of SafeWork NSW v Concrite Pty Ltd

[2021] NSWDC 191

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Concrite Pty Ltd [2021] NSWDC 191

Hearing dates:

28 April 2021

Date of orders:

21 May 2021

Decision date:

21 May 2021

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine for the offence is $600,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(3)   Accordingly, I order the defendant to pay a fine of $450,000.00.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5)   The defendant is to pay the prosecutor’s costs agreed in the sum of $43,413.26.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay – totality of sentence - appropriate sentence - parity

OTHER – failure to notify SafeWork of a notifiable incident – failure to consult, co-operate and co-ordinate activities with other persons who had a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW)

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations v Nash (2016) 93 NSWLR 338

Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Kirk v Industrial Court (NSW) (2010) 239 CLR 531

LawrensonDiecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464

Markarian v The Queen (2005) 228 CLR 357

Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling v The Queen (2012) 35 VR 399

R v Cage [2006] NSWCCA 304

R v MA [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK [2006] NSWCCA 272

SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398

SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632

Veen v R (No. 2) (1988) 164 CLR 465

WorkCover Authority (NSW) v Menzies Property Services Pty Ltd (2004) 136 IR 449

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Texts Cited:

Concrite Site Specific HSE Induction

F001 Diesel Bulk Pump Delivery

General Guide for Traffic Management

How to Manage Work Health and Safety Risk (December 2011)

HSEQ 7-09 Traffic Management Protocol

SafeWork NSW Code of Practice Managing Risks of Plant in the Workplace

Traffic Control Measures Checklist

Traffic Hazard Checklist

Workplace Traffic Management Information Sheet’

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Concrite Pty Ltd (Defendant)

Representation:

Mr N Read, of counsel for the Prosecutor
Mr B Hodgkinson SC, for the Defendant

Solicitors: Ms S Hedger Department of Customer Service (for the prosecutor)
Ms L Constantine, Ashurst (for the defendant)

File Number(s):

2019/00292684

Publication restriction:

Nil

JUDGMENT

1. On 20 September 2017, Concrite Pty Ltd (‘the defendant’) failed to comply with their duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (‘the Act’) to ensure, so far as reasonably practicable, the health and safety of workers while engaged at work. Consequently, on 23 November 2020 the defendant pleaded guilty to an offence under s 32 of the Act, namely that in failing to comply with their s 19(1) duty, the defendant exposed workers to a risk of death or serious injury.

2. The maximum penalty for an offence under s 32 for a corporate entity is $1,500,000.

BACKGROUND

3. The defendant is a registered corporation, and its primary business is that of concrete production and supplies. One of the sites which it operates is located at 25 Mandible Street, Alexandria NSW (‘the site’).

4. The defendant is a subsidiary of Boral Limited (‘Boral’). While Boral oversees the defendant’s governance framework, the day to day operations of the site are managed by the defendant.

5. The site included a fuel tank station located adjacent to the rear yard of the site. It was often used by the defendant’s trucks and vehicles to obtain fuel. It was a high traffic area with up to 60 vehicles on the site per hour.

6. The fuel at the site was supplied by Caltex Australia Petroleum Pty Ltd (‘Caltex’) under a supply agreement with another subsidiary of Boral. The delivery of petroleum products, such as the fuel provided to the site, was undertaken by Caltex Petroleum Service Pty Ltd (‘CPS’), a subsidiary of Caltex.

7. At the date of the incident, the following workers were at the site:

1. Mr Peter Lees (‘Mr Lees’), a tanker driver employed by CPS. Mr Lees was an experienced tanker driver and had attended the site to deliver diesel fuel approximately 56 times in the course of his employment;

2. Mr Matthew Roach (‘Mr Roach’) was a truck driver employed by the defendant for approximately three and a half years.

3. Mr Rodney Lambert (‘Mr Lambert’) was employed by the defendant for approximately 20 years, 17 of those years was undertaking batching work, however, in the year proceeding the incident Mr Lambert was a truck driver;

4. Mr Michael Turner (‘Mr Turner’) was a frontend loader operator employed by the defendant for approximately four years; and

5. Mr Phil Smith (‘Mr Smith’) was the plant manager employed by the defendant for approximately four years, two and a half of which he had supervision over four concrete plants. Mr Smith was the superior of Mr Jason Carruthers (‘Mr Carruthers’), to whom Mr Lambert and Mr Roach reported to.

