take such considerations into account in this matter when assessing penalty.

86It is clear from a consideration of the material that the prosecutor took a considerable amount of time to properly investigate the incident and collate its evidence before filing the application for order.

87A further period of time elapsed whilst the prosecutor gave further consideration to the matter and ultimately filed an amended application for order.

88The defendant immediately entered a plea of guilty to an amended charge on 16 September 2010, which obviated the need for a complex trial that would have, most probably, taken some weeks of court time. In this respect, the High Court of Australia in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, per Gaudron, Gummow, and Callinan JJ, stated:

[23] Although the original charge specified the elements of the offence charged, it was not reasonable to expect the appellant to plead to an offence which wrongly particularised the substance to which the charge related. And that is so even if the identity of the substance would not have affected sentence. In this regard, it should not be assumed that the appellant knew that the sentence would be the same regardless of the nature of the substance.

[24] More importantly, the appellant should not have been expected to acquiesce in procedures which might result in error in the court record or, indeed, in his own criminal record. At the very least, a plea of guilty to a charge wrongly particularising the substance he had in his possession would not necessarily provide the basis for a plea of autrefois acquit to a subsequent charge specifying the correct substance.

Kirby J further stated at [75]:

... The test is not the time when theoretically or physically a prisoner might have pleaded. The test is when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced. That question is to be answered in a reasonable way, not mechanically or inflexibly.

And at [77]:

... It is unreasonable to penalise an accused person for failing to plead guilty earlier to an incorrectly particularised charge.

89In its guideline judgment in R v Thomson; R v Houlton [2002] NSWCCA 309; (2000) 49 NSWLR 383, the Court of Criminal Appeal held at [160]:

...

(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

90Spigelman CJ, with whom other members of the Court agreed, said at [155]:

The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.

91Wood CJ at CL said at [163]:

... I consider these guidelines to properly reflect the mitigating circumstance associated with the utilitarian value of a guilty plea. Adherence to them, in the absence of compelling reason to the contrary, can only assist to secure greater certainty and equity in sentencing practice.

92In R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326 Sperling J, with whom Beazley JA and Carruthers AJ agreed, after referring to the abovementioned passage from the Chief Justice and Wood CJ at CL in R v Thomson; R v Houlton stated at [64]:

In my view, where an offender pleads guilty immediately upon charges being reduced by the Crown, that is "an exceptional case" justifying a discount at or close to the top of the range, notwithstanding that the proceedings have long since been set down for trial. To hold otherwise would offend against considerations of equity to which Wood CJ at CL referred. In addition to the saving in the cost of a trial, the fact that the complainant was spared the stress of giving evidence was also a relevant consideration.

93In Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189 at [47], Boland J held that where the amendments led to a material change in the nature of the charge, as was the case here, a plea entered after those amendments should attract the maximum 25 per cent discount for the utilitarian value of the plea.

94In this matter, the injured employee was spared the stress of giving evidence. In addition, there were significant savings due to the plea of guilty.

95I allow a discount of 25 per cent for the plea of guilty in accordance with the principles outlined in R v Thomson; R v Houlton ; R v Gorman, and Wambo Coal Pty Ltd. See also generally Cameron v The Queen; R v S Y & Anor [2003] NSWCCA 291.

96As the defendant has no prior convictions, the maximum penalty is $550,000.

97Taking into account all of the above matters including the evidence of Mr Taylor, I impose a penalty of $90,000.

98The prosecutor sought an order for costs and a moiety which I propose to grant.

ORDERS

99I make the following orders: