McAndrew v Simmons

[2020] NSWDC 81

District Court

New South Wales

Medium Neutral Citation:	McAndrew v Simmons [2020] NSWDC 81
Hearing dates:	23 March 2020
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1   Richard Wayne Simmons is convicted. 2   I impose a fine of $90,000. 3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 4    The offender is to pay the prosecutor’s costs of the proceedings as agreed or assessed.
Catchwords:	CRIMINAL LAW – work health and safety – exposing worker to a risk of death or serious injury   SENTENCING – objective seriousness - deterrence – aggravating factors - mitigating factors – substantial harm, injury, loss or damage – no record of previous convictions – prospects of rehabilitation – plea of guilty – remorse – capacity to pay
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011 Occupational Health and Safety Act 2000
Cases Cited:	Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Jahandideh v R [2014] NSWCCA 178 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412
Category:	Principal judgment
Parties:	Louise Mary McAndrew (Prosecutor) Richard Wayne Simmons (Defendant)
Representation:	Counsel:   P McDonald SC with C Magee             (Prosecutor)       B Taylor (Defendant)   Solicitors:    McCullough Robertson (Prosecutor)       Rankin Ellison Lawyers (Defendant)
File Number(s):	2018/381385
Publication restriction:	None

Judgment

Introduction

1. Richard Wayne Simmons (the offender) has pleaded guilty to an offence that being a person conducting a business or undertaking who had a health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (the Act), he failed to comply with that duty and thereby exposed Stephen Norman to a risk of death or serious injury contrary to section 32 of the Act.

2. The maximum penalty for the offence is a fine of $300,000.

3. The sentence hearing was conducted by audio-visual link (AVL) as a result of the COVID-19 pandemic. The defendant asked to be excused from appearing by AVL on pronouncement of the sentence.

Facts

4. The Agreed Statement of Facts can be summarised as follows.

5. Bloomfield Collieries Pty Ltd (Bloomfield) operated an open-cut coal mine at Rix’s Creek in New South Wales (the Mine).

6. The offender, in partnership with his wife (the Partnership), operated four coal haulage trucks (the trucks) at the Mine, pursuant to an agreement with Bloomfield. Only three trucks were used at any one time, with one being kept in reserve when another truck was unavailable. The trucks operated 24 hours per day, five days per week and some weekends, with drivers working 12 hour shifts. The Partnership was paid an hourly rate per truck.

7. The Partnership also operated a number of trucks hauling sawdust and chicken manure, to and from chicken growers (the Chicken Business). The offender usually drove a truck in the course of the Chicken Business and was infrequently present at the Mine.

8. After being washed, coal was placed in a storage bin at the wash plant at the Mine. The trucks loaded coal from the storage bin and took it to about 2 km to the rail loader. The trucks were required to operate continuously to keep the storage bin below a certain level. If there was more coal in the storage bin than permitted, an alarm sounded and the wash plant was shut down. Ordinarily, three drivers worked on each shift. Mr Norman was employed maintaining the trucks and as a back-up driver when required. Mr Norman had worked for the partnership for 13 years, initially as a driver, until he transitioned into the maintenance role in or about December 2016.

9. The offender had worked either individually or through the Partnership at the Mine for about 30 years. The offender had the day-to-day responsibility for the Partnership’s operational decisions.

10. The Partnership workers did not attend pre-shift meetings at the Mine and were not usually included in Bloomfield’s safety meetings. There were no regular meetings between the Partnership and Bloomfield and Bloomfield did not ordinarily direct the Partnership on how to conduct its work. Prior to the incident, the Partnership requested that a number of facilities be made available to its workers, such as a dedicated crib room, toilets, a lit covered walkway to Bloomfield’s offices and a dedicated place to service the trucks, but these requests were denied.

