SafeWork NSW v AST Services Pty Ltd

[2022] NSWDC 293

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v AST Services Pty Ltd [2022] NSWDC 293

Hearing dates:

16 June 2022

Date of orders:

26 July 2022

Decision date:

26 July 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1. AST Services Pty Ltd is convicted.

2. I impose a fine of $210,000.

3. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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 – worker injured

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – 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 Regulation 2017

Cases Cited:

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

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:

Safe Loading and Unloading of Flatbed Trailers – Steel Pipe AST-SOP-054

Load Restraint Guide 2018, National Transport Commission in February 2018

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
AST Services Pty Ltd (Defendant)

Representation:

Counsel:
M Moir (Prosecutor)
E James (Defendant)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Gilchrist Connell (Defendant)

File Number(s):

2021/300038

Publication restriction:

None

Judgment

Introduction

1. AST Services 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 Harris to a risk of death or serious injury.

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

Agreed Facts

3. The parties tendered a Statement of Agreed Facts that can be summarised as follows.

Background

4. The offender conducted a business involving transport, logistics and warehousing activities from its premises at Bumborah Point Road, Port Botany NSW and Gow Street, Padstow NSW. The offender had been operating since 2004 and employed approximately 120 workers.

5. ReFire Group Pty Ltd (Refire) conducted a business involving the distribution of pipes, valves, fittings and piping machinery, including the distribution of metal pipes to the fire protection industry. Refire purchased stock including pipes as part of its business. Refire was established in 2019 as a reorganisation of a group of companies and employed approximately 54 workers at sites in New South Wales and Western Australia.

6. Mr Harris was a self-employed truck driver, operating as Wilchar Transport Pty Ltd (Wilchar). Mr Harris was 62 years of age at the time of the incident and had worked as a heavy vehicle driver in the transport industry for about 30 years. Wilchar was subcontracted to supply transport services for the offender.

7. On or about 12 August 2019, Refire placed an order for steel pipes with Thyssenknupp Materials Trading Australia (Thyssenknupp) to be delivered by 9 December 2019 to Refire’s site at Chinchen Street, Islington.

8. Thyssenknupp engaged the offender to deliver the pipes to Refire. The offender then engaged Wilchar to pick up the pipes from its Port Botany premises and deliver them to Refire at its Islington site.

The incident

9. On 6 December 2019, Mr Harris attended the offender’s premises at Port Botany with his truck and a flatbed trailer. The pipes were loaded onto Mr Harris’ truck by Nick Mitrikeski, a forklift operator employed by the offender. Mr Mitrikeski and Mr Harris discussed the loading of the pipes before they were loaded by Mr Mitrikeski. The trailer was loaded with the steel pipes in two sections.

10. The front section of the trailer was loaded with two metal cradles, with stanchions that measured about 1.55 metres high. The cradles and stanchions were the property of the offender and were available to be used by its forklift operators. The stanchions were used to secure about 14 loose pipes loaded into the cradles, after Mr Harris had requested that this be done.

11. These pipes were then chained down by Mr Harris with two metal chains approximately 1.5 metres apart. It was the responsibility of Mr Harris as the truck driver, to strap and unstrap the load using chains kept in his toolbox.

12. The rear section of the trailer was loaded by Mr Mitrikeski with pipes stacked in bundles of three and was stacked six pipes high or three layers of bundles. Each layer was made up of five bundles of pipes, with a total of 45 pipes in the rear section.

13. For each layer of bundled pipes, two of these bundles were placed in inverted positions. There were no cradles or stanchions fitted to the rear section of the trailer. The bundles of pipes were chained down by Mr Harris.

14. Mr Harris left the offender’s premises at Port Botany at approximately 10.34am and arrived at Refire’s site in Islington at approximately 1.36pm.

15. Mr Harris had previously delivered pipes to Refire’s site in Islington. The site consisted of a driveway leading past a two-storey office building, toward an open concrete yard in front of two large sheds. There were pipes stacked on the sides of the driveway and the concrete area.

16. A small sign reading “All Visitors Must Register at Office” was situated on the wall of the office building, facing toward the entrance to the driveway. Mr Harris did not report to the site office on the day of the incident.

