SafeWork NSW v CRS NSW Pty Ltd; SafeWork NSW v Jay McGeachie Jenkins

[2017] NSWDC 312

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v CRS NSW Pty Ltd; SafeWork NSW v Jay McGeachie Jenkins [2017] NSWDC 312

Hearing dates:

31 October 2017

Date of orders:

03 November 2017

Decision date:

03 November 2017

Jurisdiction:

Criminal

Before:

Judge D. Russell

Decision:

IN RELATION TO CRS NSW PTY LIMITED:

1 The offender is convicted.
2 Order the offender to pay a fine of $160,000.
3 Order that 50% of the fine is to be paid to the prosecutor.
4 Order the offender to pay the prosecutor’s costs as agreed or assessed.

 

IN RELATION TO JAY MCGEACHIE JENKINS:

 1 The offender is convicted.
2 Order the offender to pay a fine of $40,000.
3 Order that 50% of the fine is to be paid to the prosecutor.
4 Order the offender to 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 – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty

 

SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty

  COSTS – prosecution costs

Legislation Cited:

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

Cases Cited:

Veen v R (No. 2) (1998) 164 CLR;
R v McNaughton (2006) 66 NSWLR 566;
Baumer v R (1998) 166 CLR 51;
BW v R [2011] NSWCCA 176;
R v Wilkinson (No. 5) [2009] NSWSC 432;
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610;
Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37;
R v Thomson & Houlton (2000) 49 NSWLR 383;
R v Borkowski (2009) 195 A Crim R 1;
Jahandideh v R [2014] NSWCCA 178;
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

Category:

Sentence

Parties:

SafeWork NSW v CRS NSW Pty Ltd
SafeWork NSW (Prosecutor)
CRS NSW Pty Ltd (Defendant)

SafeWork NSW v Jay McGeachie Jenkins
SafeWork NSW (Prosecutor)
Jay McGeachie Jenkins (Defendant)

Representation:

Counsel:
C. Magee (Prosecutor)
I. Roberts SC and A Joseph (Defendants)

  Solicitors:
SafeWork NSW (Prosecutor)
Walsh & Blair (Defendants)

File Number(s):

2016/3115752016/311599

Judgment

1. CRS (NSW) Pty Limited (CRS) has pleaded guilty to an offence that as a person who had a health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (the Act) it failed to comply with that duty and thereby exposed Mr Stuart Pollard (Mr Pollard) to a risk of death or serious injury contrary to s 32 of the Act.

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

3. Mr Jay McGeachie Jenkins (Mr Jenkins) has pleaded guilty to an offence that as a person who had a health and safety duty under s 27 of the Act, to exercise due diligence to ensure that CRS complied with its duty under s 19(2) of the Act, he failed to comply with that duty and the failure to comply with that duty exposed Mr Pollard to a risk of death or serious injury contrary to s 32 of the Act.

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

BACKGROUND

5. The parties presented an Agreed Statement of Facts and this material is summarised below in paragraphs 6 to 66.

6. At all material times CRS was a registered corporation, effective from 16 September 2008. CRS traded as ‘Complete Road Seal’. Its registered office address is 55 Berry Street, Wagga Wagga NSW 2650 and its business address is 567 Kooringal Rd, Wagga Wagga NSW 2650.

7. At all material times Mr Jenkins was:

1. a director of CRS;

2. an officer of CRS pursuant to section 4 of the Act and within the meaning of s 9 of the Corporations Act 2001 (Cth) by reason of the fact that he made decisions that affected the whole or a substantial part of the business of the company;

3. held a Contractor License for ‘Minor Trade Work (Bituminous Surfacing)’ and ‘Supervisor Certificate for Minor Trade Work (Bituminous Surfacing)’;

4. directed and supervised CRS’s workers to perform work in its business or undertaking;

5. had control of the systems of work and the plant operated by CRS in its business or undertaking.

8. The Jenkins Family Trust (the Trust) was established in 2004. CRS and Mr Jenkins were appointed as the trustees and beneficiaries of the Trust in 2008.

9. At all material times Mr Jenkins was a trustee and beneficiary of the Trust.

10. At all material times CRS conducted a business or undertaking which involved the laying of asphalt and bitumen surfaces on driveways, roads and car parks.