11. Bloomfield’s operations at the Mine were overseen by its Open Cut Examiners (OCE), one of which was onsite at all times. OCE’s were responsible for the safe operation of the Mine, including providing for the safety of contractors and their employees. The Partnership’s workers were also supervised by Bloomfield’s Surface Foreman during the day shift. Bloomfield had in place, as part of its safety management system (SMS), a contractor management system (CMS). The CMS required the Partnership to comply with the Occupational Health and Safety Act 2000, to put in place its own SMS and to comply with Bloomfield’s SMS. Bloomfield had not provided training on its SMS to the Partnership and the Partnership workers did not know if they worked under Bloomfield’s SMS or the Partnership’s SMS. The Partnership understood that it had to get Bloomfield’s permission before constructing any improvements for its benefit, such as meal rooms, toilets and truck servicing facilities.

12. The Partnership developed a documented SMS in 2005, containing 19 separate components. However, the Partnership did not implement its SMS or have any safe work procedures. The SMS was not updated to reflect legislative changes, such as the introduction of the Act. Bloomfield reviewed the Partnership SMS in 2010 as part of an audit, but did not retain a copy of it.

13. Bloomfield left it to the Partnership to train its workers to be competent for the work to be performed at the Mine. Bloomfield provided an induction to the Partnership workers at the Mine, which was required to be repeated every two years. The Partnership conducted an informal on-the-job assessment of a driver’s ability to operate a truck at the Mine. The Partnership workers were not trained on how or when to conduct a risk assessment or job safety analysis (JSA), apart from being given a 20 minute toolbox talk on those matters in about June 2014 and as a small part of the contractor induction delivered by Bloomfield.

14. Mr Norman received a face-to-face induction from the Logistics Manager at the Mine in 2009, 2011 and 2013. In 2015, Mr Norman received contractor induction training using an online competency management system known as ‘Pegasus’. Mr Norman received other training on about six occasions from Bloomfield on various topics, but not on risk assessment or JSAs.

15. Bloomfield had not conducted any training needs analysis relating to the Partnership’s workers since about January 2010. Bloomfield had a detailed system relating to risk assessment and JSAs in operation at the Mine. The Partnership’s SMS required its workers to comply with Bloomfield’s policies and procedures in place at the Mine, which included these elements

16. Mr Norman was on a final written warning from Bloomfield and the Partnership as a result of a safety incident on 27 February 2014. Mr Norman had received at least two verbal warnings on prior occasions for failing to comply with isolation procedures at the Mine. He had been identified as needing improvement with respect to basic principles of Risk Management in February 2014 and January 2015 and as still needing assistance in June 2015. Bloomfield did not implement additional supervision of Mr Norman, or the other Partnership workers, as a result of the final written warning.

17. The offender was responsible for supervising the work of the Partnership workers at the Mine. He did not ordinarily attend the Mine and stayed informed through his morning telephone conversations with Gary Bates, one of the drivers. Mr Bates was not employed as a supervisor, but was perceived by others to be so.

18. The trailers of the trucks (the trailers) needed to be washed out to remove the build-up of coal because it could cause the trailers to become unstable when tipping and could cause corrosion on the bottom of the trailer tray. The trailers were usually washed at the Mine’s wash bay. The inside of the trailer was washed using a high pressure hose by raising the body of the trailer and standing behind it. The usual method for washing the trailers did not require any worker to get into the trailer because when the trailer was raised, the tailgate swung open.

19. At the time of the incident, some Bloomfield employees believed that contractors were not permitted to use the wash bay on Saturdays except in exceptional circumstances, believing it was to be left available for the washing of Bloomfield trucks and loaders.

20. On Saturday 2 December 2016, Mr Norman had a discussion with Steven Furner, the Manager of Branxton Engineering Pty Ltd, during the course of picking up a new trailer. Mr Norman enquired as to how to disengage the automatic tailgate for the purpose of getting into the trailer to clean it out. Mr Norman told Mr Furner that Bloomfield had banned the use of the wash bay for the purpose of washing the Partnership’s trailers.

21. On Sunday 11 December 2016, the offender worked at the Mine driving a truck. At that time Mr Norman informed the offender that he had been told by a Bloomfield worker that the Partnership could not wash out the trailers at the wash bay because coal was getting into the sump at the wash bay. The offender completed his shift at the Mine at about 2.00am on Monday 12 December 2016.

