SafeWork NSW v A1 Arbor Tree Services Pty Ltd

[2023] NSWDC 256

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v A1 Arbor Tree Services Pty Ltd and Anor [2023] NSWDC 256

Hearing dates:

19 May 2023

Date of orders:

14 July 2023

Decision date:

14 July 2023

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The corporate defendant, A1 Arbor Tree Services Pty Ltd, is convicted.

(2)   The appropriate fine for the offence is $3,000,000.00 and that will be reduced by 25% to reflect the plea of guilty, that is a fine of $2,250,000.00.

(3) That fine will be reduced by 10% due to the application of s 6 of the Fines Act 1996 (NSW).

(4)   Accordingly, I order the corporate defendant, A1 Arbor Tree Services Pty Ltd, to pay a fine of $2,025,000.00.

(5)   The individual defendant, Tony Saunders, is convicted.

(6)   The appropriate fine for the offence is $150,000.00 and that will be reduced by 25% to reflect the plea of guilty, that is a fine of $112,500.00.

(7) That fine will be reduced by 10% due to the application of s 6 of the Fines Act 1996 (NSW).

(8)   Accordingly, I order the individual defendant, Tony Saunders, to pay a fine of $101,250.00.

(9) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fines imposed are to be paid to the prosecutor.

(10) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs agreed in the sum of $78,000.00 across both matters.

Catchwords:

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

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties – capacity to pay

COSTS – prosecutor’s costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Fines Act 1996 (NSW)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338

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

Environmental Protection Authority v Barnes [2006] NSWCCA 246

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

Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455

Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100

Jahandideh v R [2014] NSWCCA 178

Latoudis v Casey (1990) 170 CLR 534

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

Markarian v The Queen (2005) 228 CLR 357

McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310

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

Muldrock v The Queen (2011) 244 CLR 120

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

R v Thomson & Houlton (2000) 49 NSWLR 383

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

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

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:

SafeWork Australia Guide to Managing Risks of Tree Trimming and Removal Work (July 2016)

WorkCover – Amenity Tree Industry Code of Practice (1998)

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
A1 Arbor Tree Services Pty Ltd (Defendant)

SafeWork NSW (Prosecutor)
Tony Saunders (Defendant)

Representation:

Counsel:
Mr C Magee (for the Prosecutor)
Mr D-L Del Monte (for the Defendants)

Solicitors:
Department of Customer Service (for the Prosecutor)
Leeds Lawyers (for the Defendants)

File Number(s):

2021/256617 and 2021/256578

Publication restriction:

Nil

Judgment

1. On 27 June 2022, A1 Arbor Tree Services Pty Ltd (‘A1’) entered a plea of guilty to a category 1 offence pursuant to s 31 of the Work Health and Safety Act 2011 (NSW) (‘WHS Act’) by reason of failing to comply with its duty pursuant to s 19(1) of the WHS Act and was reckless in that act. The offence is set out in the Summons filed on 1 September 2021.

2. In the alternative, A1 failed to ensure, so far as was reasonably practicable, the health and safety of workers whilst the workers were at work in the business or undertaking, failed in that duty and exposed workers, in particular Samuela Cirivakayawa and Jason Wangmann, to the risk of death or serious injury contrary to s 32 of the WHS Act.

3. As A1 entered a plea of Guilty to the first charge, the prosecutor does not proceed with the second charge.

4. Similarly, Tony Saunders (‘Mr Saunders’) entered a plea of guilty to a category 2 offence pursuant to s 32 of the WHS Act in that he failed to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons, in particular Samuela Cirivakayawa and Jason Wangmann, and who failed to comply with that duty and that failure exposed other persons, in particular Samuela Cirivakayawa and Jason Wangmann, to the risk of death or serious injury, contrary to s 32 of the WHS Act.

5. The maximum penalty for the offence of the corporate defendant, A1, is $3,000,000.00.

6. The maximum penalty for the offence of the individual defendant, Mr Saunders, is $150,000.00.

7. The prosecutor tendered a Sentence Tender Bundle, which became exhibit A. The defendant tendered the following documents:

1. Affidavit of Tony Richard Saunders sworn 16 May 2023 (exhibit 1);

2. Affidavit of William Patrick Togher sworn 11 May 2023 (exhibit 2);

3. Psychiatric reports by Danielle Florida 25 April 2023 (exhibit 3); and

4. Bundle of financial records (pgs 99-190 of Defendant’s Tender Bundle).

Background

8. At all material times, A1 was a corporation registered with ASIC on 26 March 2019. A1 carried on a business or undertaking which included tree pruning and removal.

9. Mr Tony Saunders (‘Mr Saunders’) was employed by A1 as a Level 3 Arborist. Mr Saunders’ wife, Ms Tracey Aryan (‘Ms Aryan’) was the sole director of A1.

10. Prior to the registration of A1, Mr Saunders was the sole director of Arbor Tree Group Pty Ltd (‘ATG’). ATG was engaged in the business of tree pruning and removal.

11. On 27 March 2019, an external administrator was appointed for ATG. In about June 2019, A1 assumed control of the business previously operated by ATG and acquired the plant and equipment previously owned by ATG. ATG was placed into liquidation on 18 September 2019.

12. Mr Saunders was responsible for all operational aspects of A1 while Ms Aryan managed the company’s administrative duties. Ms Aryan was not involved in the operations of A1.

13. Mr Saunders had between 30-40 years’ experience in the arborist industry. He held qualifications which included a Statement of Attainment in Arboriculture Techniques and a Certificate in Tree Surgery which he obtained from TAFE in 1998.

14. Mr Saunders was responsible for overseeing A1’s work health and safety procedures, including the identification, assessment and management of hazards. He was also responsible for providing resources, training and instruction to A1’s employees at every job it attended.

The Woodchipper

15. A1 owned a Bush Bandit Whole Tree Woodchipper Model 2090 (‘the woodchipper’) which had been purchased brand new on or about 30 April 2015 by ATG. The woodchipper was manufactured by Bandit Industries, a US-based company with no Australian operations.

