SafeWork NSW v Clean Valley Pty Ltd and John Cross

[2020] NSWDC 681

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Clean Valley Pty Ltd and John Cross [2020] NSWDC 681

Hearing dates:

26 October 2020

Date of orders:

6 November 2020

Decision date:

06 November 2020

Jurisdiction:

Criminal

Before:

Strathdee, DCJ

Decision:

(1)   The corporate defendant is convicted.

(2)   The appropriate fine for the corporate defendant would be $60,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(3)   I accordingly order the corporate defendant pay a fine of $45,000.00.

(4)   The individual defendant is convicted.

(5)   The appropriate fine for the individual defendant would be $5,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(6)   I accordingly order the individual defendant pay a fine of $3,750.00.

(7)   50% of the fines imposed are to be paid to the prosecutor.

(8)   The defendants are to pay the prosecutor’s costs agreed in the sum of $33,000.00.

Catchwords:

CRIMINAL LAW- prosecution- work health and safety- duty of persons undertaking a business – risk of death or serious injury

SENTENCE – objective seriousness- mitigating factors-aggravating factors- plea of guilty – discount of 25% because of the utility of the plea -general deterrence-specific deterrence- appropriate penalty-remorse - contrition

COSTS – prosecution costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety Regulation 2017 (NSW)

Cases Cited:

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

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

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Inspector Howard v BaulderstoneHornibrook Pty Ltd [2009] NSWIRComm 92

Kirk v Industrial Commission of New South Wales [2010] HCA 1

LawrensonDiecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464

Markarian v The Queen (2005) 228 CLR 357

Morrison v Powercoal Pty Limited & Anor(No.3) [2005] NSWIRComm 61

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

Orbit Drilling v The Queen; Smith v The Queen [2012] VSCA 82

R v Cage [2006] NSWCCA 304

R v Miria [2009] NSWCCA 68

SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 226

Veen v R (No. 2) (1988) 164 CLR 465

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

Texts Cited:

Australian Standard 2359: Powered Industrial Trucks (2013)

SafeWork NSW brief guide ‘Toolbox Talk: Take Forklifting Safety Seriously’

SafeWork NSW Code of Practice ‘How to Manage Work, Health and Safety Risks’ (December 2011)

SafeWork NSW Code of Practice ‘Managing the Risks of Plant in the Workplace’ (July 2014)

SafeWork NSW’s Working With Or Around Mobile Plant Safety Alert (30 January 2014)

The General Guide for Workplace Traffic Management published in 2014 by SafeWork Australia

WorkCover Safety Alert ‘Working with or around Mobile Plant’

Category:

Sentence

Parties:

SafeWork New South Wales (Prosecutor)
Clean Valley Pty Ltd and John Cross (Defendants)

Representation:

Mr M Scott for the Prosecution
Mr B Bickford for the Defendants

Ms B Ng, Department of Customer Service NSW (Prosecutor)
Mr J Anthony, John Anthony Solicitors (Defendants)

File Number(s):

2020/00071731 and 2020/00071746

Publication restriction:

None

Judgment

1. Clean Valley Pty Ltd (‘the corporate defendant’) pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (NSW) (‘the Act’) by failing to comply with the health and safety duty imposed upon it by s 19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the defendant’s business or undertaking, and in doing so exposed workers to a risk of death or serious injury.

2. This offence carries the maximum penalty of $1,500,000.00.

3. Mr John Cross (‘the individual defendant’) pleaded guilty to an offence contrary to s 32 of the Act that, as an officer of the corporate defendant, he failed to comply with the health and safety duty under s 27(1) of the Act and in doing so exposed Mr Scott Cartwright to a risk of death or serious injury. The individual defendant’s duty under s 27(1) of the Act was a duty to exercise due diligence to ensure that the corporate defendant complied with its duty under s 19(1) of the Act.

4. This offence carries the maximum penalty of $300,000.00.

5. The contravention arises from an incident on 15 March 2018 at the defendants’ worksite located at 7 Enterprise Drive, Tomago, NSW (‘the worksite’).

6. The individual defendant was the sole director, secretary and shareholder of the corporate defendant. He was responsible for directing workers on the work required to be undertaken and controlling the activities in the recycling area on a daily basis.

