Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Middleton v Cafe C Pty Ltd [2012] NSWIRComm 131
• Hearing dates: 23 August 2012
• Decision date: 27 November 2012
• Jurisdiction: Industrial Court of NSW
• Before: Walton J, Vice-President

Decision

1. The defendant is convicted of the offence as charged.

2. The defendant is fined the sum of $100,000 with a moiety to the prosecutor.

3. The Court further orders that the defendant shall pay the costs of the prosecutor for these proceedings as agreed or, in default, as assessed.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 8(1) of the Occupational Health and Safety Act 2000 - defendant a corporation - operated cafe business - risk of injury to employees from coming into contact with electricity flowing from damaged cable - grease trap utilised at premises - square cavity under floor in kitchen known as the wet well - entrance to wet well covered by metallic plate - electrical pump housed in wet well for purpose of pumping waste water - cable of pump traversed kitchen floor to power outlet - cable became wedged between edge of wet well and cover plate - cable compressed and damaged - live conductor exposed - grease trap overflowed - surplus water on floor of kitchen - contact between live conductor and metallic cover plate and/or water on floor of kitchen - one worker electrocuted - one worker suffered electric shock - plea of guilty - sentencing - objective factors - maximum penalty - risk was foreseeable - systems in place prior to incident inadequate - simple remedial measures available - general and specific deterrence - culpability of defendant - contribution of third parties - responsibility of defendant to determine what services to engage and ensure services performed adequately - mitigating factors - offence serious - subjective factors - remorse and contrition - co-operation with the prosecutor - discount for plea - first offence - consideration of financial means of defendant - no claim for impecuniosity - defendant small family business - sole director - financial records show modest profits and assets - reduction in penalty by virtue of mitigating and subjective factors - penalty imposed - moiety - costs
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Fines Act 1996; Occupational Health and Safety Act 1983; Occupational Health and Safety Act 2000
• Cases Cited: Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99; Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29; Department of Mineral Resources of NSW (Chief Inspector Terrey) v A M Hoipo & Sons Pty Ltd [2000] NSWIRComm 16; (2000) 99 IR 137; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8; Environment Protection Authority v Capdate Pty Limited and Phillips (1993) 78 LGERA 349; Ferguson v Nelmac Pty Limited (1999) 92 IR 188; Haynes v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455; Inspector Barnard v Rail Infrastructure Corporation (No 2) [2002] NSWIRComm 107; (2001) 109 IR 209; Inspector Christensen v Hebron Holdings Pty Ltd (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31; Inspector Dall v Ullrich [2012] NSWIRComm 87; Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm; Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100; Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125; Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64; Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78; (2008) 172 IR 210; Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47; Inspector Nicholson v Gallagher [2012] NSWIRComm 121; Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124; Inspector Spence v Aleksic Carpentry Pty Ltd & Anor [2012] NSWIRComm 45; Inspector Stephen Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92; Inspector Williams v H P Woods (Holding) Pty Ltd [2011] NSWIRComm 114; JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; (2008) 184 IR 1; Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464; Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337; Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190; (2001) 106 IR 435; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048; (2005) 215 ALR 213; McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353; (2004) 137 IR 310; Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61; (2005) 147 IR 117; Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163; R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1; R v Previtera (1997) 94 A Crim R 76; R v Rushby (1997) 1 NSWLR 594; R v Reader (Brian Henry) (1988) 10 Cr App R(S) 210; Rahme v R (1989) 43 A Crim R 81; Retsos v Regina [2006] NSWCCA 85; Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364; Simpson Design Associates Pty Ltd v Ching [2011] NSWIRComm 7; (2011) 205 IR 40; WorkCover Authority of NSW v Atco Pty Ltd (1998) 82 IR 50; WorkCover Authority (NSW) v Hydraulics Hot Line Pty Ltd (1998) IR 39; WorkCover Authority (NSW) (Inspector Jones) v Challita [2006] NSWIRComm 207; (2006) 153 IR 409; WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Industrial Relations Commission, NSW, Matter No. CT 1280 of 1995, Hill J, 2 April 1997); WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25; (2002) 112 IR 284; WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363; WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 277; (2000) 95 IR 383
• Category: Sentence
• Parties: Inspector Scott Middleton (Prosecutor); Cafe C Pty Ltd in its capacity as Trustee of Cafe C Discretionary Trust (Defendant)
• Representation: M V McCarthy of counsel (Prosecutor); W G Thompson of counsel (Defendant); WorkCover Authority of NSW (Prosecutor); Brown Wright Stein Lawyers (Defendant)
• File Number(s): IRC 1829 of 2011

Judgment

1 These proceedings involve a prosecution instituted by Inspector Scott Middleton ("the prosecutor") against Cafe C Pty Ltd in its capacity as Trustee of the Cafe C Discretionary Trust ("the defendant"). Inspector Middleton is an inspector of the WorkCover Authority of New South Wales and is empowered by s 106 of the Occupational Health and Safety Act 2000 ("the Act") to institute these proceedings.

2 The defendant is a corporation whose registered office is located at Level 6, Suite 1 of 410 Chapel Road, Bankstown in the State of New South Wales. It was incorporated on 13 June 2008. The defendant is a family company. Its sole director, who is the company secretary, is Nicholas Stojkovic. Mr Stojkovic's mother, Olga Stojkovic (who swore an affidavit for the purpose of the sentencing hearing) is employed by the defendant as the manager of the business. The defendant employs approximately six other employees.

3 The defendant operates a business ("the business") located on the ground floor of 281 King Street, Newtown in the State of New South Wales ("the premises"). The business is a cafe and take away food bar trading under the name "Cafe C". The defendant has operated the business since 28 August 2008. Prior to that time, from approximately 6 August 1999, the business had been operated at the premises by Depega Pty Limited ("Depega"). At the date specified in the charge, the defendant occupied the premises pursuant to a lease from Sotiros Pty Limited which had been assigned to it by Depega. The business is currently listed on the market for sale.

4 This prosecution arose following a fatal incident at the premises shortly after 11.00pm on 4 December 2009 ("the incident") involving an employee of the defendant, Stuart Groen.

5 Mr Groen had been engaged by the defendant as a waiter for approximately 10 days prior to the incident. In that role, Mr Groen's duties were to attend to customers in the front section of the premises. He was 25 years of age at the date of the incident.

6 At the time of the incident, the defendant utilised a grease trap arrangement at the premises for the purpose of intercepting and pumping trade waste from a sink located in the kitchen area, prior to it entering the waste water disposal system ("the grease trap"). The grease trap consisted of two parts. One of those parts was a large, above ground holding tank located in a storeroom at the back of the premises. The other part, referred to as the "wet well", was used for the containment of waste water which had drained into it from the sink in the kitchen.

7 The wet well was a square shaped cavity located under the floor in the kitchen area of the premises, directly in front of a stove and deep fryer. The perimeter of the wet well measured approximately 650mm by 650mm. It was constructed of concrete, and included a metallic cover plate which was placed over its top opening ("the cover plate"). The cover plate was positioned at the top of the wet well on a rebate in the concrete walls which formed the perimeter of the wet well. The cover plate sat at floor level or slightly below and protruded approximately 100mm under the stove and deep fryer. Ordinarily, a non-stick black rubber mat was positioned over the cover plate. Apart from when the wet well was serviced and, on occasion, when the pump was repaired or replaced (as discussed below), the cover plate was not otherwise moved from its position on top of the wet well.

8 Located within the wet well, and submerged in the waste water contained therein, was an electronic pump ("the pump"). The pump was utilised by the defendant for the purpose of pumping water from the trade waste contained in the wet well into the holding tank located in the storeroom of the premises. The pump was designed to operate submerged and was connected to the power supply by means of a flexible cable ("the cable"). There was a small recess in the concrete rebate of the wet well in which the cable could be positioned, between the cover plate and the concrete edge, as it passed out of the wet well. The cable then ran across the kitchen floor beneath cooking appliances and was plugged into a socket outlet located on the wall of the kitchen.

9 The grease trap overflowed approximately once every six months. When it did, surplus water would pool on the floor of the premises.

10 At the time it was originally installed at the premises, it was determined by Sydney Water that the grease trap should be serviced every six weeks. In relation to the wet well, that service involved removing the cover plate, clearing out the solid waste which had collected, and hosing down the interior. The grease trap was last serviced before the incident by a business known as Alternative Waste Solutions on 25 November 2009.

11 In addition, the pump often needed to be maintained or repaired and had been replaced on two occasions, 25 August 2008 and 10 August 2009, by Robert Upton, a licensed plumber (and sole trader of RJ Plumbing) engaged by the defendant. On both occasions, the pump installed was a "Vada" multi-purpose sump pump. When Mr Upton replaced the pumps he also attended to the electrical installation of the pumps (an electrician was not engaged for this purpose).

12 Invoices were also provided by Mr Upton to the WorkCover Authority showing the return of a faulty "Vada" multi-purpose sump pump on 21 September 2009 and the purchase of a "Davey" multi-purpose sump pump the same day. It was recalled by Ms Stojkovic, on behalf of the defendant, that a new pump had also been installed at the premises in around September 2009, however, she could not recall whether that work had been performed by Mr Upton.

13 Despite the invoice provided by Mr Upton showing the purchase of a "Davey" pump in September 2009, it is evident that the pump in situ at the time of the incident was a "Vada" pump. The defendant was unable to provide any records in relation to the installation of that pump. Mr Upton denied having installed the "Vada" pump in use at the premises at the time of the incident.

14 On 4 December 2009, Mr Groen was rostered to work an afternoon/evening shift at the premises. Also present at the premises during that shift were Rose Hill, a waitress, Rubal Choudhary, a kitchen hand, and Sukhjinder Singh (also known as James Singh), a cook. Mr Groen was scheduled to work in the cafe area at the front of the premises waiting on customers (as was Ms Hill).

15 At around 11pm, the kitchen service ceased and the staff began cleaning up and preparing for closing. Some short time later, Mr Groen and Ms Hill noticed a large amount of water on the floor of the bar/cafe area of the premises. Mr Groen and Ms Hill consulted Mr Singh in regard to the water, and it was agreed that Ms Stojkovic should be notified of the problem by telephone.

16 Mr Groen then telephoned Ms Stojkovic. He was instructed by Ms Stojkovic to ask Mr Singh whether the pump was plugged in to the power outlet and turned on (this was because the grease trap had previously overflowed as a result of the pump being unplugged). Mr Singh, who was at that time standing in the kitchen area of the premises close to the power socket, confirmed to Mr Groen that the cable was connected to the socket outlet and switched on.

17 At the same time, Mr Groen had entered the kitchen area and was walking towards Mr Singh (this was despite a general direction which had been given to staff working in the cafe area of the premises not to enter the kitchen area). It was reported by Mr Singh that Mr Groen had then cried out, telling Mr Singh to "get out" of the kitchen area. Mr Groen then fell to the ground. As he fell, he came into contact with the wet well's cover plate and/or surplus water which was on the ground.

