SafeWork NSW v Buddco Pty Limited (No. 2)

[2023] NSWDC 128

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Buddco Pty Limited (No. 2) [2023] NSWDC 128

Hearing dates:

26 April 2023

Date of orders:

2 May 2023

Decision date:

02 May 2023

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Buddco Pty Limited was convicted on 26 April 2023.

(2)   Order Buddco Pty Limited to pay a fine of $600,000.

(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 Buddco Pty Limited to pay the prosecutor’s costs.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death serious injury – more than one person can have a duty

SENTENCE – objective seriousness – mitigating factors – aggravating factors – general deterrence – specific deterrence – capacity to pay appropriate penalty – victim impact statement

COSTS – prosecution costs

OTHER – confined space work – defendant subcontracted worker to clean inside of ink tank – anchor blade not electrically isolated – worker trapped inside tank between blade and side of tank – suffered fatal injuries – other workers injured after entering tank to assist – failure to de-energise and isolate tank – failure to install interlocking device – failure to develop, implement and enforce safe work procedure – failure to provide adequate instructions and supervision

Legislation Cited:

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

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 16, 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 Buddco Pty Limited [2022] NSWDC 549

SafeWork NSW v DIC Australia Pty Ltd [2021] NSWDC 143

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (1999) 95 IR 383

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Buddco Pty Limited (Defendant)

Representation:

Counsel:
C Magee (Prosecutor)
M Scott with J Simpson (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Lander & Rogers (Defendant)

File Number(s):

2019/208718

Judgment

1. On 7 December 2017 a tank cleaning contractor, Mr Craig Tanner, died after the anchor blade in an ink holding tank was activated while he was inside the tank. Other workers, including Mr Yatin Mehta, entered the tank to assist Mr Tanner and suffered injury.

2. On 14 November 2022 I found Buddco Pty Limited (Buddco) guilty of an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed workers, in particular Mr Tanner and Mr Mehta, to a risk of death or serious injury contrary to s 32 of the Act: SafeWork NSW v Buddco Pty Limited [2022] NSWDC 549 (the primary judgment) at [456].

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

Reasonably Practicable Measures

4. At [373-410] and [418-430] of the primary judgment I found that the steps pleaded in subpars 13(a), (b), (d) and (f) of Annexure A to the Amended Summons were reasonably practicable measures which the defendant should have taken to comply with the duty under s 19(1) of the Act. Those particulars are as follows:

“13. The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, and in particular Mr Tanner and Mr Mehta, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate or, alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

a. ensure that the ink holding tank was de-energised and isolated from all energy sources prior to permitting any work in respect of, or in relation to, the cleaning of the inside of the holding tank to commence, including any work which permitted persons to be able to access the inside of the holding tank;

b. requesting that DIC install an interlocking device on the ink holding tank hatch which de-energised the tank when the hatch was open;

d. develop, implement and enforce a safe work procedure for the task of cleaning the ink holding tank which set out the minimum steps that workers were required to undertake when carrying out the task, including a requirement that:

i. a Job Safety Analysis (JSA) be prepared prior to commencing the task;

ii. a Confined Space Entry Permit be completed prior to commencing the task;

iii. the ink holding tank be isolated from all forms of energy prior to commencing the task, with detailed guidance on the specific isolations required and how they were to be undertaken;

iv. workers lock out and tag out of the means of energizing the operating systems prior to entry into the ink holding tank;

v. workers consult and obtain approval from Buddco before commencing the work;

vi. the hatch of the ink holding tank not be opened until the steps above have been completed.

f. provide adequate instructions and supervision to workers performing the work including information as to how the task is to be performed, in particular that:

i. a JSA be prepared prior to commencing the task;

ii. a Confined Space Entry Permit be completed prior to commencing the task;

iii. the ink holding tank be isolated from all forms of energy prior to commencing the task, with detailed guidance on the specific isolations required and how they were to be undertaken;

iv. workers lock out and tag out of the means of energizing the operating systems prior to entry into the ink holding tank;

v. that workers confirm that the ink holding tank has been isolated from all forms of energy prior to commencing the task;

vi. workers consult and obtain approval from Buddco before commencing the work;

vii. the hatch of the ink holding tank not be opened until the steps above have been completed.”