16. Marriot Tree Equipment Pty Ltd trading as Bandit Tree Equipment (‘BTE’) was the Australian importer of equipment manufactured by Bandit Industries. BTE undertook servicing of Bandit Industries products in Australia.

17. BTE performed service and repairs to the woodchipper between 2015 and 2020.

18. From about June 2019, A1 used the woodchipper in its business as part of an arrangement between ATG and A1 whereby A1 continued to make the finance payments owing on the woodchipper in return for its use.

19. The woodchipper was large and designed to be operated by two experienced operators.

20. The woodchipper was not designed to be fed by hand.

21. The woodchipper had three primary safety features:

1. Emergency stop buttons (located on each side of the machine);

2. A feed control bar (to control the forward/reverse direction of the infeed rollers); and

3. A hydraulic control valve that immediately stops the feed rollers.

The site

22. Cromehurst School (‘the school’) is a public school run by the NSW Department of Education located on the corner of Nelson Road and Kochia Lane, Lindfield in the State of New South Wales.

23. A1 was engaged by the school to remove three trees that sat within the school grounds along the boundary of Kochia Lane and prune another tree located further within the school grounds (‘the job’).

24. Mr Saunders had attended the school on 5 July 2019 to inspect the site and prepare a quotation for the job.

Mr Cirivakayawa

25. Mr Samuela Cirivakayawa (‘Mr Cirivakayawa’) was a Fijian national who arrived in Australia in 2018. He was a teacher before coming to Australia.

26. Mr Cirivakayawa obtained employment on a trial basis with A1 in mid-2019 as a trainee groundsman. His first day at work with A1 was on 25 July 2019.

27. In the period 25 July 2019 to 7 September 2019, Mr Cirivakayawa had worked a total of between 5 and 7 days for A1.

The Incident

28. A1 attended the school on 7 September 2019 to perform the job. Mr Saunders was the manager and supervisor of the site on behalf of A1 on the day. At about 7am, Mr Saunders arrived and parked the truck and woodchipper on Kochia Lane adjacent to the school.

29. At about 7:30am, the remaining workers arrived, including Mr Steven Boys (‘Mr Boys’), Mr Jason Wangmann (‘Mr Wangmann’), Mr Bruno Playfair Cal (‘Mr Playfair Cal’) and Mr Cirivakayawa. Each of the workers were employees of A1 except Mr Playfair Cal who was an independent contractor.

30. Mr Saunders gave verbal instructions to the workers. Mr Playfair Cal and Mr Boys were assigned the task of pruning the tree which was further within the school grounds. Mr Wangmann and Mr Cirivakayawa were assigned the task of removing the three trees situated along the school boundary with Kochia Lane.

31. Mr Saunders ascended the first tree and started cutting down branches. As this occurred, Mr Wangmann and Mr Cirivakayawa’s role was to drag the branches and logs to the back of the woodchipper and pile them up ready to be chipped.

32. Once there was a sufficient stack of branches and logs, Mr Wangmann and Mr Cirivakayawa’s role was to hand feed them through the woodchipper.

33. A1 did not have a mechanical log loader or other apparatus on site to feed branches and logs through the woodchipper.

34. After the first two trees were cut down, there was a stack of branches and logs ready to be fed through the woodchipper. Mr Saunders ascended the third tree to start cutting it down.

35. Mr Wangmann turned on the woodchipper to ‘warm it up’ which took about 10 minutes. Mr Wangmann then engaged the clutch and started to increase the RPMs to enable the feed rollers to commence operating.

36. A1 did not conduct a daily start-up check of the woodchipper prior to the commencement of its use.

37. As at the date of the incident, the woodchipper was not fitted with a feed wheel control bar. This meant that workers needed to reach over the infeed tray to activate the forward/reverse control mechanism.

38. Mr Wangmann and Mr Cirivakayawa started hand feeding branches and logs through the woodchipper.

39. A short time later, Mr Saunders who was up in the tree called out to Mr Wangmann and asked him to ask a person who was walking along Kochia Lane if they were the owner of a particular vehicle parked in Kochia Lane and if so to move it. The vehicle was parked where Mr Saunders intended to ‘land’ the tree that he was cutting. Mr Wangmann walked up Kochia Lane and spoke to a male person who confirmed he was the owner of the vehicle. Mr Wangmann informed the person that he needed to move his vehicle.

40. Mr Cirivakayawa remained in the vicinity of the woodchipper.

41. As Mr Wangmann walked back towards the site, Mr Saunders called out to Mr Wangmann to ask where Mr Cirivakayawa was. Mr Wangmann replied that he did not know and suggested that he may have gone to the toilet.

42. After a short time, Mr Wangmann restarted the task of hand feeding the woodchipper alone. After 20-30 minutes, Mr Wangmann had finished chipping the first two trees and turned the woodchipper off.

43. At about 8:10am, Mr Boys and Mr Playfair Cal returned to the woodchipper. Mr Boys asked Mr Wangmann where Mr Cirivakayawa was.

44. Mr Boys walked to the front of the woodchipper and noticed blood on the back of the truck.

45. Mr Boys called out to Mr Saunders to get down from the tree. Mr Saunders descended the tree and called triple zero.

46. NSW Police Force officers attended the site at approximately 8:37am and observed small amounts of human tissue on the ground near the towing hitch. Officers also noted that there was blood spattered on the rear of the truck and inside the container.

47. It was apparent that Mr Cirivakayawa had been drawn into the infeed hopper of the woodchipper, passed through the feed rollers and into the chipper disc drum and sustained fatal injuries.

48. There is no evidence of how Mr Cirivakayawa came into contact with the woodchipper. There were no witnesses to the incident.