18 In an attempt to help Mr Groen off the floor, Mr Singh reached out his hand. He reported that, as he touched Mr Groen's right hand, he received what he thought was an electric shock. As he tried to move away, Mr Singh grasped part of a metal preparation table in the kitchen with his left hand. That table was electrified, and, as a result, Mr Singh was initially unable to free his grip. After some minutes, Mr Singh began to fall. He then became free of the table, and was able to move himself out of the kitchen. The mains power to the premises was then disconnected, and Mr Singh returned to the kitchen to assist Mr Groen, who was, by that stage, unconscious.

19 Ms Hill then alerted staff from a bar located next door to the premises that there had been an accident. Emergency services were telephoned by Ms Hill at approximately 12.05am on 5 December 2009. Staff from the adjacent bar, along with a member of the public who was passing by, provided first aid to Mr Groen until paramedics arrived at the premises at approximately 12.12am.

20 Mr Groen was treated by paramedics at the premises, and was then taken to Royal Prince Alfred Hospital where he died a short time later. A post mortem report identified the direct cause of death as electrocution.

21 As a result of the incident, Mr Singh suffered minor injuries including pain to his arms and legs as a result of receiving an electric shock. He did not suffer any burns to his body.

22 Energy Australia was notified of the incident by police shortly after its occurrence. The premises were later attended by Peter Loy, a senior electrical installation inspector employed by Energy Australia. Upon inspecting the wet well, Mr Loy noticed that the cable of the pump was not positioned, at its entrance to the wet well, in the recess provided in the concrete rebate, but, rather, had been wedged in a position between the cover plate and the concrete. As a result, that section of the cable had been flattened. Upon opening the cable's PVC sheathing (also known as supplementary insulation), Mr Loy observed that one of the three conductors inside the cable (each covered with basic insulation) had been damaged. That damage consisted of an opening in the basic insulation of approximately 2mm which had exposed the live active copper conductor within.

23 It was concluded by Mr Loy that, at the time of the incident, it was likely that the cover plate and/or the surplus water from the wet well had been in contact with the live active conductor of the cable which had supplied power to the pump and that, as a result, a source of voltage had been created. Mr Loy also opined that Mr Groen had likely been subject to an initial electric shock whilst in the standing position as a result of his contact with the cover plate and/or the water on the kitchen floor and then, after collapsing, a more prolonged electric shock as he lay on the floor. The approximate shock current experienced by Mr Groen could have been as high as 158 mA.

24 Following the incident, on 5 December 2009, the WorkCover Authority issued the defendant with a prohibition notice instructing it to cease any activity which may cause exposure to electrical hazards until all electrical wiring and associated fittings had been checked by a licensed electrician. An improvement notice was also issued by the WorkCover Authority instructing the defendant to ensure that measures were taken to control the risk of electrocution at the premises due to unsafe electrical fittings or wiring. On 14 December 2009, Mr Loy issued an Energy Australia defect notice to the defendant (having returned to the premises to carry out more extensive testing on 9 and 11 December 2009) for difficult access to metering equipment, low insulation resistance of a power circuit and low insulation resistance of a light circuit.

25 The defendant engaged the services of an electrician, Michael Zarich, to repair the electrical defects and upgrade the electrical installation at the premises to include residual current devices (that is, safety switches) ("RCDs"). The business was closed for approximately two weeks following the incident in order for the repairs and upgrades to take place. A new pump was installed in the wet well by Mr Upton. Mr Zarich then threaded the cable of the new pump through flexible conduit and also "chased" the cable's path beneath the stove by creating a "groove" in the floor and filling it with concrete. The cover plate of the wet well was also raised. All notices issued by the WorkCover Authority and Energy Australia were complied with by the defendant.

26 Subsequent to the incident, as earlier noted, the defendant determined to sell the business. As at the date of the sentencing hearing, the defendant had received no offers for the business.

27 The charge brought against the defendant will be described in more detail below. The defendant was charged in its capacity as an employer. The charge was laid under s 8(1) of the Act. The defendant pleaded guilty to the charge as laid.

28 The risk specified in the charge was the risk to employees present in the kitchen area of the premises, in particular Mr Groen and Mr Singh, of injury from electricity as a result of the cover plate and/or surplus water coming into contact with the exposed live conductor within the cable.

29 The failures of the defendant particularised concerned, variously, a failure to ensure the cable of the pump was located where it was not likely to be damaged by being flattened or that it was protected against such damage, a failure to protect the circuit supplying the socket outlet by installing a circuit breaker/residual current device and the failure to protect the pump by replacing the socket outlet with a switched socket outlet incorporating a 30mA Type II residual current device.

The Charges

30 As mentioned above, the defendant was charged with one breach of s 8(1) of the Act. The charge was set out in an application for order in the following terms:

I, Inspector Scott Middleton, of the WorkCover Authority of New South Wales, c/- Level 1 60-70 Elizabeth Street Sydney, in the State of New South Wales, an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1)(c) of the said Act to institute proceedings in the within matter allege that café C Pty LTD IN ITS CAPACITY AS TRUSTEE of THE café C DISCRETIONARY TRUST [ACN: 131 603 837] a corporation with its registered office situated at Level 6, Suite 1, 410 Chapel Road Bankstown in the State of New South Wales, being an employer, on or around 5 December 2009 at 281 King Street, Newtown in the State of New South Wales

FAILED

by its acts and omissions particularised below, to ensure the health, safety and welfare at work of all of its employees, and in particular, Mr Stuart Groen and Mr Sukhjinder Singh, contrary to section 8(1) of the Occupational Health and Safety Act.

31 The particulars of the charge were specified as follows:

Particulars of Risk

1. At all material times, the defendant, in its capacity as trustee of the Café C Discretionary Trust, carried on a café business trading as "Café C" at 281 King Street, Newtown (Premises).

2. At all material times, the defendant occupied the Premises pursuant to a lease from Sotiros Pty Ltd assigned to it by Depega Pty Ltd (ACN 088 188 756) and controlled the Premises.

3. Under the floor of the kitchen area of the Premises was a "wet well" for containment of waste water. The cover of the wet well was located at floor level.

4. The wet well was constructed of concrete and had a metallic cover plate over the top opening. The cover plate was positioned in a rebate formed in the concrete walls around the perimeter of the opening.

5. Located in the wet well was an electric pump (Pump) which was connected to the power supply by means of a flexible cable running from the Pump, through the entry of the wet well, across the kitchen floor beneath gas cooking appliances and plugged into a socket outlet (Socket Outlet) located on the eastern wall of the kitchen area of the Premises.

6. At some unknown point in time, a section of the Pump's flexible cable at its entry to the wet well became wedged in a position between the cover plate and the concrete and a section of the flexible cord was damaged by being flattened and/or compressed.

7. Within the sheathing of the flexible cable were 3x1mm2 PVC insulated conductors. The brown conductor was also damaged in that there was an opening in the PVC (basic insulation) which had exposed the copper conductor.

8. At around midnight on 4 December 2009, surplus water from a grease trap located in a small room outside the kitchen and/or the wet well began flooding the bar/café area of the Premises.

9. As a result of the matters alleged in paragraphs 6, 7 and 8, at all material times, the metallic cover plate and/or surplus water was in contact with the live conductor giving rise to the risk of injury from electricity to employees, and in particular, Mr Groen and Mr Singh, who were present in the kitchen area of the Premises.

Particulars of Defendant's Failings in Relation to Providing Safe Premises

10. The defendant failed to ensure that the Premises were safe and without risks to health in that the defendant failed to:

(i) ensure that the flexible cable of the Pump was located where it was not likely to be damaged by being flattened and/or compressed; or

(ii) ensure that the flexible cable of the Pump was protected against damage by being flattened and/or compressed;

(iii) protect the circuit supplying the Socket Outlet by installing a combination 20 amp Miniature Circuit Breaker (MCB)/ 30mA Type II Residual Current Device (RCD); or

(iv) protect the Pump by replacing the Socket Outlet with a switched socket outlet incorporating a 30mA Type II RCD.

11. As a result of the abovementioned failures, Mr Groen and Mr Singh were placed at risk of injury from electricity.

12. Further, as a result of the abovementioned failures, Mr Groen was electrocuted and Mr Singh suffered an electric shock.

Agreed Statement of Facts

32 The prosecutor tendered a document described as an "Agreed Statement of Facts". That document, admitted into evidence, was in the following terms:

At all material times, the prosecutor, Inspector Scott Middleton was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("Act") and empowered under Section 106 of the Act to institute proceedings in the within matter.

Background

1 At all material times, Café C Pty Limited, in its capacity as Trustee of the Café C Discretionary Trust (ACN: 131 603 837) (Defendant), carried on a café business trading as Café C at 281 King Street, Newtown, New South Wales (Premises).

2. At all material times, the Defendant occupied the Premises pursuant to a lease from Sotiros Pty Ltd assigned to it by Depega Pty Ltd (ACN 088 188 756) and controlled the Premises pursuant to the terms of the lease.

3. On 5 December 2009, Stuart Groen (Mr Groen), aged 25 years old, was employed as a waiter by the Defendant. Mr Groen was fatally injured after suffering an electric shock while at work.

4. At the time of the incident, the Defendant employed six staff, including Mr Groen. Mr Sukhjinder Singh (also known as James Singh) was employed as a chef. Mr Rubal Choudhary was employed as a kitchen hand. Ms Hannah Bellato and Ms Rose Hill were employed as waitresses.

5. At the time of the incident, the Defendant had employed Mr Groen for a period of approximately 10 days.

6. Olga Stojkovic (Ms Stojkovic) was employed by the Defendant to manage the business. Relevantly, her responsibilities included arranging maintenance and repairs at the Premises, as well as the management of the employees and the day - to - day operation of the business.

7. The Premises included a grease trap which was used to intercept and pump trade waste from the sink in the kitchen of the Premises before it entered the wastewater disposal system. Part of the grease trap was a 'wet well' located in the kitchen area and covered by a metal plate.

8. The grease trap arrangement at the Premises did not allow for trade waste to drain by gravity to the sewer and so a pump located in the 'wet well' was used in order to assist with this process.

9. An above ground grease trap in the form of a green tank was located in a storeroom at the back of the Premises. Under the floor of the kitchen area of the Premises the "wet well" was used for containment of the waste water. The cover of the wet well was located at floor level. The wet well was constructed of concrete and had a metallic cover plate over the top opening. The cover plate was positioned in a rebate formed in the concrete walls around the perimeter of the opening. Ordinarily, a non-slip black rubber mat was positioned across the metal plate.

10. Located in the wet well was a blue electric Vada multi-purpose sump pump (Pump) which was connected to the power supply by means of a flexible cable running from the Pump, through the entry of the wet well, across the kitchen floor beneath gas cooking appliances and plugged into a socket outlet located on the eastern wall of the kitchen area of the Premises.