11. At all material times CRS owned and/or operated a Paveline Autopatch bitumen road sealing Isuzu truck (Autopatch Vehicle). The Vehicle’s registration number was XPB-473 and the Vehicle was fitted with a Paveline Autopatch bitumen road sealing unit.

12. The Autopatch Vehicle was purchased by CRS from Paveline International Pty Ltd (ACN: 098 409 333) (Paveline) in 2009. Paveline is a manufacturer of road maintenance equipment.

13. At all material times CRS had been engaged by the owner of the premises at 44A Plumpton Road, Tatton, Wagga Wagga NSW (the Work Site), to undertake work in the form of laying bitumen to seal a driveway.

14. James Ferrario, Joel Passlow, Joshua Johnson, Damien Frasier and Anthony Dibicarri were engaged by CRS as workers undertaking work at the work site (Work Crew).

15. At all material times, Mr Pollard, the injured person, was employed by Everything Outdoors Wagga Wagga NSW Pty Limited (ABN: 23115 023017) (Everything Outdoors).

THE INCIDENT

16. On 1 July 2015, Mr Jenkins and the Work Crew were using the Autopatch Vehicle to seal the driveway at the Work Site. The Autopatch Vehicle had a main steel feeder delivery line which was being used to spray a cold bitumen emulsion onto the driveway.

17. At around 1.15 pm, Mr Jenkins and the Work Crew commenced the task of sealing the driveway at the Work Site. However, the bitumen emulsion had solidified because it had cooled down and had blocked the lines as a result of the cold weather.

18. Mr Jenkins made a decision to heat a part of the Autopatch Vehicle so the bitumen emulsion would soften and flow out of the lines. To do so Mr Jenkins moved to a location on the driver’s side of the Autopatch Vehicle behind the Vehicle’s cabin.

19. The emulsion tank was located behind the Autopatch Vehicle’s cabin. On the drivers’ side of the Autopatch Vehicle behind the Vehicle’s cabin there were lines, including the main steel feeder delivery line and spray bar lines. There were also a series of tanks, including a pressurised air tank and a pressurised tank that was filled with kerosene. In and around the lines and tanks there were a series of electrical cables and flexible plastic tubing and hoses. The flexible plastic tubing and hoses included compressed air lines and flexible pipes used for the kerosene system.

20. Mr Jenkins used a handheld LPG open flame gas torch that was connected to an LPG gas cylinder to heat a part of the Autopatch Vehicle. While doing so Mr Jenkins was standing on the driver’s side of the Autopatch Vehicle behind the Vehicle’s cabin and in the vicinity of the feeder lines, pressurised tanks, and pressurised flexible hoses.

21. On the same date, Mr Pollard, as part of his employment, was carrying out pool maintenance at a property adjacent to the Work Site.

22. At approximately 1.30 pm, Mr Pollard walked over to Mr Jenkins from the adjacent property. There was some discussion between Mr Jenkins and Mr Pollard which took place on the driver’s side of the Autopatch Vehicle behind the Vehicle’s cabin. Mr Pollard spoke with Mr Jenkins for a few minutes.

23. During the discussion the Autopatch Vehicle was operating, the compressed air lines and flexible pipes used for the kerosene system were pressurised and Mr Jenkins continued using the handheld LPG open gas flame gas torch that was connected to a LPG gas cylinder to heat a part of the Autopatch Vehicle.

24. After the discussion had finished Mr Pollard started to walk towards the adjacent property.

25. At this time, there was an explosion and a fireball which came from the Autopatch Vehicle. Mr Jenkins had been heating a part of the Autopatch Vehicle which was proximate to pipelines that contained kerosene and bitumen emulsion. In that same area there were also pressurized air pipelines which had been cleaned with kerosene. The pressurised air pipelines and the flexible pipes used for the kerosene system ruptured. This led to a mixture of kerosene and pressurised air coming into contact with heat from the gas torch flame, causing the explosion and fireball.

26. At the time of the explosion, Mr Pollard was approximately 5 metres away from the rear of the Autopatch Vehicle when he was engulfed by the explosion and fireball.

27. Mr Pollard sustained serious injuries and was admitted to Wagga Wagga Hospital and was then transferred to the Intensive Care Unit at Concord Hospital.

