MAGISTRATES COURT OF QUEENSLAND
| CITATION: | Guilfoyle v Huckleberry Australia Pty Ltd [2023] QMC 1 | |
| PARTIES: | Aaron John Guilfoyle | |
| (Complainant) | ||
| v Huckleberry Australia Pty Ltd | ||
| (Defendant) | ||
| FILE NO/S: | BNE-MAG- 00025333/20 File No-MAGISTRATE-00151279/20(1) | |
| PROCEEDING: | Criminal proceeding — Offence contrary to Work Health and Safety Act 2011, section 32 — Failure to comply with health and safety duty which arose under section 19(2) of Act — Nature of the duty — Uniform national workplace safety laws. Sentencing decision — Objective seriousness of offending — Aggravation and mitigation — Deterrence, General and Specific — Denouncing offending conduct — Rehabilitation — Capacity to pay a fine. | |
| ORIGINATING COURT: | ||
| Brisbane Magistrates Court | ||
| DELIVERED ON: | 8 February, 2023. | |
| DELIVERED AT: | Brisbane | |
| HEARING DATES: | 24 November and 1 December 2022 | |
| MAGISTRATE: | Costanzo J | |
| ORDERS, | 1. The defendant is convicted and fined $250,000. | |
| DIRECTIONS, and | 2. The conviction is not recorded. | |
| ||
| RECOMMENDATION: | $1099.70 (being $1000 professional costs and $99.70 costs of court). |
4. I direct that pursuant to section 34(2A) of the State Penalties Enforcement Act 1999, the Registrar give particulars of the fine and costs orders to the State Penalties Enforcement Registry for registration and collection.
5. I recommend that the Queensland Government undertake a review of the relevant Codes of Practice relating to the Work Health and Safety Act 2011 to at least include all swimming activities conducted by Australian and international tourists in tour groups.
| REPRESENTATION: | Mr T Ward, Solicitor, Office of the Work Health and Safety Prosecutor, for the complainant. |
| Mr Y Araki of Counsel, instructed by Austral Asia Law, for the defendant. | |
| STATUTES | Acts Interpretation Act 1954; s 36, sch 1. Crimes Act 1914 (Cth); s 16C. Criminal Law (Rehabilitation of Offenders) Act 1986; s 11. Penalties and Sentences Act 1992; ss 4, 5, 9, 12, 48. Safety in Recreational Water Activities Act 2011; s 43. State Penalties Enforcement Act 1999; s 34(2A). Victims of Crime Assistance Act 2009; s 6. Work Health and Safety Act 2011 (NSW); ss 17, 19, 32. Work Health and Safety Act 2011 (Qld); ss 3, 8, 13, 14, 15, 16, 17, 18, 19, 29, 31, 32, 33, 230. |
| CASES | Baiada Poultry Pty Ltd v R [2012] HCA 14. Bennett Developments v Steward [2020] QDC 235. Barbaro v R (2014) 253 CLR 58; (2014) 305 ALR 323; (2014) 88 ALJR 372; (2014) 236 A Crim R 116; [2014] HCA 2. Bulga Underground Operations v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37. Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610; [2000] NSWIRComm 710. Carrington Slipways Pty Ltd v Callaghan (1985) 11 KR 467. Edwards v National Coal Board [1949] 1 All ER 743. Guilfoyle v Queensland Police-Citizens Youth Welfare Association, unreported decision of Magistrate Ho, 16 November 2020. Jahandideh v R [2014] NSWCCA 178. Markarian v R (2005) 228 CLR 357; (2005) 215 ALR 213; (2005) 79 ALJR 1048; [2005]… |
Keep reading for free
Create a free CaseChat account to read Guilfoyle v Huckleberry Australia Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2023] QMC 1
- Decision Date
CaseChat Overview and Summary
Huckleberry Australia Pty Ltd and six other entities and five individuals were prosecuted for breaches of work health and safety laws following the deaths of two Japanese students on a tour of K’gari (Fraser Is). The court was required to determine whether the defendants breached their duty of care under section 19(2) of the Work Health and Safety Act 2011 (Qld). The prosecution argued that the defendants failed to take reasonable steps to eliminate or minimise the risk of death or serious injury to the students during the tour, specifically in relation to the dangerous activities around Lake McKenzie. The defendants contended that they had taken reasonable care to ensure the safety of the students and that they could not have reasonably foreseen the risk of drowning.