11. Both the green tank and the concrete pit together are referred to as the 'grease trap'.

12. Trade waste from the sink in the kitchen drained into the concrete pit and then the water would be pumped by the Pump into the green tank. At the time that the grease trap was installed at the Premises, Sydney Water determined that it needed to be serviced at approximately 6 weekly intervals.

13. Prior to the incident, the restaurant waiting staff had been directed by Ms Stojkovic to only speak to the kitchen staff by means of a servery that connected the two areas and not to enter the kitchen area.

The Incident

14. On 4 December 2009, Mr Groen was rostered to work the afternoon/evening shift at the Premises. Also working at the café were Ms Hill, Mr Choudhary, and Mr Singh.

15. Sometime around 11pm, the kitchen closed and staff commenced cleaning up and preparing for closing. Shortly afterwards, Mr Groen and Ms Hill, who were working on the floor of the café waiting on customers, noticed a large amount of water on the floor of the bar/café area.

16. Ms Hill and Mr Groen had a short discussion with Mr Singh in regards to how to fix the problem and it was agreed that someone should call the manager, Ms Stojkovic to find out what to do.

17. Mr Groen telephoned Ms Stojkovic. Ms Stojkovic told Mr Groen to ask Mr Singh to check if the Pump was plugged in and turned on. The grease trap had previously overflowed because the Pump had been unplugged. Ms Stojkovic did not expect that Mr Groen would enter to kitchen area at the time he made the inquiry of Mr Singh because of the general direction that had been given to the restaurant staff not to enter the kitchen area.

18. Mr Singh who was standing near the grill in the kitchen of the Premises looked at the socket outlet next to the grill in the kitchen and confirmed to Mr Groen that the Pump's flexible cord was connected to the socket outlet and turned on.

19. Mr Groen however at this time had entered the kitchen and was walking towards Mr Singh when he cried out and warned the others to "get out" and fell to the ground, coming into contact with the wet well's cover plate and/or surplus water in the area.

20. Mr Singh tried to assist Mr Groen by reaching out his hand to pull Mr Groen off the floor however in doing so, he suffered an electric shock. He tried to move and grasped part of a metal preparation table that was also electrified. After some minutes, he began to fall, came free of the table and was able to get out of the kitchen. The mains power was disconnected before Mr Singh returned to the kitchen to render further aid to Mr Groen who was by now unconscious.

21. Ms Hill, who was on duty on the floor at the time of the incident, alerted the staff from the bar next door that there had been an accident. They came to assist, along with a member of the public who was passing by, who provided first aid to Mr Groen until paramedics arrived.

22. Ms Hill called '000' at approximately 12:05am on 5 December 2009 and an ambulance arrived at approximately 12:12 am. The paramedics attended to Mr Groen and Mr Singh.

23. Mr Singh suffered minor injuries including pain to his arms and legs as a result of receiving an electric shock. He did not suffer any burns to his body.

24. Mr Groen was treated on site and was then taken to Royal Prince Alfred Hospital where he passed away a short time later. The post mortem report cites the direct cause of death as electrocution.

Condition of the Premises Prior to the Incident

25. Peter Loy (Mr Loy), a Senior Electrical Installation Inspector employed by Energy Australia attended the Premises on 5 December 2009. He observed that a section of the Pump's flexible cord at its entry to the wet well had been wedged in a position between the cover plate and the concrete and that a section of the flexible cord was flattened. However, there was no visible opening or penetration in the sheathing (that is the supplementary insulation) of the flexible cord. The sheathing was opened by Mr Loy. Within the sheathing were 3x1mm2 PVC insulated conductors. The brown conductor was damaged in that there was an opening in the PVC (that is the basic insulation) of approximately 2mm which had exposed the copper conductor.

26. There is no evidence as to how or when the damage to the brown conductor occurred. Ms Stojkovic stated that as part of the regular servicing of the grease trap system, the wet well would have been cleaned out. This involved lifting the cover plate, removing the waste and hosing down the well. Records produced by the Defendant indicate that servicing was undertaken by a business trading as "Alternative Waste Solutions". The last service prior to the incident appears to have taken place shortly before the incident on 25 November 2009. Ms Stojkovic stated that the cover plate was not otherwise opened. Mr Loy opined that this activity could have resulted in unintentional positioning of the Pump's flexible cord in the location where it had been wedged between the metallic cover plate and the concrete rebate.

27. Mr Loy also conducted an insulation resistance test at the 3 pin plug top of the Pump's flexible cord and measured an insulation resistance of 200 ohms between the protective earthing conductor and the active conductor.

28. Mr Loy concluded that at the time of the incident, the metallic cover plate of the wet well and/or surplus water from the wet well were in contact with the live active conductor of the flexible cord which had supplied the Pump resulting in electric shock to Mr Groen as a result of his contact with the cover plate and/or surplus water.

29. Mr Loy stated that the Pump's flexible cord had not been secured in position and additionally, had not been provided with protection against mechanical damage. He opined that these failures caused the live active conductor to come into contact with the cover plate and/or surplus water from the wet well.

30. Prior to the incident the pump in the "wet well" had been replaced at different times by Mr Robert Upton, a licensed plumber operating the business RJ Upton Plumbing, as a sole trader. Mr Upton was recommended the real estate agency that managed the property for the owner. Mr Upton stated that he carried out maintenance work on the grease trap pit (that is, the "wet well"), that the "wet well" required a murator pump but that "the pit is too small to fit that sort of pump in". Mr Upton also stated that he had replaced or repaired the pump in the 'wet well' on 25 August 2008 and again on 10 August 2009.

31. When Mr Upton replaced the pumps he also attended to the electrical installation of the pumps. He did not engage an electrician for this purpose. No protection was provided for the electrical cable to the pumps installed by Mr Upton other than tying the cables above the pit well. No pump product and/or instruction manual was provided to the Defendant by Mr Upton in relation to the pumps he installed.

32. However, Mr Upton denied installing the pump in situ at the time of the incident. Mr Upton provided to WorkCover copies of invoices issued to him by Reece Pty Limited in relation to the purchases of Vada multi-purpose sump pumps on 25 August 2008 and 10 August 2009. Invoices were also provided showing the return of a faulty Vada multi-purpose sump pump on 21 September 2009 and the purchase of a Davey multi-purpose sump pump the same day. The Defendant also has been unable to provide any records in relation to the installation of the Pump to WorkCover.

33. In his report, Mr Loy stated that;

i. Mr Groen most likely received an electrical shock while in the standing position.

ii. Mr Groen received a more prolonged electrical shock after he had fallen and as he lay on the metal lid covering the concrete pit.

iii. The approximate shock current could have been as high as 158 mA.

iv. The sheathing of the cord in the pit had been compressed beneath the wet well cover plate and there was prior damage to the conductor.

34. James Lawson, a self-employed electrical engineer, was retained by the WorkCover Authority of NSW to provide a report in relation to the incident. In his report, Mr Lawson states, inter alia, that:

i. the circuit supplying the Pump's electrical socket outlet could have been protected by a combination 20 amp Miniature Circuit Breaker (MCB)/ 30mA Type II Residual Current Device (RCD); and/or

ii. the Pump could have been protected by a switched socket outlet incorporating a 30mA Type II RCD;

iii. assuming an insulation resistance of 200 ohms between the protective earthing conductor and the active conductor, once the Pump was turned on, a 30mA Type II RCD would have operated (tripped) and isolated the circuit;

iv. the time interval between the start of the current flow and the break in the current would have been less than 40 milliseconds;

v. a person standing either on or in the vicinity of the wet well's cover plate during the time interval between the start of the current flow and the break in the current with no insulation between their foot or feet and the cover plate and a bare hand or hands touching an earthed object would receive an electric shock;

vi. the physiological effects of the shock would include strongly involuntary muscular contractions, difficulty in breathing, reversible disturbances of heart function but usually no organic damage.

Condition of the Premises after the Incident

35. Following the incident, WorkCover issued and served a Prohibition notice number 142584 dated 5 December 2009 to the Defendant to cease any activity which may cause exposure to electrical hazards until all electrical wiring and associated fittings had been checked by a licensed electrician.

36. WorkCover also issued and served an Improvement notice 256068 to the Defendant to ensure that measures were taken to control the risk of electrocution at the Premises due to unsafe electrical fittings or wiring.

37. Mr Loy issued an electrical defect notice number 58834 for difficult access to metering equipment, low insulation resistance to power circuit and low insulation resistance.

38. In order to comply with the notices, the Defendant closed the Premises for approximately 2 weeks to have the electrical defects repaired. The Defendant engaged the services of Mr Michael Zaric (an electrician) to repair the electrical defects and upgrade the electrical installation to include residual current devices (safety switches).

39. The Defendant engaged the services of Mr Upton to replace and install a new pump in the grease pit in the kitchen. Mr Upton did the plumbing work for the new pump including cable-tying the flexible cord in three places to the wet well outlet. Mr Zarich then threaded the flexible cord through flexible conduit and also "chased" the flexible cord's path beneath the stove by creating a "groove" in the floor and filling it with concrete or cement.

40. The lid to the concrete pit in the kitchen of the Premises was also raised.

41. The Notices as issued have been complied with by the Defendant.

42. The Defendant has no prior convictions.

43. The Defendant cooperated with the WorkCover Authority during its investigation into the incident.

Verdict

33 Having regard to the charge in this matter, the particulars of the offence, the agreed statement of facts and, as will be discussed below, the evidence tendered in the proceedings together with the consideration of the features of the matter relevant to sentencing, I accept the plea of guilty entered by the defendant and will enter a verdict accordingly.

Evidence

34 The prosecutor tendered a sentencing bundle containing an agreed statement of facts (as noted above); a Factual Inspection Report of Inspector David Barker dated 7 December 2009; a Factual Inspection Report of Inspector Kevin Murphy dated 14 December 2009; 13 colour photographs taken by Inspector Barker dated 5 December 2009; one colour photograph taken by the defendant (undated); a "Vada - Sump Pump V180F" instruction manual; a tax invoice issued to the defendant by Michael Zarich, licensed electrical contractor, dated 5 January 2010; an investigation report prepared by Peter Loy with assistance from Phil Ryan dated 5 February 2010 entitled "Investigation into the Death of Mr Stuart Groen by Possible Electric Shock at the Premises of Cafe C - 281 King Street Newtown"; an expert report by James Neill Lawson, electrical engineer, dated 24 November 2011 entitled "Expert Report: WorkCover Investigation Arising from Incident on 5 December 2009 at Newtown"; and, a prior convictions report for the defendant dated 9 August 2012 (there being no recorded prior offences for the defendant). A letter of instruction to James Lawson from Margaret Simpson, solicitor and assistant manager WorkCover criminal law practice legal group, dated 18 November 2011 entitled "Request for Expert Report: WorkCover Investigation Arising from Incident on 5 December 2009 at Newtown" was also tendered by the prosecutor.