28. Mr Jenkins sustained minor burns as he was standing on the right hand side of the Autopatch Vehicle at the rear of the cabin when the explosion occurred. Mr Jenkins was taken to Wagga Wagga Hospital for treatment. Mr Jenkins has recovered to some extent from his injuries and has returned to work.

29. The Vehicle had only been in operation for about 15 minutes before the incident occurred.

INJURIES AND AFTERMATH

30. On 1 July 2015, Mr Pollard was admitted to the Intensive Care Unit at Concord Hospital where he underwent immediate surgery including debridement and split skin grafting. He was placed in an induced coma for approximately two weeks. Mr Pollard sustained burns to 35% of his body, including his face, neck, hands and legs.

31. Mr Pollard was not discharged from hospital until 27 July 2015. Mr Pollard stayed at a serviced apartment that was close to the outpatient department of the hospital so he could attend hospital on a daily basis to have the dressings to his burns changed regularly.

32. Mr Pollard’s recovery was slow with ongoing medical treatment required. Mr Pollard has permanent scarring to his legs and hands as a result of the burns. He also developed contractures which is a condition of shortening and hardening of muscles, tendons, or other tissue which leads to the rigidity of joints. Mr Pollard therefore has difficulty walking and has to bend his knees when he walks due to the contractures. His fingers are also affected by contractures and he has suffered a significant loss of movement in his hands.

33. Mr Pollard has not returned to work full time in his family business. He continues to receive treatment for his injuries and has to undertake extensive physiotherapy in order to maintain movement in his joints. He also has difficulty maintaining his body temperature as a result of the burns.

34. Mr Pollard was 47 years of age at the time of the incident and the injuries he sustained were a manifestation of the risk.

THE PLANT

35. The Plant was a Paveline Autopatch bitumen road sealing Isuzu truck.

36. The Plant was located at the Work Site.

37. The Autopatch Vehicle was fitted with a tank marked ‘water’ which operated under air pressure.

38. The design of the Autopatch Vehicle incorporated an air purging system for the cleaning of the emulsion pipelines. The air purging process was designed to obviate the need to use flammable cleaning substances, such as kerosene, to clean the pipelines. The system is operated from the side of the Vehicle.

39. The design of the Autopatch unit also had an integrated heating process for the pipelines, which involved running the heated water from the vehicle’s radiator though the pipelines.

40. The product used in the emulsion tank was a cold mix which did not have to be externally heated before use.

41. Mounted on the rear of the plant was a manually operated emulsion hose and lance routinely used for the spraying of bitumen.

History of the plant

42. The Paveline Autopatch Vehicle was originally designed and manufactured for Wellington Shire Council as part of a tender process in 2000.

43. In 2009, Wellington Shire Council traded in the Autopatch Vehicle to Paveline. The Council had made no modifications to the Autopatch Vehicle.

44. After the Vehicle was traded in by Wellington Shire Council, Paveline changed the delivery hoses and distributor parts to ‘as new' condition and checked the Autopatch unit for safety, security and structural integrity.

45. On 10 November 2009 Paveline sold the Autopatch Vehicle to CRS. The Autopatch Vehicle sold to CRS had a water tank. The invoices Paveline issued to CRS at the time of the sale included those for a solution, accessories and spare parts. The solution was one litre of green emulsion plant cleaner. This was a water-based solution that was to be used when cleaning the pipelines of the Autopatch Vehicle. This solution should have been used to clean the pipelines of the Autopatch Vehicle.

Modifications made by Mr Jenkins to Autopatch Unit of the Autopatch Vehicle

46. CRS made modifications to the Autopatch unit of the Autopatch Vehicle. The water tank was modified to be used as a tank to store kerosene. The tap apparatus was removed and a hose was fitted to the outlet end of the water tank.

47. The modifications were made to the water tank so that kerosene could be used to flush out the emulsion pipelines of the Autopatch Vehicle. This was contrary to the design of the Autopatch Vehicle. The water tank was designed to hold water only.

48. Mr Jenkins had directed that the modifications be made to the Autopatch Vehicle including the use of the water tank to store kerosene.