Safe operation of the woodchipper

49. At the time of the sale and delivery of the woodchipper to ATG, BTE provided to ATG and Mr Saunders a number of documents relating to the safe operation of the woodchipper, including:

1. Woodchipper OHS Hazard and Risk Identification Register (‘Risk Register’);

2. Equipment Familiarisation Program (‘EFP’);

3. Model 2090 Operating & Parts Manual dated December 2006 (‘Manual’); and

4. Ownership warranty validation form (whole tree and loader fed chipper) (‘warranty’).

50. The documents provided significant safety warnings relevant to the circumstances of the incident.

51. The Manual included the following information (at paragraph 69 of the Agreed Statement of Facts (‘ASOF’)):

1. This machine is not designed to be hand fed. A wooden push paddle has been provided to assist in the removal of smaller material after the machine has been shut down.

2. DANGER – Never reach into the infeed hopper area of the machine, there is never any reason to. The feedwheels are designed to pull trees and brush of any length into the machine. Pulling a hand, arm, foot or entire body through the machine is much easier than pulling a tree. Do not think you will be able to pull yourself free of the feedwheels, they will not let go.

3. DANGER – DO NOT attempt to hand feed this machine. Do not operate the loader arm chipper when anyone is standing or working in front of the chipper infeed opening. Failure to do this could result in serious injury or death.

4. DANGER – Do not hand feed this machine! This machine is designed to ONLY be fed by a mechanical log loader. Feeding material into this machine by hand is not permitted or authorised. Severe injury or death can result!

5. The feedwheel control bar operates the feedwheel(s). This machine is NOT designed or authorised to be hand fed! To make the feedwheel(s) operate so they are pulling material in the machine, push the control handle forward towards the machine. To make the feedwheel(s) operate so they pushing material out of the machine, away from the chipper disc/drum, the control handle should be pulled away from the chipper. The control bar is in the off position when it is in the centre location.

6. For all chippers designed to be ‘loader fed’. If you are in the area of the infeed hopper, always be prepared to operate and within easy reach of the feed control handle.

52. The woodchipper itself had been fitted with safety decals on both sides of the machine which read as follows (at paragraph 70 of the ASOF):

‘DANGER – DO NOT HAND FEED THIS MACHINE! This machine is designed to ONLY be fed by a mechanical log loader. Feeding material into this machine by hand is not permitted or authorised. SEVERE INJURY OR DEATH CAN RESULT.’

53. The Warranty included the following information:

1. Customer has been advised and understands not to reach into the infeed hopper with hands or feet. The machine operators must always be located within easy reach of all feed control and shutdown devices;

2. Customer understands that this machine is designed to be ‘loader’ fed and is to follow all feeding instructions in the manual. The customer understands that under no circumstances should the operator hand feed these machines or use anything other than a mechanical device, knuckle boom loader, or the machines loader to feed these machines.

54. The second page of the Warranty included an ‘Operating Instructions’ document that included additional safety information, including the following:

‘DANGER – DO NOT HAND FEED THIS MACHINE! This machine is designed to ONLY be fed by a mechanical log loader. Feeding material into this machine by hand is not permitted or authorised. SEVERE INJURY OR DEATH CAN RESULT.’

55. Mr Saunders signed the Warranty on 30 April 2015 to indicate that he had read and understood the document and the contents of the ‘Operating Instructions’ document.

56. Some smaller woodchippers manufactured by Bandit Industries were specifically designed to be hand fed which meant that they either came fitted (or could be fitted) with additional safety features including a hydraulic safety bump bar and/or last chance cables.

57. The woodchipper involved in the incident the subject of these proceedings was a ‘whole tree chipper’ meaning it was designed to be fed by an auxiliary loader, such as a skid steer loader, excavator, crane or specialist mechanical log loader. Accordingly, it was not fitted with a hydraulic safety bump bar or last chance cables.

Feed control bar

58. A feed control bar is the primary safety device installed on woodchippers to protect operators. When pushed forward, the feed control bar would reverse the rotation of the rollers. In a neutral position, the rollers do not turn. When the feed control bar was pulled back, the rollers would draw material into the machine.

59. In case of an emergency, the feed control bar could be pushed forward by an operator or a bystander which would reverse the rollers. This is an important feature in circumstances where a person is being drawn into the infeed hopper. The absence of a feed control bar meant that workers needed to reach across the infeed tray in order to use the control mechanism which increased the risk of operators inadvertently falling into or being drawn into the infeed hopper.

60. At all material times, BTE could supply and install a replacement feed control bar on the woodchipper used by A1 for $2,000 plus GST.

61. ATG and Mr Saunders had been aware that there were issues with the feed control bar on the woodchipper since February 2016 around which time Mr Mark Marriot (‘Mr Marriot’), a director of BTE, sent an email to Mr Saunders conveying the following information:

1. The woodchipper was not operational because it had a broken hydraulics part that controlled the feed control bar;

2. The machine could not be used without a fully operational feed control bar;

3. The feed control bar was needed so that the feed wheels could be reversed in any emergency situation; and

4. It would be very unsafe to operate the machine without the operational feed control bar.

62. On 4 May 2018, Mr Saunders brought the woodchipper to BTE for servicing. BTE noticed that the ‘control bar’ was ‘bent’. BTE provided that observation to Mr Saunders on the invoice it provided to him.

63. In September 2018, Mr Saunders brought the woodchipper to BTE for servicing. BTE observed that the feed control bar was missing. On its invoice dated 21 September 2018 relating to works performed during the service, BTE included an ‘equipment issues’ section which included a notation that the control bar was missing and that this represented a safety issue. It also noted the absence of a ‘push paddle’ attached to the machine as another safety defect. Mr Saunders signed off on the ‘equipment issues’ section on the invoice to acknowledge that the safety defects had been raised with him.

62. In April 2019, Mr Saunders brought the woodchipper to BTE for servicing. BTE observed that the feed control bar was missing. On its invoice dated 2 April 2019 relating to works performed during the service, BTE included an ‘equipment issues’ which included a notation that the control bar was missing and that this represented a safety issue. It also noted another significant safety issue which was that the ‘hood pin switch had been bypassed and there is no padlock fitted’.