7. The defendants by their pleas of guilty are taken to have admitted all of the particulars of the respective charges as those particulars are described in Annexure A to the respective Summons.

8. The prosecutor tendered an Agreed Statement of Facts and an Agreed Tender Bundle which forms the basis of the background set out below.

BACKGROUND

9. The corporate defendant conducted a business or undertaking involving the operation of a waste recycling facility at the worksite. The corporate defendant also operated a commercial skip bin service and had skip trucks which were front lift trucks that would bring construction waste from customer’s sites back to the worksite where it would be transferred into semi-trailers, and then taken away for processing.

10. The individual defendant was the sole director, owner and managing director of the corporate defendant. He was responsible for directing workers on the work required to be undertaken and controlling the activities in the recycling area daily. He was also responsible for the corporate defendant’s work, health and safety system.

11. Mr Cartwright was employed as a skip bin truck driver by the corporate defendant. His duties included collecting and emptying skip bins. At the time of the incident, he was 52 years of age and had been in the position for approximately 7 months.

12. J&M Recycling Pty Limited (‘J&M Recycling’) was a company engaged by the corporate defendant to transport builders’ recycling material from the site to another waste facility in Brisbane, Queensland. J&M Recycling had been transporting material from the site for approximately five years. J&M Recycling would attend the site about three times per week to transport loads.

13. Mr Jason Collins (‘Mr Collins’) was the director of J&M Recycling.

14. Mr Athol McRae (‘Mr McRae’) was employed as a truck driver by J&M Recycling. Mr McRae was responsible for operating the prime mover, Western Star B Double truck (Registration NSW CJ4 2ER), attached with two trailers (‘the Western Star truck’). Prior to the incident Mr McRae had driven the Western Star truck attached with two trailers to the site several times.

PLANT INVOLVED AND WORK PERFORMED

15. The corporate defendant operated plant such as the Zaxis 120 Excavator (‘the excavator’) and the Side-Lifter truck (Registration NSW BT 34 DJ) at the site, inside the shed.

16. The excavator was operated on top of the ramp in the shed at the worksite. The excavator was used to move waste from the waste pile located at the right side of the shed into the trailers attached to the prime mover.

17. The Side-Lifter truck had a skip bin and 4 level controls at the rear of the truck and above the bumper bar. The controls were for the operation of the outriggers (left side of the truck) and the lifting mechanism for the skip bin (centre of the truck).

18. The corporate defendant would receive waste from skip bin trucks such as this Side-Lifter truck. The waste was collected from emptying the skip bin situated on the truck. The truck would drive up the ramp and the skip bins would be emptied on the right side of the shed at the site. Prime movers attached with trailers would then be loaded with waste by the excavator and taken away. Once the skip bins were emptied, the Side-Lifter truck would move towards the entrance of the shed at the site in order for the truck to be restocked with empty skip bins.

19. The Western Star truck was at the site on the date of the incident. The Western Star truck was attached with two trailers and weighed approximately 62.5 tonnes when loaded and 36.5 tonnes when unloaded. The decal on the driver door read ‘J&M Collins Recycling Pty Lt Gloucester 6558 1420’. The Western Star truck was one such prime mover that was loaded with waste by the excavator. To load waste materials into the trailers, the materials were required to be compacted with the grab on the excavator by squashing the materials into the trailer. The Western Star truck would be parked on the left side of the shed during the loading process.

THE INCIDENT

20. On 15 March 2018, Mr McRae parked the Western Star truck on the left side of the shed next to the ramp. He chocked the wheels of the trailers with two pieces of timber and left the engine running while it was being loaded with waste by the individual defendant, who was operating the excavator. The parking brakes of the Western Star truck were not engaged to ensure the accuracy of the on-board weighing system of the trailers.

21. Mr Cartwright was operating the Side-Lifter truck and had brought some skip bins back to empty at the site. Mr Cartwright had positioned the Side-Lifter truck and had prepared the skip bins at the rear of the Side-Lifter truck for tipping. The individual defendant stated to Mr Cartwright that he would not start loading the trailers of the Western Star truck until Mr Cartwright had ‘tipped his load’. Mr Cartwright proceeded to tip the bins of the Side-Lifter truck and then subsequently reversed the Side-Lifter truck in front of the Western Star truck in preparation for retrieving the skip bins. Mr Cartwright exited the Side-Lifter truck and moved to the rear of the Side-Lifter truck (which positioned him between the front of the Western Star truck and the rear of the Side-Lifter truck) to begin operating the controls for the crane to retrieve the skip bins.

