SafeWork NSW v Arkwood (Gloucester) Pty Limited (No. 2)

[2022] NSWDC 201

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Arkwood (Gloucester) Pty Limited (No. 2) [2022] NSWDC 201

Hearing dates:

3 June 2022

Date of orders:

10 June 2022

Decision date:

10 June 2022

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Arkwood (Gloucester) Pty Limited was convicted on 3 June 2022.

(2)   Order Arkwood (Gloucester) Pty Limited to pay a fine of $150,000.

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

(4)   Order Arkwood (Gloucester) Pty Limited to pay the prosecutor’s costs agreed in the amount of $102,000.

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 – general deterrence – specific deterrence – capacity to pay appropriate penalty – victim impact statement

 
COSTS – prosecution costs

OTHER — defendant engaged contractor to operate a crane to load a dismantled centrifuge onto a flatbed truck – boom of the crane came into contact with, or in close proximity to, live overhead power lines – two workers employed by the defendant suffered electric shocks – failure to conduct a site-specific risk assessment – no appropriate SWMS – failure to adequately instruct and train employees – failure to observe and warn crane operator – failure to insist upon using a qualified dogman

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 26, 27, 28, 30A, 30B, 30D, 30E

Fines Act 1996 (NSW), ss 6, 122

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

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

SafeWork NSW v Arkwood (Gloucester) Pty Limited [2022] NSWDC 89

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Arkwood (Gloucester) Pty Limited (Defendant)

Representation:

Counsel:
M Scott (Prosecutor)
M Baroni (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
Barry.Nilsson.Lawyers (Defendant)

File Number(s):

2020/303189

Judgment

1. On 25 October 2018 a crane owned by Mr Nigel Bennett (trading as Highlands Cranes) was being operated by Mr Kane Druce to move machinery onto a truck at the Moss Vale Sewerage Treatment Plant. Mr Peter Voight and Mr Gregory Whitford were involved in moving the machinery. The boom of the crane came into contact with, or in close proximity to, live overhead power lines. Both Mr Voight and Mr Whitford suffered electric shocks.

2. On 30 March 2022, after a 5 day trial, I found Arkwood (Gloucester) Pty Limited (Arkwood) guilty of an offence that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health & Safety Act 2011 (NSW) (the Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, it did fail to comply with that duty and the failure to comply with that duty exposed Mr Voight, Mr Whitford and Mr Druce to a risk of death or serious injury contrary to s 32 of the Act - SafeWork NSW v Arkwood (Gloucester) Pty Limited [2022] NSWDC 89 (the primary judgment).

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

Background

4. At trial the parties presented an Agreed Statement of Facts which are set out in the primary judgment at [154]-[181]. After reviewing the evidence, I made additional findings of fact which are set out in the primary judgment at [183], [186] and [188]. I will not set out those agreed facts and findings again in full, but I incorporate them by reference into this judgment.

Evidence for Arkwood

5. Mr Brinsley Hammond affirmed an affidavit on behalf of Arkwood on 20 May 2022 (DX 4).

Professional Background

6. Mr Hammond has been the General Manager at Arkwood since October 2016.

7. Prior to Mr Hammond’s employment at Arkwood, he was a Maintenance Manager at Arkwood Organic Recycling between November 2001 and October 2016. Between 1994 and November 2001 Mr Hammond was a Heavy Diesel Mechanical Tradesperson at Cummins Diesel.

8. Mr Hammond’s professional experience has made him aware of the relevant duties of employers and other persons arising under the Act.

9. Mr Hammond’s duties as General Manager at Arkwood include:

1. Overseeing business operations including financial, environmental, workplace health and safety, quality assurance, training, contracts and customer satisfaction.

2. Identifying areas requiring additional expenditure, cost reduction or improvement.

3. Reporting to directors and implementing changes required or requested by directors.

4. Consulting with and working in conjunction with all employees at every level within the company as well as customers, subcontractors and, at times, suppliers.

10. In times of high demand, due to his prior experience in the company, Mr Hammond will assist in mechanical and operational roles for short periods of time.

Company History

11. Arkwood was established in 1992 as a specialised building company, however since 1999 has solely carried out transport, dewatering and beneficial reuse of biosolids (treated sewage sludge) in agriculture. The company’s operations are based in Queensland.