The court found that the defendants had a duty to ensure the safety of the students during the tour, including taking reasonable steps to eliminate or minimise the risk of death or serious injury. The court held that the defendants failed to discharge this duty, as they did not adequately assess the risks associated with the activities around Lake McKenzie and did not take reasonable steps to ensure the students' safety. The court found that the defendants' failure to provide adequate supervision, warnings, and safety measures contributed to the deaths of the two students. The court also noted that the defendants had a history of similar incidents and had not taken sufficient action to prevent future occurrences.
The court imposed a penalty of $180,000 on Huckleberry Australia Pty Ltd, reflecting the seriousness of the breach and the need for deterrence and denunciation. The court considered the comparative sentences in similar cases and the factors that influenced the sentencing decisions, such as the defendants' capacity to pay, cooperation with the investigation, and post-incident measures taken to improve safety. The court also took into account the defendants' history of similar incidents and their failure to take reasonable steps to prevent future occurrences.
The final orders of the court included the imposition of fines on the defendants and the recording of their convictions. The court also ordered the defendants to take specific steps to improve their work health and safety practices, including conducting risk assessments, providing adequate supervision, and implementing safety measures to prevent similar incidents in the future.
The court found that the defendants had a duty to ensure the safety of the students during the tour, including taking reasonable steps to eliminate or minimise the risk of death or serious injury. The court held that the defendants failed to discharge this duty, as they did not adequately assess the risks associated with the activities around Lake McKenzie and did not take reasonable steps to ensure the students' safety. The court found that the defendants' failure to provide adequate supervision, warnings, and safety measures contributed to the deaths of the two students. The court also noted that the defendants had a history of similar incidents and had not taken sufficient action to prevent future occurrences.
The court imposed a penalty of $180,000 on Huckleberry Australia Pty Ltd, reflecting the seriousness of the breach and the need for deterrence and denunciation. The court considered the comparative sentences in similar cases and the factors that influenced the sentencing decisions, such as the defendants' capacity to pay, cooperation with the investigation, and post-incident measures taken to improve safety. The court also took into account the defendants' history of similar incidents and their failure to take reasonable steps to prevent future occurrences.
The final orders of the court included the imposition of fines on the defendants and the recording of their convictions. The court also ordered the defendants to take specific steps to improve their work health and safety practices, including conducting risk assessments, providing adequate supervision, and implementing safety measures to prevent similar incidents in the future.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The maximum penalty for an offence contrary to section 32 of the Act, when committed by a body corporate, is a fine of $1.5 million (15,000 penalty units[1]). See the further discussion about penalties below. THE FACTS The parties tendered an agreed Statement of Facts [2]. The facts of the offence and particulars upon which this judgement must be based can be summarised as follows. On 29 March 2019, during a guided tour of Fraser Island, two 16 year old Japanese students, Masters Taiki Mizuno and Shinnosuke Kimura, died because they drowned in Lake McKenzie. The two boys were part of a group of seven male and eight female students from Kanagawa University High School in Japan. This court acknowledges that in September 2021 (well after the offence took place) the World Heritage Area within the Great Sandy National Park (which is centred on Fraser Island) along with the surrounding waters and parts of the nearby mainland, were renamed K’gari - the original Butchulla people’s name for Fraser Island. [3] The word K’gari means ‘paradise’ in the Butchulla language.[4] In this case that could be taken as either a tragic irony or as apt, befitting the fate of Masters Taiki Mizuno and Shinnosuke Kimura. Others can decide for themselves. However, out of respect for the victims, their families, and for all cultures now concerned with the island this judgment will refer to the island with both names reversibly conjugated as ‘K’gari (Fraser Is)’ unless the context demands otherwise— such as a direct quote from a document. Six entities and five individual employees were involved in organising the tour to K’gari (Fraser Is). I have set out their roles in the following table: The agreed Statement of Facts also presented the following chronology. 