SafeWork NSW v ACN 158 085 217 Pty Ltd (previously known as Territory Transport Pty Ltd)

[2022] NSWDC 420

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v ACN 158 085 217 Pty Ltd (previously known as Territory Transport Pty Ltd) [2022] NSWDC 420

Hearing dates:

19 September 2022

Date of orders:

21 September 2022

Decision date:

21 September 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1) ACN 158 085 217 Pty Ltd is convicted.

(2) I impose a fine of $360,000.

(3) The offender is to pay the prosecutor’s costs, in the sum of $65,430.38.

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

Catchwords:

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

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Jahandideh v R [2014] NSWCCA 178

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Texts Cited:

Code of Practice on Managing the Risk of Plant in the Workplace

National Heavy Vehicle Regulators Guide “Creating heavy vehicle daily checks”

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
ACN 158 085 217 Pty Ltd (previously known as Territory Transport Pty Ltd (Defendant)

Representation:

Counsel:
C Magee (Prosecutor)Solicitors:
Department of Customer Service (Prosecutor)

File Number(s):

2021/312892

Publication restriction:

None

Judgment

1. ACN 158 085 217 Pty Ltd (formerly known as Territory Transport Pty Ltd) (the offender) appears for sentence after it pleaded guilty to an offence pursuant to s 32 Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Gregory Edwards to a risk of death or serious injury.

2. The maximum penalty for the offence is a fine of $1.5 million.

3. The offender did not appear at the sentence proceedings. Correspondence was received by the Court from the director of the offender, Raymond Monteleone, dated 14 July 2022 entering the plea of guilty to the offence and indicating that the facts on which the sentence was to proceed were agreed. Later correspondence between SafeWork NSW and the offender’s accountant demonstrated that the offender was aware of the sentence date and the materials to be relied on by the prosecutor, including the quantum of its claim for costs.

Facts

4. The prosecutor tendered an Agreed Statement of Facts that can be summarised as follows.

5. The offender was incorporated as Territory Transport Pty Ltd on 1 May 2011. It operated a business providing interstate linehaul services from a depot in Hanwood, New South Wales.

6. Riverina Express Pty Ltd (Riverina Express) was incorporated on 31 May 2011. It also operated a business providing interstate linehaul services.

7. Raymond Monteleone was the director of Riverina Express and the offender.

8. On or about 2 July 2018 Mr Edwards commenced employment with the offender as an interstate linehaul driver. Part of his duties were to load and unload freight at predetermined locations. Mr Edwards had over 20 years’ experience working as a truck driver and held a Heavy Vehicle Drivers Licence. He had also worked for Riverina Express in the same capacity.

9. On 1 November 2019 Mr Edwards was given a notice of termination of employment because the offender intended to cease operating the business.

10. On or about 3 November 2019, Mr Edwards drove a prime mover towing a trailer for the offender from Darwin to Adelaide and then to the Hanwood depot, arriving at about 11.00 am on 5 November 2019. His partner, Winifred Wihongi, accompanied him on the trip.

11. Mr Edwards was tasked with transporting two passenger vehicles, a Ford Falcon and a Ford Ranger to Sydney. A decision was made to use a different prime mover and trailer operated by the offender to transport the vehicles to Sydney.

12. The trailer had two metal loading ramps that were controlled by a hydraulic system. The raising and lowering of the ramps was controlled by a push button control panel located on the right rear corner the trailer. The ramps were raised and lowered by the circulation of oil through the hydraulic hoses to the hydraulic rams. When not in use the ramps were secured by an anchor chain and ratchet device.

13. The ramps were unsuitable for loading the Ford Falcon which had a lowered suspension. The depot manager, Ben Pawson, used a forklift to place both of the vehicles on the trailer from the side.

14. There was no pre-start check of the trailer involving a visual inspection of the hydraulic system or testing of the hydraulic system to lower or raise the ramps at the Hanwood depot, when the trailer was loaded.

15. At about 1.00pm, Mr Edwards left the depot to drive to Sydney.

16. At about 7.30pm on 5 November 2019, Mr Edwards arrived at Ingleburn where he was met by a tow truck driver, Darren Holland, who had been sent to unload the vehicles.