22. At this time, the individual defendant was operating the excavator and transferring waste from the right side of the shed into the trailers attached to the Western Star Truck. Mr McRae was standing alongside the Western Star Truck.

23. The individual defendant loaded a pile of waste into the back trailer and the Western Star truck rolled forward, crushing and pinning Mr Cartwright between the rear of the Side-Lifter truck and the front of the Western Star truck.

24. Mr McRae climbed into the Western Star truck and reversed it in order to release Mr Cartwright.

25. NSW Ambulance and Police arrived and Mr Cartwright was taken to John Hunter Hospital. Mr Cartwright sustained a fractured right femur, superficial puncture wounds to the groin area and severe bruising to his legs and abdomen.

LEGISLATION AND GUIDANCE MATERIALS

Work Health and Safety Regulation

26. Part 3.1, Clauses 34-38 of the Work Health and Safety Regulation 2017 (‘the Regulation’) require a duty holder to provide adequate protection against health and safety risks by:

• Identifying reasonably foreseeable hazards that could give rise to risks to health and safety;

• Eliminating the risk so far as is reasonably practicable;

• If it is not reasonably practicable to eliminate the risk, minimise the risk so far as is reasonably practicable by implementing control measures in accordance with the hierarchy of control;

• Maintain the implemented control measure so that it remains effective; and

• Review, and if necessary, revise risk control measures so as to maintain, so far as reasonably practicable, a work environment that is without risks to health and safety.

27. Clause 203 of the Regulation provides that a person with management or control of plant at a workplace must manage risks to health and safety associated with plant, in accordance with Part 3.1 of the Regulation.

Code of Practice for Managing the Risk of Plant in the Workplace

28. The WorkCover Code of Practice for Managing the Risks of Plant in the Workplace dated July 2014 (‘the Code’) provides guidance in relation to ensuring the safe use of plant. This document was in force and readily available at the time of the incident. The Code requires persons with management or control of the plant in the workplace to identify the hazards of the plant, assess the risks, put control measures in place, and provide guidance as to how to assess and control the risks of plant in the workplace.

General Guide for Workplace Management

29. The General Guide for Workplace Traffic Management (‘the Guide’) published in 2014 by SafeWork Australia was readily available on their website. The Guide notes that the best way to protect pedestrians is to make sure people and vehicles cannot interact which can be achieved by not allowing pedestrians in vehicle operating areas. If this is not possible people and vehicles can be separated by measures such as high impact traffic control barriers or temporary physical barriers.

30. The Guide also recommends that the following control measures for truck loading and unloading should be implemented:

• Using vehicle or trailer restraints to prevent vehicles from moving during unloading and loading activities;

• The use of a clearly designated pedestrian walkway protected by physical and staggered barriers to control approaching pedestrians, or a pedestrian zone which has been established for a distance equal to the height of the load from the ground plus an additional allowance for the type of load and clearly marked by barriers, bollards or witches’ hats;

• Establishing a safety zone for the driver and other pedestrians; and

• The use of effective communication systems between the plant operator and the driver such as hand signals or two-way radios.

Safety Alert

31. SafeWork NSW’s Working With Or Around Mobile Plant Safety Alert (30 January 2014) (‘the Safety Alert’) was readily available on their website. The purpose of the Alert is to remind officers and workers of persons conducting a business or undertaking of risks associated with mobile plant in the workplace and to provide advice on appropriate controls for traffic management.

32. The Safety Alert sets out a risk management process that can be implemented by a PCBU in compliance with the Regulations. It recommends the PCBU identify the traffic hazards in consultation with workers and mobile plant operators and eliminate the risk if possible and practicable (such as by designing the workplace layout so that vehicles are separated or scheduling work so that vehicles and pedestrians are not operating simultaneously in the same area). If elimination is not possible, the Safety Alert recommends minimising the risk as much as possible, such as by developing a traffic management plan and providing training and instruction to all affected workers and visitors which may include, inter alia, using audible and visible alarms to identify moving plant, using bollards, barriers, safety rails, or exclusion zones to separate plant and pedestrians, and using spotters or dedicated traffic controllers.

