SafeWork NSW v Bennett (No.2)

[2022] NSWDC 453

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Bennett (No.2) [2022] NSWDC 453

Hearing dates:

4 October 2022

Date of orders:

7 October 2022

Decision date:

07 October 2022

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

In District Court proceedings 2020/303207 (s 19(1) Summons):

(1)   Mr Nigel Bennett was convicted on 12 August 2022.

(2)   Order Mr Nigel Bennett to pay a fine of $2,500.

(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 Mr Nigel Bennett to pay the prosecutor’s costs.

In District Court proceedings 2020/303225 (s 19(2) Summons):

(1)   Mr Nigel Bennett was convicted on 12 August 2022.

(2)   Order Mr Nigel Bennett to pay a fine of $12,500.

(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 Mr Nigel Bennett to pay the prosecutor’s costs.

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 – parity – totality

COSTS – prosecution costs

OTHER – defendant engaged as a 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 persons suffered electric shocks – failure to forbid unqualified worker operating crane – failure to provide an appropriately qualified crane driver – failure to instruct worker to undertake site induction – failure to undertake joint safety assessment – failure to ensure crane was not in the vicinity of overhead power lines – failure to require dedicated spotter and/or qualified dogman – failure to conduct site-specific risk assessment

Legislation Cited:

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

Fines Act 1996 (NSW), ss 6, 122

Work Health and 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

Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683

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

DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1

EPA v Barnes [2006] NSWCCA 246

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

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

Pearce v The Queen (1998) 194 CLR 610

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 (No. 2) [2022] NSWDC 201

SafeWork NSW v Bennett [2022] NSWDC 332

SafeWork NSW v Elgas Ltd [2021] NSWDC 101

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125

WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Nigel Bennett (Defendant)

Representation:

Counsel:
M Scott (Prosecutor)
N Bennett (Self-represented) (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)

File Number(s):

2020/303207; 2020/303225

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 12 August 2022, in District Court proceedings 2020/303207, I found Mr Bennett guilty of an offence that as a person who had a work health and safety duty to workers pursuant to s 19(1) of the Work Health & Safety Act 2011 (NSW) (the Act), he failed to comply with that duty and thereby exposed Mr Druce to a risk of death or serious injury contrary to s 32 of the Act - SafeWork NSW v Bennett [2022] NSWDC 332 (the primary judgment).

3. The maximum penalty for the offence is a fine of $300,000.

4. On 12 August 2022, in District Court proceedings 2020/303225, I also found Mr Bennett guilty of an offence that as a person who had a work health and safety duty to other persons pursuant to s 19(2) of the Act, he failed to comply with that duty and thereby exposed Mr Voight and Mr Whitford to a risk of death or serious injury contrary to s 32 of the Act.

5. The maximum penalty for the offence is a fine of $300,000.

Background

6. The facts which I found at trial are set out at pars 142-150 of the primary judgment. I will not set out those findings again in full, but I incorporate them by reference into this judgment.

Evidence for the Defendant

7. Mr Bennett represented himself on the Sentence Hearing, as he had during the trial. He tendered his bank statements (DX 2) which show a very modest sporadic income.

8. Mr Bennett is aged 57 and is a divorced man. He finished high school in Year 10. He has worked in the past doing rigging and dogging. He has been a rigger at a gold mine and he has worked previously as a WorkCover Assessor in rigging and dogging.

9. Mr Bennett commenced his submissions by acknowledging that no-one should be hurt at work. He accepted that he was responsible for the injuries to Mr Voight and Mr Whitford, as he was not clear in his telephone conversation with Mr Druce.

10. Mr Bennett said that his work as a crane operator had dropped off by 85%. The Wingecarribee Shire Council was his major customer, but he lost that work immediately as a result of the incident. He has continued to do some crane work for small customers. He also does lawnmowing to make ends meet.

11. Mr Bennett rents a property in the Southern Highlands and is assisted in paying the rent by having a boarder. He owns no real estate. He has a car worth $4,000 and a crane, which he has kept operating by using second-hand parts.

