SafeWork NSW v All Cranes 4 Hire Pty Ltd

[2020] NSWDC 738

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v All Cranes 4 Hire Pty Ltd [2020] NSWDC 738

Hearing dates:

19 November 2020

Date of orders:

4 December 2020

Decision date:

04 December 2020

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   All Cranes 4 Hire Pty Ltd is convicted.

(2)   The appropriate fine is $200,000 but that will be reduced by 25% to reflect the plea of guilty.

(3)   Order All Cranes 4 Hire Pty Ltd to pay a fine of $150,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order All Cranes 4 Hire Pty Ltd to pay the prosecutor’s costs agreed in the amount of $32,500.

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 appropriate penalty

COSTS – prosecution costs

OTHER – unsecured load fell on workers while being lifted by a crane ̶ absence of exclusion zone ̶ failure to provide sub-contracted workers with proper instruction, training or information regarding safely working near a crane ̶ failure to implement existing Safe Work Method Statement

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19(2), 32

Work Health and Safety Regulation 2017 (NSW), ss 34, 35, 36, 37, 38

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

Australian Standard 2550.1.11: Crane, hoists and winches – Safe Use (March 2011)

WorkCover NSW, Code of Practice: Construction Work (July 2014)

Safe Work Australia, Falling Objects Fact Sheet (February 2012)

SafeWork NSW, Code of Practice: How to manage work health and safety risks (December 2011)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
All Cranes Hire Pty Ltd (Defendant)

Representation:

Counsel:
M Moir (Prosecutor)
C Magee (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
Coleman Greig (Defendant)

File Number(s):

2019/391727

Judgment

1. On 15 December 2017 part of a heavy unsecured wall panel load being lifted by a crane fell onto construction workers.

2. All Cranes 4 Hire Pty Ltd (“All Cranes”) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(2) of the Work Health and Safety Act 2011 (NSW) (“the Act”) it failed to comply with that duty and thereby exposed other persons, in particular Mr Ken Graff and Mr Soane Sitauti, to a risk of death or serious injury contrary to s 32 of the Act.

3. The maximum penalty for the offence is a fine of $1,500,000.

Background

4. The parties presented an Agreed Statement of Facts and this material is summarised below.

5. All Cranes, operating as “Top Gun Cranes”, was a person conducting a business or undertaking (“PCBU”) which involved the provision of crane services. Mr Barry Ramm was the sole director of All Cranes.

6. All Cranes employed Mr Adam Kerr as a dogman.

7. Arise Construction Pty Ltd (“Arise”) was the principal contractor for a project involving the construction of 58 townhouses at Lot 21, 122 Windsor Road, Kellyville, New South Wales (“the Site”). It sub-contracted All Cranes to provide crane services at the Site. All Cranes commenced work at the Site on 29 November 2017.

8. Arise also sub-contracted HD Projects Pty Ltd (“HD Projects”) to supply and install AFS Logicwall Wall Panels (“AFS Wall Panels”) and Erectus Scaffolding Pty Ltd (“Erectus”) to supply and install scaffolding.

9. HD Projects employed Mr Adam Hamburger and Mr Paul Georges as foremen. HD Projects also engaged workers, including Mr Marc Dessens through Hunter Labour Hire Pty Ltd (“Hunter Labour”).

10. Erectus employed Mr Fred Naesse as General Manager, and Mr Ken Graff and Mr Soane Sitauti as labourers.

The Work

11. During September 2017 Arise commenced work at the Site which consisted of nine buildings, named Stack 1 to Stack 9. Stacks 1 and 8 were to be built into eight townhouses. Stacks 2 – 7 and Stack 9 were to be built into six townhouses.

12. Arise engaged HD Projects to install AFS Wall Panels at the Site. The AFS Wall Panels were supplied to HD Projects by AFS Systems Pty Ltd (“AFS Systems”). Approximately 15 AFS Wall Panels were in each load, wrapped in stretch plastic wrapping and with wood packing underneath. Each panel weighed approximately 76kg.

13. The AFS Wall Panels were to be lifted by crane to various areas of the Site using a PHD2200 Adjustable Pallet Hook (“pallet hook”), which had tynes similar to a forklift.

14. The pallet hook was provided to HD Projects by AFS Systems, along with a Manufacturer Instruction Manual dated October 2010 and a Pallet Lifter Safe Work Method Statement (“Pallet Lifter SWMS”) dated August 2013. The pallet hook was under the control and management of HD Projects and was used by All Cranes to lift the loads.