SYSTEM OF WORK PRIOR TO THE INCIDENT

Knowledge of the Risk

33. Mr McRae stated that he had observed on previous occasions that the trucks would move forward when they were struck by the excavator during loading, however he was not sure whether the individual defendant was there when that occurred.

Risk Assessment

34. Prior to the incident, the corporate defendant did not conduct a risk assessment in relation to the loading of the trailers, working in the vicinity of the prime mover, or moving mobile plant during loading.

Verification of Wheel Chocks and Parking Brakes

35. Prior to the incident, the corporate defendant did not conduct any safety meetings with J&M Recycling or give J&M Recycling any documentation or policies on how the loading was to be done safely at the site.

36. The corporate defendant did not provide wheel chocks or ensure that they were available and capable of preventing the Western Star truck from rolling forward; verify that wheel chocks were securely positioned and that parking brakes were activated during the loading; or follow a specific procedure before deactivating the parking brakes of a prime mover vehicle.

Exclusion Zone

37. Mr Cartwright stated that he was trained to park the Side-Lifter truck in front of whichever trailers were being loaded at the time and he would park the Side-Lifter truck in front of trailers that were being loaded a couple of times per week prior to the incident. He further stated that the corporate defendant did not enforce an exclusion zone around the Western Star truck and excavator.

38. Prior to the incident, the corporate defendant did not:

• Establish an exclusion zone by use of any signage, barricades, bunting, bollards, witches’ hats or similar equipment during the loading process and while workers were working in the vicinity of the excavator and the Western Star truck.

• Prohibit personnel, plant or other vehicle from working in the vicinity of the prime mover attached to trailers and moving mobile plant until an exclusion zone was established.

Safe Operating Procedure

39. Prior to the incident, the corporate defendant did not have a safe operating procedure or safe work method statement (‘SWMS’) for the tasks of loading of waste into trailers attached to prime movers, working in the vicinity of prime movers attached to trailers, and moving mobile plant.

Training and Instruction

40. Mr Cartwright stated that the corporate defendant did not prohibit him from entering the shed while the trailers were being loaded.

41. Mr Cartwright stated that the training received from the corporate defendant was hap-hazard and he was trained by another driver for only 2 to 3 days before he started working on his own.

42. As part of the corporate defendant’s training of its drivers, a checklist was provided. However, the corporate defendant’s Checklist did not provide any information on any safe work procedure during the loading process; or provide instruction, information and training to its workers about the need for, and the operation of, an exclusion zone around the loading of trailers by the excavator and working in the vicinity of prime movers attached to trailers and moving mobile plant.

Supervision

43. While the individual defendant would instruct Mr Cartwright on works required to be undertaken, Mr Cartwright stated that he was not supervised by anyone. As such, the corporate defendant did not designate a person as a supervisor who was responsible for enforcing the exclusion zone. The corporate defendant also did not provide adequate supervision of workers to ensure that the control measures were implemented and complied with.

SYSTEM OF WORK FOLLOWING THE INCIDENT

44. Following the incident, the corporate defendant was issued with improvement and prohibition notices. In response, the corporate defendant implemented a Job Safety & Environmental Analysis Onsite Vehicle Movements (‘JSEA’). The JSEA required all people involved in this activity to complete task specific training and induction including thorough training and assessment of JSEA.

45. As part of the JSEA, the following measures must be implemented:

Heavy Tipper Access (Single Load or B-Double):

• vehicle wheels to be chocked and parking brakes applied;

• areas must be barricaded and all personnel removed from area prior to the commencement of loading procedure;

• an exclusion zone must be established around the semi-trailer during the loading process;

• all drivers to be provided with two-way radio for communication with excavator operator; and

• no vehicles/plant to be parked up to or adjacent to tippers once in position.

Work: Unloading Clean Valley Vehicles

• Clean Valley Drivers must communicate effectively with all other drivers, plant operators and relevant personnel. If excavator is in operation on ramp driver must and is responsible to inform operator to descend ramp and park clear of reversing operation;

• Driver must ensure ramp is clear of debris; and

• Relevant safe work procedures must be used for side and rear dumping methods.