12. Mr Bennett said that he has tried to find a job. He is not vaccinated against COVID-19 and has found that employers who are looking for workers want people to be double vaccinated. He said that he could work in the mines, but since he does not want to be vaccinated, he is not able to obtain such employment. He has a friend who lives in outback Queensland, and he may go and live there. He said there is a chance he could get mine work there.

13. During the trial, and during the Sentence Hearing, Mr Bennett was assisted by his sister. She told the court that Mr Bennett was divorced a few years ago and that he was a generous man, both in relation to the property settlement after the divorce, and in relation to spending money on her children. Mr Bennett’s sister told the court that Mr Bennett has no computer literacy whatsoever and that this also has prevented him from obtaining paid employment.

14. I find that Mr Bennett has established that he presently has little or no capacity to pay a fine.

Consideration

15. 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

16. 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].

17. 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].

18. 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.”

19. 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].

20. 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.

21. 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.

22. 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.”

23. 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.”

24. 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.”

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

1. Mr Bennett 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 when Mr Bennett permitted an unlicensed and inexperienced offsider to operate the crane.

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.

6. Both Mr Voight and Mr Whitford suffered electric shocks. Mr Voight was initially in a coma and spent approximately three months in hospital. He has suffered lifelong injuries.

7. The maximum penalty for the s 19(1) charge is a fine of $300,000. The maximum penalty for the s 19(2) charge is also a fine of $300,000. This reflects the legislature’s view of the seriousness of the offences.

8. These were not continuing offences, but a lapse of judgment by Mr Bennett on the day of the incident.

26. I find that the level of culpability of Mr Bennett for the s 19(1) charge is in the mid range.

27. I find that the level of culpability of Mr Bennett for the s19(2) charge is in the mid range.

Deterrence

28. 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].

29. The penalty must reflect the need for specific deterrence. Mr Bennett is still conducting a business as a crane operator.

Aggravating Factors

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

Mitigating Factors

31. Mr Bennett has no previous convictions: s 21A (3) (e) Crimes (Sentencing Procedure) Act 1999.

32. Mr Bennett is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. As I remarked to counsel for the prosecutor during the Sentence Hearing, I had a better than usual opportunity to assess the character of Mr Bennett as I observed him during the mentions prior to the trial, and during the trial. Mr Bennett conducted himself with dignity and decorum. He has been a hard-working and conscientious man, who made an uncharacteristic error of judgment on the day of the incident.

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

34. Mr Bennett has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. He stated that he has accepted responsibility for his actions and has acknowledged that the injuries to Mr Voight and Mr Whitford were caused by his actions.

Parity

35. Arkwood (Gloucester) Pty Ltd (Arkwood) was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident in which Mr Voight and Mr Whitford were injured: SafeWork NSW v Arkwood (Gloucester) Pty Limited (No. 2) [2022] NSWDC 201. I assessed the culpability of Arkwood as being in the mid range: Arkwood at [66]-[67]. I imposed a fine of $150,000.

36. Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].

37. The principle operates in the nature of a “check” required of the sentencing court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 at [31]. The court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] Justice Campbell said:

“An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence.”

38. The court should not use a co-offender’s sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

39. It is appropriate for the court to consider the respective contributions of Arkwood and Mr Bennett. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].

40. I find that Mr Bennett and Arkwood were equally culpable, in their own way. Mr Bennett should not have permitted Mr Druce to operate the crane, because Mr Druce was unlicensed and inexperienced. Arkwood should not have been involved in cranage operations when Arkwood had not done a risk assessment or used a spotter to check that the crane was not approaching too close to the obvious overhead power lines.

Capacity to Pay a Fine

41. 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.

42. 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.”

43. In considering the material put before the court on sentence by the defendant, I have expressed my view above that Mr Bennett has little or no present capacity to pay a fine, let alone the costs sought by the prosecutor.