22. On Monday 12 December 2016, Mr Bates did not make his usual 6am telephone call to the offender as he was aware that the offender had been driving a truck at the Mine until 2.00am that morning. The offender did not work at the Mine later on Monday 12 December 2016.

23. At about 2am on Tuesday 13 December 2016, Mr Bates and two other drivers commenced their shift at the Mine. At approximately 5.00am Mr Norman commenced his shift at the Mine. At about 6.00am Mr Bates spoke to the offender by telephone and a conversation took place regarding the following matters. The offender had observed that there was a build-up of coal in one of the trailers. Mr Bates said that he would get another driver to wash the trailer at the wash bay. The offender then told Mr Bates that he was not to do so as Mr Norman had informed him that he [Mr Norman] had been told by an unspecified Bloomfield worker that the Partnership was not permitted to use the wash bay.

24. The offender said words to the effect, “it looks like we’re going to have to get inside [the trailer]. Dig it out. It’s the only thing we can do.” The offender subsequently said, “We’ll have to just prop the tailgate open and just, with two blokes just holding it open with it propped, when he climbs inside, dig it out and hold it while he’s getting out.” Mr Bates commented that that was not how the trailers were usually washed and that it had never been done that way at the Mine.

25. The offender did not instruct Mr Bates or any of the other Partnership employees to conduct a risk assessment or JSA. Prior to the incident the Partnership did not have a documented procedure for washing a trailer and had not completed any job safety analysis or other risk assessment in relation to the washing of the trailers.

26. Mr Bates then contacted Mr Andrews, another driver, informing him that the offender wanted them to clean out the build-up of coal in the trailer of the truck that Mr Andrews was driving. Mr Bates told Mr Andrews that the offender had said that they were not to use the wash bay, and that they needed to “get in the back and dig it out.” Mr Bates told Mr Andrews that he did not want to clean the trailer manually and that he should “sneak” over to the wash bay and to avoid Mr Norman who may attempt to prevent him from washing the trailer at the wash bay. Mr Bates said he would take the blame if anything was said about the Partnership using the wash bay.

27. At approximately 7.10am the Partnership workers had emptied all of the wash coal from the storage bin, which enabled them to take a break. One of the trucks was parked under the bin and the other two were parked in the parking area. At this time, Mr Norman approached Mr Andrews and asked him to get Mr Bates to come over to assist them to hold the trailer tailgate open so that Mr Norman could clean out the trailer. Mr Norman then left to get some tools. Mr Andrews told Mr Bates that Mr Norman had stopped him from going to the wash bay, telling him that they were not allowed to do it. Mr Bates and Mr Andrews then walked over to Mr Andrews’ truck where they met Mr Norman. Mr Norman had a hand-made steel bar, with a fork at one end, and a shovel. Mr Norman said that he needed to get inside the trailer to clean the coal out. Hand-made tools were not permitted to be used at the Mine, however, Mr Norman often used the bar for various tasks at the Mine. Mr Bates and Mr Andrews stood at opposite ends of the tailgate, whilst Mr Norman jimmied the tailgate away from the trailer and Mr Bates and Mr Andrews slid their fingers under the tailgate to lift it up. Mr Norman then jammed the bar between the tailgate and the rear of the trailer to hold the tailgate open. Mr Norman threw the shovel into the trailer and entered the trailer. Mr Bates and Mr Andrews continued to hold the weight of the tailgate while Mr Norman was shovelling the build-up of coal inside the trailer. Mr Norman took about eight to 10 minutes to clean the trailer. He left the coal that he had shovelled in the trailer so that it would be tipped out with the next load.

28. Mr Norman said that he had finished cleaning the trailer and that he was getting out. Mr Bates and Mr Andrews continued to hold the tailgate as Mr Norman exited the trailer, in case he knocked the bar when getting out. Mr Norman then stepped down out of the trailer between Mr Bates and Mr Andrews. Mr Bates and Mr Andrews applied more force to the tailgate to allow Mr Norman to remove the bar. Mr Norman then hit the bar to remove it. Mr Bates and Mr Andrews released the tailgate so that it would close under its own weight. Mr Bates observed that the tailgate closed with force. The Partnership employees then returned to other duties.