12. Arkwood currently has 58 employees and 19 major clients located in both Queensland and New South Wales.

13. Arkwood is a member of the Queensland Trucking Association, the Australian Trucking Association, Natroad and the Transport Strategy Group.

Pre-Incident WHS Management and Initiatives

14. As Arkwood is not a large company, senior management are often working on worksites, driving heavy vehicles and working on farms. Reporting of safety issues and meetings with senior management are often done over the phone immediately as issues arise.

15. All incidents are recorded, and an investigation form is filled out with control measures or preventative management recommendations. Those measures and recommendations are later signed off by senior management. Mr Hammond arranges for the implementation of the recommendations with the assistance of local managers. All incident forms are also discussed in management and safety meetings.

16. Mr Hammond has been involved in a number of work health and safety initiatives at Arkwood since his appointment as General Manager.

17. One such initiative was Arkwood commencing the Injury Prevention and Management Program, a two-year program run by Workplace Health and Safety Queensland and WorkCover Queensland to improve WHS systems and processes, improve rehabilitation and return to work systems and processes, reduce workplace injuries and increase worker participation and accountability in workplace health and safety. Arkwood obtained a Certificate of Completion for meeting the requirements of the Injury Prevention and Management Program on 17 September 2018.

18. On 23 October 2018 Mr Hammond oversaw the introduction of an Employee Assistance Program at Arkwood through Drake WorkWise to provide assistance and counselling to all employees and family members. All employees involved in the incident and their families were given access to the Employee Assistance Program.

Steps Taken in Relation to the Injured Workers

Peter Voight

19. Mr Hammond, Mr Larney (Transport Operations Manager and Workplace Injury & Return to Work Co-ordinator) and Mr Clarke (Managing Director) were in regular contact with Mr Voight’s wife and son immediately after the incident to receive updates on his condition and to offer any assistance.

20. On 27 October 2018 Mr Larney visited Mr Voight and his wife in hospital to check on Mr Voight’s condition and to pass on Arkwood’s support and best wishes.

21. Arkwood arranged and paid for accommodation for Mrs Voight to stay in Sydney between 1 November and 29 November 2018. WorkCover arranged payment for accommodation after 29 November 2018.

22. Arkwood arranged and paid for flights for Mr Voight’s immediate family members to visit him at the hospital over the Christmas period. This included Mr Voight’s daughter, her husband and their four children and Mr Voight’s son, his wife and their two children.

23. Mr Larney, Mr Clarke and Mr Hammond visited Mr Voight on a number of occasions after he had returned home. Mr Larney organised a lunch with Mr Voight and his wife and they also visited the Arkwood office in Gatton occasionally.

24. To mark the first anniversary of the incident, Arkwood arranged and paid for an ice cream vendor to be on site at a gathering at Mr Voight’s house. A number of Arkwood employees attended the gathering.

25. Since the incident, Arkwood has arranged for workers to travel to Mr Voight’s property on numerous occasions, at Mr Voight’s request, to attend to tasks around his home that Mr Voight can no longer do, such as maintenance, gardening and moving a vintage car and truck.

26. Mr Voight and his immediate family members were given access to counselling through the Employee Assistance Program.

27. Due to Mr Voight’s injuries, he has not been able to return to work. In the event that Mr Voight is able to and wishes to return to work, Arkwood would assist in finding a suitable position for him.

Gregory Whitford

28. Mr Hammond and Mr Larney called Mr Whitford on the day of the incident while he was in hospital to check in on him and to offer any assistance.

29. Mr Whitford was discharged from the hospital the day after the incident. Arkwood paid for his accommodation from 26 October to 29 October 2018.

30. The day after the incident Arkwood arranged and paid for Mr Whitford’s partner to fly to Sydney from Bendigo and arranged transport from the airport to the motel that Mr Whitford was staying in.

31. As Mr Whitford did not want to fly immediately following his discharge from hospital, arrangements were made for Mr Whitford and his partner to drive from Sydney to Bendigo.

32. Mr Larney and Mr Hammond continued to call Mr Whitford regularly to check on his recovery and offer any assistance.

33. Arkwood arranged and paid for Mr Whitford and his partner to fly from Melbourne to Sydney on 12 November 2018 to see a medical specialist to obtain medical clearance to work.