8. Around 3:00pm on the date of the incident, Mr Lees arrived at the site to fill the fuel station with diesel fuel. He proceeded along the required direction of traffic to the fuel station and began pumping fuel from the Caltex truck he was driving. The hatch of the fuel station’s tank had been left unlocked and Mr Lees was not required to attend the office to unlock the hatch.

9. At some point after 3:55pm, Mr Lambert and Mr Roach had both entered the rear yard of the site, driving separate concrete mixing trucks. Mr Lambert and Mr Roach had to perform turning manoeuvres in close proximity in order for Mr Lambert’s truck to exit the site. Mr Lambert’s attention was focused on not colliding with Mr Roach’s truck.

10. As Mr Lambert drove forward, Mr Lees inadvertently walked into the path of Mr Lambert’s truck and was struck. Mr Lambert was unaware that he had hit Mr Lees.

11. Mr Turner, who had been in the front yard of the site, saw something caught underneath Mr Lambert’s truck and yelled out for Mr Lambert to stop the truck.

12. Mr Lees was caught between the twin steering wheels of the truck and had been dragged for approximately 20 metres.

13. Mr Lees sustained serious injuries and as a result passed away on 22 September 2019 in hospital.

SYSTEMS OF WORK BEFORE THE INCIDENT

Boral Limited Policies and Procedures

14. The defendant applied the Boral Group WHS policies and procedures developed by Boral which were relevant to their operations. Boral had a document titled ‘7-09 Traffic Management’ which specified that:

‘a. Each Company workplace shall have a Traffic Management Plan established and implemented; and

b. A site map and/or discrete sub-maps that detail pedestrian and traffic controls shall be communicated and displayed.’

15. Boral had a Health, Safety and Environment team that provided its subsidiaries with HSE compliance. Mr Chris Smith (‘Mr Chris Smith’) was the designated HSE representative to the defendant. He would attend the site once a month and on an ad hoc basis when contacted by Mr Smith, the plant manager.

Movement of Traffic and Pedestrians at Site

16. The system in place prior to the incident required contractors to attend the batch office upon their arrival. This was not the case for delivery drivers who would only attend the office to hand their docket in and then leave the site.

17. The approach of Caltex drivers would vary, however, generally they would drive directly into the yard and park near the fuel station bowser. It was expected drivers would first attend the office to collect a key to open the bulk fuel hatch and would do this by walking across the yard, up the stairs and to the office. After delivering the fuel, Caltex drivers would have to return to the office and return the bulk fuel hatch key.

18. This process wasn’t enacted on the day of the incident as the hatch had been left unlocked. There is no other process for the receipt of fuel from Caltex.

19. Caltex and its entities provided, via an online portal, a Safe Operating Procedure (‘SOP’) to Boral Shared Business Services Pty Limited titled ‘F001 Diesel Bulk Pump Delivery’. The SOP states a Caltex driver must:

‘enter and orientate to delivery point in accordance with site map (if available)…

…If site map not available ask for advice/follow signs/decal…

…Sign in if required/make customer contact.’

20. When work is completed:

‘…complete delivery docket and hand to client.

…exit in a safe manner’

21. The defendant did not conduct a review of the SOP or implement a system whereby an effective site map with traffic management controls or a procedure for the handover of delivery dockets was available or have appropriate decals or enforced and implemented signs in procedures.

22. There were no direct pedestrian routes to access the office or clearly marked walkways. Where there were walkways, the painted markings were either faded or not present. There was no signage directing people toward those walkways.

23. The rear yard walkway running along the back fence was narrow and at the same level as the rest of the yard. Being at ground level, the area could also become slippery because of the trucks backing toward the walkway and hosing down immediately next to the path. Sometimes there were large items stored in the walkways that would impede the walking path.

Traffic Management System

24. The defendant had a document titled ‘Site Map’ which demonstrated an entry/exit gate traffic flow in a clockwise direction. While the Site Map directs a route dependent on the type of vehicle entering, it does not specify designated pedestrian walking zones or exclusion zones.

Induction

25. The Site Map was annexed to a document titled ‘Concrite Site Specific HSE Induction’ (‘the Induction’). The Induction discussed safe work method statement, filling in the appropriate reports or permits and emergency procedures and was based on a template by another Boral subsidiary.