17. Mr Harris parked his truck in the middle of the concrete yard. At approximately 1.47pm, Mr Harris started to remove the chains securing the pipes from the rear end of the flatbed trailer. Around this time, Refire’s warehouse manager, Christopher Cushway, walked over to the rear of the trailer and observed the pipes while Mr Harris removed the chains, and then walked back toward the shed area.

18. At approximately 1.51pm, immediately after Mr Harris removed the second chain from the rear passenger side of the tailer, a bundle of three pipes weighing approximately 720 kilograms fell from the trailer and struck Mr Harris.

19. Mr Cushway and other Refire employees ran to the assistance of Mr Harris. NSW Ambulance responded to the incident at approximately 2.10pm. Fire and Rescue NSW attended the site at approximately 2.22pm to secure the load with ratchet straps and manage the risk of more bundles of pipes falling on Mr Harris and treating paramedics.

20. NSW Police attended the site at approximately 2.29pm.

21. Mr Harris sustained a concussion and crush injuries to both of his legs below the knee. His right leg was subsequently amputated below the knee and his left leg required additional reconstructive surgery, including skin grafting. He was unable to return to work. Mr Harris’ injuries required ongoing rehabilitation and modifications to his home.

Knowledge of the hazard and risk

Work Health and Safety Regulation 2017

22. Division 10 of the Work Health and Safety Regulation 2017 relevantly provides that:

54   Management of risk of falling objects

A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with an object falling on a person if the falling object is reasonably likely to injure the person.

Note—

WHS Act—section 19 (see clause 9).

55   Minimising risk associated with falling objects

(1)     This clause applies if it is not reasonably practicable to eliminate the risk referred to in clause 54.

(2)     The person conducting the business or undertaking at a workplace must minimise the risk of an object falling on a person by providing adequate protection against the risk in accordance with this clause.

Maximum penalty—

(a)  in the case of an individual—70 penalty units, or

(b)  in the case of a body corporate—345 penalty units.

(3)     The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including—

(a)  preventing an object from falling freely, so far as is reasonably practicable, or

(b)  if it is not reasonably practicable to prevent an object from falling freely - providing, so far as is reasonably practicable, a system to arrest the fall of a falling object.

Examples—

1   Providing a secure barrier.

2   Providing a safe means of raising and lowering objects.

3   Providing an exclusion zone persons are prohibited from entering.

Load Restraint Guide 2018

23. The Load Restraint Guide 2018 (Load Restraint Guide) was published by the National Transport Commission in February 2018. The Load Restraint Guide includes advice on the use of uprights or stanchions as load restraints to secure circular objects such as pipes during transport.

24. The Load Restraint Guide specifically identifies that tie-down lashings and chains may not provide sufficient sideways restraints for pipes, and that stanchions are an engineering control that block a sideways load force.

Systems of work in place prior to the incident

25. At the time of the incident, the offender did not have a safe system of work for managing the risk of steel pipes falling from a flatbed truck once loaded, specifically to ensure that the load of the pipes was adequately restrained.

26. The offender did not provide any training to employees in relation to the Load Restraint Guide.

27. At the time of the incident, the offender relied on an undocumented and informal practice of “visual checks by both loader and driver” prior to a truck leaving the site.

28. On the day of the incident, Mr Mitrikeski was responsible for the safe loading of the steel pipes onto Mr Harris’ truck. Mr Mitrikeski had a high-risk work licence to operate forklifts and was authorised by the offender to refuse to load a truck if he deemed that the load was unsafe. Mr Mitrikeski did not raise any concerns with Mr Harris before he loaded the steel pipes onto the trailer on the day of the incident. If Mr Mitrikeski had any safety concerns about the load of steel pipes on Mr Harris’ trailer, then he was authorised to stop the load from leaving the offender’s premises.

29. Mr Mitrikeski was not given any specific training by the offender in relation to safely loading steel pipes with a forklift onto a flatbed truck. He learnt how to perform this task by observing other forklift drivers do it. He was unfamiliar with the Load Restraint Guide.

30. While there were stanchions and cradles available for use at the offender’s premises for the loading of steel pipes, the offender did not mandate their usage. The offender’s forklift operators were not prohibited from loading or unloading steel pipes unless they were restrained from sideways movement by stanchions or other suitable equipment.

31. The agreement between the offender and Wilchar did not include a requirement for Wilchar to strap or restrain the offender’s deliveries and/or to install stanchions on Wilchar’s truck.