The Incident

15. On 15 December 2017 AFS Wall Panels were to be transported via mobile crane from the ground to the first floor of Stacks 2 and 3.

16. At 8.30am, All Cranes began operating a mobile crane at the Site to move the AFS Wall Panels to various locations. Mr Ramm was working as the crane operator and Mr Kerr was working as the allocated dogman.

17. Between 8.30am and 10.30am, All Cranes was using the crane to lift packs of AFS Wall Panels.

18. The AFS Wall Panels were lifted to the Level 1 Slab (one level above Ground Level) of Stack 2. The crane was initially slewing right, over the back of the crane. The crane then began slewing left and lifting the loads. Slewing right involved the crane going over another block, with a longer movement and with the load being higher.

19. Between 10.30am and 10.45am, Mr Dessens undertook the task of attaching the pallet hook into another pack of AFS Wall Panels. Instead of inserting the tynes of the pallet hook underneath the pack, he inserted the tynes into the second panel from the bottom. He did not use any straps to secure the load. As a result, the bottom panel of the load was only held in place by the plastic wrapping that was around the whole pack.

20. Mr Kerr was on the Level 1 Slab of Stack 2 for the purpose of receiving and detaching the loads. He was not directing the crane at this time.

21. At this time Mr Graff and Mr Sitauti entered the vicinity of Stack 1. They were standing near the formwork frames talking about what work they would be doing after lunch. There was no specific requirement related to the scaffold work that they were undertaking on that day necessitating Mr Graff and Mr Sitauti being in the vicinity of Stack 1.

22. Mr Ramm used the crane to lift the load that Mr Dessens had attached to the tynes. Mr Ramm was not aware that Mr Dessens had inserted the tynes of the pallet hook into the second panel from the bottom. Mr Ramm lifted the load by slewing left.

23. When the load was above Mr Graff and Mr Sitauti, the 76kg bottom panel detached from the load and fell. It struck Mr Graff on the head and shoulder and then fell onto Mr Sitauti’s head. Both workers were knocked down.

Injuries

24. Mr Graff sustained the following injuries:

1. Injury to his left shoulder, including injury to his rotator cuff and an abrasion.

2. Injury to his left knee, including tenderness.

3. Abrasion to his left cheek.

25. Mr Graff was seen in the Emergency Department at Westmead Hospital on the day of the incident and was discharged that same day with a diagnosis of “strain of rotator cuff capsule”.

26. Mr Sitauti suffered no significant injuries.

Legal Obligations and Guidance Material

The Act and Work Health and Safety Regulation 2017

27. All Cranes had obligations under Part 3.1 of the Work Health and Safety Regulation 2017 (NSW) (“the Regulation”), which provided:

“34 Duty to identify hazards

A duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety.

35 Managing risks to health and safety

A duty holder, in managing risks to health and safety, must:

(a) eliminate risks to health and safety so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety— minimise those risks so far as is reasonably practicable.

36 Hierarchy of control measures

(1) This clause applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety.

(2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this clause.

(3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following:

…

(b) isolating the hazard from any person exposed to it,

(c) implementing engineering controls.

…

37 Maintenance of control measures

A duty holder who implements a control measure to eliminate or minimise risks to health and safety must ensure that the control measure is, and is maintained so that it remains, effective, including by ensuring that the control measure is and remains:

(a) fit for purpose, and

(b) suitable for the nature and duration of the work, and

(c) installed, set up and used correctly.

38 Review of control measures

(1) A duty holder must review and as necessary revise control measures implemented under this Regulation so as to maintain, so far as is reasonably practicable, a work environment that is without risks to health or safety.”

Code of Practice: How to manage work health and safety risks

28. The SafeWork NSW Code of Practice How to Manage Work, Health and Safety Risks (December 2011) provides guidance on how to identify, assess, control and review risks in the workplace. This was a publicly accessible document which was available at the time of the incident.

29. Chapter 3 titled “How to Assess Risk” covers when a risk assessment should be carried out and how to undertake a risk assessment.

30. Chapter 4 titled “How to Control Risks” covers the hierarchy of risk control and how to develop and implement control measures, as well as how to ensure that control measures remain effective.