34. Mr Whitford was cleared to work by the medical specialist on 12 November 2018 and arranged his own transportation back to Melbourne.

35. Mr Whitford was very keen to start back at work immediately. Mr Whitford is still employed as a truck driver by Arkwood.

36. Mr Whitford and his immediate family members were given access to counselling through the Employee Assistance Program.

Scott McIntosh

37. While Mr McIntosh was not injured in the incident, Arkwood recognised that he suffered trauma after witnessing his colleagues’ injuries. Mr McIntosh and his immediate family members were given access to counselling through the Employee Assistance Program.

Steps Taken Following the Incident

38. Following the incident Arkwood was issued with a handwritten Improvement Notice reference #44995 by SafeWork NSW.

39. It was unclear given the handwriting on the Improvement Notice whether compliance was required by 9 November 2018 or 19 November 2018. To be safe, the senior management team at Arkwood decided to treat the compliance date as 9 November 2018 and take urgent steps to comply with the requirements.

40. A meeting was held immediately after the incident at the Arkwood head office to discuss the Improvement Notice and the actions needed to eliminate the possibility of a repeat event.

41. At the meeting, it was decided that:

1. A crane compliance form would be created to show that the Arkwood Supervisor has inspected the crane operator’s licence and that the crane is fully compliant with regulations.

2. Employees would be instructed:

1. not to allow crane operations to begin unless the documentation is satisfactory and at least two qualified crane operators were present, one being a rigger; and

2. to maintain a safe distance from the crane at all times.

3. The Quality Assurance procedure detailing Centrifuge Operations (QP 9) would be checked for adequacy and extra details would be added to reflect the above instructions and an updated copy would be reissued to all centrifuge operators and trainees.

4. The SWMS and other safety documents held in the site hut would be replaced to ensure they are current.

5. Small cabinets would be purchased and installed in the site hut to ensure that all necessary documentation for each job is obvious, organised and available to all Arkwood employees on site.

42. Immediately after the meeting Arkwood prepared the crane compliance form and the bundle of necessary documents. On 6 November 2018 the small cabinet was installed and the necessary documentation was available to Arkwood employees.

43. On 7 November 2018 Arkwood conducted training with all its operators relating to the new crane compliance form and all other documentation. The location of the documentation in the cabinet was also pointed out to the employees at that time. In addition, employees were instructed:

1. Not to allow crane operations to begin unless the documentation is satisfactory and at least two qualified crane operators are present, one being a rigger.

2. To maintain a safe distance from the crane at all times.

44. An acknowledgment form was signed by all trainers and attendees and was filed in the relevant personnel files.

45. Immediately after the Arkwood operators were trained, all other Arkwood employees involved in the loading or unloading of centrifuges or other equipment using cranes and any other crane operations were then trained in the new changes.

46. New employees are trained as they come on board, as the changes have been incorporated into documentation delivered in the induction process.

47. The Improvement Notice was closed out on 22 November 2018.

48. Since then, Arkwood has taken continual steps to refine the safe work processes for the use of cranes. This was done by:

1. Monitoring and reviewing the crane compliance forms as they were returned. Some of the completed crane compliance forms were less than ideal, but the first page requirements for the checking of the crane and the operator were always carried out.

2. The Tool Box Talk Form was revised to show the hazards and proposed actions more clearly.

3. On 3 January 2020 a meeting was held with operators to discuss the Pre-operations Centrifuge Checklist Form and it was resolved that the form should be changed as follows:

1. Be reduced to two pages, with a new form used every time a crane was hired and a line added for the rigger to sign.

2. Acknowledge that if the crane company personnel were at the Tool Box Meeting at the commencement of a job and had signed and dated the form, it would not be necessary to re-write the hazards on the Crane Hire Checklist, but a reference must be made to the Tool Box Meeting in the allocated space. However, if the crane company personnel were not present, the Hazard Report Section of the Crane Hire Checklist must be fully completed.

3. Alter the name of the form to reflect that the form would be distributed throughout the company, to be used whenever a crane or similar high risk work machinery was used, thus maintaining consistency.