44. Nevertheless, a conviction and a fine must be imposed for each of the offences because of the seriousness of the offence, to reflect the purposes of sentencing and to take account of the serious harm caused, in particular to Mr Voight.

43. I will indicate the fine which I would have imposed if there was no issue about capacity to pay and then take into account the reduced capacity to pay in coming to my final conclusions on sentence.

Costs

46. There will be an order that the defendant is to pay the prosecutor’s costs.

Totality

47. The charges in the two Summonses arise out the same set of facts. The s 19(1) charge relates to Mr Druce who was exposed to a risk of suffering serious injury or death as a result of electric shock when the boom of a mobile crane came into contact with, or in close proximity to, an energised overhead powerline at the site. The s 19(2) charge relates to Mr Voight and Mr Whitford who were exposed to the same risk. The failure by Mr Bennett to take reasonably practicable steps to guard against the risk is the same in both charges. I must therefore have regard to the principle of totality when imposing sentence.

48. Where a court sentences an offender for more than one offence, the aggregate or overall sentence must be “just and appropriate” to the totality of the offending behaviour: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63. The principle of totality is applicable where the penalty imposed is by way of fine: Camilleri’s Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 at 704.

49. In Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 the High Court expressed a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. In Pearce v The Queen (1998) 194 CLR 610 the High Court said at [45]:

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

50. In EPA v Barnes [2006] NSWCCA 246 at [50] the Court of Criminal Appeal said that if the sentencer believes that the totality principle requires an adjustment to the fines which may otherwise be appropriate, the court should first fix a sentence for each offence and then consider questions of totality.

51. A recent example of a case under the Act in which this was done is the decision of Judge Scotting in SafeWork NSW v Elgas Ltd [2021] NSWDC 101. His Honour found that the appropriate fine for breach of the s 19(2) duty was $425,000 and the appropriate fine for breach of the s 19(1) duty was $340,000. Taking into account the principle of totality his Honour imposed a fine of $100,000 for the s 19(1) offence. The total fines payable for the two offences amounted to $525,000.

52. At [89] his Honour said:

“I have taken into account the principle of totality. The two offences arise from the same incident. For the breach of the s 19(2) duty, the establishment of an exclusion zone for other persons on the premises was an additional matter that should have been specified in the SOP and the tanker drivers trained on it. In my view, this offence was more serious because there were more people exposed to a risk of death or serious injury. For transparency in the sentencing exercise, I will nominate the appropriate fine for each offence but will reduce the fine for the s 19(1) offence to reflect the just and appropriate measure of the total criminality involved.”

53. In accordance with the authorities referred to above I will take the same approach.

54. I regard the s 19(2) offence as more serious since two persons were exposed to risk and did suffer serious injuries, whereas Mr Druce was not injured as a result of the s 19(1) offence.

Penalty

55. I am of the view that the appropriate fine for the s 19(2) offence, if there was no capacity to pay issue, would be $25,000. I am also of the view that, but for capacity to pay, the appropriate fine for the s 19(1) offence would be $10,000, which I would reduce to $5,000 having regard to the totality principle.

56. However, having regard to the limited capacity of Mr Bennett to pay any fine, and his concurrent obligation to pay costs, the penalties will be fines of $12,500 for the s 19(2) offence and $2,500 for the s 19(1) offence.

57. My orders are:

In District Court proceedings 2020/303207 (s 19(1) Summons):

1. Mr Nigel Bennett was convicted on 12 August 2022.

2. Order Mr Nigel Bennett to pay a fine of $2,500.

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 Mr Nigel Bennett to pay the prosecutor’s costs.

In District Court proceedings 2020/303225 (s 19(2) Summons):

1. Mr Nigel Bennett was convicted on 12 August 2022.

2. Order Mr Nigel Bennett to pay a fine of $12,500.

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 Mr Nigel Bennett to pay the prosecutor’s costs.

**********

Decision last updated: 07 October 2022