29. At about 9.30am the storage bin was completely emptied again. Mr Bates was sitting in his truck reading the newspaper when Mr Norman called out to him to come over to Mr Hudson’s truck to clean out the trailer. On this occasion Mr Hudson and Mr Bates held the tailgate of Mr Hudson’s truck in a similar way to the process involved in cleaning Mr Andrews’ truck. Mr Hudson said words to the effect, “We shouldn’t be doing this, this is not safe”. Mr Norman told him to just lift the tailgate up and that he would prop it open using the bar. Mr Bates and Mr Hudson lifted the tailgate to roughly chest height. The weight borne by Mr Bates was more than he had experienced when lifting the tailgate of Mr Andrews’ trailer. At this point, Mr Hudson still did not know why he was being asked to lift the tailgate. Mr Norman attempted to wedge the bar between the rear of the trailer and the tailgate to hold it open. Mr Norman was having difficulties finding a place to do so, as the rear of the trailer was differently configured to Mr Andrews’ trailer. Mr Bates was beginning to struggle with the weight of the tailgate. He turned his body to try to shift some of the weight onto his shoulders. Mr Hudson was also struggling with the weight of the tailgate. Mr Norman was tapping the bar with his hand to see if it was in place. At this point Mr Hudson believed that Mr Norman had propped the tailgate open with the bar. Mr Hudson asked Mr Norman if he had done so, to which Mr Norman replied, “Yep, it’s right”. Mr Hudson then released the tailgate but did not warn Mr Bates or Mr Norman that he was about to do so. Mr Bates felt himself take the full weight of the tailgate. He continued to hold the weight for as long as he could, but was forced to let go after about five or six seconds. Mr Bates believed that he had to let go in order to avoid injury to himself. The tailgate swung closed hard and Mr Norman’s head was caught between the inside edge of the tailgate and the rear of the trailer. Mr Norman fell to the ground and appeared to be unconscious.

30. The tailgate on the trailer weighed approximately 322.2 kgs and the force required to open the tailgate was beyond the manual capability of the workers. The tailgate of the trailer impacted Mr Norman’s head at a velocity of approximately 12 kms per hour with a force of 12.2 KN or a 1.24 tonnes of force.

31. Mr Hudson ran to his truck to use the radio to broadcast that there was an emergency. An ambulance was called and Mr Norman was transported by helicopter to John Hunter Hospital. He died on 15 December 2016 as a result of the head injuries sustained in the incident.

32. Since the incident the Partnership has implemented a number of additional safety controls including:

1. engaging a dedicated on-site supervisor at the Mine who is responsible for training the employees in standard work procedures;

2. requiring the employees at the Mine to participate in a Partnership induction addressing advanced safety training;

3. installing a crib office for the supervisor and other workers of the Partnership at the Mine which provides for access to JSAs and other work documentation;

4. the installation of a concrete slab for Partnership trucks to be serviced at the Mine;

5. developing JSAs for the tasks of operating coal trucks that includes the direction “NO PERSON TO WORK IN TRAILER OR ON OR ABOUT TAILGATE OF TRAILER”;

6. development of job safety analysis, risk assessments;

7. weekly toolbox talks;

8. undertaking their own supervisor tasks audits;

9. engaging a consultant to assist with finalising new Partnership SMS; and

10. employing a work health and safety management co-ordinator.

33. Following the incident the Partnership also introduced a number of new documented procedures.

The Offender’s Case on Sentence

Affidavit of Richard Wayne Simmons

34. The offender read the Affidavit of Richard Wayne Simmons sworn 14 November 2019. Mr Simmons was present during the AVL hearing but not required for cross-examination. The content of the offender’s affidavit can be summarised as follows.

35. The offender has driven trucks for an extended period at the Mine. Initially he drove trucks owned by Bloomfield. About 25 years ago Bloomfield asked him to provide trucks and drivers on a contract basis. From about 1985 until about 2004, the offender was a partner in a business operated by WBW Haulage Pty Ltd (WBW). The other partners in WBW were his father-in-law (Barry) and his brother-in-law (Wayne). The offender is also usually referred to as Wayne.