Community Work and Good Corporate Character

49. Arkwood actively contributes to the communities in which it operates, including by way of making the following contributions:

1. Financial support of the Cecil Plains Lions Club’s Christmas Carnival.

2. Sponsorship of the Gloucester AH&P Association’s Gloucester Show.

3. Financial support of the Cecil Plains State School which goes toward its daily breakfast club for students, installation of an AED Defibrillator at the school, funding of school competitions, upgrade of home economics equipment and transportation costs for school excursions.

4. Donation of soil and biosolids to Gloucester High School to support the development and growth of its permaculture setup.

50. As part of Arkwood’s biosolids beneficial reuse program, Arkwood is paid by Councils and utility companies to remove biosolids from wastewater treatment plants and the biosolids are then provided at no charge to farmers. Farmers are only asked to supply diesel for tractors used in the spreading operations and to plough the biosolids into the soil. This is equivalent to providing free fertiliser/soil conditioner for approximately 8,750 acres in farming communities throughout Queensland and New South Wales per year. This benefits the communities greatly, especially considering the recent chemical fertiliser price increases.

Prior Record

51. To the best of Mr Hammond’s knowledge, there have not been any recorded injuries at Arkwood arising from the loading of centrifuge machinery onto trucks.

52. Arkwood has not been involved in any work health and safety prosecutions in New South Wales or in any other States either before or since the incident.

Apology

53. Mr Hammond expressed both regret and deep remorse on behalf of Arkwood and senior management for the hurt that the incident has caused Mr Voight, Mr Whitford and their families.

54. Arkwood fully acknowledges the hurt that was caused to both Mr Voight and Mr Whitford and offers an unqualified apology for the breaches of the Act and for exposing Mr Voight and Mr Whitford to risks to their health and safety.

55. Arkwood, its senior management and Mr Hammond have treated, and will continue to treat, the prosecution and Arkwood’s breach of the Act as matters of the utmost seriousness.

Consideration

56. 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

57. 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].

58. 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].

59. 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.”

60. 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].

61. 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.

60. 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.

61. 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.”

64. 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.”

65. 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.”

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

1. Arkwood knew of the risk. In any event the risk was foreseeable as there was guidance material directed to the particular risk.

2. The likelihood of the risk occurring was high.

3. The potential consequences of the risk were death or serious injury.

4. Simple and well-known steps were readily available to eliminate or minimise the risk.

5. There was no great burden or inconvenience in these steps being implemented. Arkwood took remedial measures quickly after the incident.

6. Both Mr Voight and Mr Whitford suffered electric shocks. Mr Voight was initially in a coma and spent approximately three months in hospital. His extensive injuries and treatment are detailed in the hospital discharge summary tendered at the trial (PX2, tab 18). He has suffered lifelong injuries. It was obvious from the way that Mr Voight moved through the court and into the witness box that he is now quite disabled.

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. As counsel for the defendant acknowledged in written submissions on sentence (MFI 4, par 16) Arkwood did not follow its own procedures set out in the SWMS and, for reasons unknown, Mr Voight decided to commence the cranage work without a dogman.

9. Given that Arkwood has been in business for 30 years without conviction, and taking into account the scale and nature of its operations, I accept the submission of counsel for the defendant that this offence was an “uncharacteristic aberration”.

67. I find that the level of culpability of Arkwood is in the mid range.

Deterrence

68. 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].

69. As counsel for the prosecutor pointed out in written submissions on sentence (MFI 3, par 20) the relevant Code of Practice (PX 2, tab 16) states: “Overhead powerline contact is one of the largest single causes of fatalities associated with mobile plant and equipment”.

70. The penalty must reflect the need for specific deterrence, although in the circumstances this is not a significant issue. Arkwood is still conducting a business. Its operations involve the continuing engagement of workers and the use of machinery including cranes.

Aggravating Factors

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

Mitigating Factors

72. Arkwood does not have any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. Arkwood has been in business for 30 years.

73. Arkwood is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident, including the support given to its workers, demonstrate this. The evidence of Mr Hammond and the Victim Impact Statement of Mr Voight (discussed below) show that Arkwood is a model organisation in the way it has reacted to the incident and treated its injured workers. As I said to counsel for the defendant during the sentence hearing, I regard Arkwood’s post-incident behaviour as exemplary and I will moderate the penalty which I would otherwise impose.