Changes to the system of work following the incident

32. In response to several Improvement Notices issued by the Regulator in relation to the incident, the offender implemented the following systems:

1. documented a standard operating procedure for the safe loading and unloading of steel pipes on flatbed trucks, making references to the Load Restraint Guide and the Heavy Vehicle National Law (NSW), entitled “Safe Loading and Unloading of Flatbed Trailers – Steel Pipe AST-SOP-054” (SOP – Steel Pipe). The new SOP – Steel Pipe mandated that stanchions be installed on flatbed trucks when loading and delivering steel pipes to customers;

2. provided training and instruction on the SOP – Steel Pipe procedure to its workers, including its subcontracted drivers; and

3. purchased engineer certified and rated Load Carrier Stands – Uprights and Stanchions at a cost of approximately $13,750.

33. Following a further Improvement Notice issued by the Regulator on 13 May 2021, Mr Mitrikeski received training in relation to the SOP – Steel Pipe.

Offender’s Case on Sentence

34. The offender relied on an affidavit of John Spyrou affirmed 3 June 2022 and a correcting affidavit of Mr Spyrou affirmed 15 June 2022. The content of the affidavits can be summarised as follows. I will not repeat matters already referred to.

35. My Spyrou was the Managing Director and sole director of the offender. Mr Spyrou had worked in the transport business for approximately 20 years and was a qualified auto-electrician.

The offender

36. The offender’s business involved the provision of transport, logistics and warehousing services.

37. At the time of the incident, the offender had two sites, one at Bumborah Point Road in Port Botany, which has since been sold, and one at Gow Street in Padstow. The Port Botany site was where the offender unloaded shipping containers and stored their contents in the warehouse for collection or further transport. The Padstow site was where the offender’s staging yard was based.

38. In December 2019, the offender employed approximately 110 workers. In September 2021, the offender sold the majority of its fleet. It presently employs approximately two workers, including Mr Spyrou and one contractor. Its primary business address is now the Padstow site.

39. Until around September 2021, part of the offender’s business involved transporting DN250 nominal bore pipes made of steel (steel pipes) which weigh approximately 240 kilograms per piece. The pipes were typically used in commercial construction.

40. Until around September 2021, the offender also managed the receipt, loading and transportation of steel pipes to other sites. Since approximately 2012, the offender has managed the process of unloading steel pipes from shipping containers and loading them onto flatbed trucks for transportation. Mr Spyrou acknowledged that this was high risk work and stated that this was the first time a safety incident had arisen in the loading and/or unloading of trucks by the offender. In his correcting affidavit of 15 June 2022, Mr Spyrou clarified that the offender ceased undertaking this type of work in around September 2021 and had no intention of performing this type of work in the future.

41. Mr Spyrou deposed that the main kinds of risks that the offender was commonly required to manage during the loading and unloading of steel pipes and shipping containers included risks relating to: the operation of forklifts to load and unload materials onto trucks; the operation of heavy vehicles; the loading and unloading of vehicles and the need to ensure that loads are properly restrained; and the need to ensure that all workers who perform high risk work are appropriately trained and qualified.

42. Mr Spyrou deposed that the offender had always tried its best to control risks and continued to strive toward its goals of zero hazards and injuries.

Systems of work in place prior to the incident

43. Mr Spyrou pointed to the following documents as demonstrative of the offender’s commitment to safety prior to the incident:

1. Safety Induction for Drivers (October 2019);

2. Standard Operating Procedure – Safe Loading and Unloading of Container Trucks;

3. Standard Operating Procedure – Vehicle Loading/Unloading Tautliner;

4. Operating a Heavy Vehicle (GVM <4.5t) Risk Assessment; and

5. Code of Conduct and signed Subcontractor’s Agreement.

44. In addition, Mr Spyrou stated that from October 2018 to May 2019, he engaged an independent occupational health and safety consultant, ACT Solutions, to update the offender’s health and safety policies and standard operating procedures to ensure that it was operating according to industry expectations and legal requirements. ACT Solutions was involved in developing the system of work for the loading of trucks at the Port Botany site.

45. The offender spent a total of approximately $97,681 on developing its policies and procedures and on work health and safety consulting. In addition, the offender spent approximately $1,500 on Accidental Health and Safety and $13,435 on Master Linemarking to ensure that the warehouse was appropriately marked.