26. While the defendant had a written induction process in place, it was not effectively implemented in practice.

27. The Induction document set out that all persons were required to complete the Site Specific HSE Induction except for:

1. Visitors who have signed the visitor register, who remain within the confines of the administration area and are accompanied at all times; and

2. Visiting Regulators/Inspectors.

28. The traffic management references in the Induction checklist were:

1. ‘all trucks must contact batcher before entering site.’

2. ‘always obey the traffic flow established in the traffic management plan.’

29. The Induction checklist also states for site hazards ‘heavy vehicle/mobile plant’:

‘Truck movements (reversing and travelling) – the control is to obey traffic management plan and be vigilant of your surroundings at all time.’

30. Mr Lambert states that the Induction involved showing people the entry/exits and the Site Map. He says the purpose of showing people that come onto the site the traffic management plan was to make them aware of the different movements of trucks.

31. Mr Peter Lees, as well as other Caltex employees, had entered the site and had not received an induction.

32. Mr Roach stated that he did not think there was a certain procedure for walking, so long as pedestrians are aware of vehicles when they walk through the yard. He cannot recall the last time he was given information about pedestrians walking around the site.

Traffic Management Review

33. Prior to the incident, a traffic management risk review was performed on 29 November 2016 by Mr Smith and Mr Carruthers. The review was updated in February 2017. The risk review notably provides the following:

1. It ticks ‘Y’ to ‘are traffic flows and vehicle movements adequately indicated on the plan’

2. As at 29 January 2017 ‘N’ was selected next to ‘are all company employees, driver and contractors and others who operate vehicles on site familiar with TMP’. An included comment was ‘need to send TMP & induction to Contract Tipper – ACL’, with a planned completion date of 29 January 2017

3. It ticks ‘Y’ to ‘is there a process to ensure visitors are aware of TMP?’

4. Are walkways segregated from trafficable areas? ‘N’ not all with comment ‘need to install bollards’ and another comment ‘install walkways away from trafficable areas. Where that is not possible consider physical barriers such as fencing, gates and bollards. All areas of the site that require pedestrian access have walkways clearly delineated/marked. Walkway marking must be maintained e.g. By cleaning or repainting.’

34. Section 3.1 of the risk review asked ‘are pedestrian walkways unobstructed at all times and are clearly visible?’ The proposed site action was to ‘remark visitor walkways’, however, this was not completed until after the incident.

35. The traffic assessment review was conducted following a safety alert sent out by Boral following a pedestrian/vehicle incident at a different site. In response, Mr Smith assessed the site and an action following the risk assessment was to add an extra walkway around the back of the yard rather than just from the light vehicle car park at the front of the yard to the office. This walkway had not been painted or marked prior to the incident.

36. The defendant did not have an adequate system for managing the risk of pedestrian and vehicle interaction or a means of protecting pedestrians from vehicle collisions.

GUIDANCE MATERIAL

37. The defendant had numerous guidance material available to it prior to and at the time of the incident, including, but not limited to, SafeWork Australia’s: ‘Workplace Traffic Management Information Sheet’; ‘General Guide for Traffic Management’; ‘Traffic Hazard Checklist’; ‘Traffic Control Measures Checklist’; and, Code of Practice, ‘How to Manage Work Health and Safety Risk (December 2011)’.

38. The SafeWork NSW Code of Practice Managing Risks of Plant in the Workplace (‘the Code’) is an approved Code of Practice and advises to control the risk, if elimination or substitution is not reasonably practicable, the risk must be minimised by isolation: ‘separate the hazardous plant from people, either by distance or physical barrier.’ Isolation is preferred to an administrative control such as ‘providing training and supervision, using warning signs.’

39. The Code further recommends that workers should be consulted to determine whether control measures are effective and whether safety procedures are being followed. It cautions that ‘Supervisors should take action to correct any unsafe work practices associated with plant as soon as possible, otherwise workers may think that unsafe work practices are acceptable’.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

40. On 21 September 2017, SafeWork NSW issued an Improvement Notice to the defendant requiring them to review and, as necessary, revise control measures implemented for traffic management.

