SafeWork NSW v Cosentino Australia Pty Ltd

[2018] NSWDC 182

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Cosentino Australia Pty Ltd (No. 2) [2018] NSWDC 182

Hearing dates:

29 June 2018

Date of orders:

06 July 2018

Decision date:

06 July 2018

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1) The offender is convicted.
(2) I take into account the victim impact statement of Mr Orkzai.
(3) Order the offender to pay a fine of $200,000
(4) Order that 50% of the fine is to be paid to the prosecutor.
(5) Order that the offender pay the prosecutor’s costs as agreed or assessed.

Catchwords:

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

 

SENTENCE – objective seriousness – general deterrence – specific deterrence – aggravating factors – mitigating factors – fine – capacity to pay – appropriate penalty

 

WORK HEALTH AND SAFETY – safe loading system – employee training

  OTHER – unsafe loading of stone slabs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Fines Act 1996 (NSW)
Work Health and Safety Act 2011

Cases Cited:

Baumer v R (1998) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
Jahandideh v R [2014] NSWCCA 178
Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
R v McNaughton (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
SafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 47
Veen v R (No. 2) (1998) 164 CLR 465

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Cosentino Australia Pty Ltd (Defendant)

Representation:

Counsel:
Mr M Moir (Prosecutor)
Mr J Fernon SC (Defendant)

  Solicitors:
SafeWork NSW (Prosecutor)
Baker & McKenzie (Defendant)

File Number(s):

2016/326988

Judgment

1. On 9 March 2018 Cosentino Australia Pty Limited (the offender) was found guilty of a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (the Act). The reasons for the finding of guilt are set out in the decision - SafeWork NSW v Cosentino Australia Pty Ltd [2018] NSWDC 47. The offender now appears for sentence.

2. The facts on which the sentence is to be based are set out in that judgment in paragraphs [112] – [175]. The breaches of duty by the offender are set out in paragraphs [215] – [231] of the judgment.

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

The Offender’s Case on Sentence

4. The evidence for the offender on sentence came from the affidavit of Mr Con Papadakis dated 18 June 2018. Mr Papadakis is the offender’s Regional Director of Oceania. Any suggestions to change current saety objectives or procedures must be approved by him before they are implemented. The offender is a large company with a number of warehouses across Australia and New Zealand. It has approximately 73 employees across Australia and a further 9 in New Zealand.

5. Prior to the incident the offender had in places a number of policies and procedures including: Consentino Cardinal Rules; Trucks Loading Procedure; Occupational Risk Prevention Plan – Handling and Storage of Slabs; Occupational Health and Safety Plan – Using Nylon Slings; Warehouse Procedures – Warehouse Staff; Unloading Containers & Using the Crane with Spreader Bar and Slings. Mr Papadakis indicated that prior to and following the incident monthly management meetings were held with general managers to discuss among other things, safety, incidents and accidents, and OH&S reports on each site.

6. Following the incident the procedure for both the storing and transportation of stone slabs did not change, as the offender asserted that this was an existing safe system.

7. The offender has engaged Safety Service Australia to review its internal OH&S policies and implement a national set of safety guidelines and policies to harmonise the differing safety standards across sites. The offender has further implemented a number of different policies and procedures generally, including:

1. a ‘Global Health and Safety Policy’ which applies to employees in management roles and sets out principles relating to matters such as health and safety in decision-making and allocating resources to comply with laws and OH&S requirements;

2. an ‘External Driver form’ which all new truck drivers entering the warehouse are required to sign, and renew every 18 months;

3. an OH&S Improvement Plan which is an ongoing action plan to revise and improve the offender’s OH&S policies, procedures and overall approach to safety;

4. a ‘Safety Tour’ checklist that asks employees to check whether specified items are in compliance with policies and procedures;

5. a ‘Safety Champions Program’ whereby one person from each worksite is selected to promote safe work practices and employee participation in health and safety, communicating health and safety effectively to warehouse employees, and implementing hazard management effectively;

6. a ‘Safety by Routines’ program which involves Warehouse Managers recording on forms their undertaking of daily and weekly checks of safety policies and the servicing of equipment procedures. This program is being repealed and replaced with a digital equivalent.

8. The offender has also engaged a number of new employees with OH&S in mind:

1. an Inventory and Safety Manager, who controls stock and oversees daily operations to ensure safe work procedures, and develops new OH&S policies and procedures;

2. a national Compliance and Process Manager, who conducts a quarterly compliance audit of all of the offender’s warehouses, and explains OH&S policies to new employees and conducts their training when a new site is established.

Consideration

9. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness

10. 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 R (No. 2) (1998) 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) 66 NSWLR 566 at [15].

11. 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 (1998) 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].

12. 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].

13. 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) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.

14. The Court of Criminal Appeal has recently 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; 93 NSWLR 338. His Honour Justice Basten at paragraph 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.”

15. Further at paragraph 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 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.”