35 The defendant tendered an affidavit of Ms Stojkovic sworn 13 August 2012 (including annexures "A" to "F"). Some relevant paragraphs of the affidavit are as follows:

15. The grease trap overflowed approximately once every six months and the pump in the wet well often needed to be maintained or repaired.

16. To the best of my knowledge and understanding, the Defendant under the terms of its lease did not have the capacity to alter the size and location of the wet well and/or the location of the grease trap. The capacity to make changes to these items to the best of my understanding lay with the landlord.

...

21. The majority of the plumbing work on the "wet well" was carried out by Mr Robert Upton, a sole trader trading as RJ Upton Plumbing who was a licenced (sic) plumber with over 40 years experience. Mr Upton had been recommended to me by the Landlord.

...

23. The pump in the wet well was replaced by Mr Upton on 25 August 2008 and 10 August 2009. A new pump was also installed in around September 2009. I do not recall if this pump was installed by Mr Upton or another contractor.

24. Mr Upton also performed the electrical installation of the pumb (sic) cabling. To the best of my knowledge Mr Upton never engaged an electrician to perform the electrical installation of the pumb (sic) cabling and/or recommended to me that an electrician should be be (sic) engaged for this purpose.

25. Mr Upton never provided me with any instructions from the manufacturer or any other information about the pumps and/or the wet well at the time he installed the new pumps.

26. As Manager I relied on the expertise and advice of Mr Upton, and other licenced (sic) plumbers engaged from time to time on behalf of the Defendant. I also relied on the expertise and advice received from Alternative Waste Solutions as to any maintenance that needed to be carried out in relation to the grease trap, the wet well and any other related equipment.

27. The metal plate was only ever opened by licenced (sic) plumbers or the contractors that served the grease trap. The metal cover plate was not otherwise opened by myself or the staff. Neither Mr Upton nor any other person who carried out work on the wet well ever informed me that there was a risk that the cabling to the pump in the wet well be damaged by the metal cover or brought my attention to the poor condition of the cabling.

...

30. To the best of my knowledge, the Premises and electrical appliances were all protected by circuit breakers and the socket outlet to which the pump cable was attached was protected by a circuit breaker located at the main switchboard.

...

32. I would personally test the electrical appliances on a regular basis to make sure they were in working order. Had any staff member informed me when an appliance was not in working order I would arrange for an electrician to fix it and/or purchase a new appliance.

Instructions to Staff

33. I personally informed all staff members of the procedure to be followed if the grease trap overflowed when I was not present at the café. The staff member was required to alert the person in charge of the café and a check was to be made to see if the pump motor cable was plugged in and switched on. If this did not fix the problem and the grease trap continued to overflow I was to be contacted. In those circumstances I would immediately arrange for either a plumber and/or Alternative Waste Solutions (the contractor that serviced the grease trap) to attend the Premises to fix the problem.

...

37. As part of that training all staff members were directed never to enter the kitchen without the appropriate rubber soled shoes and only to communicate with kitchen staff through the servery that connected the bar/café area and the kitchen.

38. Staff members who were new were not allowed to use electrical equipment straight away and needed to be first shown by someone who had been working there longer than 3 months.

...

41. Mr Groen, as part of his induction, was informed that his duties were to attend to customers in the front section of the café. In that role he was not required to enter the kitchen area in the course of his work activities. The same direction had been given to the other staff whose duties were to serve customers in the front section of the café. From my observations as Manager, this direction was followed by the staff.

42. At the time of the incident, Rose Hill was responsible for supervision (sic) the front of house staff and James Singh was responsible for supervising the kitchen staff.

43. I am extremely sad and remorseful about the death of Mr Groen and the Incident has affected me very deeply. I had hoped that I would be able to express these feelings to Mr Groen's family and I have made attempts to contact Mr Groen's brother but I have been unsuccessful.

44. On behalf of the Defendant I wish to express condolences to Mr Groen's family and sincere regret for the circumstances of his death.

Post Incident

45. Following the Incident, I am aware that the Defendant has undertaken considerable changes to the operation of its business to ensure that the business is a safe work environment for all its employees.

...

47. The Defendant has also since engaged the Services of George El Kazzi of CitiWide Electrical Contractors Pty Ltd to test and tag all the electrical appliances in Café C to ensure that they are in good working order, and I have undertaken to Work Cover that I will arrange for a licenced (sic) electrical contractor to attend Café C to test and tag the electrical appliances every six (6) months.

...

49. In my role as Manager, I now regularly conduct a visual risk assessment of the grease trap by lifting the lid of the grease trap and inspecting the position and condition of the cabling to the pump to ensure that it is securely in place and not damaged.

50. The Defendant has formalised its induction and occupational health and safety procedures in a written Policy and Procedures Manual (the "Manual"). A copy of the Manual is annexed hereto and marked "C".

51. All existing staff members have been provided with a copy of the Manual and have signed a copy of the Manual to acknowledge that they have read and understood the Manual.

52. All new staff members are provided with a copy before their first shift and asked to sign the Manual to acknowledge that they have read and understood the Manual. A senior staff member also takes the new staff member through the Manual verbally, prior to their first shift and responds to any questions that the new staff member may have.

53. The Defenddant (sic) also now makes available to its employees a brochure on emergency safety procedures. A copy of the brochure is available in the kitchen at the Premises and also in the front of the door at the Premises for staff members working in the front of house.

54. The Defendant has spent approximately $10,510.30 to upgrade its systems and processes to ensure that work health and safety is a priority of the Defendant and that the Premises is a safe environment for its employees.

...

Financial Capacity of the Company

56. Café C is on the market. Link Business has been engaged by the Defendant to assist with the sale of the business and is currently marking the business for sale at a listing price of $600,000 plus stock value.

...

58. There are no current offers on the business.

36 The documents annexed to the affidavit included three profit and loss statements for Cafe C for the financial years ending 30 June 2009 (showing a net profit of $72,457.75 and total assets valued at $36,805.33), 30 June 2010 (showing a net profit of $64,000.29 and total assets valued at $36,641.61) and 30 June 2011 (showing a net profit of $96,710.58 and total assets valued at $36,965.77).

Victim Impact Statement

37 The Court received a Victim Impact Statement signed by Mr Groen's mother, Linda Groen. There was no objection to the Statement, which was also read aloud by Mrs Groen to the Court during the sentencing proceedings. The Court acknowledges its receipt of the Statement.

38 Whilst I am unable to take into account the Statement in determining penalty (Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47 at [80]), I acknowledge the effect the incident has had upon Mr Groen's family. The Statement provided by Mrs Groen was heartfelt and of great depth. It painted a picture of Stuart Groen as a fun loving, intellectual, adventurous, caring, independent young man who was, plainly, much loved and who had, undoubtedly, a bright future ahead of him. He was a talented writer, poet and musician who shared a close relationship with his siblings and parents. It is evident that the loss of Stuart continues to cause his family a profound amount of pain and suffering.

39 I also acknowledge the presence of Mr Groen's siblings in court and understand that Mr Groen's father remained too grief stricken to attend. I also wish to acknowledge the fortitude shown by Mrs Groen in delivering the Statement to the Court on behalf of her family.

40 The family of Mr Groen is clearly close knit, and I take some comfort from the knowledge that they remain a strong source of support for one another. I wish to express my hope that time will bring them some deliverance from the suffering they are presently experiencing. The Court extends its deepest sympathy to them all.

Submissions

Submissions for the Prosecution

41 Ms M V McCarthy of counsel, who appeared on behalf of the prosecutor, made oral and written submissions which, taken together, are summarised as follows:

Objective Factors

(1) The principles relevant to sentencing for offences under the Act are well established: Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 ("Cross City Tunnel"). The purposes for which the Court may impose a sentence on an offender are specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act").

(2) The risk of injury from electricity was "manifestly foreseeable". The foreseeability of the risk results in the offence being more serious in nature: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29.

(3) It was submitted, in this respect, that, given the pump was an electrical item, it was, to some extent, inherently dangerous. In addition, it was designed to, and did, operate submerged in waste water, a known conductor of electricity. The cover plate of the wet well, being metal, was also a known conductor of electricity. Further, the grease trap was known by the defendant to overflow from time to time. Finally, the instruction manual for the particular model of pump in use at the premises at the time of the incident warned that "If the electrical cord is damaged, stop use and return pump to supplier for repair". Whilst it was conceded by the prosecutor that that instruction manual (or any similar document) had not been provided to the defendant prior to the incident, the manual was, nonetheless, an objective indicator of the dangers of the pump.

(4) It was submitted that, in such circumstances, a "proactive" rather than "reactive" approach to workplace safety required the defendant to turn its mind to the placement of the cable of the pump and the means by which any risk of injury from electricity flowing from any damage to the cable - which, given its location, could not have been disregarded as unknowable or unlikely - could be limited or controlled.

(5) It was acknowledged by the prosecutor that it was not known when the cable had become compressed and subsequently damaged.

(6) There were practical steps available prior to the incident which were not onerous and which would have ensured that the premises were safe and without risks to health. The pump's flexible cable should have been located where it was not likely to be damaged and it should have been protected against damage. Further, a residual current device should have been installed, either at the main switchboard or at the socket outlet.

(7) The prosecutor acknowledged that, whilst injury to a person does not, of itself, dictate the seriousness of the offence, 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: Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 [32]; Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. The risk in the present matter was manifested in the electrocution of Mr Groen and the electric shock of Mr Singh.

(8) It was accepted by the prosecutor that, in many instances, it is quite proper for third parties to be engaged by defendants to perform services. However, it was submitted, some responsibility remains with the defendant to determine what services should be provided and to ensure that those services are performed adequately: WorkCover Authority of New South Wales (Inspector Petar Ankucic) v McDonald's Australia Limited and Another [2000] NSWIRComm 277; (2000) 95 IR 383 at [212]. It was submitted that, as a general proposition, the principle expounded in McDonalds is relevant to mitigation of the objective seriousness of the offence. However, it was submitted, given the way in which the relevant third parties came to interact with the premises, that principle was not applicable in the present matter.

(9) In this respect, it was submitted, it was the responsibility of the defendant to turn its mind to what services should be provided. Whilst the wet well was serviced (in the sense that it was emptied and hosed out) and the pump replaced from time to time, it was not apparent, on the evidence, that the defendant turned its mind to the electrical condition of the pump (that is, there was no evidence of any consideration being given to the need to ensure there was no risk arising from the fact that the pump was submerged in water with the cable traversing the kitchen floor). It was submitted by the prosecutor that the electrical work carried out by Mr Upton when replacing the pumps from time to time did not, given he was a licensed plumber and not an electrician, constitute a consideration of the safe operation of the pump and the cable. In any event, it was submitted, there was no evidence that Mr Upton had installed the pump in situ at the time of the incident. Whilst it is clear on the facts that a replacement pump was provided by Mr Upton on 10 August 2009, what occurred at a later date is unclear. Although an invoice provided by Mr Upton dated 21 September 2009 noted the purchase of a "Davey Multi-Purpose Sump Pump", the pump in situ at the time of the incident was a "Vada - Sump Pump V180F". The evidence also does not disclose whether, in attending to the pump, Mr Upton took any steps in relation to the cables.