Background

5. At trial the parties presented Agreed Facts which are set out in the primary judgment at [294]. After reviewing the evidence, I made additional findings of fact which are set out in the primary judgment at [300], [341], [343] and [352]. I will not set out those agreed facts and findings again in full, but I incorporate them by reference into this judgment.

Evidence for the Defendant

Affidavit of Malcolm Scott Wilmot

6. Mr Malcolm Scott Wilmot affirmed an expert affidavit on 29 March 2023 (DX 12). He is a certified practising accountant and senior manager of Roy Spagnolo & Associates.

7. Mr Wilmot prepared and annexed to his affidavit the following documents:

1. A financial statement detailing the financial position of Buddco at the end of each financial year from 30 June 2018 to 30 June 2022 (MSW-1).

2. A Balance Sheet for the current financial year up to 20 March 2023 (MSW-2).

3. A Profit and Loss Statement for the current financial year up to 20 March 2023 (MSW-3).

8. Mr Wilmot described Buddco’s financial trajectory since 30 June 2018 as that of a business in a declining financial situation, with its decline in profits attributable to the loss of Buddco’s main client. The business has received repeated loans to meet its liabilities and, without obtaining a loan, Buddco would be unlikely to earn enough next financial year to meet its debts. He concluded that the future outcome for Buddco is, “in all likelihood, insolvency and winding up”.

Affidavit of Josh Robert Budd

9. Mr Josh Robert Budd swore an affidavit on 12 April 2023 (DX 13). He has been the sole director of Buddco since its registration in 2009.

10. In 2007 Mr Budd worked as a sole trader contractor for Any Time Industrial Services. This was his initial involvement in performing mechanical engineering work for the ink manufacturing industry, including at the DIC Australia Pty Ltd (DIC) site in Auburn (the Auburn site). It was through this work that Mr Budd became familiar with DIC’s business.

11. In 2008 and 2009 Mr Budd had discussions with persons from DIC about assuming the role of Engineering Manager for DIC. DIC did not have approval from its head office to increase the number of its own employees, and so Mr Budd agreed to provide work to DIC as an independent contractor.

12. Mr Budd registered Buddco as a company in 2009 for the sole purpose of providing engineering services to DIC.

13. An agreement was executed for Buddco to provide “the supply of labour only for the design, construction, installation, commissioning, maintenance and servicing of ink manufacturing plant and associated equipment” (the services) to DIC, for a period of 60 months until September 2014, which was later extended to September 2019. Buddco’s operations eventually expanded to also provide support to DIC clients.

The Engagement of Craig Tanner

14. Buddco engaged subcontractors where it did not have the internal expertise or specialised equipment to carry out the services itself, including for confined space entry work. On their first attendance to the site, subcontractors were shown around the site, introduced to Buddco staff, shown emergency response and evacuation routes, shown relevant equipment (including the upstream and downstream connections to that equipment) and asked to complete DIC’s site-based induction.

15. The confined space work was primarily to enter and clean ink tanks located at the Auburn Site. It was rare for such a clean to be required more than once or twice a year for a single machine. Buddco always used qualified confined space personnel to undertake any work inside an ink tank.

16. Mr Budd met Mr Tanner through Buddco’s engagement of Dry Ice Tech in about 2014 to perform this confined space cleaning work. Mr Budd developed a high opinion of Mr Tanner’s ability to perform work safely because he always had the correct equipment, completed Buddco and DIC documents correctly and followed applicable procedures. Mr Tanner became one of Buddco’s preferred subcontractors.