Work: Site Position for Removing/Replacing Bins

• Clean Valley trucks to be reversed into position adjacent to the current bin storage area to the left of ramp;

• When a tipper is already in situ procedure is to be completed with the Clean Valley truck parked in front of the ramp well clear of tipper loading operation;

• Under no circumstances are other vehicles/plant to be parked up to or adjacent to tippers once in position;

• Ensure area is free from all personnel before removing/replace any bins with overhead crane.

Work: Loading Tippers (Single Load or B Double)

• Tipper driver to coordinate all loading operations including park brake release procedure;

• Tipper driver to ensure no personnel, equipment, plant or other heavy vehicles enter designated and barricaded loading area;

• No loading operations are to be performed when personnel are required to enter loading area, when reading trailer scales, or when overhead cranes are in use; and

• During loading chocks must be in position and parking brakes on.

When releasing brakes to read trailer scales the following procedure must be implemented:

• Tipper driver to signal or radio excavator operator to cease operation;

• Excavator grabber to be lowered to ground or rubbish level;

• Whilst ensuring chocks are securely in place, handbrakes can be temporarily released while scales are read;

• Strictly no loading work is to continue whilst the park brakes are released;

• Driver to reapply all park brakes and again check wheel chocks; and

• Tipper driver to signal or radio excavator operator to commence operation.

CONSIDERATIONS

46. The agreed facts are set out in detail as above. In summary, Mr Cartwright, the driver of the Side-Lifter truck, was squashed between the Side-Lifter truck and the semi-trailer being loaded with waste and as result of the semi-trailer moving forward after the rear of the trailer attached to the semi-trailer was struck by the arm of the excavator during the loading process.

47. There are three facts that stand out relevant to the incident, are as follows:

1. the semi-trailer in question weighed between 32 and 64 tonnes at the time of the incident, and had one steer wheel of the truck chocked by the placement of two thin pieces of wood;

2. the brakes on the truck and its trailer had been released;

3. the low roof of the shed required the excavator to move in an almost horizontal arc which resulted in any accidental contact between the excavator arm and the trailer being loaded causing a force travelling in the direction of the back of the trailer to the front so as to impel the trailer to move forwards.

THE RISK

48. The risk in each of the Summonses was the risk of a worker, in particular Mr Cartwright, suffering death or serious injury as a result of being struck and /or crushed by the Western Star truck during the loading process.

SENTNECING

49. I have had regard to the objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the Sentencing Act’) for the purpose of sentencing.

THE NATURE OF THE DUTY

50. The nature of the duty is one that requires a PCBU to ensure as far as reasonably practicable the health and safety of workers at the workplace. The duty included ensuring, so far as is reasonably practicable, the provision and maintenance of safe plant, safe systems of work and the provision of information, training, instruction or supervision necessary to protect persons from risks to their safety: s 19(3) of the Act.

51. The duty required the defendants to identify risks in the workplace and adopt measures to eliminate or minimise them: Kirk v Industrial Commission of New South Wales [2010] HCA 1 at [34].

52. The notion of reasonable practicability is informed by the considerations found in s 17 of the Act. The defendants, by their pleas of guilty, have admitted that the measures to ensure safety pressed by the prosecutor would have been reasonably practicable.

53. The duty is one of strict liability: s 12A of the Act. Consequently, there is no relevant mental element to the offence whether it be reference to intent, carelessness or recklessness.

54. In Markarian v The Queen (2005) 228 CLR 357 at [31], Gleeson CJ, Gummow, Hayne and Callinan JJ set out three reasons why sentencers should have particular regard to the maximum penalties prescribed by statute. Their Honours stated:

‘…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the relevant factors, a yardstick.’

SENTENCING PRINCIPLES

55. The penalties imposed must give effect to the intention of the WHS Act, in particular, protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: s 3A of the Act.

56. The court is to be guided by the provisions of the Sentencing Act which include:

1. Section 3A which sets out the purpose of sentencing;

2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and

3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.

57. The court is to approach a sentencing exercise on the basis of it being one of “instinctive synthesis”; Markarian v The Queen (supra).