41. A new system was implemented whereby diesel deliveries by large tankers were ceased and concrete mixer drivers were issued with fuel cards to refuel their vehicles off site. A review was underway to identify alternative arrangements for the delivery of fuel to the site for the refuelling of concrete mixer vehicles.

Post Incident Traffic Management

42. Post-incident traffic management plans were developed for several different vehicle types including deliveries and visitors; concrete mixer trucks and various tippers. Each of the plans, specific to vehicle types, was allocated a specific route when on site.

43. Each of the new traffic management plans contained provision for new yellow and green pedestrian walkways. The walkways were colour coded in the following way:

1. Yellow walkways: indicate potential vehicle and pedestrian interaction hazards. Pedestrians must give way to vehicles;

2. Green walkways: designated pedestrian access only; and

3. Orange walkways: only to be used by authorised pedestrians.

44. Barricade tape, and ultimately barricades, were installed from the office entry to the rear yard walkway and has been extended to the docket drop off point. The walkways have also been elevated and widened.

45. Signage has been installed across the site to implement the traffic management plan and the site has also incorporated a motion detector into their CCTV system which alerts the office when someone walks within high flow traffic areas inappropriately. The site has also implemented a two-way radio system for pedestrian workers on site.

46. A Toolbox meeting occurred on 21 October 2017 regarding the new traffic management plan.

Post Incident Induction

47. A new Traffic and Pedestrian Management Induction was implemented post incident which included reference to the new traffic management plans. It directed workers to:

‘stay in, or with your vehicle at all times, unless you can immediately access a designated walkway safely…

…If leaving your vehicle use the yellow and green designated walkways.’

48. The induction document post-incident was updated to include reference to the following:

‘Pedestrians must use the designated yellow and green marked walkways at all times when on site. Only leave marked walkways to complete designated or permitted work in the operational area. This does NOT include walking to the office from your vehicle or work area when you are within the vicinity of a designated walkway.’

49. Following the incident, all delivery drivers are inducted onto the site regardless of the length of time of their delivery.

SENTENCING

50. The penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the Act.

51. I have had regard to the objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the Sentencing Act’) for the purpose of sentencing. The purposes for which a Court may impose a sentence on an offender are as follows:

1. to ensure that the offender is adequately punished for the offence;

2. to prevent crime by deterring the offender and other persons from committing similar offences;

3. to protect the community from the offender;

4. to promote the rehabilitation of the offender;

5. to make the offender accountable for his or her actions; and

6. to recognise the harm done to the victim of the crime and the community.

52. The Court is to be guided by the provisions of the Sentencing Act which include:

1. Section 3A which sets out the purpose of sentencing;

2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and

3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.

53. The court is to approach a sentencing exercise on the basis of it being one of ‘instinctive synthesis’; Markarian v The Queen (2005) 228 CLR 357.

54. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way:

‘The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.’

OBJECTIVE SERIOUSNESS OF THE OFFENCE

55. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474–5.

56. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].

57. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 at [81] (‘Capral Aluminium’).

58. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465.

59. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117.

60. The Court of Criminal Appeal examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd (‘Nash v Silver City’) [2017] NSWCCA 96. Justice Basten at [34], under the heading ‘Assessment of Risk’ said:

‘The sentencing judge commenced his consideration with the proposition that ‘’[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.’ However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.’

61. His Honour further observed at [42]:

‘The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.’

62. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

‘It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.’

63. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.

64. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]–[18] (Latham J).

65. The defendant’s duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the Act; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kietel and Bell JJ).

66. The pleaded measures admitted by the defendant to be reasonably practicable steps which it ought to have implemented, but failed to do so, in breach of their duties under s 19(1) of the Act would have virtually eliminated, and at least significantly minimized, the risk. These admitted failures are set out at paragraph 12(a)–(e) of the Amended Summons.

67. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

68. The objective seriousness of an offence under s 32 of the Act is considered in the context of the graduation of offences contained in ss 31–32 of the Act: Nash v Silver City Drilling at [54]—[56]. The matters relevant to objective seriousness for a s 32 offence include:

• The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Ibid [34];

• The availability of steps to eliminate or minimise the risk: Ibid [53];

• Whether those steps are complex, burdensome or mildly inconvenient if mitigating steps could easily have been taken, the offending will be more serious: Ibid [53];

• Whether the risk was known or ought reasonably have been known to or identified by the offender;

• Whether the risk was an obvious or clear one; and

• The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).