63. Mr Saunders signed off on the ‘equipment issues’ section on the invoice to acknowledge that the safety defects had been raised with him. Mr Saunders did not seek to have BTE fit a new feed control bar to the woodchipper at that time.

64. Mr Saunders did not seek to have BTE fit a new feed control bar to the woodchipper at that time.

65. In July 2019, Mr Saunders brought the woodchipper to BTE for servicing. BTE observed that the feed control bar was missing. On its invoice dated 25 July 2019 relating to works performed during the service, BTE included an ‘equipment issues’ section which included a notation that that the ‘forward reverse bar missing’ which was a reference to the missing feed control bar.

66. On or about 25 July 2019, BTE emailed a safety report to Mr Saunders which outlined a number of equipment issues on the woodchipper identified by BTE during the service. Mr Saunders acknowledged receipt of the safety report and signed off on the ‘service job card’ prepared by BTE which included the notation relating to the missing feed control bar. Mr Saunders did not instruct BTE to fit a new feed control bar to the woodchipper at that time.

67. ATG, A1 and Mr Saunders had been using the woodchipper without an operational feed control bar for approximately 12 months prior to the date of the incident.

68. Mr Marriot stated that the feed control bar was not a particularly technical object and that a replacement did not have to be obtained through Bandit Industries. Mr Marriot stated that it would have been possible for A1 and Mr Saunders to have a feed control bar fabricated by a third party.

69. After the incident, Mr Saunders brought the woodchipper to BTE for servicing. On or about 6 August 2020, BTE observed that a feed control bar had been fitted to the woodchipper but that no push paddle had been fitted.

Systems of work prior to the incident

72. Prior to the incident, A1 and Mr Saunders did not undertake a risk assessment of the woodchipper to assess the hazards and risks associated with its operation, including the hazard of being drawn into the woodchipper while feeding branches and logs into the infeed hopper.

73. Prior to the incident, the woodchipper was not adequately maintained in accordance with the manufacturer’s instructions. It had a number of significant defects including that:

1. The feed control bar was missing;

2. The operator controls were not clearly labelled to indicate their nature and function;

3. The ‘push paddle’ / ‘push stick’ was missing;

4. The safety decals were in poor condition which prevented workers from identifying hazards.

74. The Operating Manual specifically identified in the ‘Daily Start-Up & Maintenance Check List’ the following requirements:

1. ‘Check all safety equipment’

2. ‘Check, maintain and service all safety equipment for proper operation’ which included specific reference to the feed control bar.

75. A1 and Mr Saunders did not ensure that there was a system in place which required workers to conduct a daily safety check of the woodchipper.

76. The Manual also provided a ‘Daily Pre Start-Up & Maintenance’ List and a ‘Daily Start-Up & Maintenance Checklist’ which specified a number of matters to be addressed in order to ensure the safe operation of plant. These matters did not form part of any system of work observed by A1 prior to the incident.

77. As at the date of the incident, A1 had not developed, implemented and enforced a Safe Operating Procedure (‘SOP’) for the operation of the woodchipper. It is agreed that A1 should have developed and enforced a SOP in relation to the woodchipper including requirements that:

1. The feeding of material into the machine must only be done using a mechanical log loader or similar plant;

2. The feeding of material into the machine by hand by operators was prohibited;

3. It was not to be operated if it did not have a fully operational feed control bar;

4. It was always to be operated by two experienced operators; and

5. It be shut down and isolated in circumstances where two experienced operators were not in attendance while material was being fed into it.

78. It was a normal practise for A1 employees to hand feed the woodchipper in pairs. Workers were never instructed not to hand feed the woodchipper. Equipment such as log lifters or loaders were not available to A1 workers to feed branches and logs into the woodchipper.

79. The primary safety device, the feed control bar, was not fitted as required by the manufacturer.

80. While informal verbal instructions were given requiring two workers to operate the woodchipper, in practise, A1 and Mr Saunders allowed one worker to operate it by themselves.

81. A1 failed to provide adequate information, training and instruction to workers, including Mr Cirivakayawa, in relation to the safe operation of the woodchipper. A1 had no documented systems to ensure the quality and consistency of training provided to its employees.

82. Mr Saunders did not ensure or verify that A1 was providing adequate information, instruction or training to its workers in the safe operation of the woodchipper.

83. A1 had no documented system to assess its workers’ understanding of its systems of work, or to assess their ability to safely undertake work, including the safe operation of plant including the woodchipper.

84. The Manual stated that the owner must require that all potential operators of the woodchipper read and understand the Manual and the decals on the machine, watch a video and follow recommendations.

85. A1 workers were being verbally inducted by Mr Saunders without any reference to documented procedure or the Manual. Workers were not shown a copy of the Manual nor were they shown any video demonstrating its operation recommended by the manufacturer.

86. Any instruction and training provided to A1 workers in relation to undertaking work activities was not recorded or documented.

87. Mr Cirivakayawa was trained on the operation of the woodchipper by Mr Saunders on 27 July 2019 which was the first day of his employment on a trial basis with A1. There is no documented record of the training provided to Mr Cirivakayawa.

88. Mr Cirivakayawa was not provided with a SOP for the operation of the woodchipper, nor was he provided with a copy of the Manual.

89. A1 did not assess the competency of any of its workers to safely operate the woodchipper, including Mr Cirivakayawa. Mr Cirivakayawa was a trainee and had not undergone any formal training or assessment in relation to his competency to undertake work in operating the woodchipper.

90. A1 failed to provide adequate supervision of the safe operation of the woodchipper. At the time of the incident, Mr Saunders was responsible for supervising operations on the site, inducting workers on how to use the woodchipper and directly supervising Mr Wangmann and Mr Cirivakayawa at the time of the incident.