58. This approach to sentencing has been reiterated by Russell J in SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 at [109] in this way:

‘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 v The Queen [2011] HCA 39; [2011] 244 CLR 120. 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.’

59. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 at [89].

OBJECTIVE SERIOUSNESS OF THE OFFENCE

60. The duties of the defendant require that it ensure that the health and safety of workers as far as reasonably practicable. This duty is not delegable and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

61. Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking in to account such factors.

62. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474-5.

63. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [714].

64. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen; Smith v The Queen [2012] VSCA 82 at [62], and Veen v R (No. 2) (1988) 164 CLR 465.

65. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61.

66. In Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96, Basten JA explained the approach to sentencing as follows:

‘[34] 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 to guard against 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.

…..

[42] 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 pressure event of the force 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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.’

…..

[53] The legitimate purpose of intervention in the present case are twofold. The first purpose is to identify the proper approach to considering the objective seriousness of the offences under the Work Safety Act. 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.’ (my emphasis)

67. The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, the more serious the offence will be.

68. The relevant factors in determining the defendants culpabilities are:

1. There was no risk assessment undertaken by either of the defendants, no safe operating procedure was put in place and no requirement for an exclusion zone. This is in circumstances where, as stated in paragraph 31 of the Agreed Statement of Facts (‘ASOF’) against the corporate defendant, and at paragraph 33 of the ASOF against the individual defendant, Mr Cartwright stated that he was “trained to park the side-lifter truck in front of whatever trailers were being loaded at the time.

2. The defendant did not conduct any safety meetings with J&M Recycling or give them any documentation or policies on how the loading could be safely done at the worksite.

3. To ensure the accuracy of the load being placed on to the trucks, the drivers were instructed to release the parking brakes. However, despite requiring such, the defendants took no steps to ascertain what wheel chocks would be necessary to restrain the truck whilst it was being loaded.

4. The risk of the truck and/or its trailer being struck by the arm of the excavator during the process of loading, with the result that the truck was pushed forward, was obvious. The confined nature of the excavator operation heightened the likelihood of such an occurrence.

5. The risk that a truck, once struck by the excavator, would move forward in circumstances where its brakes had been released was again obvious. This risk is heightened by there not being any purpose-designed wheel chocks provided and reliance being placed upon pieces of wood.

6. The risk of someone being struck or crushed between the rear of a side-lifter truck and the semi-trailer, once the semi-trailer was struck by the arm of the excavator during loading was obvious. This is particularly so when the operators of the side-lifter truck are directed to stand at the rear of the Side-Lifter truck in front of the semi-trailer as it is being loaded.

7. Significant guidance material was available at the time of the incident, as detailed above.

8. Each of these obvious risks were able to be overcome or minimised at very little expense to the corporate defendant by having put in place those reasonably practical steps that are set out in the annexure to the summons.

9. The individual defendant could have met his due diligence by having put in place the procedures as set out in the annexure to the summons and by further ensuring that those procedures were followed by the corporate defendant.

10. I accept however that the defendants were not wilfully blind to the risks. The offences did not involve a deliberate flouting of the law in preference for any time or cost saving, or any efficiency considerations.

11. I also accept that the defendants may have operated on a misplaced and naïve assumption that in the absence of any prior incidents and/or injuries to workers for a number of years before the accident, the workplace did not present any significant risks of injury to its workers.

69. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 per Latham J at [17]-[18].

70. The maximum penalty for this offence by the corporate defendant is a fine of $1,500,000.00, and the individual defendant is a fine of $300,000.00, which reflects the legislature’s view of the seriousness of the offence.

71. By their pleas, the defendants have however conceded that there were steps which, in all the circumstances of the incident were reasonably practicable, and if taken, would have reduced the risk.

72. The defendants submit that the corporate defendant is a small sole director company that no longer operates in the waste recycling industry. The individual defendant has retired since the business was sold on 30 September 2019 and now involves himself in the administration of two charities. The capacity of the defendants to pay a fine is set out in the financial statements which were attached to Exhibit 1 and other bank statements which became Exhibit 2. The defendants submit that the corporate defendant only employed about 15 employees at its height in about 2001.