36. In 1999 the offender suffered a serious workplace injury to his lower back. He continued to work in the company, but had to hire a driver to replace his services. In 2004 WBW purchased Gills Transport which was operating the Chicken Business.

37. In about 2007 WBW got into financial difficulty and its financier wanted to withdraw its support. The company arranged a re-finance with two alternate financiers. In 2008 the global financial crisis had a significant adverse effect in the company.

38. In about 2003 the offender employed Mr Norman as a driver at the Mine. Mr Norman was also Mrs Simmons’ cousin and he needed work. The offender described Mr Norman as a good driver, proud of his work but also strong-willed when he got an idea in his head.

39. The offender supervised the work of the Partnership at the Mine and drove a truck at the Mine from time to time. The Partnership had no written contract with Bloomfield, until after the incident. Bloomfield did not get involved much with the work performed by the Partnership workers at the Mine. From time to time the offender took instruction from Bloomfield as to what they wanted. The offender relied on Bloomfield for the implementation of safety procedures, but he did not sit down with Bloomfield to discuss them.

34. Increased production at the Mine required the Partnership to provide more trucks and drivers to Bloomfield. Mr Norman’s duties evolved to become more of a leading hand, maintaining the trucks and working as a spare driver, if required. The offender looked to Mr Bates to keep an eye on Mr Norman. Mr Bates was the only driver permitted by Bloomfield to have a mobile telephone in his truck, so that he could stay in touch with the offender. Mr Bates and the offender usually had a 15 minute discussion at the start of each day shift.

35. On Sunday 11 December, the offender had a conversation with Mr Norman at the Mine about keeping the trucks clean. Mr Norman told the offender that had been told by someone at Bloomfield that Partnership workers were not to use the wash bay. The offender told Mr Norman to leave it with him and he would “do something about that”. The offender believed the issue could be resolved and did not believe it was urgent.

36. At approximately 6am on Tuesday 13 December 2017, Mr Bates telephoned the offender. They discussed that it may be necessary to dig the coal out of the trailers but the offender did not instruct Mr Bates how to do so. The offender deposed that it was common practice in the industry for drivers to clean trailers by levering the tailgate open using shovels and getting inside the trailer. The offender knew Mr Bates had cleaned trailers this way in the past. Mr Bates told the offender that he preferred to use the wash bay to clean the trailers and ended the conversation by saying he would try to use the wash bay.

37. At approximately 9.30am the offender received a call from Mr Bates telling him that Mr Norman’s head had been caught between the trailer and the tailgate, and that he was being taken to hospital. The offender was driving a truck in Kempsey when he received the call. Mrs Simmons, her daughter-in-law and her mother went to John Hunter Hospital. Mr Norman remained unconscious until he died, but one of his family stayed with him for the whole time. The offender deposed about Mr Norman’s death that “it really knocked me” and that himself, his wife and family were devastated.

38. Mr Norman was close to the family because he lived with and cared for Mrs Simmons’ mother and Mrs Simmons thought of him as a little brother.

39. The family all attended the funeral and the offender organised to erect a memorial to Mr Norman at the Mine, near the Partnership’s new crib room.

40. The offender accepts that he failed to have a safety procedure in place to enable workers to assess risks involved in their work. He accepts the fault as his own and has expressed great regret that this fault caused Mr Norman’s death. On reflection, the offender acknowledges that his approach to the cleaning process undertaken by Mr Norman was ‘too casual’ due to the frequency with which he had observed it being used elsewhere.

41. Since the death of Mr Norman a number of safety process improvements have been made, including engaging safety expert Graham Heslop, to establish safety processes. [1] Bloomfield have allowed for the erection of facilities for use by the Partnership workers and for the Partnership to use the wash bay to clean the trailers.