91. At the time of the incident, Mr Saunders was ascending a pine tree and cutting branches off. He was not supervising the work being undertaken by Mr Wangmann and Mr Cirivakayawa.

92. A1 did not take any steps to determine whether Mr Saunders was able to competently supervise its workers, leaving it to Mr Saunders to determine the level of supervision to be provided at the site.

Relevant guidance material

93. The SafeWork Australia Guide to Managing Risks of Tree Trimming and Removal Work (July 2016) contains a general warning about the dangers of undertaking tree removal work as well as specific information about the safe operation of wood chipping equipment. It identifies the following hazards associated with wood chipping equipment:

1. being drawn into the machine from in-feed rollers

2. coming into contact with the blades;

3. becoming entangled in the branches or attached ropes and drawn into the woodchipper;

4. crush injuries.

94. The WorkCover – Amenity Tree Industry Code of Practice (1998) stated at 9.3:

‘a) Powered machinery used in the amenity tree industry can be vary dangerous: particularly wood chippers…

b) … Before using a wood chipper the operators should check that it has been properly maintained…

c) … the operator must use the woodchipper according to the manufacturer’s specifications and instructions…

d) Wood chippers should be fed from the side of the centre line. The operator should immediately tur away from the feed table when the brush is taken into the rotor.

e) Remember – never use hands or feet to push material through the chipper.’

Systems of work after the incident

95. Following the incident, A1 introduced a number of documents relating to its safe systems of work, including in relation to the woodchipper, including:

1. a ‘worksite hazard and risk control’ form;

2. a ‘woodchip induction – control measures for the wood chipper operation’;

3. a ‘risk assessment’ which is undertaken at every site;

4. a ‘pre-start check list for plant’; and

5. ‘Toolbox/pre-start talks’.

96. A1 has arranged for a feed control bar to be fitted to the woodchipper.

Duty of Tony Saunders as a worker of A1

97. Mr Saunders was employed by A1 at all material times.

98. Mr Saunders made all of the relevant decisions in relation to operational aspects of A1’s business including its provision of arborist services.

99. Mr Saunders was responsible for the control of the work undertaken by A1 at sites, including the method of work. He was also responsible for the supervision of other A1 workers. He had the authority to direct workers in relation to their roles and responsibilities on site.

100. Mr Saunders was responsible for the work health and safety function of A1. He was responsible for considering information about hazards and risks and for ensuring adequate and appropriate resourcing for the work undertaken by A1.

101. Mr Saunders was involved in and responsible for making decisions relating to the safe operation and maintenance of the woodchipper.

102. The workers of A1 stated that Mr Saunders was the ‘boss’ of A1 and that there were no other bosses in the company.

103. Ms Aryans was not involved in making decisions relating to the operational matters of A1, including the safe operation and maintenance of the woodchipper. Ms Aryans was accustomed to acting in accordance with Mr Saunders’ instructions.

104. It is agreed that Mr Saunders engaged in conduct which exposed workers, including Mr Wangmann and Mr Cirivakayawa to a risk of serious injury or death on the date of the incident.

Sentencing

105. The penalty to be imposed must be one which will give overall effect to the policy of the WHS 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 WHS 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 WHS Act.

106. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘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.

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

108. 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

109. The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120 at [27]:

‘…The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of offending.’

110. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474–5.

111. The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

112. 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.

113. 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 (‘Capral Aluminium’) at [81].

114. 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.

115. 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].

116. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (‘Nash v Silver City’). 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.’

117. 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.’

118. 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.

119. 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).

120. 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).

121. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31–32 of the WHS Act: Nash v Silver City 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: Nash v Silver City [34];

• The availability of steps to eliminate or minimise the risk: Nash v Silver City [34];

• Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City [34] and [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).

122. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the WHS 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.’

123. The following matters are relevant to determining the objective seriousness of the risks by the defendants:

1. The obvious and clearly foreseeable risk to safety in circumstances where appropriate measures were not taken, despite those measures being suitable and available;

2. There was almost a complete absence of functions with regard to any safe systems. Whatever system was alleged to be in place was so haphazard that no-one noticed that Mr Cirivakayawa was missing, Mr Saunders and Mr Wangmann thought he may have gone to the toilet. Moreover, Mr Saunders was up a tree cutting and was in no way supervising Mr Cirivakayawa and Mr Wangmann whilst they operated the woodchipper.

3. The hazards and risks associated with workers undertaking tasks involving the hand feeding of branches and logs into the infeed hopper of the woodchipper, and being drawn into the machine from the infeed hopper and suffering fatal or serious injuries, was not only a foreseeable one, it was one that was well known in the Forestry and Arborist industry, and to A1 and Mr Saunders at the date of the incident;

1. The SafeWork Australia ‘Guide to Managing Risks of Tree Trimming and Removal Work’ at Section 5.1 notes ‘being drawn into the machine from in-feed rollers’ as a common hazard of wood chipper operation;

2. The BTE ‘Woodchipper OHS Hazard & Risk Identification Register (Risk Register) has a section relating to ‘Operator Entrapment’ which applies to incidents when a person becomes trapped in the chipper in-feed between the feed rollers;

3. The BTE ‘Risk Assessment’ identifies the hazard of being dragged into feed-rollers, and the resulting injury being ‘Death/severe injury’.

4. In short, there was an abundance of guidance material available generally and specifically with this machine;

5. A1 and Mr Saunders underwent an ‘Equipment Familiarisation Program’ conducted by BTE at the date that the woodchipper was purchased. At this time they were provided with the relevant documents to the operation and safe use of the woodchipper and also Mr Saunders was given guidelines on how to train workers, recommendations of the use of a daily check list and emphasising the operator should always undertake their own risk assessment at every site before operating the woodchipper.

6. Mr Saunders has annexed a number of Safe Work Method Statements (‘SWMS’) which were prepared by A1 in April 2019 – prior to the incident, which identified the hazard of workers becoming entrapped in the woodchipper, and the consequential risk of workers suffering ‘loss of limbs, serious injury or death from getting caught up in the chipper’s blades’.