Use of Kerosene to clean the Pipelines of the Autopatch Vehicle

49. Prior to the incident, Mr Jenkins had operated the Autopatch Vehicle for over 8 years. Kerosene was regularly used by Mr Jenkins to flush out the pipelines of the Paveline Autopatch Vehicle. The pipelines had been cleaned with kerosene in the weeks just prior to the incident. This was contrary to the design of the Autopatch Vehicle. The lines were designed to be cleaned with a water based cleaner and were not designed to be cleaned with kerosene.

50. Kerosene was also stored in the water tank which was near the main steel feeder line. The tank was marked ‘water’. There was a warning label that stated only water was to be used in the tank.

51. Mr Jenkins failed to undertake a risk assessment of the use of kerosene as a cleaning agent in the operation of the Autopatch Vehicle.

52. Mr Jenkins also did not undertake a risk assessment of the risks associated with the use of the LPG open flame gas torch to heat a part of the Autopatch Vehicle near the pipelines that had been cleaned with kerosene.

53. The risk was the risk to persons other than the CRS workers, including Mr Pollard, of suffering serious injuries or death, as a result of an explosion from the use of an LPG open flame gas torch to heat a part of the Autopatch Vehicle in the vicinity of flammable substances including the tank and pipelines containing kerosene, and/or the pressurised air pipelines and/or bitumen emulsion pipelines which had been cleaned with kerosene in the Autopatch Vehicle.

SYSTEMS OF WORK BEFORE THE INCIDENT

54. Prior to the incident CRS had in place the "CRS Project/Workplace Risk Assessment For Laying Bitumen", dated 22 June 2015 (Risk Assessment). The Risk Assessment outlined flammable and explosive situations. This applied to the kerosene which was stored in the water tank.

55. The Risk Assessment in parts 5 and 6 specified control measures, which included “Safely venting vapours from bitumen and associated substances, particularly when these products are heated to prevent the development of explosive atmospheres; ensuring adequate ullage space within the storage and heating vessels; restricting all unnecessary ignition sources to a minimum of 3 metres from loading and heating; eliminating ignition sources if low flash point cutters are used under conditions exceeding their flash points”.

56. The Risk Assessment at page 9 included the following: "Never use flame heating to clear blockages where fire and explosive hazards exist at the location”.

57. The Operators Manual titled “Safety Procedures & Operating & Maintenance Instructions for Paveline Autopatch” was provided when the Paveline Autopatch Vehicle was sold to CRS.

58. Given the warnings in the Risk Assessment and also the Operators Manual, Mr Jenkins should not have been using a gas torch to heat a part of the Autopatch Vehicle in the vicinity of the main steel feeder line, the pressurised pipelines which contained kerosene and the bitumen emulsion, and the pressurised air pipelines that had been cleaned with kerosene, when there was a risk of an explosion.

59. There was no emergency plan in place. In the toolbox talks the employees of CRS were told to call '000' for any emergency.

60. There was no induction training provided to the employees of CRS. The only training provided was on-the-job training. No training was provided to the employees in regards to the task of heating the pipelines near the main steel feeder line. CRS did not have in place at the time of the incident a Safety Management Plan.

61. The work systems in place at the time were inadequate in that they did not sufficiently address the significant hazards associated with the storage and use of kerosene in the Autopatch Vehicle.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

62. After the incident CRS eliminated the use of kerosene in the Autopatch unit. Water was the only product to be held in the tank previously used for storing the kerosene. No fuels were to be kept on the Autopatch Vehicle.

63. A fire protection sleeve was fitted over the pipelines that ruptured during the incident.

64. CRS subsequently developed a health and safety management system.

65. CRS also engaged an employee with a ‘Work Health and Safety’ background.

66. The control measures implemented after the incident were available to CRS prior to the incident and it was reasonably practicable to have undertaken them.

THE OFFENDER’S EVIDENCE

67. Mr Jenkins gave evidence by affidavit on behalf of both himself and CRS. He was not cross-examined.

68. It is Mr Jenkins’ belief that not only had CRS never had any safety incident or accidents, other than the incident in question, but that all of the businesses conducted by him since 1996 were of a similar repute.

69. CRS was founded in 2008. In 2009 Mr Jenkins purchased the Autopatch Vehicle and the vendor provided him with a basic lesson on how to use the vehicle. This was the only training Mr Jenkins received in any form.