    1. I have already referred to these in the summary of the Agreed Facts and I will not repeat them.

42. The offender deposed that he endeavoured to comply with Bloomfield’s safety procedures, but that the Partnership workers did not receive safety training from Bloomfield. The offender accepts that the Partnership should have implemented its own safety procedures.

43. The Partnership is paid around $45,000 (incl GST) a week by Bloomfield, approximately a third of which goes to pay off expenses such as chattel, mortgages over the trucks and wages. Bloomfield informed the offender that it intends to operate the Mine for the next 20 years and that it intends to extend the Partnership’s contract indefinitely. The offender deposed that the Chicken Business had been adversely affected in recent time by the bushfires and an oversupply of frozen chickens.

44. At present, the business does not make much profit and the offender does not put aside “much” for himself and hopes to “set things up” in order to pass the business onto his sons free from debts.

Affidavit of Tony Jason Croese

51. The offender relied on an affidavit of Tony Jason Croese sworn 19 November 2019. Mr Croese is the Partnership’s accountant. Mr Croese was not present at the AVL hearing and not cross-examined.

52. Mr Croese’s affidavit attached the Partnership accounts for the year ending 30 June 2019. It should be noted that at the time that Mr Croese swore his affidavit that those accounts were the most current figures for the Partnership. The sentence proceedings were delayed after that time by matters outside of the offender’s control and I have not drawn any adverse inference to the offender for a lack of up-to-date figures.

53. Mr Croese has been acting for the offender since about 1999. In or about 2002 the offender was a shareholder WBW, which failed in about 2008.

54. After that time, the offender continued to operate the haulage business through the Partnership. The offender and his wife had to sell assets and make payments over time to settle personal guarantees in the sum of about $1.25 million. Mr Croese deposed that the death of Mr Norman has had other adverse effects on the business, including some loss of productivity as well as the need to employ an additional truck driver as a safety measure.

55. The Partnership employs the offender’s two sons as drivers and also his daughters-in-law as administrative assistants. For about the past 10 years, the majority of the Partnership’s business profits have been used to pay debts owing as a result of the collapse of WBW Haulage.

56. In or about late 2019, the Partnership negotiated a written agreement with Bloomfield, including increased hourly rates for the use of its trucks at the Mine.

57. The accounts presented by Mr Croese were divided into income and expenditure relating to the Mine and the Chicken Business. The Chicken Business figures include some miscellaneous earnings.

58. In or about 2018 the Partnership purchased a number of new trucks for which it was entitled to claim significant amounts in depreciation in the accounts for the year ending 30 June 2019, because the trucks were 2 years old. This amount and will decrease in future years Mr Croese deposed that the average depreciation claimed over the previous eight financial years was $474,135. The depreciation amount claimed for the year ending 30 June 2019 was $1,055,900. When applied to the earnings of the Partnership, this resulted in a loss of $438,093. Mr Croese deposed that these figures were somewhat misleading and if the average depreciation amount was applied to the earnings for the year ending 30 June 2019, an operating profit of $143,672 would have been achieved.

59. The offender, jointly with his wife, owns real property valued at approximately $950,000, has cash on hand of about $10,000 and household furniture and effects of about $20,000. They have a joint superannuation account with a balance of $247,415. I have not taken the superannuation into account because it cannot be accessed for the purpose of paying a fine imposed in these proceedings. The offender and his wife jointly owe about $350,000 on the mortgage on their home and owe $62,500 in relation to the personal guarantees.

Affidavit of Lisa Maree Simmons

60. The offender relied on an Affidavit of Lisa Maree Simmons sworn 14 November 2019. Mrs Simmons was called to give additional evidence relating to the financial position of the Partnership and cross-examined by AVL. Mrs Simmons’ evidence can be summarised as follows. I will not repeat matters that I have already referred to.

61. Mrs Simmons keeps the books for the Partnership and supplies the figures to the Partnership accountant Tony Croese on a weekly basis. She has satisfied herself that the figures in the accounts for 30 June 2019 are accurate.

62. On 5 November 2008 a liquidator was appointed to WBW and proceedings were commenced against the offender and Mrs Simmons to enforce personal guarantees they had given in favour of its financiers. The proceedings were resolved in May 2012 with the offender and Mrs Simmons agreeing to pay about $1.2 million.