31. The Code identifies a four-step risk management process (at pp 4-5), which includes:

1. Identifying what could cause harm.

2. Assessing the nature of harm that could be caused, how serious the harm could be, and the likelihood of it occurring.

3. Implementing the most effective control measure that is reasonably practicable in the circumstances.

4. Reviewing control measures to ensure they are effective.

Australian Standard 2550.1.11: Crane, hoists and winches – Safe Use (dated March 2011)

32. Prior to and at the time of the incident, the Australian Standard 2550.1.11: Crane, hoists and winches – Safe Use (AS2550.1.11) was available. AS2550.1.11 provides general guidance on the use of hoists and winches for cranes, and states at pp 18 and 19:

“(a)    Personnel should not approach a crane when it is operating or travelling as there is a danger that they may be struck by the crane or load… barricades or guarding shall be provided where necessary.

(b)    When loads have to be handled in the vicinity of persons… the crane operator shall be alert to the possibility of persons being trapped and injured by the movement of the crane or load and exercise caution…”

Falling Objects Fact Sheet (February 2012, Safe Work Australia)

33. Prior to and at the time of the incident, a Falling Objects Fact Sheet prepared by Safe Work Australia (February 2012) was available. It provided at pp 2 and 3:

“(a)    Objects have the potential to fall onto or hit people at the workplace or adjoining areas if precautions are not taken… examples include… an object free falling from lifting machinery… including loads being lifted that are not well secured…

(b)   When moving a load, a safe means of raising and lowering plant, materials and debris should be provided. Examples of additional control measures include: …making sure the load is balanced and secure when the load is lifted… enclosing areas that loads are being lifted over, and establishing ‘isolation’ or ‘no-go’ zones with barriers and trained workers to restrict access.”

Code of Practice: Construction Work (July 2014, WorkCover NSW)

34. Prior to and at the time of the incident, the Code of Practice: Construction Work (July 2014, WorkCover NSW) was available, and provided at pp 67 and 68:

“(a)    Falling objects can pose a significant risk and cause serious injuries to workers at construction workplaces or members of the public if control measures are not implemented to eliminate or minimise associated risks.

(b)    Control measures that can be implemented to manage the risk of falling objects when undertaking construction work include: closure of the adjoining area to form an exclusion zone… using a spotter on the ground level when loads are being lifted to higher levels… using the appropriate equipment to raise and lower objects… load pallets correctly to ensure load stability…”

Pallet Hook Manufacturer Instruction Manual (October 2010) and SWMS

35. The pallet hook was provided by AFS Systems to HD Projects, along with a Manufacturer Instruction Manual (dated October 2010) and the Pallet Lifter SWMS (dated August 2013).

36. The Manufacturer Instruction Manual provided at p 6:

“(a)    Do NOT move the Crane/Pallet Hook unless the safety of persons in the vicinity of the Crane is assured… While lifting in an area subject to passing traffic, barriers or warning signs shall be used to prevent any interference”.

(b)   Means shall be provided to prevent the load from sliding on the tynes, or the load or part of the load falling… this can be achieved, for example, by… safety chains, straps, wrapping or similar.”

37. The Pallet Lifter SWMS provided:

“(a)    The task of ‘placement of pallet lifter using crane or lifting device’ is the responsibility of the crane dogman.

(b)   … dogman to ensure site personnel in area are aware of this activity. Ensure load is strapped as per instruction manual.

(c)    … prior to commencement of the lift, secure the AFS Panels to the pallet lifter using the binder straps provided which are located beside the pallet lifter tynes…”

Systems of Work in place prior to the Incident

38. At the time of the incident, no exclusion zones were in place in relation to the crane. All Cranes did not require HD Projects or Arise to establish an exclusion zone prior to commencing crane work, or maintain an exclusion zone while crane work was being carried out. Workers and other persons, including Mr Graff and Mr Sitauti, were given no information or SWMS regarding safely working near a crane. The Erectus manager on the Site, Mr Naesse, was not notified that a crane would be working on that day. He was not provided with information regarding exclusion zones, risk assessments, or other safety information concerning workers working near a crane.

39. HD Projects advised Hunter Labour (who provided Mr Dessens) that Mr Dessens’ duties on the Site were to be general labouring duties such as keeping the work area clean, moving material, and assisting HD Project installers where required. Mr Dessens had four months of general labouring experience. Mr Dessens learned how to attach the pallet lifter to the packs by watching another worker do it. He was not shown how to use the pallet lifter. He was not told of the requirement to use straps or how to use them.