(10) In relation to the cable of the pump, the defendant primarily relied on the expertise and advice of Mr Upton and other licensed plumbers it engaged. The defendant also relied on the failure of Mr Upton and others to inform it of the risk of the cable being damaged by the plate and to bring the poor condition of the cabling to its attention. The defendant also relied on the regular "testing" of electrical appliances at the premises by Ms Stojkovic. However, it was submitted, there was no evidence that Ms Stojkovic was in any way qualified to carry out such "testing".

(11) The defendant cannot escape culpability under the Act by seeking to delegate responsibility for maintenance to third parties.

(12) The defendant relied on Ms Stojkovic's assumption that the premises and the electrical appliances used therein were all protected by circuit breakers. Whilst it was accepted by the prosecutor that that assumption was correct (that is, according to the expert evidence of Mr Loy, the socket outlet powering the pump and the sub circuits from the main switchboard were, in fact, protected by circuit breakers), it was submitted that, in the circumstances of the incident, a circuit breaker would not have "tripped". However, had RCDs been installed at the premises prior to the incident, those devices would have operated to isolate the circuit within 40 milliseconds of the pump's socket outlet being switched on (as explained by Mr Loy in his report). Again, it was submitted, there was no evidence that Ms Stojkovic was in any way qualified to form a view about the adequacy or otherwise of the defendant's electrical installations.

(13) It was submitted by the prosecutor that the fact that the offence involved a grave risk of death to another person or persons was a matter that should be taken into account as an aggravating factor: s 21A(2)(ib) of the CSP Act.

Maximum Penalty

(14) The maximum penalty for the defendant is $550,000 as it has had no prior offences.

Need for Deterrence

(15) General deterrence should be given significant weight in determining any appropriate penalty. A small nominal fine in respect of a serious breach of the Act will not satisfy the element of general deterrence: Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [5] citing Environment Protection Authority v Capdate Pty Limited and Phillips (1993) 78 LGERA 349 at 353.

(16) It was submitted that, whilst the defendant has taken significant steps since the incident to ensure the safety of workers at the premises, an element of specific deterrence should be factored into any penalty because the defendant continues to be an employer.

Range

(17) The prosecutor declined to make a submission as to range.

Subjective Factors

Plea of Guilty

(18) In determining penalty, the Court may take into account the fact that the defendant pleaded guilty, when the offender pleaded guilty and the circumstances in which the defendant pleaded guilty and may accordingly impose a lesser penalty than it would otherwise have imposed: s 22(1) of the CSP Act.

(19) It was submitted by the prosecutor that, whilst the defendant did plead guilty to the offence as charged, there was a delay of approximately six months between the date the defendant was first charged and the date the plea was entered (the application for order was filed 1 December 2011 and the defendant entered its plea on 5 July 2012). That delay diminished the utilitarian value of the plea: Inspector Stephen Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92 at [50]; R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32]. The evidence does not enable the Court to form a conclusion as to why that period of delay occurred.

Remorse and Contrition

(20) Ms Stojkovic, on behalf of the defendant, has expressed remorse for the offence in her affidavit: s 21A(3)(i) of the CSP Act.

Co-operation

(21) The defendant co-operated with the WorkCover Authority during its investigation: ss 21A(3)(m) and 23 of the CSP Act.

Prior Convictions

(22) The defendant has no prior convictions under the relevant legislation: s 21A(3)(e) of the CSP Act.

Capacity to Pay

(23) The prosecutor accepted, in terms of general sentencing policy, that the means of a defendant are relevant. However, the consideration of the means of the defendant with the conclusion that a heavy fine may be a burden on the defendant and its financial resources does not necessarily preclude the imposition of a heavy penalty: Walco Hoist Rentals at [27].

(24) It was submitted by the prosecutor that, having regard to the three years of financial records attached to the affidavit of Ms Stojkovic, the business run by the defendant, whilst currently on the market, appears to be moderately successful. It made a profit in each of the three years for which records were provided.

Victim Impact Statement

(25) The prosecutor accepted that the Victim Impact Statement was tendered on a limited basis.

Costs

(26) The prosecutor sought the usual orders for costs and disbursements in the sum as assessed.

Moiety

(27) The prosecutor sought a moiety of any fine imposed for the WorkCover Authority.

Submissions for the Defendant

42 Ms W G Thompson of counsel, who appeared on behalf of the defendant, made oral and written submissions which, taken together, are summarised as follows:

Objective Factors

(1) The legal principles applied in the determination of a sentence for a contravention of the Act are well established: Capral Aluminium; Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464; Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124; Inspector Barnard v Rail Infrastructure Corporation (No 2) [2002] NSWIRComm 107; (2001) 109 IR 209; Inspector Christensen v Hebron Holdings Pty Ltd (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31.

(2) The Court is also required to adopt the "instinctive synthesis" approach to sentencing: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048; (2005) 215 ALR 213. In addition, the Court is required to have regard to the provisions of ss 3A, 21A and 22 of the CSP Act.

(3) The primary consideration in sentencing is the nature and quality of the offence. In determining the objective seriousness of the offence, the Court may consider the circumstances leading to the acts and omissions that constitute the offence (including the role of third parties), the systems in place prior to the incident, the foreseeability of the risk, the period the risk had existed and the persons exposed to the risk.

(4) The relevant risk, as particularised in the charge, was the risk of the metallic cover plate and/or surplus water being in contact with a live conductor giving rise to the risk of injury from electricity of persons working or present in the kitchen. It was accepted by the defendant that the relevant risk was a serious one.

(5) There was no evidence as to how or when the damage to the cable occurred, except that it occurred at some time between when the pump (which was installed by Mr Upton in August 2009) was removed because it was defective in September 2009 and the date the incident occurred.

(6) It was accepted by the defendant that the relevant risk was foreseeable. However, it was submitted, the safety procedures in place prior to the incident operate to reduce the foreseeability of the risk.

(7) The safety features in place prior to the incident included the following: the defendant engaged a licensed plumber to carry out the repair or replacement of the pump; the grease trap was serviced every six weeks in accordance with the direction from Sydney Water; the main switchboard was fitted with circuit breakers which were compliant with the applicable electrical wiring rules; a black rubber mat was provided as a covering for the metal cover plate on top of the wet well; the defendant employed an experienced manager; employees (including Mr Groen) were given induction training and instructions in relation to their duties; an experienced member of staff was to supervise other staff at the premises if the manager was not present (on the night of the incident, Ms Hill and Mr Singh, both of whom were experienced staff members, were present); staff working in the front section of the cafe (including Mr Groen) were not expected to enter the kitchen area (although, it was accepted, there was no barrier to prevent that from occurring); staff working in the front section of the premises were to communicate with the kitchen primarily through a servery; Ms Stojkovic inspected electrical appliances and outlets on a regular basis; a system was in place whereby staff reported any faults or problems with the equipment they operated; and, instructions were provided to employees as to what steps were to be followed should the grease trap overflow.

(8) The defendant submitted that the existence of safety procedures prior to the incident may also operate to mitigate the objective seriousness of the offence: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at [25].

(9) It was submitted by the defendant that the Court is entitled to view the nature and seriousness of the defendant's offence by reference to the contribution of third parties to the relevant risk: Inspector Spence v Aleksic Carpentry Pty Ltd & Anor [2012] NSWIRComm 45 at [22] citing Walco Hoist Rentals at [31].

(10) Whilst the defendant accepted that its own responsibilities could not be delegated (in particular, its responsibility to ensure the cable was not damaged in the manner it was, and that the electrical circuitry was fitted in a manner that could have detected this problem), it was submitted that the Court was entitled to take into account the contribution of Mr Upton in installing the electrical components of the pump without making adequate provision for the protection of the cable from mechanical damage. The defendant, it was submitted, relied (and was entitled to rely) on Mr Upton, being a very experienced plumber, to engage (or to advise the defendant to engage) an electrician to assist with the installation of the pump to ensure the cable was protected and chased. Further, Mr Upton did not provide the defendant with product or instruction manuals in relation to the pumps he installed.

(11) In relation to the wet well, Ms Stojkovic, on behalf of the defendant, relied on the expertise and advice of Alternative Waste Solutions (as well as Mr Upton). The defendant was at no time advised there was a risk of the cable being damaged by the cover plate or any other equipment. Ms Stojkovic also inspected electrical appliances and outlets on a regular basis.

(12) In addition, whilst it was accepted that the fact that the defendant leased the premises did not detract from its responsibility as the controller of the premises, it was submitted that the Court should have regard to the fact that the defendant controlled the premises pursuant to the terms of the lease. The lease required the defendant, as lessee, to maintain the property and fix structural defects (which, in relation to the wet well, the defendant did by having it serviced every six weeks). It was an agreed fact that Mr Upton had advised that the wet well required a different type of pump to that which was in situ at the time of the incident, but that the required pump would not fit in the wet well. By the terms of the lease, the defendant was precluded from altering the size and location of the wet well. However, it was accepted by the defendant that it was not precluded, by the terms of the lease, from requesting that the lessor alter the size or shape of the wet well.

Maximum Penalty

(13) The maximum penalty available pursuant to s 12 of the Act for the defendant, given it is a corporation with no prior convictions, is $550,000.

Need for Deterrence

(14) It was accepted by the defendant that both general and specific deterrence were relevant. In terms of general deterrence, the facts of the matter do not present any basis for departing from the established principles in this respect.

(15) In relation to specific deterrence, it was submitted by the defendant that the Court should be satisfied that numerous steps have been taken by the defendant since the incident to eliminate and minimise the risk that arose on the date of the incident. However, it was accepted that the defendant continues to operate as an employer, and, thus, specific deterrence will be taken into account by the Court in determining penalty.

Subjective Factors

Steps Taken Since the Incident

(16) The defendant closed the business for two weeks immediately following the incident. A new pump was installed in the wet well by Mr Upton, and the electrical cord was tied in three places to prevent movement. Mr Zarich then threaded the cable through conduit and chased a path in the concrete floor from the wet well and under the stove. The path was covered with concrete to provide mechanical protection for the cable together with the conduit. In addition, the level of the cover plate was raised to eliminate the risk of it damaging the cable.

(17) The defendant complied with the notices issued by the WorkCover Authority and the defect notice issued by Energy Australia. It also carried out work in addition to that which was required by the various notices. Namely, all circuit breakers at the main switchboard were repositioned and replaced, notwithstanding the original circuit breakers had been compliant (as noted in the report provided by Mr Loy). It was accepted by the defendant that, although the circuit breaker system in place at the premises at the date of the incident was compliant, the installation of RCDs undertaken after the incident was a practicable measure that was available and would have prevented the incident.