46. The offender also developed a Health and Safety Handbook with the assistance of a workplace relations and health and safety firm, Employsure. The handbook was completed in April or May 2019 and was subsequently issued to all employees.

47. In April 2019, the offender employed a Work Health and Safety Manager, Marilyn Abbey. Ms Abbey ceased working with the offender in October 2021 but assisted the offender to develop and implement the Health and Safety Handbook and other systems of work and standard operating procedures. At present and since the reduction of the offender’s fleet in September 2021, work health and safety matters are handled by Damian Avery, Commercial Manager.

48. The offender also held monthly toolbox talks on various aspects of safety and hazard prevention, as well as daily briefings. On 25 October 2019, Matt Roper, Supervisor, held a toolbox talk on lead restraints and safety for forklift drivers and other staff involved in the loading and unloading of trucks. Mr Mitrikeski was in attendance.

Assistance to Mr Harris and his family

49. The offender was informed that the incident occurred on 9 December 2019, when its Gate Clerk, Nick Murray, was contacted by Mr Harris. Upon hearing that Mr Harris had been seriously injured and was in hospital, Mr Spyrou immediately called Mr Harris and drove from the Port Botany site to John Hunter Hospital to visit him. When he arrived at the hospital, Mr Spyrou gave his contact details to Mr Harris and his partner, Jill English, and offered his assistance. Ms English asked Mr Spyrou to retrieve certain items from Mr Harris’ truck, which Mr Spyrou arranged to occur that day.

50. Following his initial attendance at the hospital on 9 December 2019, Mr Spyrou called Mr Harris every couple of days to check on his condition. During this period, Mr Harris also expressed to Mr Spyrou concerns that the truck that was involved in the incident was on lease from a truck leasing company, Penske, while Mr Harris’ prime mover was being repaired and needed to be returned. Mr Spyrou subsequently took it upon himself to correspond with Penske and inform them of the situation with the SafeWork investigation, and later organised a driver from the offender to return the leased truck to Penske and to collect Mr Harris’ prime mover from the repair shop in Sydney and have it delivered to his farm in Lower Belford.

51. Between December 2019 and January 2020, Mr Spyrou spoke with Mr Harris a couple of times per week to check on his condition and offer his assistance. During this time, Mr Spyrou also organised a driver to drive Mr Harris’ truck for approximately five loads to assist Mr Harris in securing some income while he was recovering in hospital.

52. Mr Spyrou deposed that the offender was not easily placed to provide Mr Harris with direct financial assistance while he was recovering due to a downturn in business during the COVID-19 pandemic. He stated that Mr Harris was not a regular contractor and did approximately one load per week when he was driving from Sydney to Newcastle.

Events following the incident

53. On 9 December 2019, upon learning of the incident, Mr Avery and Ms Abbey commenced an investigation into the incident, speaking initially with Mr Mitrikeski and identifying that there should be a recommendation that stanchions be used to prevent the risk of pipes falling from flatbed trucks.

54. Also on 9 December 2019, Mr Spyrou visited the Refire site at Islington to inspect the area and offer his assistance. Mr Spyrou suggested that the staff onsite at the premises were unhelpful and unco-operative in assisting him to understand what happened and in subsequent attempts at contact via email.

53. On 10-11 December 2019, Mr Spyrou engaged an independent crane company, Allied Crane, to unload the steel pipes from Mr Harris’ truck onto the ground at Refire’s premises in Islington. This process cost the offender approximately $1,774.

54. On 12 December 2019, Mr Spyrou met with Inspector Steven Baranovsky of SafeWork NSW at the Port Botany site to discuss the incident. During the meeting, Inspector Baranovsky requested certain documentation and issued a Notice to Produce pursuant to s 171 of the Act as well as three Improvement Notices pursuant to s 191 of the Act.

55. On 13 December 2019, Mr Spyrou conducted a toolbox talk with all warehouse staff entitled “Safety Alert – Pipes fall from Height”. During the talk, Warehouse Manager, Mark Godwin, and Ms Abbey, briefed workers about the incident and stressed the importance of safe practices while loading and unloading trucks. On the same day, Ms Abbey sent an Incident Alert to advise staff about the incident via SMS and also sent an email to Shawn Hopkins of Refire requesting further information about the incident and advising that the Regulator had requested documentation and information from the offender.