17. In around 2015 Buddco began to engage Mr Tanner directly through his business Complete Blasting Solutions to perform work at the Auburn Site.

Buddco’s Systems of Work Prior to the Incident

18. At the time of the incident Buddco had less than 10 employees.

19. Buddco’s safety system included:

1. The employment of a WHS Manager from March 2014.

2. Weekly WHS meetings with Buddco staff.

3. Provision of training to Buddco staff, including confined space training with an external provider.

4. Ensuring only qualified workers undertook specialised work.

5. WHS documents, including a WHS Management Plan specific to the Auburn site, a WHS Induction Manual, a risk register for the Auburn site, a Confined Space Entry Procedure, incident and hazard reporting forms, a site procedure for the Auburn site, contract assessment and audit documents, Job Safety Analysis (JSA) templates and a Confined Space Entry Permit. The JSA and Permit were approved by DIC and had to be assessed by a Buddco representative before the commencement of work.

6. Processes to ensure these resources were implemented, including randomly auditing JSA documents at weekly WHS meetings, random daily workplace inspections by senior Buddco staff, WHS discussions at toolbox meetings and daily planning meetings, and encouraging employees to go directly to management with health and safety risks that needed addressing.

7. A DVD safety programme.

8. Each worker, including Mr Tanner, was provided with three locks for the purpose of locking out if ever undertaking work on a piece of machinery.

20. Buddco took input from its qualified professionals, such as Mr Tanner, as to the safest way to perform a task. Mr Budd also stopped work if he was not satisfied that the work was being performed, or could be performed, safely.

21. Prior to the incident Buddco had not experienced any issues with the process it used to conduct tank cleaning.

Buddco’s Systems of Work Following the Incident

22. Following the incident Buddco halted all tank cleaning work until a Safe Operating Procedure (SOP) specific to the Blackshop Holding Tank could be developed.

23. Buddco also reviewed its entire work, health and safety system, in consultation with Buddco workers, and made the following changes:

1. The WHS Induction Manual was updated as follows:

1. The sentence “Application of WHS Rules for a site will be done by consultation between all parties involved in a project, Buddco management and staff, Buddco contractors and the Site Principal/Principal Contractor” was added to par 2 of p 4 to emphasise the consultative nature of WHS for Buddco.

2. A reference to a site induction by Buddco of client sites was deleted under the heading “Buddco Employee Inductions and Site Induction” on p 4, in recognition of the fact that site inductions are more appropriately conducted in consultation with the Site Principal.

3. A definition for Buddco Management or nominee was added on p 6 to make expressly clear the level of authority required for work to be undertaken.

4. The sections titled “Safe Work Method Statement” and “Risk Assessment/SWMS/JSA” were amended to reflect that different forms may be conducted depending on the type of work undertaken.

5. Specific references to the Buddco Isolation Procedure No 5 and Buddco Isolation Procedure form were added.

6. The duties and responsibilities of Buddco staff and contractors were added for clarity.

7. Employee and Contractor training confirmation was expanded to encompass site-specific issues.

2. The Buddco Confined Space Procedure No 2 was updated as follows:

1. Paragraph 2 under the heading “A) Risk Assessment” was amended to emphasise the importance of the role of qualified workers in the risk assessment process.

2. Paragraph 1 under the heading “B) Confined Space Entry Permit” was amended to now require the Buddco confined space qualified person, in conjunction with the Buddco site manager or nominee, to prepare the Confined Space Entry Permit.

3. The section under the heading “D) Specific Controls for Atmosphere” was amended to require input from the Buddco confined space qualified person to ensure that decisions were not made by management without such input.

4. Paragraph 2 under the heading “E) Communication and Monitoring” was amended to identify the work which the standby person must perform, to better outline the scope of that person’s duties and responsibilities.

5. Paragraph 1 under the heading “F) Emergency Procedures” was amended so that the confined space qualified person rather than the Buddco site manager had responsibility to ensure that first aid and emergency rescue procedures are in place.