(18) No other instances of the wet well overflowing have been experienced at the premises since the above work was completed.

(19) Further, regular visual inspections of the wet well are carried out by Ms Stojkovic to check the position and condition of the cable. The defendant's induction and occupational health and safety procedures have been formalised in the form of a manual which is provided to all staff. Employees are also provided with a brochure setting out emergency procedures.

Plea of Guilty

(20) The defendant entered its plea at an early time. A charge had originally been brought against the manager of the business, but was later withdrawn. After it was withdrawn, a plea was entered on behalf of the defendant. The defendant accepted that there had been a six month delay between when the application for order was first filed and the date on which the plea was entered. However, it was submitted, the plea was, in the circumstances, a relatively early plea.

(21) It was also accepted by the defendant that pleas entered after amendments to any particulars or charges, even where there is a sensible basis for a defendant to wait for those negotiations to occur, might, nonetheless, result in some lowering of the discount that might otherwise be afforded for the utilitarian value of the plea. Therefore, it was accepted, the defendant may not be entitled to the full discount. It was submitted, however, that, if not the maximum, the discount afforded to the defendant should be at least at the high end of the range.

Remorse and Contrition

(22) The defendant submitted that the Court may take into account remorse shown by an offender if the offender has provided evidence that it has accepted responsibility for its actions and has acknowledged the injury, loss or damage caused by its actions or has made reparation for such injury, loss or damage: s 21(3)(i) of the CSP Act.

(23) The defendant expressed contrition and remorse through its plea of guilty and, thus, its acceptance of its acts and omissions contributing to the risk that arose at the time of the incident. It also expressed its contrition and remorse through the affidavit of Ms Stojkovic.

Co-operation

(24) The defendant fully co-operated with the WorkCover Authority during its investigation.

Capacity to Pay

(25) It was submitted by the defendant that it is a family business and, thus, the liability of any penalty imposed will be borne by the sole director of the business. The corporation is also a small business, which employs approximately six staff and a manager.

(26) The defendant noted expressly that it did not rely on impecuniosity and made no application under the Fines Act 1996. The financial records provided by Ms Stojkovic indicate that the corporation is viable. However, it was submitted, the Court should have regard to the fact that, as the financial records disclose, it has modest assets. The business is currently on the market for sale, although no offers have, as yet, been received. The defendant has put its financial position frankly before the Court to ensure it is fully appraised of the position of the defendant.

Victim Impact Statement

(27) It was submitted by the defendant that there was nothing arising in the present proceedings which required the Court to depart from the established principles in respect of Victim Impact Statements: R v Previtera (1997) 94 A Crim R 76; Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100.

Costs

(28) The defendant submitted that it had no objection to the costs sought by the prosecutor.

Moiety

(29) The defendant submitted that it had no objection to the moiety sought by the prosecutor.

Relevant Principles

43 I discussed the relevant general principles for sentencing in this jurisdiction in some detail in Cross City Tunnel and, more recently, Inspector Williams v H P Woods (Holding) Pty Ltd [2011] NSWIRComm 114 and Inspector Dall v Ullrich [2012] NSWIRComm 87. I do not propose to repeat those principles here. Rather, I generally adopt the principles stated in those judgments and, in particular, the principles set out in Ullrich at [40] - [42] (including an excerpt from Cross City Tunnel at [184] - [191]) and will refer, when appropriate, to particular aspects of that judgment.

44 It is relevant to note at this juncture that in these proceedings both parties sought to rely on various sections of the CSP Act. In particular, it was submitted that the Court would give effect to the purposes of sentencing identified in s 3A and the aggravating, mitigating and other factors identified in ss 21A and 22 in relation to the defendant's guilty plea. In Cross City Tunnel at [191], I noted that:

As was observed by the Full Bench in Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61; (2005) 147 IR 117 at [13], the sentencing practice established by this Court under the occupational health and safety legislation conforms with the requirements of the Crimes (Sentencing Procedure) Act 1999 (see ss 3A, 21A, 22, 22A and 23).

45 In accordance with the approach taken in Cross City Tunnel and the submissions of the parties, the relevant sections of the CSP Act will be given consideration in sentencing in this matter.

Consideration

Objective Features

46 The objective seriousness of an offence is the primary factor to consider in sentencing under occupational health and safety legislation (see, for example, Lawrenson Diecasting, Capral Aluminium, McDonalds and Walco Hoist Rentals). I discussed the principles applicable to a consideration of the objective seriousness of an offence in Ullrich at [43] - [45]:

It is necessary to turn firstly to the objective seriousness of the offence. That should begin with a consideration of the risk to the safety and health of employees (as charged) in this matter. In Cross City Tunnel it was observed, in that respect, at [195]:

The assessment of the gravity of an offence under s 8 of the Act requires attention to be focussed upon "the risk [to safety] and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk": Morrison v Powercoal (2003) at [32]. This approach derives from the nature of the duties imposed by s 8 of the Act which are "directed to obviating actual risk to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk": Morrison v Powercoal Pty Ltd (2004) 137 IR 253 at [100].

In Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531, a majority of the High Court discussed the notion of 'risk' for the purposes of s 15 of the Occupational Health and Safety Act 1983 (which discussion is equally applicable to s 8 of the Act) as follows (at [11]):

What the terms of sub-s (2) make plain is that an employer must identify risks to the health, safety and welfare of employees at the workplace and take steps to obviate those risks. Thus where plant and machinery are used at a workplace, an employer must keep them in good order, where to do otherwise would pose a risk to employees' health and safety, and must implement systems concerning their use so as to obviate any such risk. An employer is required to identify risks to employees which might be overcome by the provision of information, instruction, training or supervision and then to take such action in that regard "as may be necessary". An employer is to "take such steps as are necessary" to make available information concerning the use for which plant is designed and conditions necessary for its safe use. Section 16 required similar considerations and measures to be undertaken with respect to non-employees present at the workplace.

The duty created by the Act is directed at 'obviating' risks to the health and safety of employees at the workplace, even in the absence of any actual incident causing injury: Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137 IR 253 (at [97] and [107]).

47 When constrained by the particulars of the charge, the relevant risk in the present matter was the risk to employees who were present in the kitchen area of the premises, in particular Mr Groen and Mr Singh, of injury from coming into contact with electricity. The risk, as particularised in the charge, was the risk of the metallic cover plate and/or surplus water on the floor of the premises being in contact with a live conductor which gave rise to the risk of injury from electricity of persons working or present in the kitchen.

48 This matter concerns a failure to ensure the cable which supplied electricity to the pump used in the wet well at the premises was not exposed to damage (or was protected from such damage) by being compressed between the cover plate and the concrete edge of the wet well, and a failure to ensure the electrical systems in use at the premises could detect and respond to any change in electrical current.

49 The measures which would have obviated the risk, as described in the particulars, were as follows:

(1) ensuring the cable of the pump was located where it was not likely to be damaged by being flattened and/or compressed or ensuring it was protected against such damage;

(2) protecting the circuit supplying the socket outlet powering the pump by installing a combination 20 amp miniature circuit breaker or 30mA type II residual current device;

(3) protecting the pump by replacing the socket outlet into which it was plugged with a switched socket outlet incorporating a 30mA type II residual current device.

50 There are a number of factors which increase the objective seriousness of the offence including the foreseeability of the risk, the seriousness of the injury suffered and the availability of simple remedial measures (see Cross City Tunnel at [191 (i) - (iii)]).

51 It was submitted by the prosecutor (and, indeed, conceded by the defendant) that the risk in the present case was foreseeable. Whilst there was a recess provided in the concrete rebate of the wet well in which the cable could be positioned, there was no mechanism in place which prevented the cable from being moved out of that position. Given that the cover plate at the top of the wet well was regularly removed and replaced (when the wet well was serviced or the pump replaced), the risk of the cable moving out of its position in the recess at such times and becoming subsequently jammed between the cover plate and the concrete edge of the wet well was, in the absence of adequate checks of the position of the cable, foreseeable (indeed, it was opined by Mr Loy, in his report, that the removal and replacement of the cover plate which occurred during the last service of the wet well prior to the incident, on 25 November 2009, could have resulted in the cable being positioned, as it was at the time of the incident, wedged between the cover plate and the concrete edge). Further, given that the cable was not provided with protection from mechanical damage beyond the usual insulation, the risk of the cable receiving resultant damage (causing the exposure of an active conductor) in such circumstances was foreseeable.

52 Furthermore, the pump was an electrical item which was designed to operate submerged in water, a conductor of electricity. The defendant was aware that the grease trap had the potential to overflow and cause surplus water to pool on the floor of the premises. This was evidenced by the fact that the grease trap had previously overflowed in that manner (according to the evidence given by Ms Stojkovic, the grease trap would overflow approximately once every six months). Given its proximity to water and the metallic cover plate (which was also a conductor of electricity), the risk of injury from electricity flowing from any damage to the cable was, in the circumstances, foreseeable. That risk manifested in the electrocution of Mr Groen and the electric shock to Mr Singh.

53 I accept the submission by counsel for the defendant that there were some safe systems in place prior to the incident. Those systems included the servicing of the grease trap every six weeks, the engagement of a licensed plumber to carry out repair or replacement of the pump, the verbal induction and training of employees, the use of experienced staff members to supervise every shift and the regular inspection of electrical appliances by the manager of the business. A system was in place whereby staff reported to management any faults or problems with the equipment they operated, and instructions were provided to employees as to what steps were to be followed in the event the grease trap overflowed. Employees rostered to work in the cafe area and the front of the premises, including Mr Groen, had been given a general direction not to enter the kitchen area of the premises (although, it was accepted, there was no barrier to prevent that occurring). Staff were directed to speak to kitchen staff by means of a servery that connected the cafe area of the premises with the kitchen. The existence of such safety procedures prior to the incident, it was submitted, may mitigate the objective seriousness of the offence.

54 However, as the Court noted in McDonalds at [219] (citing Kembla Coal and Coke at 33 and WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Industrial Relations Commission, NSW, Matter No. CT 1280 of 1995, Hill J, 2 April 1997) at 21) and, more recently, Inspector Nicholson v Gallagher [2012] NSWIRComm 121 at [48], whilst the existence of safety procedures and systems is a factor which is relevant to the assessment of the seriousness of the offence (and which may mitigate the objective seriousness of the offence), those systems must also include searching for and identifying all possible risks and instituting safety measures to guard against those risks.

55 When viewed in the context of the risk to safety occasioned at the premises, it is apparent that there were significant flaws in those systems. I accept the submission of the prosecutor that the defendant was required to turn its mind to the placement of the cable, and the means by which the risk of injury from electricity flowing from any damage to the cable (which, as noted, given its location and condition, could not have been disregarded as unknowable or unlikely) could have been limited or controlled.