17. In preparation to unload the vehicles, Mr Edwards removed the safety chain from the passenger side ramp. When he walked behind the ramp it fell on him as he walked underneath it. He was pinned under the ramp. Mr Holland and Ms Wihongi tried to lift the ramp off him but it was too heavy.

18. Emergency services attended the scene. Mr Edwards was pronounced dead at the scene.

19. An examination of the trailer revealed an oil leak in the hydraulic hoses servicing the driver’s side ramp. It could be readily observed that the hydraulic hose and other components were covered in hydraulic fluid and dirt that had been deposited on them over a period of time.

20. When examined by the police, the hydraulic fluid reservoir was empty and the hydraulic system was not holding the ramps in place if the safety chains were removed. The expert police officer concluded that the hydraulic system had been leaking for some time from a damaged hydraulic hose fitting on the hydraulic ram. He opined that the leak on the driver’s side eventually led to the system to run low on fluid and fail.

21. SafeWork NSW engaged Dr Robert Casey to provide an expert opinion on the incident. Dr Casey stated that each ramp had its own hydraulic cylinder, but that the motion of each cylinder was linked to the other. Dr Casey observed that the oil leak came from a fitting screwed into the bottom of the right hand cylinder that allowed oil to leak from the right hand cylinder and that the joinder of the two cylinders by a T-fitting, created a loss of hydraulic pressure on the left hand cylinder, leading to a position that either ramp could fall by gravity if it went past the tipping point. Dr Casey noted that there was a substantial build-up of dirt that appeared to be “wet” on the right-hand side that was indicative of the presence of a leak of hydraulic fluid, and that the absence of the same appearance on the left-hand side was a visual cue that something was wrong with the right hand cylinder.

22. At the time of the incident the offender had a documented Standard Operating Procedure (SOP) in place for operating hydraulic ramps on a trailer. The SOP contained advice to keep a 4 m wide clearing around the ramps and a warning not to walk or stand under an unsecured ramp, ie one that had been unchained. The offender told SafeWork NSW that Mr Edwards had been trained in the procedure, but there was no documentary evidence of this.

23. The offender had in its possession the Owner’s Manual for the trailer. The Owner’s Manual stated in a number of places that there was a risk of serious injury or death from standing directly under the swept path of the ramps if they were unsecured. The Owner’s Manual also warned of the risk that existed from failure of the hydraulic system if it was not properly maintained.

24. The offender had some records of maintenance work carried out on the trailer. None of the records indicated any problem with the operation of the hydraulic system that operated the ramps.

25. The offender included the National Heavy Vehicle Regulators Guide “Creating heavy vehicle daily checks” (the Guide) with the SOP. A copy of the Guide was produced to SafeWork NSW in response to a notice issued to the offender. The Guide sets out how to conduct a daily check to ensure that each vehicle being operated is roadworthy. A daily check involves a quick visual inspection that can be undertaken prior to a heavy vehicle leaving the yard, depot or rest area.

26. Riverina Express held accreditation under the National Heavy Vehicle Accreditation Scheme (the Scheme). It had nominated a number of vehicles operated by the offender as its subcontractor, including the prime mover and the trailer. The Scheme imposed maintenance standards including mandatory requirements relating to “daily checks” and “fault recording and reporting”. A Scheme audit dated 16 May 2019 did not include a reference to the trailer, but it is possible that it was not a nominated vehicle at the time that the audit was conducted. The Scheme audit found that Riverina Express was compliant in relation to all relevant standards, including “daily checks” and “fault recording and reporting”.

27. The offender did not have a documented system requiring drivers, such as Mr Edwards, to conduct daily checks, setting out how those checks should be conducted or confirming that the checks had been completed.

28. The offender could not produce any document to indicate that the defect in the trailer had been identified prior to the incident.

29. There was ample objective guidance material to identify the risk and the way of dealing with it, including the Code of Practice for Managing the Risk of Plant in the Workplace and Safety Alerts issued by WorkSafe WA in 2016 and WorkSafe Victoria in 2019, in relation to similar incidents.

The Offender’s Case on Sentence

30. Mr Monteleone sent a letter to the Court dated 14 July 2022 in the following terms:

I am the sole director of the above-mentioned company.

I wish to enter a plea of guilty on behalf of the company, to the attached Amended Summons and Agreed Facts.