40. All Cranes’ Pre-Job Site Inspection Checklist for 15 December 2017 provided that the ground conditions were satisfactory and that the traffic and pedestrian control measures were adequate. This checklist also provided that Mr Kerr was the dogman. No second dogman was listed.

41. All Cranes had in place a SWMS dated 1 July 2017, which was submitted to Arise on 29 November 2017. This was reviewed by Mr Carlos Carrapico, the Site Safety Officer at Arise, and was deemed relevant and appropriate. This SWMS identified the hazard of “load falling” and provided the control measure of “loads only to be slung and unslung by qualified and competent dogman”. It also identified the hazard of “traffic, other workers/activities” and provided the control measure of “place bunting tape around crane slew area and establish exclusion zone”. However, these measures were not implemented.

Systems of Work following the Incident

All Cranes

42. Following the incident, Inspector John Mizzi issued the following notices to All Cranes on 19 December 2017:

1. Improvement Notice 7-319705, directing All Cranes to, “manage risks to health & safety associated with objects falling on a person… in particular… provide appropriate exclusion zones and lifting procedures to prevent suspended AFS Panels causing risks to health and safety from falling”.

2. Improvement Notice 7-319704, directing All Cranes to, “review and as necessary revise control measures implemented under [the] Regulation so as to maintain, so far as is reasonably practicable, a work environment that is without risks to health or safety… In particular, you must conduct an incident investigation to determine the root cause of the incident… to determine the best control measures to be implemented to prevent a reoccurrence”.

43. All Cranes took the following action after the incident:

1. Workers took part in a toolbox talk on 18 December 2017, to discuss the incident and identify control measures. This included a discussion on the need to implement exclusion zones, follow the SWMS, have adequate consultation arrangements, and for loads to be hooked up only by qualified dogmen.

2. Undertook a formal investigation of the incident. The investigation report recorded the workplace conditions as “very poor” and noted that “not a lot” of instructions were given for the work. This report identified corrective actions to be the implementation of exclusion zones, use of qualified dogmen, and consultation with Arise and HD Projects.

Evidence for the Offender

Affidavit of Barry Ramm

44. Mr Ramm swore an affidavit on behalf of the offender on 13 November 2020. Mr Ramm has been a director of All Cranes since it was incorporated on 21 September 2010 and has been the sole director of All Cranes since 30 September 2017.

45. Mr Ramm stated that he has been working in the crane industry since 2000 in various roles (including dogman, crane operator and supervisor) at several crane companies. He currently holds a National Licence to Perform High Risk Work from SafeWork NSW which authorises him to operate the following classes of crane machinery: (a) Class CO - slewing mobile cranes; (b) Class CT - tower cranes; (c) Class DG - dogging; (d) Class CS - slewing cranes up to 60 tonnes; (e) Class RB - rigging basic; (f) Class RI - rigging intermediate; (g) Class RA - rigging advanced; (h) Class LF - forklift; and (i) Class CS - self-erecting tower crane. He also has a White Card.

Background to All Cranes

46. All Cranes currently employs around 28 people on a full-time basis. All new employees at All Cranes are required to complete a form setting out their qualifications and previous experience. Each All Cranes employee is properly qualified to perform their relevant role.

47. All Cranes provides each of its employees with training relevant to the role that they will be performing during their employment. This includes training courses facilitated by the Crane Industry Council of Australia (“CICA”), a validation of competency assessment carried out by an independent third-party and internal capability assessments that Mr Ramm supervises and oversees.

46. All Cranes currently has a fleet of around 30 cranes, semi-trailers and rigid trucks and is a member of CICA.

47. All Cranes has never been convicted of any offence or been involved in any litigation before these proceedings. All Cranes had no prior safety incidents and never received any improvement notices from SafeWork NSW before the incident.

Project Safety and the Incident

50. Mr Ramm stated that it was his understanding that Arise, as head contractor, was responsible for the control of the Site and for all safety aspects of the project. He also said that on the day of the incident, when operating the crane to slew the AFS Wall Panels, he did not observe Mr Graff, Mr Sitauti or any scaffolding work in the vicinity. He was not informed until after the incident by Mr Dessens that the pallet had not been properly secured.