6. Paragraph 1 under the heading “H) Other Specific Procedures” was amended to assign the Buddco confined space qualified person, along with the Buddco site manager or nominee, responsibility for the planning or preparation of confined space entry work.

7. The section under the heading “Part 2 – Entry and Confined Spaces by Buddco Contractors” was amended to positively identify the standby person’s responsibilities.

8. The paragraph on p 6 was amended to more accurately reflect Buddco’s “Permit to Work” process.

3. The Buddco Confined Space Entry Permit was reviewed but substantive changes were not made.

4. The Buddco Contractor Evaluation Form was amended to expand the requirements which must be completed prior to the commencement of work.

24. Buddco also developed the following documents:

1. Buddco Isolation Procedure No 5.

2. Buddco Tank Cleaning Procedure No 6, which specifically addressed Buddco’s requirements for any tank cleaning work undertaken at the Auburn Site.

3. Buddco Isolation Procedure form.

4. A site-specific JSA form.

5. Buddco Workplace Inspection form.

25. Updates were also made to Buddco’s working at heights, working with chemicals and hot work procedures.

26. Buddco voluntarily participated in the audit of WHS systems at the Auburn site arranged by DIC and undertaken by Deloitte.

Contrition and Remorse

27. Mr Budd, on behalf of Buddco, expressed his sincere remorse over Mr Tanner’s death and Mr Mehta’s injury. He acknowledged the devastating and ongoing impacts of Mr Tanner’s death and Mr Mehta’s injury.

28. Immediately following the incident Buddco worked with DIC to ensure workers were given access to counselling. Mr Budd also visited Mr Mehta in hospital to offer his assistance on behalf of Buddco. Mr Budd extended a similar offer to Mr Tanner’s wife.

29. Mr Budd attended Mr Tanner’s funeral and held a memorial for him on the first anniversary on Mr Tanner’s death, which all Buddco staff attended.

Buddco’s Financial Position and Current Status

30. Mr Budd said that, in his view, the working relationship between Buddco and DIC following the incident was strained.

31. On 14 August 2019 Mr Budd had a meeting with Mr Richard Kemp, the COO of DIC, in which DIC indicated that it did not intend to renew the agreement after 8 September 2019, and instead would seek for Buddco to continue to provide the services on a month-to-month basis, with a reduction of approximately $500,000 in fees paid per annum to Buddco.

32. On 9 September 2019 Buddco provided 6 months’ notice of termination of the services to DIC. Buddco ultimately reached an agreement with DIC to continuing providing the services but, to Mr Budd’s recollection, this was not documented. Buddco ceased to provide the services to DIC under the agreement on 8 March 2020. Buddco continued to provide limited services to DIC clients.

33. Buddco’s operation has shrunk significantly with the termination of the agreement. Buddco now employs only one person, Mr Damien Coad. On 7 March 2023 Mr Coad suffered an injury and, as a result, Buddco has been required to engage contractors to undertake work for its customers.

34. Buddco currently provides ad hoc engineering and fabrication assistance to three companies in the ink/print production industry. However, Buddco does not currently have any substantive or ongoing project-based work of the kind previously performed for DIC, which was Buddco’s primary source of revenue. The future of Buddco is uncertain in light of its lack of guaranteed contract work.

35. Buddco has received loans from Mr Budd’s father and from the personal funds of Mr Budd and his wife. He and his wife continue to make ongoing contributions to assist Buddco in meeting its obligations, and anticipate that further loans will be required.

36. Mr Budd noted Buddco’s character references, corporate citizenship, lack of prior convictions and co-operation with SafeWork NSW.

Consideration

37. 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

38. 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].

39. 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].

38. 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.”

41. 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].

42. 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.

43. 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.

44. 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.”

45. 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.”

46. 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.”

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

1. The risk of death or serious injury to a worker crushed by an anchor blade inside an ink holding tank, when the agitator is activated because it has not been electrically isolated, is obvious and foreseeable.