56. On the afternoon of 13 December 2019, Mr Spyrou returned to the Refire premises at Islington to assist with the unloading of the steel pipes. Inspector Joseph Powell from SafeWork NSW also attended.

Action taken by the offender to prevent future risk of harm

Implementation of stanchions – eliminate risk by providing engineering controls

59. Mr Spyrou commenced making inquiries about purchasing custom made stanchions for the offender on 12 December 2019. He contacted Inspector Baranovsky to ensure that the specifications provided for the stanchions would be compliant with the Regulator’s expectations and the Load Restraint Guide. Mr Spyrou ordered the stanchions from Aitkens Engineering and instructed Aitkens that the stanchions should be suitable for maximum loads. Construction of the stanchions was completed on 21 January 2020. Since that date, stanchions have been used for every load on a flatbed trailer. Staff have been trained on how to fit and use the stanchions for each load. Further, the offender’s external customers and/or other carriers who attend the premises to pick up loads have been advised that stanchions must be used when collecting steel pipes from the offender’s warehouse. Design and manufacture of the stanchions cost the offender $13,750.

Updated standard operating procedures and training

60. Immediately following the incident, Mr Avery, Ms Abbey and Mr Spyrou developed the SOP – Steel Pipe. The SOP – Steel Pipe was implemented on 21 February 2020.

61. By 27 February 2020, employees were provided with training, information and instruction on the SOP – Steel Pipe in accordance with the Load Restraint Guide.

62. SafeWork deemed that all three Improvement Notices issued to the offender had been complied with by 28 February 2020.

63. The offender was served with the notices to produce pursuant to s 155 of the Act on 18 March 2020, 1 April 2020 and 22 February 2021. On 13 May 2021, SafeWork issued a further Improvement Notice pursuant to s 191 of the Act which directed the offender to provide training to the forklift operators who had not received specific training on the new SOP – Steel Pipe.

64. SafeWork deemed that the offender had complied with all s 155 notices by 9 March 2021.

65. Between 17 May 2021 and 21 May 2021, other workers including a number of new employees who were involved in the loading and unloading of steel pipes onto flatbed trailers, were provided with training, information and instruction according to the new SOP – Steel Pipe.

Assistance to affected employees

66. Following the incident, Ms Abbey and Mr Spyrou offered support to the offender’s employees in relation to the incident, including in the form of counselling or sessions with a psychologist which would be provided at the offender’s expense. Mr Mitrikeski was checked on especially by Ms Abbey.

Change in the offender’s safety culture under Mr Spyrou

67. Following the incident, Mr Spyrou made significant changes to the offender’s policies to enhance its work health and safety culture. This included regular safety inspections and observations.

68. From July 2020, the offender commenced holding monthly Safety Leadership Committee meetings. These were convened by Ms Abbey and included all of the offender’s team leaders including its Site Manager, NHVR/Workshop Manager, and Operations Manager as well as Mr Avery and Mr Spyrou. During these meetings, those in attendance discussed any safety concerns and planned toolbox talks, training and whether any risk assessments were required.

69. The offender’s expenditure on safety was:

1. in 2019, $50,000;

2. in 2020, $90,000 plus the cost of employing Ms Abbey as a Safety and Employee Relations Manager; and

3. to 30 June 2021, $32,000.

70. Mr Spyrou deposed that under his leadership, there had been a positive shift in the offender’s safety culture, including through the improvement of the offender’s policies and SOPs and a more proactive and comprehensive approach to work health and safety. Specific examples of changes and initiatives implemented since the incident included:

1. following Ms Abbey’s departure, Mr Avery assumed responsibility of work health and safety matters. His role included: assisting in the development, review and implementation of WHS policies, procedures and guidelines; conducting or facilitating risk assessments with relevant managers and overseeing the implementation of preventative measures; and evaluating risks and hazards and providing suggestions for corrective actions;

2. Mr Spyrou, as far as reasonably practicable, meeting with all new employees at their induction to discuss his expectations relating to safety; and

3. Mr Spyrou encouraging his staff to openly communicate about safety matters and appreciate that safety involves everyone taking responsibility.

4. promoting the practice of using stanchions by explaining to customers and other carriers that they are being used to eliminate risks to safety.

Corporate citizenship

71. Mr Spyrou deposed that the offender engaged in a number of community initiates and donated to charitable organisations including:

1. sponsoring the Homenetmen Antranig Football Committee from 2017 to 2021;

2. donating services and materials to the Fremantle Surf Life Saving Club in 2021; and

3. donating transportation services to the Cancer Council.