56 It was agreed between the parties that there was no evidence as to how or when the cable became compressed and consequently damaged. I accept that no inference can be drawn in this respect, other than that the cable could have been moved from its position in the recess and jammed between the cover plate and the concrete when the pump was last replaced or the wet well last serviced some months prior to the incident. However, this fact is, in itself, demonstrative of the inadequacy of the safety systems of the defendant. There was uncertainty as to what processes or procedures had been undertaken, at least in relation to the recent servicing of the equipment. It was noted by Mr Loy that, although the damage to the cord was latent, the compression of the cable between the cover plate and the concrete was, upon inspection, obvious. Had the defendant had in place a system by which the electrical systems accompanying the pump were regularly checked, it would have been observed that the cable was jammed and at risk of damage by compression.

57 This defect in the defendant's systems was added to by the fact that, on the evidence, it is not apparent that any of the people who dealt regularly with the wet well set up - namely, Mr Upton, Alternative Waste Solutions' employees and Ms Stojkovic (in the sense that she regularly checked the condition of electrical appliances at the premises, including the pump) - had any particular expertise or knowledge as to electrical systems. For example, it was made clear by Mr Loy that had the cable been fixed in position, it would not have become damaged as a result of being compressed from movement under the plate (further, the cable could have been provided with protection from any mechanical damage caused by such compression). Had the defendant engaged an electrician or other relevant specialist, the need for such arrangements to be implemented would likely have been realised (indeed, that step was taken by the defendant after the incident).

58 It is appropriate to also mention RCDs in this context. It is true that, although required by the current version of the wiring rules, the wiring rules applicable to the defendant, as an existing installation, did not require the use of a combination of circuit breakers and RCDs at the premises. As noted by Mr Loy, the system of circuit breakers installed at the premises at the time of the incident was compliant with the wiring rules applicable to the defendant. However, it must be said that RCDs were, nonetheless, known and available safety devices which would, in the circumstances, have prevented the risk (they were, in fact, introduced by the defendant immediately after the incident): McDonalds at [173]. The "testing" carried out by Ms Stojkovic indicated that the premises manifested a concern for electrical hazards which should have been sufficient to alert the defendant to the need for a proactive approach which should have included the installation of RCDs.

59 The balancing of these considerations warrants the conclusion that the defendant is entitled to a moderate reduction in penalty in consideration of the systems which were in place at the premises prior to the incident.

60 A related consideration is the availability of remedial measures that were relatively straightforward or simple. Immediately following the incident, a new pump was installed by Mr Upton. The defendant engaged the services of a licensed electrician, Mr Zarich, to repair the electrical defects. Mr Zarich threaded the cable of the new pump through conduit and chased a path for the cable in the concrete floor from the wet well and under the stove. The path was covered with concrete to provide mechanical protection together with the conduit. The cover plate to the wet well was raised to eliminate the risk of it damaging the cable. Mr Zarich also upgraded the electrical installation at the premises by replacing the circuit breakers at the main switchboard with a combination of circuit breakers and, as noted, RCD safety switches. The work of Mr Zarich was approved by Mr Loy on behalf of Energy Australia. The defendant also engaged the services of CitiWide Electrical Contractors Pty Ltd to test and tag all electrical appliances at the premises and ensure they were in good working order. The defendant's employee induction and occupational health and safety procedures were formalised and documented in a manual which was provided to all employees. Employees were also provided with a brochure setting out emergency procedures.

61 The defendant closed the business for some two weeks to carry out upgrades to its systems. Approximately $10,510.30 was spent in so doing. The notices issued by the WorkCover Authority and Energy Australia were complied with by the defendant. The upgrade of the electrical installation at the premises by Mr Zarich to include RCDs was in addition to the work required by the notice issued by Energy Australia. It was conceded by the defendant that, nonetheless, the installation of RCDs was a practicable measure that was available prior to the incident which, had it been employed, would have prevented the incident.

62 Whilst these responses by the defendant following the incident were laudable, I accept the submission of the prosecutor that the steps taken were such as to reveal in clear terms the simple and decisive remedial steps which may have been taken by the defendant to abate the risk and prevent the incident involving Mr Groen and Mr Singh. In such circumstances, the steps taken by the defendant after the incident are demonstrative of flaws which existed in its previous systems: McDonalds at [226] (citing Kembla Coal at 36 and University of Sydney at 21-22) and Gallagher at [50].

63 A final consideration, in this respect, is the relationship between the seriousness of the injuries suffered and the gravity of the offence (Capral Aluminium at [94]). The occurrence of the death of Mr Groen and the injury of Mr Singh manifested the seriousness of the relevant detriment to safety arising from the failure to take adequate measures to obviate the risk.

64 It is appropriate to consider two further matters going to the question of objective seriousness. The first is the maximum penalty for the offence (see Cross City Tunnel at [192 (i)]). The maximum penalty for the offence, the defendant being a corporation and a first offender, is $550,000.

65 The second consideration is deterrence (see Cross City Tunnel at [192 (iii)]). General deterrence is applicable in relation to this offence. It is necessary to ensure that the penalty properly reflects the need for general deterrence so as to draw attention to those operating in the restaurant and cafe sections of the hospitality industry, and the large number of other enterprises which utilise electrical appliances in kitchens or like businesses of the kind here employed, to the appropriateness of implementing a system which obviates the risk of serious injury from electricity flowing from damage, by whatever means, to the cabling of such appliances.

66 Whilst the prosecutor acknowledged that significant steps had been taken by the defendant since the incident to ensure the safety of workers at the premises, it was submitted that specific deterrence should be a relevant factor in sentencing given that the defendant continues to be an employer. So much was accepted by the defendant. Despite the fact that the business has been listed on the market for sale, it remains, on the evidence before the Court, that the defendant is still in business and employing staff. In such circumstances, in accordance with the principles stated in Cross City Tunnel (at [193]), specific deterrence will be factored into the penalty imposed on the defendant.

67 There was a further matter raised by the defendant which was said to bear upon the objective seriousness of the offence and its culpability in the present matter. That is, the role of third parties. It was submitted by the defendant, in this respect, that the Court was entitled to view the nature and seriousness of the offence in relation to the defendant by reference to the contribution of third parties to the relevant risk (in reliance on Aleksic Carpentry at [22] citing Walco Hoist Rentals at [31]).

68 In McDonalds, in relation to a charge brought under s 17 of the Occupational Health and Safety Act 1983, I considered the relevance of the actions of third parties in determining penalty. I noted the following (at [159] and [211] - [212]):

159 The relationship between the defendants and Lennard, Mercer and the independent contractors is relevant to the extent that it casts light upon the level of culpability of the defendants themselves. The role performed by Lennard and Mercer in the McDonald's system in relation to the installation and maintenance of equipment, as well as the training of staff and the provision of advice, may clearly be pertinent to the reasonableness of the defendants' actions. The culpability of the defendants should be assessed in light of the systems which were in place and the reliance which was placed upon third parties to provide various services both in relation to the particular restaurant involved in this case and in the system of safety employed in the entire McDonald's system. The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken.

...

211 However, I do not consider that the degree of mitigation sought by the defendants can be justified by the submissions relating to the reliance placed by the defendants on Lennard and Mercer, nor by the information tendered in relation to the wider involvement of those entities in the McDonald's system. Whilst the defendants did contract with various entities to provide services to its franchisees, they nonetheless retained a significant role through the instigation, monitoring and evaluation of programs relating to the installation and maintenance of equipment. They were not, as the defendants themselves sought to describe it, entirely dependent upon Lennard and Mercer in relation to the safe installation and maintenance of the equipment in use in their restaurants.

212 In light of these findings, this case does not demand more extensive comments in relation to the delegation of duties to third parties. However, I would express my doubt that an argument such as that raised by the defendants would normally result in the very substantial reduction in penalty sought by the defendants. I do not consider that a person who has control of non-domestic premises made available as a place of work or control of plant provided for use or operation at work and who fails to ensure that the premises or plant are safe could escape the bulk of their culpability under s17 of the Act by seeking to delegate responsibility for maintenance to third parties. In many instances it would be quite proper to contract third parties to conduct maintenance, for example. However, some responsibility will normally remain to consider what services should be provided and, so far as possible, to ensure that the services were performed adequately. At the very least, the defendants in this case were involved to that extent, although for the reasons I have given, there was not sufficient fulfilment of their obligations under the section.

69 The principle expounded in McDonalds, that the relevance of the conduct of a third party is that it may cast light on the culpability of a defendant in proceedings under the Act, was subsequently applied in the Full Bench decisions of Simpson Design Associates Pty Ltd v Ching [2011] NSWIRComm 7; (2011) 205 IR 40 at [159] and Morrison v Powercoal (No 3) at [124].

70 Whilst the defendant in the present matter accepted that its own responsibilities could not be delegated, it was submitted that the Court was entitled to take into account the reliance placed by the defendant on the advice and expertise provided by Mr Upton and Alternative Waste Solutions. Further, it was submitted that the Court should have regard to the fact that the defendant controlled the premises pursuant to the terms of the lease and, in particular, that it was prevented, as lessee, from altering the physical structure of the premises including the size of the wet well.

71 It was submitted by the prosecutor, in this respect, that, given the way in which the third parties engaged by the defendant came to interact with the premises, the contribution of those third parties could not be relied upon by the defendant in mitigation of the objective seriousness of the offence.

72 I accept that the defendant may have envisaged that Mr Upton or Alternative Waste Solutions, being professional service providers engaged by the defendant, who dealt with the premises - and, in particular, with the wet well, cover plate, cable and pump - on a relatively regular basis, would have been capable of detecting actual or potential problems with the electrical condition of the pump (being the issue to which the defendant was required to turn its mind).

73 However, when the circumstances of the present case are contrasted with those of McDonalds, the discount to which the defendant is entitled by virtue of its reliance on third parties must be small. There are a number of factors which lead to this conclusion. First, and as previously observed, it is evident that none of the services engaged by the defendant were specialised to deal with the problem at hand, namely, the electrical arrangement of the pump. Leaving open the question of whether Mr Upton, a licensed plumber, was qualified to attend to the electrical installation of the pump on the occasions he replaced it, the fact remains that none of the services engaged by the defendant were devoted to the electrical installation of the pump. Secondly, whilst there appears to have been some acknowledgement by the defendant of the potential risks associated with the use of electrical appliances in a kitchen area, evidenced by the fact that Ms Stojkovic herself tested the electrical appliances on a regular basis to ensure they were in working order, it does not appear that the defendant considered whether it was necessary to engage a specialist to undertake a comprehensive electrical inspection of the premises. It certainly did not do so. As previously mentioned, Ms Stojkovic was not qualified to undertake such testing and, to the extent that her actions in doing so constituted a "mind" being "turned" to the electrical condition of the pump and other appliances, it was a mind which was not equipped to do so.