10 May 2018. Kingfisher Bay Resort emailed a "Partnership agreement" to Yoshida. It included a quote and set out proposed details for the trip to the island including accommodation from 28 to 30 March 2019, and a "Full day 4WD island tour". 25 May 2018. Yoshida signed the agreement, on behalf of Huckleberry. The Resort issued an invoice to Huckleberry (dated 7 March 2019) and an itinerary for the KUHS trip, including a "Full 4WD Island Tour of Fraser Island" on Day 2. Huckleberry had made arrangements for a similar study tour of students from KUHS in 2018, including a trip to the same island. However, a guide from a different travel company accompanied the students on that trip. 7 December 2018. "Group Study Tour Application forms" provided by Huckleberry were filled out for Master Mizuno and Master Kimura, and signed by their parents. The forms did not ask about swimming ability (nor, I note, about consent to go swimming), but included questions regarding allergies, medications and health issues. November 2018, January 2019 and March 2019. Three known pre-trip meetings were held by KUHS (in Japan), and attended by participating students and their parents. Minatoya ran the meetings, while KUHS staff and JTB representatives were present.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The prosecution submitted that a penalty between $150,000 and $180,000 represents just punishment that adequately achieves the aims of deterrence and denunciation. Work health and safety prosecutions are often factually unique, making it difficult to provide precedent decisions of a like nature. I was told there is a small body of decisions (in Queensland and interstate) regarding sentencing for category 2 offences, but that the facts and circumstances of those cases vary greatly from this case; in particular when it came to decisions about a breach of the duty pursuant to section 19(2) of the Act (as opposed to breaches of a section 19(1)). Comparative sentence decisions relied on by the prosecution Bennett Developments v Steward [10] Bennett Developments pleaded guilty to a section 32 offence. At a construction site fatal injuries were sustained by a worker (a painting contractor) who fell 3.2 metres through a void. The investigation revealed no protection was in place. A make-shift pallet barrier was initially used, rather than scaffolding which was due to be installed three days after the incident. At some point, prior to the death, that barrier was removed. Bennett Developments had poor systems in place and were said to have a "laissez faire attitude." Morzone DCJ agreed with the Magistrate at first instance, that the range in that particular case was a fine between $150,000 and $250,000 and determined that the $250,000 fine imposed at first instance was not manifestly excessive. Guilfoyle v Queensland Police-Citizens Youth Welfare Association [11] The PCYW Association pleaded guilty to a category 2 offence for breaching their s19(2) duty. An unaccompanied 15-year-old died after his neck was pinned under a weights bar on a Smith Machine. Their failure was in not enforcing a policy that 12 to 15 year year old patrons be accompanied by a parent or guardian. Capacity to pay a fine was not an issue. However, the PCYW Association was a not-for-profit organisation. It cooperated with the investigation, and like Huckleberry it took significant post-incident measures investing $800,000 to improve safety, entered a timely plea. Theses were all accepted as demonstrating remorse. Magistrate Ho also found of significance, among other factors, were: Magistrate Ho imposed a fine of $300,000. The conviction was not recorded. Williams v New Leaf Ag Pty Ltd [12] New Leaf Ag Pty Ltd pleaded guilty to a category 2 offence, arising out of an incident on a rural property where a 14 year old worker was killed when he became dislodged from a trailer being towed behind a tractor. The deceased and his twin brother were working on the property during school holidays. Their task was to collect irrigation pipes as instructed by the leading farm hand. They were unsupervised while they performed the task. They did have an induction and some training about how to operate the tractor; however, ultimately, there was inadequate supervision, and no risk assessment (as in Huckleberry’s case) or safe work procedure. Magistrate Manthey fined the defendant company $400,000. Whether to record the conviction
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.