63. Mr Norman was Mrs Simmons’ cousin on her mother’s side. He had a speech impediment and an intellectual disability and he found it hard to find work and never married. The Partnership employed him as a driver in about 2005. After Mrs Simmon’s step-father died in 2006, Mr Norman became a carer for her mother and he lived in a granny flat at her house, in Thornton.

64. In about 2014, Mr Norman moved to Singleton to be closer to his work at the Mine. After that he would still go and stay with Mrs Simmons’ mother on the weekends to do things for her. Mr Norman was very proud of what he did in this regard and the family were very thankful for his efforts. He often brought Mrs Simmons’ mother to family events.

65. After Mr Norman was injured, the family stayed by his bedside at the hospital. Mrs Simmons, her mother and the offender were all very upset by his death. Mrs Simmons’ mother required grief counselling. Mr Norman is dearly missed by the family.

66. Mrs Simmons and the offender now do the things for her mother that were performed by Mr Norman. They have moved her into a granny flat at their house.

67. Mrs Simmons gave evidence that the offender still feels guilty about Mr Norman’s death and that he gets depressed thinking about it.

68. Mrs Simmons was called to give evidence and this additional evidence can be summarised as follows.

69. Mrs Simmons gave evidence that the amounts owing on the mortgage and to repay the personal guarantees were slightly reduced since the date of Mr Croese’s affidavit. She gave evidence that the amount owing on the personal guarantees was about $40,000 and that the amount owing on the mortgage was about $340,000.

70. Mrs Simmons gave evidence that the drought and the bushfires in late 2019 had had a negative effect on the Chicken Business. The drought had affected the demand for chicken manure and bushfires had impacted the production of the saw mills that the Partnership dealt with. She gave evidence that she expected the earnings of the Partnership to be well down from the figures in the 30 June 2019 accounts. However, the coal haulage business of the Partnership has remained strong.

71. In the week prior to giving evidence, Mrs Simmons had contacted the Partnership’s financiers to request a freeze on repayments. She was in the process of filling out paperwork relating to that request.

72. Mrs Simmons was concerned about the potential problems caused by the COVID-19 pandemic. She had been told by one of the Partnership’s sawdust suppliers that it was likely to shut down in the near future. The poultry growers had indicated to her that their businesses would continue but they would probably proceed on a shorter turnaround for the growth of chickens. It was necessary for one of the truck drivers to self-isolate and there were some objections by other employees as to the use of that truck. The Partnership introduced additional sanitisation measures to deal with these concerns.

73. Mrs Simmons described the Partnership as cash poor and that it had no savings at this point in time that would enable it to pay a fine, but that it could probably do so over time. She believed that the Partnership’s capacity to pay a fine depended on the COVID-19 situation.

74. In cross-examination, Mrs Simmons gave evidence that whilst the Partnership had negotiated a higher hourly rate per truck in use at the Mine, that the Mine had shortly thereafter introduced the requirement that the Partnership provide trucks on the weekend. This resulted in higher wage costs to the business because it was necessary to employ casual drivers to work on the weekend who had to be paid a higher hourly rate.

Consideration

75. I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness

76. The offence is one of significant objective gravity.

77. The Partnership took minimal, if any steps, to provide for the health and safety of its workers at the Mine. Most of the training they were given was delivered by Bloomfield. The workers were inadequately trained to recognise risks to health and safety for themselves or how to control those risks. The incident demonstrates the importance of this type of training in that the workers could not safely respond when a change to a regular work task was introduced.

78. The Partnership SMS was not being implemented at the Mine. Had it been followed, the Partnership workers would have been trained in the risk assessment and job safety analysis procedures provided by Bloomfield.