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

75. Arkwood 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 documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.

76. Arkwood 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 injuries to Mr Voight and Mr Whitford were caused by its actions.

77. Arkwood 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

78. 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.

79. 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.”

80. There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statement

81. The defendant was convicted at the sentence hearing on 3 June 2022.

82. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a). A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B.

83. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1)

84. By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence:

Any personal harm.

Any emotional suffering or distress.

Any harm to relationships with other persons.

85. The prosecutor tendered a Victim Impact Statement (Statement) by Mr Voight dated 25 May 2022 (PX 8). Mr Voight read his Statement to the court.

86. Mr Voight said that when he was in hospital in intensive care and on life support, his family made two decisions: firstly, that no one could visit and see him wrapped in bandages from head to toe and secondly, no one was to talk about the accident in his presence.

87. The accident robbed him of his memory of two weeks before the accident until about two and a half months after the accident. When he overheard talk about the accident it upset him and he would lose a night’s sleep thinking about it.

88. When Mr Voight left hospital, he was wearing a full body pressure suit, 24 hours a day 7 days a week, which was only removed for treating scars and bathing. He felt like he was caught in a revolving door to hospitals and operating theatres with doctors and surgeons trying to repair his damaged body as best they could.

89. He wore the pressure suit for about a year, and during that time he could only stay awake for 4 to 5 hours before passing out from exhaustion and then sleeping for a couple of hours to regain his strength.

90. Even though it is now more than three years since the accident, Mr Voight still has surgical procedures and regular rehabilitative therapy treatments to endure.

91. The physical injuries have resulted in permanent scars, both physically and mentally. Mr Voight said that a high voltage electrocution injury is an injury that just keeps on giving. As time goes on, there have been more consequences come to the surface to be dealt with and occupy his time.

92. Mr Voight said that he has been fortunate to have a strong, committed relationship with his wife Wendy. She has supported him since the accident. Mr Voight said that without his wife, he would not have made the recovery that he has managed to achieve, and he would struggle with even the most mundane of daily living tasks without her help.

93. The impact of the accident-related injuries and restrictions means that how the couple spend time together now is far from what they had envisaged, prior to the accident. That too is a source of anguish and loss, for both.

94. Mr Voight said that it was important for him to tell the court about how Arkwood has acted towards him since the accident.

95. Mr Brendon Clarke (a director of Arkwood) has always been open and honest with him. He offered a quiet office where Mr Voight would not be disturbed to read through all the paperwork about the accident. Mr Voight was concerned mentally it might be a Pandora’s box for him, so he did not take him up on the offer.

96. Even though he has not returned to work for Arkwood, it has continued to pay his full wages (including his superannuation contributions and living away from home allowance) even though there is no legal requirement to do so. This gesture has been a huge benefit to Mr Voight and his wife, not only financially but also mentally.

97. Mr Voight confirmed the evidence given by Mr Hammond concerning support provided to Mr Voight and his extended family after the incident.

98. Arkwood maintained his house and gardens while he was in hospital and continues to this day to do things around their house if attention is required. An example was that Arkwood had repaired his windmill when it needed attention.

99. Arkwood appointed a senior management person to Mr Voight on a 24/7 basis to cater to his wants or needs and that is still in place today. There are regular calls made to check on Mr Voight and his wife to see if any more can be done to make their life more comfortable.

100. Arkwood staff members and workmates visited Mr Voight in hospital in Sydney and at home to let him know he was not forgotten or alone.

101. Arkwood has a car and driver at Mr Voight’s disposal should he or his wife need transportation.

102. Arkwood financially supported a one-year Celebration of Survival open house gathering for friends and extended family to help mark this milestone in his life.

103. None of these things was asked for. They were arranged and freely given by Arkwood.

104. Mr Voight asked the court to take the matters in his Statement into consideration.

Costs

105. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs in the amount of $102,000.

Penalty

106. My orders are:

1. Arkwood (Gloucester) Pty Limited was convicted on 3 June 2022.

2. Order Arkwood (Gloucester) Pty Limited to pay a fine of $150,000.

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

4. Order Arkwood (Gloucester) Pty Limited to pay the prosecutor’s costs agreed in the amount of $102,000.

******

Decision last updated: 10 June 2022