7. Thus, both A1 and Mr Saunders were well aware of the hazards and risks associated with workers undertaking tasks involving the hand feeding of branches and logs into the infeed hopper of the woodchipper and being drawn into the machine from the infeed hopper and suffering fatal or serious injuries.

8. The degree of foreseeability of the risk occurring as a result of the work being undertaken was exacerbated in this case by the fact that the woodchipper was specifically designed not to be hand fed, because of its design to be a ‘Loader’ feed;

9. The Operating Manual emphasised the dangers associated with hand feeding the machine and included ‘DANGER’ warnings to the following effect:

• ‘DO NOT attempt to hand feed this machine’;

• ‘This machine is not designed to be hand feed’; and

• Warnings that ‘severe injury or death can result’.

13. In circumstances where A1 and Mr Saunders failed to provide for the woodchipper to be ‘Loader’ fed, and instead permitted the hand feeding of the woodchipper, they were operating in a manner which had been identified by the BTE documents as specifically giving rise to the hazard and the risk.

14. The foreseeability of the risk was further exacerbated by the lack of experience of Mr Cirivakayawa in the industry, let alone in respect to the operation of the woodchipper.

15. The BTE documents provided to A1 and Mr Sauders specified that the woodchipper was only to be used by personnel who were experienced with similar equipment and trained in its operation, and having undergone a documented induction, training and competency assessment.

16. Mr Cirivakayawa was a Fijian national who arrived in Australia in September 2018, having been a school teacher in his home land. He commenced working with A1 on 25 July 2019, and prior to this date he had limited experience with tree removal.

17. Between 25 July 2019 and 7 September 2019, Mr Cirivakayawa had worked for A1 for about 5-7 days on a ‘trial’. He had been given little, and wholly inadequate information, instruction and training in the use of the woodchipper. In those circumstances both A1 and Mr Saunders ought to have been additionally vigilant to ensure that Mr Cirivakayawa was not exposed to the hazard and risk associated with the use of the woodchipper.

18. In my view both Mr Saunders and A1 knew of the likelihood of the risks and hazards associated with workers undertaking tasks involving the hand feeding of branches and logs into the infeed hopper and being drawn into the machine from the infeed hopper.

19. The risks were more than obvious as the major hazards that could result in the operation of the woodchipper in the manner in which it was done, were identified over and over again. The warnings were provided in the operation manuals for the woodchipper from BTE and from information and decals placed on the machine itself

20. Not only was A1 aware of the risk, it was reckless as to the risk of Mr Wangmann and Mr Cirivakayawa suffering death or serious injury from the hazard.

21. There were simple and straightforward measures which could have been taken by A1 to eliminate or minimise the risk to safety. By its plea A1 has admitted that the measures pleaded in paragraph 13 (a)–(k) of the Summons were reasonably practicable and could have been implemented to eliminate or minimise the risk.

22. It is an agreed fact (ASOF at [77]–[99]) that A1 and Mr Saunders were specifically informed by BTE that :

1. the woodchipper was not operational because it had a broken hydraulic part that controlled the feed control bar;

2. the machine could not be used without a fully operational feed control bar;

3. the feed control bar was needed so that the feed wheels could be revered in any emergency situation; and

4. that it would be very unsafe to operate the machine without the operational feed control bar.

23. Between 2016 and 2019, BTE provided ongoing information about the safety risks associated with the absence of a fully functional Feed Control Bar. Despite this information A1 and Mr Saunders failed to rectify this situation, despite minimal costs involved in fitting a new Feed Control Bar or repairing the existing component.

24. It is this conduct which clearly demonstrates the recklessness of A1. Despite having been told by BTE on 5 occasions that the woodchipper was not operational because it had a broken hydraulic part that controlled the feed control bar, that the machine could not be used without it, it was needed to reverse in an emergency situation and that it would be very unsafe to operate the woodchipper in such a condition, the defendants continued to use the woodchipper with complete disregard for the safety of workers.

25. The defendants had been using the woodchipper without an operational feed control bar for approximately 12 months prior to the date of the incident. The machine was specifically designed to not be hand fed, yet the workers did so in the vicinity of Mr Saunders.

26. It is this arrogant and irresponsible behaviour in circumstances where A1 had been repeatedly warned of the effect, establishes the recklessness to my mind and the admitted omissions acknowledged by the plea.

27. The defendant objected to the tender by the prosecutor of a statement from Mr Cirivakayawa’s sister, Ms Matai. The objection was based on the submission that as no-one saw Mr Cirivakayawa prior to the finding of the blood on the woodchipper, the Court could not be satisfied beyond reasonable doubt that Mr Cirivakayawa’s death was caused by A1’s admitted breaches. If that be the case, the Victim Impact Statement is irrelevant to the matters before me. The statement did not come into evidence.

28. On instruction, Counsel for the defendant drew my attention to Annexure A to Mr Saunders’ affidavit. This contained a number of media articles in relation to the incident. The first document was headed “Lindfield woodchipper death: Samuela Cirivakayawa’s ex-wife suggest suicide.” It was submitted that this article suggests an alternate cause of Mr Cirivakayawa’s death, and in making that submission and tendering that article, I can only assume the defendant is trying to blame the victim.

29. Furthermore, the affidavit does not evidence any real remorse and contrition, but speaks to the problems that Mr Saunders, his wife and the business are having. This noes not, in my mind, satisfy the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

30. Careful attention should be given to the maximum penalty provided for three reasons. Firstly, because the legislature intentionally set a maximum penalty for the most reckless of conduct, secondly, because it invites comparison between the worst possible case and the case before the Court, and thirdly, because taken and balanced with all of the other relevant factors, it provides a yardstick: see Markarian at [31].