Statement of remorse

72. Mr Spyrou deposed that the health and safety of the offender’s employees and contractors was his highest priority. He accepted responsibility for the incident on behalf of the offender and acknowledged that, as Managing Director, he had a part to play in the incident despite not intending to expose anyone to harm. He expressed remorse for exposing the offender’s employees and in particular Mr Harris to the risk of serious injury or death and acknowledged that the incident could have been prevented.

73. Mr Spyrou stated that the offender knew that the Load Restraint Guide mentioned that logs needed pipe racks and stanchions, but it did not specify a process about the loading of this type of product. Following the incident, he instructed his team to find out the safest methods for this process and advised them to commence locating suppliers of stanchions.

74. Mr Spyrou stated that the offender knew that moving pallets or shipping containers was different to moving bundled piping and accepted that the fact that this was not properly documented was a serious flaw in the offender’s safety processes. Since the incident, the offender had made it a company policy that all pipes required stanchions to be transported. Mr Spyrou deposed that the offender acknowledged that it did not have the correct controls in place at the time of the incident. Finally, he stated that the offender had learned significant lessons from the incident and understood that it needed to maintain a proactive and comprehensive approach to safety in the workplace.

Consideration

75. 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

76. The offence is objectively serious.

77. The risk posed by the pipes falling from the truck during loading and unloading and/or transport was known to the offender. It took steps to eliminate and/or minimise the risk, but those steps were incomplete and did not adequately control the risk to the requisite standard.

78. The risk was likely to result in harm if adequate precautions were not taken, as is demonstrated by this case.

79. The consequences of the risk included a risk of death or serious injury.

80. The available steps to eliminate and/or minimise the risk were the subject of guidance material in the form of the Load Restraint Guide. However, the content of the Load Restraint Guide did not expressly refer to the method that the offender was using to load the bundled pipes in this case. The offender believed that by bundling the pipes in bundles of three in a triangular cross-section, that the bundles could be stacked so that they effectively interlocked with each other, and it had not experienced a problem in using that method previously. That method, whilst it appeared to the offender to be logically sound, had not been reviewed by a competent person such as an engineer to determine its suitability. By its plea, the offender accepted that there were other reasonably practicable steps it could have taken to eliminate or minimise the risk that were relatively simple and inexpensive.

81. It was suggested that the incident was contributed to by Mr Harris removing the chains from the load, instead of loosening them and waiting for the forklift to approach the load. The CCTV footage of the incident shows that Mr Harris did remove the chains from the load, rather than loosening them, but I do not find that to be particularly mitigating, when the offender accepts that it could have and should have used engineering controls to prevent the incident occurring at all.

82. The serious and life changing injuries suffered by Mr Harris is an aggravating factor.

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

Deterrence

84. 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].

85. The penalty imposed must also provide for specific deterrence, but that it significantly reduced because of the offender's previous good record, its comprehensive response to the incident and the sale of the relevant part of its business.

Aggravating Factors

86. 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 serious injuries sustained by Mr Harris are sufficient to establish the aggravating factor.

Mitigating Factors

87. The offender does not have any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has operated since 2004 without any prior safety breaches.

88. The offender is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. The business that the offender was operating at the time of the offence has been sold. It now has a limited number of employees and does not conduct the same work. On that basis I am satisfied that it is unlikely to re-offend.

89. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender had taken some steps prior to the incident to respond to the risk and it took more comprehensive steps after the incident at a significant cost to it. I am satisfied on the balance of probabilities that the offender has demonstrated that it has good prospects of rehabilitation.

90. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Spyrou, on behalf of the offender, has accepted responsibility for the offence and has expressed remorse. The offender also made efforts to assist Mr Harris after the incident. I am satisfied that the offender has expressed genuine remorse and contrition.

91. 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%.

92. The offender co-operated with the investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

93. The offender has demonstrated by its financial and other contributions to the community and to charitable works, that it is a good corporate citizen.

Penalty

94. AST Services Pty Ltd is convicted.

95. The appropriate fine is one of $280,000 which will be reduced by 25% to reflect the plea of guilty.

96. I impose a fine of $210,000.

97. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

98. 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: 26 July 2022