79. The risk of death or serious injury that came home was reasonably foreseeable to the offender. The offender knew that the trailers needed to be cleaned out from time to time and that was a job that usually fell to Mr Norman. The offender knew that if the wash bay could not be used that an alternative method would need to be devised and implemented. The alternative method used to remove the coal residue that required workers to get into the trailer to dig it out was a matter that was raised by the offender with Mr Bates. The alternative method required a worker to enter the trailer, either through the tailgate or over the side of the trailer. Both methods involved risks to the health and safety of the worker undertaking the task. The fact that the offender did not actually foresee the precise mechanism of the incident, or the time when the work would be undertaken are irrelevant considerations to whether or not the offender should have foreseen the risk and tried to alleviate it.

80. Mr Norman was a vulnerable worker. The offender knew that he had an intellectual disability and tended to be strong willed when he was undertaking a task. The task that led to his death was one that normally fell to him and he had not been adequately trained to appreciate the danger involved in adopting a new process.

81. The likelihood of a risk of serious injury or death being created was high, if it was necessary for a worker to enter the trailer for the purpose of cleaning it.

82. The steps that could have been taken to eliminate or minimise the risk were simple and could have been readily implemented. By his plea of guilty, the offender accepted that he should have communicated with Bloomfield to determine if the Partnership was in fact prohibited from using the wash bay. He should have directed the workers not to clean the trailers until that had been clarified. If the Partnership was prohibited from using the wash bay, the offender should have conducted a risk assessment of alternate methods for cleaning the trailers, developed a safe work procedure for doing so and provided adequate supervision of the workers.

83. Mr Norman’s death is a significant aggravating feature of the offence.

84. I have had regard to the maximum penalty for the offence.

Deterrence

85. The penalty imposed in relation to the offences must provide for general deterrence. Persons conducting a business or undertaking (PCBUs) must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

86. There is a need for specific deterrence. The offender continues to operate the Partnership business, in which a number of workers may be put at risk. However, the offender has taken significant steps to improve the safety of the Partnership’s operations and Mr Norman’s death has had a serious impact on him, which is likely to continue and to sharpen his focus on the safe operation of the business.

Aggravating Factors

87. The injury, harm and loss caused by the section 32 offences was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require the occurrence of an injury, only that a worker is exposed to a risk of serious injury or death. Accordingly, the death of Mr Norman is sufficient to establish the aggravating factor.

Mitigating Factors

88. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated by reference to the steps taken after the incident that he is willing to change and to implement better and more comprehensive safety procedures relevant to the work at the Mine.

89. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender in his evidence accepted that he should have implemented safety procedures that would have put the workers in a better position to assess the risks that they faced in cleaning the trailer in the way that they did. He accepted that the incident was his fault. The offender gave evidence that he and his wife were devastated by the death of Mr Norman. The offender went to the hospital with family and has taken on familial duties that were previously undertaken by Mr Norman. I am satisfied on the balance of probabilities that the offender has accepted responsibility for his actions and that he has expressed genuine contrition and remorse.

90. The offender entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. He is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The plea in this case was entered at a very early stage of the proceedings. The appropriate discount is 25%.

91. The offender co-operated with the SafeWork investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Capacity to Pay a Fine

92. The Court is required to have regard to section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

93. The evidence on capacity demonstrated a downturn in the Partnership earnings from the Chicken Business and an understandable concern for the future of the Partnership business in the light of the COVID-19 pandemic. The accounts for the year ending 30 June 2019 demonstrated a capacity to pay a fine of about $140,000. Further, the Partnership has demonstrated the ability to pay about $1.2 million, over a 10 year period when it was given the opportunity to do so. I have taken into account the uncertainty arising from the COVID-19 pandemic. I accept that it is likely to have an adverse impact on the Partnership’s business, but the extent of that impact is unclear. However, this is a serious offence with a need for the sentence to adequately reflect general deterrence through the imposition of a substantial fine.

94. In arriving at the appropriate penalty, I have also taken into account that the offender will be required to pay the prosecutor’s costs of the proceedings.

Penalty

95. Richard Wayne Simmons is convicted.

96. The appropriate fine is one of $120,000 which will be reduced by 25% to give effect to the plea of guilty.

95. I impose a fine of $90,000.

96. I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

97. The offender is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

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Endnote

Decision last updated: 14 April 2020