31. The maximum penalty sets the upper limit against which a penalty appropriate to the offence committed by the defendant is to be assessed. The level of the fines prescribed by the WHS Act evince a legislative intention that offences against the WHS Act are to be treated seriously: see Markarian at [30]–[31].

32. To my mind, this is offending that requires the maximum fine be imposed. The defendants were repeatedly warned that the woodchipper was needing of repairs on at least five occasions. The repairs would have been simple and could have been done easily by BTE. Despite such warnings, A1 blatantly and recklessly allowed the damaged machine to be repeatedly used, until the subject incident.

33. Mr Saunders, given his operational role in the business, qualifications and experience as an arborist, and knowledge of the work being performed that day, should have provided adequate directions to Mr Wangmann and Mr Cirivakayawa with respect to the systems of work to be used, and in particular that the woodchipper was only to be fed by a mechanical log loader and not to feed material into the infeed hopper by hand. He could have directed that the woodchipper not be used without a fully operational feed control bar and where there was no mechanical log loader available, but he chose not to do so.

34. The defendants concede that the offences are objectively serious and that the risk of harm was foreseeable and preventable, but they submit that despite the shortcomings in their processes and systems, they were not without any systems.

35. In his affidavit (exhibit 1) Mr Saunders details the steps that he had adopted prior to 7 September 2019, which included:

1. a pre-start check to ensure the woodchipper was operational, as was his daily habit, but which did not include a paper checklist;

2. an induction with the deceased regarding the safe use of the woodchipper;

3. a direction to the deceased that he was not to use the woodchipper alone. Saunders was satisfied the deceased understood this direction, and that the deceased was being supervised by Mr Wangmann, who at the time had about 2 years’ experience;

4. personally observing the deceased to use the woodchipper in a competent manner, but without completing a formal competency assessment;

5. a functioning hydraulic shut-off valve, which, when activated, immediately stopped the feed and the mulching function on the woodchipper. It is however conceded that the woodchipper was without an operational feed control bar;

6. SWMSs prepared in April 2019, which included an assessment of the ‘Chipper Machine’, and which identified the hazards associated with that machine.

36. The measures to which the plea was entered by A1 were measures that were suitable and available and were able to be implemented by A1 prior to the incident, and if implemented at the time of the incident, would have eliminated or minimised the risk.

37. Similarly, the steps as pleaded at paragraph 13 (a)–(g) in the Saunders Summons were ones that could easily have been taken by Mr Saunders in exercising reasonable care that his acts and omissions did not adversely affect the health and safety of workers.

124. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was extreme, and the steps available to avoid the risk were straight forward and readily available to the defendants.

Deterrence

125. 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.

126. 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).

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

128. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) (‘Bulga’) 93 NSWLR 338 at [177]–[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be 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.’

129. General deterrence must be a significant feature of the sentence imposed upon the defendants. 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 of death or serious injury associated with working in an inherently dangerous industry in which A1 and Mr Saunders continue to operate.

130. 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 WHS Act very seriously.

131. It is appropriate that the penalties imposed on A1 and Mr Saunders communicate a message to others in the Forestry and Arborist industry, including workers with supervisory roles, of the necessity to ensure that measures are implemented to address the hazards and risks associated with the operation and maintenance of plant such as woodchippers. In particular, the penalties should emphasise the requirement that operators in the industry develop safe operating procedures, ensure that plant and equipment is fitted with all operational safety devices and that they are used in accordance with the manufacturer’s operations manuals.

132. 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.

133. 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. I have had regard to the steps that the defendants have now put in place, but I am uncertain as to whether these protections are sufficient and will be maintained and continued.

134. Further, rather than any acceptance of responsibility, A1 chose a strategy in the sentence hearing that could be seen to blame the victim, and attempt to exculpate the defendants. In those circumstances, how can the Court have any confidence that A1 will not offend again.

135. Therefore, acknowledging that the prospects of rehabilitation of the defendant are unknown, the need for an element of specific deterrence still remains very necessary in these circumstances.

Aggravating and Mitigating Factors

136. Subjective considerations including the entry of the plea of guilty by A1 and Mr Saunders, remorse, contrition, prior offences, co-operation with the investigating authority, measures taken by A1 to prevent a re-occurrence of the breach are properly to be taken into account: see Markarian.

137. A1 and Mr Saunders are entitled to have considered the subjective matters put forward in assessing the level of the penalty to be imposed. However, subjective matters are of secondary importance in the sentencing process.

138. I accept that I should ensure that the allowance of subjective factors does not produce a sentence which fails to take into account the objective gravity of the offences.

139. The mitigating factors that the Court must take into account in determining the appropriate penalty are set out in s 21A(3) of the Sentencing Act.

140. For an aggravating factor to be established, I must be satisfied beyond a 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] (Hidden J, McColl JA and Levine J agreeing). It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient: s 21A(2)(g) of the Sentencing Act.

141. I do not find that Mr Cirivakayawa’s death was an aggravating factor given the uncertainty of the circumstances around his death.

142. Mr Cirivakayawa was a vulnerable worker who had only been on this job for a matter of 5-7 days, and had limited experience with tree removal, let alone in the operation and use of the woodchipper. In those circumstances both A1 and Mr Saunders ought to have been additionally vigilant to ensure that Mr Cirivakayawa was not exposed to the hazard and risk associated with the use of the woodchipper.

143. The defendants assert that the incident was not witnessed, and that the evidence does not establish how the deceased was drawn into the woodchipper. They submit that there is no evidence establishing the deceased was hand feeding branches into the woodchipper at the time, and I accept that there is no evidence to that effect.

144. They further submit that although there were serious shortcomings in the offender’s systems, it is not available to me to find that these breaches caused the deceased’s death and to find his death to be an aggravating factor. To that end they tendered media reports that suggest that the deceased may have committed suicide – I presume that the defendants think that Mr Cirivakayawa threw himself into the woodchipper. A most bizarre and insensitive submission. Nonetheless, I accept that the death of Mr Cirivakayawa cannot be an aggravating feature, and I have taken this into account in coming to my determination of the appropriate penalty.