16. My findings about the offender’s level of culpability are based upon the following:

1. There was a foreseeable risk to safety that was likely to result in serious injury or death, when the offender loaded nine stone slabs on one side only of the A-frame on Mr Orkzai’s truck;

2. Not only was the risk foreseeable, but it was foreseen by the offender. The existence of the risk was known to the offender and was identified and conveyed to employees in the offender’s:

1. Occupational Risk Prevention Plan dated 28 October 2013 and the ‘Cardinal Rules’, which noted that failure to comply with the Rules could immediately result in serious injury;

2. General Rules for Unloading/Loading Trucks, which was readily available in the warehouse where the incident took place;

3. The potential consequences of the risk, being the risk of the slabs falling upon a person, were catastrophic;

4. The likelihood of the risk coming home was quite high, as the task of moving and loading stones within the warehouse and onto trucks was performed on a daily basis. If the offender’s ‘Cardinal Rules’ were not complied with then an accident was highly likely to occur at some point;

5. The employees of the offender knew that after the first delivery of stone was unloaded there would be a significant imbalance on the A-frame and the truck, which would have exacerbated the likelihood of an accident occurring;

6. The offender had the means to lessen, minimise or remove the risk. The offender had control of the loading of the truck, which could only be done on the offender’s premises by the offender’s employees using the offender’s overhead crane;

7. Following the procedure mandated by the offender in its Cardinal Rules would have involved no cost and only a few minutes of the employees’ time;

8. Following the procedure mandated would have completely removed any risk;

9. There was no explanation provided by the offender as to why its warehouse manager deliberately ignored the offender’s Cardinal Rules and directed a trainee to load the truck in an unsafe manner, thereby creating the risk;

10. The decision to not follow the ‘Cardinal Rules’ was made under the direction of the most senior person in the warehouse. Mr Hyatt had no legitimate reason to load the truck in the way proposed by Mr Orkzai. Mr Hyatt knew of the serious risk the stone slabs posed and of the methods to minimise those risks. Mr Orkzai did not;

11. The risk was created at the offender’s premises. Not only was the risk foreseeable, but the increase in risk when the three Marino slabs were unloaded at Yennora, and when the truck was driven with all nine slabs on one side of the A-frame, was the logical consequence of how the offender loaded the truck. These later increases in risk were caused by the conduct of the offender and were foreseeable, before the truck left the offender’s factory.

17. The objective seriousness of the offence is in the mid-range.

Deterrence

18. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

19. There is also a need for specific deterrence. The evidence shows that the offender is still trading in the supply of stone slabs and is still arranging for delivery of those slabs to customers.

Aggravating Factors

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

Mitigating factors

21. The offender does not have any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has been in business since 2011. The offender employs about 82 people.

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

Capacity to pay a fine

23. 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: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may be still be warranted as a result of the seriousness of the offence and the need for general deterrence.

24. There was no evidence that the offender had a limited capacity to pay a fine, so this issue does not arise.

Victim Impact Statement

25. The offender is convicted. I take into account the victim impact statement of Mr Orkzai dated 30 June 2018. This was provided to the prosecutor and to the court shortly after the sentence hearing. I indicated that either party could make further submissions but no further submissions were made.

26. Mr Orkzai is 38 years of age and came to Australia in 2012. His wife and five children born between 2000 and 2007 still live in Pakistan.

27. The victim impact statement set out an extensive list of injuries and disabilities caused by the accident including brain damage. The effects on Mr Orkzai’s day to day living include:

1. Speech and voice difficulties;

2. Reduced ability to communicate in English;

3. Inability to stand, transfer or balance on the left foot, requiring a brace to assist in walking and balance;

4. Loss of full vision from the right eye;

5. Difficulty in seeing from the left eye;

6. Need for full-time domestic assistance;

7. Urinary incontinence;

8. Inability to undertake any form of employment;

9. Reliance on the assistance of a carer for almost every task of daily living;

10. Fatigue, lethargy and difficulty sleeping;

11. Excruciating pain in the right side of the head;

12. Inability to lie on the right side, but difficulty sleeping on the left side due to nerve damage to the left arm;

13. Inability to fly in an aircraft which means that Mr Orkzai has not been able to return to Pakistan to see his family – the family has been denied a visitors visa and thus can’t come to Australia;

14. Fear that Mr Orkzai may never see his family again.

28. I consider it appropriate to receive and consider this victim impact statement after the conviction just recited, but before sentence. The victim impact statement will be added to the evidence in the case and marked as Exhibit “PX 8”.

Costs

29. The offender is to pay the prosecutor’s costs as agreed or assessed.

Penalty

30. The offender is convicted.

31. I take into account the victim impact statement of Mr Orkzai.

32. I impose a fine of $200,000.

33. I order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

34. I order the offender to pay the prosecutor’s costs as agreed or assessed.

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Decision last updated: 06 July 2018