I do this in an effort to bring closure to all involved including Mr Edwards (sic) family, my ex-wife, my for young children and my elderly parents. And to not take any more of the courts (sic) time.

I wish to reiterate the below from my letter of 16 June 2022 to Your Honour and the court.

My business, ACN 158 085 217 Pty Ltd, formerly Territory Transport Pty Ltd, has ceased trading and I am no longer running a business in the transport industry.

I am currently struggling financially due to the business failure.

Due to my financial struggles, Mr Alan Girle has ceased representing Territory Transport Pty Ltd as I am unable to afford his legal fees.

The financial struggles and emotionally dealing with Mr Edwards’ accident have had a huge impact on my life including the breakdown of my marriage.

Mr Edwards was not only an employee of my business, he was also a very close friend. His accident is something I will need to live with for the rest of my life, not a day goes by that I don’t think of him.

Mr Edwards was one of a kind, he was excellent at his job, he was a good man and a great mate. I miss him dearly.

Please excuse my absence in these court proceedings, I find it very difficult dealing with Mr Edwards’ accident not only as his employer but also as his friend. I do not feel emotionally stable to be able to relive this horrible tragedy.

Thank you for your patience and assistance in finalising this matter. Please advise the outcome of the proceedings.

Consideration

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

Objective Seriousness

32. The offence is objectively serious.

33. The risk posed by an unsecured ramp falling onto a person was known to the offender. It took some steps to eliminate and/or minimise the risk, but those steps were incomplete and did not adequately control the risk to the requisite standard.

34. The risk was likely to result in harm if adequate precautions were not taken.

35. The consequences of the risk included a risk of death.

36. The available steps to eliminate and/or minimise the risk was well known in the industry. A simple visual check of the trailer would have determined that there was an oil leak in the right hand cylinder that could compromise the operation of the hydraulic system, at least of the driver’s side ramp. By its plea of guilty, the offender acknowledged that it failed to develop, implement and enforce a system requiring daily visual checks, that it failed to ensure that the hydraulic systems on trailers were free from defects and that it failed to warn operators to keep clear of the swept path of ramps attaching to trailers. The steps that could have been taken were relatively simple and inexpensive.

37. The death of Mr Edwards is an aggravating factor.

38. I have taken into account the maximum penalty for the offence.

Deterrence

39. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

40. The penalty imposed must also provide for specific deterrence, but it will be significantly reduced because it appears that the offender is no longer in business.

Aggravating Factors

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

Mitigating Factors

42. The offender does not have any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has operated since 2011 without any prior safety breaches.

43. The offender is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. The offender is no longer operating the business. On that basis, I am satisfied that it is unlikely to re-offend.

44. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. I am satisfied that in his letter to the court Mr Monteleone, on behalf of the company, accepts responsibility for the incident and I infer that he has expressed genuine remorse and contrition. I accept that the offence has had a significant adverse impact on Mr Monteleone.

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

Capacity to Pay a Fine

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

47. I note from Mr Monteleone’s letter to the Court, that the offender’s business has failed and that he is struggling financially, but there is no evidence before the Court to support these assertions.

Penalty

48. ACN 158 085 217 Pty Ltd is convicted.

49. I have taken into account the Victim Impact Statements (VIS) prepared by Ms Wihongi, Clifford Edwards (the deceased’s father) and Janet Edwards (the deceased’s sister). The VIS conveyed the love and affection that his family had for Mr Edwards and the immense loss that they now feel. I note that they still have some regard for the impact that the offence has had on Mr Monteleone who was a long term friend of Mr Edwards. I accept that the death of Mr Edwards has had a significant impact on his family and that it is appropriate to consider this as an aspect of harm done to the community.

50. The appropriate fine is one of $480,000 which will be reduced by 25% to reflect the plea of guilty.

51. I impose a fine of $360,000.

52. The prosecutor is entitled to an order for its costs. The offender has chosen not to participate in the proceedings. The prosecutor has asked that I assess the costs, where it has informed the offender of its claim for costs. I am satisfied on the evidence presented to me by the prosecutor that the costs it seeks are reasonable. I order that the offender pay the prosecutor’s costs, in the sum of $65,430.38.

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

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Decision last updated: 21 September 2022