Remorse

51. On behalf of All Cranes, Mr Ramm accepts responsibility for its failures that gave rise to the risk to which Mr Graff and Mr Sitauti were exposed. In his affidavit, Mr Ramm states that All Cranes acknowledges it should have done more to ensure that additional safety measures were in place to minimise the risk of injury to Mr Graff and Mr Sitauti and any other persons working at the Site. On behalf of All Cranes, Mr Ramm expressed deep regret for the impact that the incident had and the injuries caused to Mr Graff and Mr Sitauti.

All Cranes Safety Systems

52. According to Mr Ramm’s affidavit, All Cranes is committed to providing a safe workplace for all its workers, contractors and other persons on any site. It will continue to take steps to ensure that no further safety incidents occur. All Cranes understands the importance and need to comply with the Work Health and Safety Act and its related regulations and codes. It will continue to use its best efforts to comply with the Act and related regulations and codes.

53. All Cranes employs Mr Graham Cooper as Site Supervisor. Mr Cooper is responsible for inspecting prospective job sites and consulting with the relevant head contractor.

54. All Cranes completes a "Pre-Job Site Inspection Checklist" for each site on which it is engaged to perform cranes services, prior to any work being carried out on that site. All Cranes also develops a SWMS for each site that it works on. This is done after All Cranes has inspected the site and consulted with the representative of the head contractor to understand the needs and requirements of the particular job.

55. Once All Cranes completes a SWMS, it is submitted to the head contractor for approval and work is not carried out by All Cranes until the SWMS is accepted and approved by the head contractor.

56. The particular crane operator supplied by All Cranes for a job will be taken through the SWMS before going to the site and will carry a copy of the SWMS on site. The crane operators are trained to make any amendments to the SWMS as necessary throughout the course of the job.

Measures taken by All Cranes in response to the Incident

57. Mr Ramm explained that in the toolbox talk with staff on 18 December 2017, All Cranes staff were reminded of the importance of:

1. Implementing and enforcing exclusion zones on any site prior to any lifting being done.

2. Following all applicable SWMSs.

3. Establishing consultation arrangements with head contractors to ensure suitable safety measures are implemented in all sites.

4. Ensuring that only qualified dogmen, whether they be All Cranes employees, third-party contractors or any other personnel supplied by labour companies, are suitably qualified as dogmen to hook up loads.

58. All Cranes employees now have monthly toolbox meetings, facilitated by Mr Martin and Mr Ramm. During these meetings any work health and safety matters are reviewed, upcoming jobs and their SWMSs are discussed, and stocking of safety equipment for All Cranes employees is also covered.

59. Since the incident, All Cranes has also updated its SWMS template and job safety checklist template and has employed Mr Phill Martin as Operations Manager and Work Health and Safety Supervisor. Mr Martin's role includes drafting SWMSs for each of All Cranes’ jobs, communicating All Cranes’ safety procedures to employees, and reviewing, improving and updating safety systems and practices.

Community Contribution

60. Over the years, All Cranes has been a sponsor of several community groups including Hawkesbury Hornets BMX Biking Club, Pitt Town Pirates Soccer Club and Blacktown Minibike Club.

Financial Situation

61. The material in Mr Ramm’s affidavit pertaining to the capacity to pay a fine is dealt with later in this judgment.

Affidavit of Phill Martin

62. Mr Martin swore an affidavit on behalf of the offender on 18 November 2020. Mr Martin has been the Operations Manager at All Cranes since June 2018.

63. Mr Martin explained that he has worked in the crane industry since 1992 in various companies holding several different roles including working as an operations manager, dogman, crane operator and allocator at different times. Mr Martin also detailed his qualifications: (a) Advanced Rigging Licence, (b) Heavy Combination Class Licence, (c) Supervisor/Line Managers Certificate, and (d) Health and Safety Representatives Certificate.

64. Mr Martin’s responsibilities as Operations Manager at All Cranes include the day-to-day business operations, overseeing WHS matters, writing, reviewing and amending procedures and policies (including those relevant to WHS) and overseeing the implementation of policies and procedures.

65. In his affidavit, Mr Martin explained that in his experience All Cranes has a pro-active approach to maintaining, reviewing and improving the safety practices and policies affecting its workers and contractors. Mr Martin explained that he has personally implemented the monthly toolbox meetings, an incident reporting program and an incident investigation process. He is also reviewing the All Cranes SWMS on a regular basis to ensure it remains current and addresses all relevant matters.