69. The following matters are relevant to determining the culpability of the defendant:

1. The risk of a worker being seriously injured or killed as a result of being struck by a vehicle whilst undertaking work at the site was known to the defendant and was highly foreseeable. The Boral document, HSEQ 7-09 Traffic Management Protocol (‘the Protocol’), which covered the operations at the site, was developed to systematically manage the risks arising from the interaction of pedestrians, vehicles, plant and equipment at its workplaces. The risks associated with pedestrian movements through the site had also been identified, considered and assessed at a Traffic Management workshop in April 2013 and a Traffic Management Risk Review in November 2016;

2. The gravity of the risk was significant. There was the potential for a very serious injury or fatality, particularly having regard to the size and weight of the vehicles accessing the site;

3. The defendant was aware of the available ways to manage the hazard. The protocol provided that pedestrians were to be protected from vehicles in accordance with the Site Management Risk Assessment. The 2016 Traffic Management Risk Review identified recommended controls including considering installing physical barriers such as fencing, gates and bollards and for the walkways to be maintained by cleaning and re-painting;

4. There were, however, deficiencies in the implementation of the protocol at the site:

1. Although the defendant had developed the City Plant Traffic Map, the document did not specify designated pedestrian walking or exclusion zones, and only allowed for vehicle movements. It failed to identify the desired flow of pedestrian movements or illustrate layout of barriers, walkways, signs and general arrangements to warn and guide traffic around the site;

2. Prior to this incident in November 2016, the defendant’s manager and plant supervisor undertook a Traffic Management Risk Review. It was undertaken in response to a safety alert involving a pedestrian/vehicle incident at another site. It identified some shortcomings;

3. Prior to and at the time of the incident the walkways at the site were not clearly marked and there was no signage directing people to walkways. Whilst there was a walkway next to the fence at the northern boundary of the site, it was not free from obstructions and it did not provide adequate protection from the risk. Further, access to the walkway required walking from the diesel pump across the designated vehicle path to the start of the walkway. The walkway comprised of poles or angled beams. The paint marking the walkway had faded;

4. The site-specific induction form included basic information on vehicle flow throughout the site, and referred to a need to be vigilant of the surroundings. Mr Lees and other workers had not been inducted onto the site.

5. Boral, which oversaw the governance framework of the defendant, had a work, health and safety system in place which included documents directed at managing the subject risk. A representative from Boral’s WHS team attended the site once per month on an ad hoc basis when requested to do so by management. Notwithstanding this, the defendant failed to adequately implement its systems and take appropriate steps to safeguard against the risk. Duty holders are required to ensure that ‘paper systems’ are implemented and maintained in their daily operations: WorkCover Authority (NSW) v Menzies Property Services Pty Ltd (2004) 136 IR 449 at [67]–[68].

6. The likelihood of the risk manifesting was high as the site had a high volume of traffic movement, including reversing heavy vehicles, and a high volume of pedestrian movements, in particular across the loading bay area. The Site Specific HSE Induction Form referred to the movements of vehicles on site as ‘high risk’. The steps taken by the defendant to manage the risk of pedestrian and vehicle interaction at the site were inadequate: Agreed Statement of Facts [70]. It is the failure to perform an adequate risk assessment that founds the breach.

7. Taking the appropriate measures would not have entailed significant burden or cost. The steps taken post incident were in line with the defendant’s pre-incident documented procedures.

8. The harm caused was extremely serious and tragic. Mr Lees lost his life. The prosecution tendered a Victim Impact Statement of Skye Lees: Exhibit 2. The impact on Ms Lees’ life and that of her own child, her step-niece and step-mother have been catastrophic, and has led to enormous suffering by Ms Lees, the daughter of Peter Lees. It is often hard to imagine the impact that the loss of a parent can have on a child. In these circumstances it has been significantly exacerbated by a complex family situation which Ms Lees is contending with, including looking after her own child, her step-mother and her step-niece. This has been further complicated by the dreadful situation created by the deceased’s workers compensation entitlements and the suffering that has been created for Ms Lees. The situation is heartbreaking.