74 Overall, in the circumstances, the attention given by the defendant to the engagement of specialist third parties fell well short of that which was paid by the defendants in McDonalds (which, nonetheless, did not attract a "very substantial" discount (at [212]), and did not, by and large, demonstrate that proactive attention was paid by the defendant to the risks to safety occasioned by its operations vis á vis electrical systems.

75 There is one final matter to which consideration must be given in determining the objective seriousness of the offence. That is, as submitted by the prosecutor, the fact that the offence not only resulted in the death of Mr Groen, but also involved the grave risk of death to Mr Singh who was, by all accounts, lucky to have survived the incident relatively unscathed. This will be taken into account as an aggravating factor in sentencing: s 21A(2)(ib) of the CSP Act.

76 On balance, and taking into account the aforementioned mitigating and aggravating factors in this matter, the circumstances of the incident, particularly insofar as it involved a risk which was foreseeable, must result in the conclusion that the offence was serious.

Subjective Features

77 I now turn to the subjective features of the matter.

78 The steps taken by the defendant following the incident are a relevant factor in mitigation: Inspector Lai v Rexma Pty Ltd and Another [2008] NSWIRComm 78; (2008) 172 IR 210 at [24] and JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; (2008) 184 IR 1 at [107].

79 The prosecutor acknowledged, in submissions, the significant steps taken by the defendant since the incident to reform its occupational health and safety system and to ensure the safety of workers at the premises. I accept that the defendant has demonstrated, by having undertaken those changes, a strong commitment to workplace safety and that is a factor to be taken into account in its favour: Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61; (2005) 147 IR 117 at [109].

80 Demonstrations of remorse and contrition by defendants is a further factor which may be taken into account in mitigation of penalty: Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 at (107) - (108); Morrison v Powercoal (No. 3) at [111]; WorkCover Authority (NSW) (Inspector Jones) v Challita [2006] NSWIRComm 207; (2006) 153 IR 409 at [39]; McDonalds at [454] and Rexma at [53].

81 The prosecutor accepted that Ms Stojkovic, in her affidavit, had expressed remorse on behalf of the defendant. Counsel for the defendant submitted that the defendant had also expressed contrition and remorse through its plea of guilty by which it accepted its act and omissions contributed to the risk. I accept that the defendant demonstrated remorse and contrition over the incident, evidenced by its plea of guilty and the statements made by Ms Stojkovic in her affidavit.

82 A related consideration is the co-operation by the defendant with the WorkCover Authority of New South Wales: WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363 at [30]; Challita at [39] and Rexma at [53]. I accept that the defendant co-operated with the WorkCover Authority in its investigation and should, accordingly, be entitled to a discount in that respect.

83 The next consideration is the discount which should be afforded to the defendant for the entry of a plea of guilty.

84 It was submitted by the prosecutor that, given the six month delay between when it was first charged and the date the plea was entered, the defendant could not be taken to have entered its plea at the earliest possible opportunity. Thus, it was submitted, the utilitarian value of the plea was diminished. So much was conceded by the defendant (although it sought to explain the delay by reference to negotiations which had occurred during the intervening period which led to a charge against the manager of the business being withdrawn). It was submitted by the defendant that the discount should be, nonetheless, at the high end of the range.

85 I discussed the principles applicable to an assessment of the appropriate discount for the utilitarian value of a guilty plea in Ullrich at [77], as follows:

The determination of where, within the range of 10 - 25 per cent, a discount should fall in a particular case is a matter for the discretion of the sentencing judge, based on a consideration of the utilitarian value of a plea to the efficiency and effectiveness of the criminal justice system : R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3], [115] and [153]. In Thomson, Spigelman CJ (as he then was) held, at [154], that there are two circumstances which will generally affect the appropriate level of discount in a particular case: the primary consideration is the time at which a plea is entered; the other consideration is the extent of the utilitarian benefit, for example, in the avoidance of a lengthy trial. (I note that the judgment of the Full Bench in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2002] NSWIRComm 108; (2002) 115 IR 78 at [37] required that, after the judgment in R v Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300, the principles in Thomson were to be applied in sentencing offenders under the Act).

86 Also, in Gallagher at [81] - [81] as follows:

81 In Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143, Boland J made reference to the following principle espoused by the Court of Criminal Appeal in R v Dib [2003] NSWCCA 117 at [5] - [6] (which principle was also referred to by the defendant in submissions):

If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.

This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.

82 However, Boland J went on to note, in Duct Master at [38], the following:

However, simply because a defendant waits until the prosecution amends the charge before entering a plea at the earliest opportunity thereafter, that will not, in my opinion, automatically lead to the sentence being discounted by 25 per cent. Some assessment would need to be made about whether the delay in pleading caused an unnecessary waste of time and resources.

87 The timing of the defendant's plea, coming some six months after proceedings were first filed, was such as to result in a reduction in, to quote Dib, " its advantage to the administration of justice". However, it must be concluded that the loss of that advantage was modest. The defendant shall receive a discount of 20 per cent for its plea of guilty.

88 One further matter which requires some discussion is the financial position of the defendant. It was expressly submitted by counsel for the defendant that it did not rely on impecuniosity. No claim under the Fines Act was made on its behalf. However, it was submitted, the Court should have regard to the financial records provided by Ms Stojkovic, on behalf of the defendant, which indicated that, although the corporation is viable, it has only modest assets. Furthermore, it was contended, the defendant was a small family business (which employs only approximately six employees and one manager) and, thus, the liability of any penalty imposed will be borne by the sole director of the business.

89 It was submitted by the prosecutor, in this respect, that, having regard to the financial records provided, the business run by the defendant, whilst currently listed on the market for sale, appeared to have been "moderately successful" - that is, it made a profit in each of the three years for which records were provided. Whilst the prosecutor accepted that, in terms of general sentencing policy, the financial means of a defendant are relevant, the fact that a significant fine may burden the defendant and its financial resources does not necessarily preclude the imposition of a heavy penalty (in reliance on Walco Hoist Rentals).

90 In McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353; (2004) 137 IR 310, the Full Bench made the following comments in relation to the consideration of the financial position of a corporate defendant which operated as a family business or via the personal exertions of its director/shareholder (at [25]):

In addition, we note the following principles which have been settled for the consideration of the financial situation of the defendant:

1. In the context of determining penalties in prosecutions for a breach of occupational health and safety legislation by a corporation, it may be appropriate, in some limited circumstances, for the Court to have regard to whether the defendant's corporate structure is little more than a means of distributing earnings arising from personal exertion or where the burden imposed by a fine will fall on one person or family, compared with a corporation which is functioning as "a company with assets of a substantial kind": see Haynes v CI&D Manufacturing (1995) 60 IR 455 at 457. However, it is now also clear that the fact that a corporation may represent the alter ego of a person or family and that any penalty imposed on the corporation will consequently have a financial impact on that person or family does not, of itself, warrant a reduction in penalty: WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Ltd trading as Old But New [2004] NSWIRComm 247; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317.

2. The financial position and the means of a defendant should be taken into account when determining penalty. It is well established that, notwithstanding such considerations, the penalty must ultimately reflect the objective seriousness of the offence: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209; WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at 308-309; Manpac Industries Pty Ltd v WorkCover Authority of New South Wales (2001) 106 IR 435.

91 I also made the following general observations, in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25; (2002) 112 IR 284, in relation to the consideration of a defendant's means in sentencing proceedings for offences under the Act at [83] - [85]:

83 The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at [50]):

It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200 - 201.

84 This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at [81] - [82]):

... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at p339); WorkCover Authority of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at p333; and Profab Industries (49 NSWLR at p714, 100 IR at p76).

However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at pp209 - 210, Wright J, President observed :

... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. ... ... When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ...

85 I would reiterate what the Court stated in WorkCover Authority of NSW (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 (at 476):

Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see Rahme (1989) 43 A Crim R 81 at 86

(See also Inspector William Hopkins v Michael Wheritt trading as M J Wherritt Concrete Pumping Services [2002] NSWIRComm16 at [59] - [60]).

92 Having regard to those principles, it is appropriate for the Court to have regard to the fact that any penalty imposed will consequentially have a financial impact on the sole director or the family, as compared to the situation of "a corporation which is functioning as 'a company with assets of a substantial kind'" (McColl at [25(1)] quoting Haynes v CI & D Manufacturing Pty Ltd (No 2) (1995) 60 IR 455 at 457). The defendant company is small, and its profits are modest.

93 However, there are two significant impediments to this conclusion resulting in any significant reduction in penalty.

94 First, there is no suggestion of impecuniosity. As the prosecutor submitted, the defendant is, from a business viewpoint, moderately successful.

95 Secondly, it must be emphasised that, although some consideration may be given to the structure and financial position of the defendant, the nature and seriousness of the offence is the primary determinant of penalty; subjective features ought not result in a reduction in penalty that fails to recognise the seriousness of the offence (Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Style Wise Interiors [2002] NSWIRComm 64 at [113]. See also Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190; (2001) 106 IR 435, R v Rushby (1997) 1 NSWLR 594, Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153, Ferguson v Nelmac Pty Limited (1999) 92 IR 188 and Cross City Tunnel). This is a serious offence and the penalty must reflect that conclusion.

96 The balancing of these considerations in this matter will simply result in the Court refraining, in accordance with general principles of sentencing, from imposing a crushing or oppressive penalty having regard to the circumstances of the offender (Retsos v Regina [2006] NSWCCA 85; R v Reader (Brian Henry) (1988) 10 Cr App R(S) 210 (at 214); Karabelas at [16] and Rahme v R (1989) 43 A Crim R 81 (at 86)).

Conclusion

97 As earlier noted, the Court must ensure that mitigating and subjective factors do not produce a sentence which fails to sufficiently take into account the objective seriousness of the offence.

98 Here, a young worker was killed as a result of his exposure to electricity flowing from a damaged electrical cable which allowed a copper conductor within to come into contact with a metallic plate and surplus water which had overflowed from the wet well onto the floor of the kitchen. The objective seriousness of the offence is well manifested by the charge and the particulars thereof, and the various factors discussed in this judgment which dictate a conclusion that the offence, as I have earlier observed, remains a serious one. Nonetheless, I have reduced the penalty which may have otherwise been imposed upon the defendant because of the mitigating factors bearing upon objective seriousness and subjective features. I shall impose a penalty of $100,000 with a moiety to the prosecutor. The defendant shall pay the costs of the prosecutor for these proceedings as agreed or, in default, as assessed.

Orders

99 In all the circumstances, the Court makes the following orders:

1. The defendant is convicted of the offence as charged.

2. The defendant is fined the sum of $100,000 with a moiety to the prosecutor.

3. The Court further orders that the defendant shall pay the costs of the prosecutor for these proceedings as agreed or, in default, as assessed.

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Decision last updated: 28 November 2012