Consideration

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

Objective Seriousness of the Offence

67. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

68. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

69. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“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 the offending.”

70. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson(No. 5) [2009] NSWSC 432 at [61].

71. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

72. 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. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

73. The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater 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 on assessment of all those factors.”

74. Further at [42] his Honour continued:

“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 [event] 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 little, if any, costs.”

75. 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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting 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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

76. My findings about the defendant’s level of culpability are based upon the following:

1. The risk was known to All Cranes. It was a risk covered by the All Cranes SWMS. There was also ample guidance material identifying such a risk.

2. The risk was likely to occur. Allowing an unqualified labourer to do the high risk work of a dogman was inviting trouble.

3. The potential consequence of a heavy object falling from height was serious injury or death. The outcome could easily have been so much worse.

4. There were readily available steps to eliminate or minimise the risk. There was a dogman on the Site and there was equipment available which could have been used to strap the load securely. If All Cranes had simply followed its own SWMS, the risk would have been eliminated or minimised. An exclusion zone should have been set up and enforced.

5. There was effectively no burden or inconvenience in implementing those steps. The costs of a dogman and strapping were already factored into the job. An effective exclusion zone could have been set up with little expenditure of cost or time.

6. Fortunately the injuries suffered by Mr Graff were relatively minor, considering what could have happened.

7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence.

8. Operating a crane is high risk work, and others in the vicinity are extremely vulnerable if proper practices are not employed.

9. Counsel for All Cranes submitted that the actions of both Arise and HD Projects contributed to the risk and that this should be taken into account in assessing objective seriousness. I accept that submission and take into account that, while the evidence about others on the Site is necessarily sketchy on this hearing, the actions of others may have made a contribution to the risk. However the fact remains that All Cranes was the specialist contractor on the Site and that it supplied the crane and the ticketed crane operator and dogman. Further, the person in charge was Mr Ramm, the principal of All Cranes. There was no explanation provided as to why All Cranes did not follow its own SWMS on this occasion.

77. I find that the level of culpability of All Cranes is in the mid range.

Deterrence

78. 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 Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

79. The penalty must reflect the need for specific deterrence. All Cranes is still conducting a business. This is high risk work. All Cranes has 28 full-time workers and a fleet of 30 vehicles.

Aggravating Factors

80. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

81. All Cranes does not have any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

82. All Cranes is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. It has been in business for 10 years.

83. All Cranes is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

84. All Cranes has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.

85. All Cranes has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Graff was caused by its actions.

86. All Cranes entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give All Cranes a 25% discount for an early plea.

87. All Cranes gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

88. I am required to have regard to s 6 of the Fines Act 1996 (NSW) 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: Mahdi Jahandideh v The Queen [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.

89. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

90. In his affidavit Mr Ramm said that All Cranes has seen a significant downturn in business due to the COVID-19 pandemic. Mr Ramm noted the following:

1. All Cranes revenue has decreased by 30% since March 2020. As a result All Cranes has required JobKeeper payment benefits offered by the Australian Government to be able to pay employee wages for the past few months.

2. All Cranes has put off one employee.

3. The cabins of mobile cranes are not large enough for more than one worker under social distancing guidelines and so employees must travel separately. All Cranes has incurred an added expense of providing its employees with motor vehicles so that they can travel to and from work sites.

4. All Cranes has around $1,800,000 owed to it by debtors which it has been unable to recover.

5. All Cranes typically has a reduced workload and income over the Christmas and New Year period each year. Mr Ramm said he expects that All Cranes will experience a similar downturn over the approaching December 2020 and January 2021 period.

91. There were no financial statements annexed to Mr Ramm’s affidavit and no material directly relevant to the present capacity to pay a fine. There was no submission that it would have difficulty in paying a fine.

Costs

92. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs agreed in the amount of $32,500.

Penalty

93. My orders are:

1. All Cranes 4 Hire Pty Ltd is convicted.

2. The appropriate fine is $200,000 but that will be reduced by 25% to reflect the plea of guilty.

3. Order All Cranes 4 Hire Pty Ltd to pay a fine of $150,000.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order All Cranes 4 Hire Pty Ltd to pay the prosecutor’s costs agreed in the amount of $32,500.

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Decision last updated: 04 December 2020