70. The defendant read an affidavit of Mr Gregory Arthur Landon Price affirmed 10 March 2021: Exhibit A. Mr Price is the Executive General Manager NSW/ACT and Major Projects for Bowral Australia, which includes the defendant business. I accept that Mr Price’s experience and training means that he is qualified to give the evidence he does in that affidavit .

71. Based on that affidavit I note the following:

• The defendant is a large company and its work at the site in Alexandria, which is one of 12, is a large operation. The defendant is a wholly owned subsidiary of Boral;

• By its plea, the defendant has acknowledged that the systems in place were inadequately applied at the site in Alexandria;

• Boral and the defendant had high regard for the safety of their workers and were actively pursuing safety matters;

• Whilst the defendant concedes that there was some inadequacy at the site, this was not a situation where no measures to protect the workforce were taken;

• I accept that the risk pleaded here is a particular risk, but given the operations of this business, there are a multitude of other risks, and that the defendant was appropriately dealing with those risks and measures;

• I also accept that whilst there were some measures in place with regard to the traffic management, the defendant concedes that they were not adequate;

• After the incident, the defendant’s response was immediate and was a response that was not just with regard to the tragedy that befell Mr Lees, but the safety of all the other workers was considered. I also accept that the incident has been felt deeply by management of the defendant and Boral has motivated their actions with regard to work, health and safety. All employees at the site were offered counselling, which I accept demonstrates that the defendant responded in a human way. I accept that this reflects positively on the corporate identity, the defendant and its parent company Boral;

• More importantly, the incident was elevated right through the Boral group and Boral and the defendant used this tragedy as a learning opportunity;

• The accident was not kept secret and the director of Boral, Mike Kane, issued a companywide communication on 2 November 2017 which raised the issue. This was a communication which impressed to all workers the need for safety and sought a commitment across the board to never have another fatality in their workplace. It contained many recommendations as to future care and safety in the workplace. I accept that this is an expression by the head of company and on behalf of the defendant, a complete acceptance of responsibility for the incident and their failings;

• The site where the incident occurred was shut down until 3 October 2017 and extensive steps were taken to remedy the systems of work at the site. I accept that in doing so, the defendant and Boral adopted a comprehensive approach so as to learn from this experience, and engage with their workers in a meaningful way, to introduce a specific and detailed traffic management plan. This engagement and review of safety was not just done for the Alexandria site, but for all sites within the head company’s ambit; and

• I accept that Boral and the defendant, whilst having developed systems and traffic management plans, have also developed leadership training plans so as to ensure that the element of human error can be addressed and ideally overcome.

DETERRENCE

72. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

73. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).

74. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.

75. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 at [177]–[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]–[75] which said:

‘[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

…

‘[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.’

76. General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks associated with working in an environment where heavy vehicles and pedestrians mix within the workplace.

77. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.

78. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

79. The defendant has demonstrated that they have taken this tragedy, considered it, learnt from it, and completely redeveloped their systems in a constructive way. For those reasons, the prospects of rehabilitation of the defendant are very good, and the need for an element of specific deterrence is minimal in these circumstances.

AGGRAVATING FACTORS

80. The injury and passing of Mr Lees has caused enormous emotional harm to his family, in particular his daughter Skye Lees: s 21A(2)(g) of the Sentencing Act.

MITIGATING FACTORS

81. The defendant had a previous conviction in 1997. The prosecutor fairly concedes that this should not influence my decision given the passage of time since that event: s 21A(3)(e) of the Sentencing Act.

82. Section 21A(3)(i) of the Sentencing Act provides that remorse may be taken into account as a mitigating factor in recognition of the remorse shown by the defendant, and this has been demonstrated by the statements made in the affidavit of Mr Price: Exhibit A. The prosecutor concedes, and I accept that the defendant has shown remorse and contrition and as such is entitled to leniency on that basis.

83. The defendant entered a plea of guilty early, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis, thus I will allow the deduction of 25% for the utilitarian value of the pleas: s 22 of the Sentencing Act.

84. The appropriate fine is $600,000.00. The defendant is entitled to a discount of 25% for the early plea.

PENALTY

85. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine is $600,000.00 and that will be reduced by 25% to reflect the early plea.

3. Accordingly, I order the defendant pay a fine of $450,000.00

4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

5. The defendant is to pay the prosecutor’s costs agreed in the sum of $43,413.26.

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Decision last updated: 21 May 2021