2. There was a significant risk of a person being trapped by the anchor blade if they entered the confined space of the tank, when it was not electrically isolated, whether such entry was deliberate or inadvertent. Once the load was over a certain weight, the anchor blade operated without warning (primary judgment at [358-359].

3. It is obvious that death or serious injury could result from a person becoming entrapped between the anchor blade and the wall of the tank, or becoming entrapped in the material in the bottom of the tank, if pinned by the anchor blade (primary judgment at [360]).

4. There were steps which could and should have been taken by Buddco, being those pleaded in subpars 13(a), (b), (d) and (f) of Annexure A of the Amended Summons.

5. There was little or no cost, burden or inconvenience of those steps being implemented (primary judgment at [369-371]).

6. The death of Mr Tanner and the serious injury to Mr Mehta were caused by the risk and the breach of duty.

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. Buddco did have a detailed written safety system in place with respect to confined space work and tank cleaning. However, there was no standard and safe step-by-step procedure to ensure electrical isolation of the tank. In the primary judgment I set out the different views of workers as to who had to isolate the tank and when isolation should take place (at [377-391]). I also examined the documentation to ascertain these two matters (primary judgment at [392-401]). My conclusions were expressed in the primary judgment at [402-404] as follows:

“402   It can be seen from the above summary that within Buddco there were differing views as to whether the contractor had responsibility for the isolation, or whether Buddco had such responsibility. Further, the evidence shows that there was no set practice as to when isolation would occur, and in the summary above, different employees had different views as to whether or not the tank should be isolated before the side hatch was removed for any purpose. Some thought that it should be isolated before the side hatch was removed at all, some thought that it did not need to be isolated when the side hatch was opened for the limited purpose of testing the atmosphere inside the tank, and some thought that it did not have to be isolated when the side hatch was completely removed, so that, if necessary, the blade could be moved by electrical power if it was found to be blocking the access to the tank when the side hatch was removed.

403   It is for these reasons that I decline to make a finding in terms of par 52 of the defendant’s Additional Facts document (MFI 8). When all the evidence is taken into account, it is clear that prior to December 2017, the isolation procedure was not followed consistently by Buddco employees and contractors. Indeed, there was no step-by-step procedure to be followed.

404   It is also for these reasons that I decline to make a finding in terms of par 60 of MFI 8. There was no coherent procedure to tell employees and contractors when the side hatch should be unbolted and completely removed. In particular, there was no step-by-step procedure telling employees and contractors when isolation should occur in relation to unbolting and removal of the side hatch.”

48. I find that the level of culpability of Buddco is in the high range.

Deterrence

49. 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].

50. The penalty must reflect the need for specific deterrence. Buddco is still conducting a business. Its operations involve provision of engineering and fabrication services and the continuing engagement of workers.

Aggravating Factors

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

Mitigating Factors

52. Buddco has no previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

53. Buddco is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. Buddco has been in business for 14 years.

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

55. Buddco 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.

56. Buddco gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

57. I am not satisfied that Buddco has shown remorse for the offence within the meaning of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. It has not provided evidence that it has accepted responsibility for its actions and it has not acknowledged that the death of Mr Tanner and the injury to Mr Mehta were caused by its actions. I do accept that Mr Budd personally is extremely sorry for Mrs Tanner and her family and for Mr Mehta and his family. But that alone is not sufficient to satisfy the legislation.

Contribution of DIC to Creation of the Risk

58. DIC Australia Pty Limited (DIC) was also prosecuted and sentenced for a breach of its health and safety duties arising under the Act, relating to the same incident: SafeWork NSW v DIC Australia Pty Ltd [2021] NSWDC 143. However, the particulars of the two charges were different and thus the basis on which DIC was sentenced was different to the basis for sentencing Buddco.