73. I accept that for the purposes of sentencing the corporate defendant is a relatively small company which historically, has been moderately profitable, and it must be compared with the size of other corporate entities and sole traders. Basten J made the following observations in Unity Pty Limited v SafeWork NSW [2018] NSWCCA 226 at [79] (Beazley P and Wilson agreeing):

‘Apart from factors already considered, it is necessary to address any questions raised at the sentencing hearing as to capacity to pay. Such questions arise in two ways. 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 (NSW). The sentencing judge found that Hanna Plumbing and Unity each had “a reduced capacity to pay a fine”,⁴³ but appears to have fixed the level of the fine primarily by reference to the culpability of the defendants.’

74. I accept that this offence falls within the mid-range of offending.

DETERRENCE

75. In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

76. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work, health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388.

77. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence.

78. The Court of Criminal Appeal in Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610:

‘[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.’

…

‘[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.’

79. General deterrence must be a significant feature of the sentence imposed upon the defendant. The failure by a company to recognise the dangers and risks that arise to persons working in or around large pieces of machinery and trucks is concerning. This is particularly so when persons are required to work in between those large pieces of machinery in circumstances where they are mobile.

80. Workers being subjected to a risk of serious injury or death as a result of being struck or crushed by the unexpected movement of a large piece of machinery is not unique to the circumstances of these defendants. The imposition of a component directed towards general deterrence, it is hoped, will highlight the need for other corporations and individuals to implement proper planning and development of procedures to eliminate, or at the very least severely minimise, the presentation of such a risk.

81. Similarly, general deterrence can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks associated with the operation of trucks in an industrial context.

82. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

79. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors.

80. In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]-[242]:

‘There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald’s) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316.’

85. The individual defendant sold the business on 30 September 2019 and no longer operates the business. Thus the likelihood of the offence recurring is nil and, as appropriately conceded by the prosecutor, specific deterrence is not necessary.

MITIGATING FACTORS

86. Section 21A(3) of the Sentencing Act sets out the mitigating factors to be taken into account in determining the appropriate sentence for an offender. It seems to me that to establish a mitigating factor the onus would be on the defendants. I note that the defendants have never been charged with any previous offences, and as such have an impressive record. I accept that the defendants will not re-offend: s 21A(3)(e) and (g) of the Sentencing Act.

87. The defendants entered pleas of guilty at an early stage and are entitled to a discount of 25% based on the utilitarian value of the plea: s 22 of the Sentencing Act. I accept that the entry of the early plea is an exemplar of the acceptance of the responsibility for the accident: s 21A(3)(i) of the Sentencing Act. There is no evidence before me of any behaviour of the defendants which would disentitle them to the full benefit of the discount.

88. The individual defendant has expressed contrition and remorse personally and on behalf of the company and I accept that this is genuine: s 21A(3)(i) of the Sentencing Act.

89. The defendants co-operated with the SafeWork investigation and co-operated with all statutory notices issued by SafeWork NSW, including Prohibition Notices and Improvement Notices: s 21A(3)(m) of the Sentencing Act.

90. The defendants have provided significant financial support to help to create two charities in which the individual defendant has involved himself in since his retirement. I accept that the defendants are good corporate citizens, and that the individual defendant is giving back to the community with his time: s 21A(3)(f) of the Sentencing Act.

AGGRAVATING FACTORS

91. The injuries sustained by Mr Cartwright were significant, and he was off work for some 9 months after the incident: s 21A(2)(g) of the Sentencing Act. He ultimately returned to his pre-accident job with the defendants.

PENALTY

92. I make the following orders:

1. The corporate defendant is convicted.

2. The appropriate fine for the corporate defendant would be $60,000.00 and that will be reduced by 25% to reflect a plea of guilty.

3. I accordingly order the corporate defendant pay a fine of $45,000.00.

4. The individual defendant is convicted.

5. The appropriate fine for the individual defendant would be $5,000.00 and that will be reduced by 25% to reflect a plea of guilty.

6. I accordingly order the individual defendant pay a fine of $3,750.00.

7. 50% of the fines imposed are to be paid to the prosecutor.

8. The defendants are to pay the prosecutor’s costs agreed in the sum of $33,000.00.

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Decision last updated: 10 November 2020