145. In Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following:

‘We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record.

Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.’

146. The defendant has not been subject to any prior convictions under work health and safety laws, and that is a mitigating feature: s 21A(3)(e) of the Sentencing Act.

147. Mr Saunders’s affidavit (exhibit 1) demonstrates little acceptance of responsibility for the defendants’ failures, and does not to my mind demonstrate remorse nor contrition: s 21A(3)(i) of the Sentencing Act. At [17]-[20] Mr Saunders deposes as follows:

‘17   I have never recovered from the tragic events of 7 September 2019. I accept that my distress pales in comparison to the impact on Samuela and his family.

1. I have observed Tracey, in particular, to be severely affected by this accident. I have observed a very serious deterioration in hr pre-existing psychiatric conditions.

2. This incident has taken a toll on our relationship and Tracey’s ability to care for our children.

3. The accident and the international publicity following the event exacerbated our already poor mental health. Annexed and marked ‘A’ are extracts of the said articles.’

   148. Annexed to Mr Saunders affidavit is a report of Danielle Florida, Clinical Psychologist, dated 25 April 2023, with regard to Tracey Aryans (exhibit 3).

   149. Ms Aryans had been treated by a psychologist and a psychiatrist prior to the incident the subject of these proceedings, including an admission to The Hills Clinic for depression in 2016. She has had numerous diagnoses which I will not mention and been prescribed many medications over the years. I accept that the incident has impacted Ms Aryans negatively, however, the report is of little use when it refers to the potential for Ms Aryans to be imprisoned for these offences, which is clearly incorrect.

   150. The defendants also tendered an affidavit of William Patrick Togher affirmed 11 May 2023 which became exhibit 2. Mr Togher deposed to Mr Saunders being an arborist with a good reputation. He further details that Mr Saunders was “extremely upset and devastated” that this had happened and was “bewildered” as to how it could have occurred. Importantly however, Mr Togher does not state in his affidavit that he knows of the offences and the breaches of duties by the defendants.

   151. The defendant entered a plea of guilty early, which of itself demonstrates some remorse, 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 in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s21A(3)(k) of the Sentencing Act.

   152. Having taken all of those matters into consideration, the appropriate fine for the corporate defendant, A1, is the maximum of $3,000.000.00. A1 is entitled to a discount of 25% for the utility of the early plea. The appropriate fine for the individual defendant, Mr Saunders, is the maximum of $150,000.00. Mr Saunders is entitled to a discount of 25% for the utility of the early plea.

Capacity to Pay

153. Section 6 of the Fines Act 1996 (NSW) provides as follows:

‘6   CONSIDERATION OF ACCUSED’S MEANS TO PAY

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

(a) Such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) Such other matters as, in the opinion of the court, are relevant to the fixing of that amount.’

154. The onus is on the offender to satisfy the Court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of penalty: McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 at [24]. The offender’s capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16] (Rothman J, Hoeben CJ at CL agreeing).

155. At the sentence hearing, an affidavit of Mr Saunders was read. Paragraphs 36-48 detail A1’s financial situation and the personal financial situation of Mr Saunders and his wife, Tracey. Mr Saunders was not required for cross-examination. I have had regard to the matters raised in coming to my determination, and in doing so I acknowledge that the defendants have encountered some difficulties.

156. In Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100, Staff J said at [57]–[58]:

‘The principles to be applied in respect of an application under s 6 of the Fines Act were discussed by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 are as follows:

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

'It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 94 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200-201.'

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

'... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76).’

‘However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 - 210, Wright J, President observed:

'... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty …

When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence ...'

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

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

157. The dire financial circumstances that Mr Saunders and his family and A1 are in is apparent from the matters deposed to in exhibit 1, and I have had regard to those matters and further submissions made by Counsel for the defendants.

158. On the basis of the totality of the documents before me, I will allow the defendants some leniency.

159. Having said that, the objective seriousness of the offence is such that it must be reflected in a significant fine. I am uncertain whether the defendant is likely to reoffend, but the seriousness of the offence is such that a fine must be imposed to send a message to employers that they must take their obligations to protect their workers from a risk of injury very seriously. To reduce the fine significantly would not provide the level of general deterrence that is expected, nor specific deterrence, given the risk that Mr Cirivakayawa and other workers were exposed to.

160. The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution: Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ).

161. The Court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor’s costs when considering any monetary penalty to be imposed on the defendants, particularly in circumstances where there is evidence of a limited capacity to pay a fine, and I have done so. Costs payable to the prosecutor are the ‘normal’ rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga. I note that the defendants have agreed to pay the Prosecutors costs agreed in the sum of $78,000 across both matters.

162. The Court can also have regard to the defendant’s own costs that it will have to bear as a consequence of a breach of the Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].

Penalty

163. I make the following orders:

1. The corporate defendant, A1 Arbor Tree Services Pty Ltd, is convicted.

2. The appropriate fine for the offence is $3,000,000.00 and that will be reduced by 25% to reflect the plea of guilty, that is a fine of $2,250,000.00.

3. That fine will be reduced by 10% due to the application of s 6 of the Fines Act 1996 (NSW).

4. Accordingly, I order the corporate defendant, A1 Arbor Tree Services Pty Ltd, to pay a fine of $2,025,000.00.

5. The individual defendant, Mr Saunders, is convicted.

6. The appropriate fine for the offence is $150,000.00 and that will be reduced by 25% to reflect the plea of guilty, that is a fine of $112,500.00.

7. That fine will be reduced by 10% due to the application of s 6 of the Fines Act 1996 (NSW).

8. Accordingly, I order the individual defendant, Mr Saunders, to pay a fine of $101,250.00.

9. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fines imposed are to be paid to the prosecutor.

10. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs agreed in the sum of $78,000.00 across both matters.

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Decision last updated: 14 July 2023