59. I accept the submission (MFI 10, par 75) of counsel for the prosecutor that:

1. Section 16 of the Act provides that more than one person can concurrently have the same duty. Each duty holder must comply with that duty to the standard required by the Act even if another duty holder has the same duty.

2. Section 16(3) of the Act provides that each person retains responsibility for their duty in relation to the matter and each person must discharge their duty to the extent to which that person has the capacity to influence and control the matter.

3. The court should not embark upon an inquiry in sentencing proceedings which, in substance, would require the court to make specific findings as to the culpability of other parties and the nature and quality of any offence committed by them: Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (1999) 95 IR 383 at 437 per Walton J.

Capacity to Pay a Fine

60. 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.

61. 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.”

62. Counsel for the prosecutor conceded that, based upon the affidavits of Mr Budd and Mr Wilmot, Buddco has a very limited capacity to pay any fine. Counsel acknowledged that under s 6 of the Fines Act 1996 (NSW) the court must take into account the means of the defendant and “such other matters as in the opinion of the court, are relevant to the fixing” of the fine. Counsel submitted that a substantial fine was still warranted because of the seriousness of the offence (which I have found to be in the high range of objective seriousness) and the need for general deterrence.

63. Buddco made a profit in 2018 and 2019, according to the Profit and Loss Statement at pp 20-21 of DX 12. In these years Buddco was still performing work for its major client DIC.

64. Buddco made a small loss in 2020, a small profit in 2021 and a large loss of $152,000 in 2022.

65. I note from that same document, that Buddco has spent the following amounts on legal costs:

1. $80,480.97 in 2018.

2. $190,053.80 in 2019.

3. $122,100.34 in 2020.

4. $94,979.75 in 2021.

5. $118,034.95 in 2022.

6. $187,869.07 from 1 July 2022 to 20 March 2023 (p 25 of DX 12).

66. In the financial year 2022, and the period from 1 July 2022 to 20 March 2023, it is expenditure on legal costs which has tipped Buddco into losses rather than profits. Now that these proceedings are over (at least at the District Court level) Buddco should be able to get back into profit.

67. I propose to moderate the fine which I would otherwise impose, to take into account the very limited capacity to pay which Buddco presently has. However, I fix the fine taking into account that the objective seriousness of the offence is in the high range, particularly because Buddco clearly had the primary responsibility at the Auburn site to ensure the safety of the work involved in cleaning the ink tank.

Victim Impact Statement

68. The defendant was convicted at the sentence hearing on 26 April 2023.

69. 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).

70. 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. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement – s 30D(1).

71. 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).

72. By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim’s death on the family victim or other members of the primary victim’s immediate family.

73. A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community – s 30E(3). Such a statement can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statement into account.

74. The court received the Victim Impact Statement of Ms Rachel Tanner (PX 23), widow of Mr Tanner, which she read aloud to the court.

75. Ms Tanner recounted the trauma and grief that her family have suffered as a result of Mr Tanner’s death and the lengthy court proceedings that followed. His passing has placed both a financial burden and an enormous emotional toll on herself and her family. She has been particularly haunted by thoughts of what her husband was thinking and feeling in his last moments.

76. Ms Tanner and Mr Tanner had three sons together. She gave many examples of how her young sons have been impacted by the loss of their father, and of the milestones her husband has missed and will continue to miss. She now constantly worries about her sons and has had to give up her nursing career to support them.

77. For Ms Tanner and her family life will never be the same. Spending Mr Tanner’s 48^th birthday at the cemetery and other anniversaries highlight their new reality.

78. In her statement Ms Tanner also advocated for legislative reform to ensure that businesses take the health and safety of employees seriously so that all workers can come home safely to their families.

Costs

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

Penalty

80. My orders are:

1. Buddco Pty Limited was convicted on 26 April 2023.

2. Order Buddco Pty Limited to pay a fine of $600,000.

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 Buddco Pty Limited to pay the prosecutor’s costs.

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Decision last updated: 02 May 2023