70. Mr Jenkins provided employees with on-the-job training, where they were limited to observation and basic work in their first few days. He asserts he was unable to find any “practical industry-based training” for the type of work CRS was undertaking. Each work day, he held a tool box talk where any potential hazards were outlined, and emergency evacuation points were also identified. CRS utilised Safe Work Method Statements (SWMS) based upon one provided by Leightons. The SWMS were also raised during the tool box talks.

71. Employees were provided with necessary personal protection equipment by CRS, and their use of that equipment was also required.

72. It was put by Mr Jenkins that at no stage did any employee of CRS, besides himself, use the LPG flame to liquefy bitumen.

73. In 2010-2011 CRS began undertaking asphalt paving work. Over time this has come to constitute the majority of the offender’s business, with Mr Jenkins estimating it at around 95%. At the time of the incident it was approximately 50% of the business.

74. CRS now employs 14 people and these employees are all heavily involved in the use of asphalt paving equipment.

75. Since the incident, CRS has undertaken a number of measures in order to improve safety procedures and performance. These include:

1. Removal of all flammable cleaning products from the process;

2. Replacing old hoses and providing heat-proof covering;

3. Ensuring a “Water Only” sign is affixed to relevant parts of the vehicle;

1. Employing a work health and safety officer. This officer undertook a review of systems and policies in place, and updated the CRS SWMS to reflect current legislation, codes of practice and industry standards. These new SWMS now separate out different works that might be undertaken and all employees are required to sign off as being aware of and understanding each SWMS;

2. The development and implementation by CRS of a plant/machinery risk assessment;

3. The development and implementation by CRS of a comprehensive work health and safety policy;

4. Contacting Australian Workplace Management (AWM) to assist in the development and finalisation of a suite of policies to ensure compliance with legislative requirements;

5. Gaining accreditation from Sustainable Certification across a number of areas;

6. All employees have undergone competency testing in relation to the plant and equipment which they may be required to operate. In addition, all employees are now trained in safe working methods;

7. Four of CRS’ fourteen employees have undergone first aid training. A minimum of two first aid officers are always on site;

8. CRS has employed a qualified mechanic to ensure plant and equipment is kept operating safely and to an industry standard. This includes the rectification of faults.

76. Both CRS and Mr Jenkins acknowledge their guilt and have expressed contrition and remorse. They are deeply sorry for their actions. Mr Jenkins and his wife visited Mr Pollard in the hospital and offered both Mr Pollard and his wife assistance during that time.

77. Mr Jenkins said that any fine imposed by the court will be paid from monies held in the Trust.

78. Mr Jenkins agreed that CRS was profitable, and that both he and CRS had some capacity to pay fines. He did however ask that the court take into account that CRS employs 14 people and as such has a financial responsibility to their employees and their families. He was unsure of what impact a fine might have on the business, as this would be dependent upon the size of the fine. Senior Counsel for the defendants made it plain that no submission was made about any reduced capacity to pay.

79. Both Mr Jenkins and CRS are active in the Wagga Wagga community. They have participated in and sponsored a number of different community activities in the local area.

CONSIDERATION

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

OBJECTIVE SERIOUSNESS OF THE OFFENCE

81. 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].

82. 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].

83. 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].

84. 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.

85. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 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.

86. 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.

87. My findings about the offenders’ level of culpability are based upon the following:

1. It was reasonably practicable for the defendants to ensure the health and safety of Mr Pollard by ensuring that all workers were adequately trained, and the Plant was safe to operate in its then configuration.

2. There was no induction training provided to the employees of CRS. The only training provided was on-the-job training. No training was provided to the employees in regards to the task of heating the pipelines near the main steel feeder line.

3. The operating manual for the Autopatch Vehicle had not been read and/or explained to operators;

4. CRS did not have in place at the time of the incident a Safety Management Plan. Nor was there an emergency plan in place. In the toolbox talks the employees of CRS were told to call '000' for any emergency.

5. The cost to the offender of overcoming the risk was nil as there initially was a safe system/procedure available when the Autopatch Vehicle was purchased.

6. The Autopatch Vehicle’s air purging system was not used for cleaning of emulsion lines.

7. The Autopatch Vehicle’s internal heating system was not used to warm bitumen emulsion.

8. Mr Jenkins had directed CRS to make modifications to the Autopatch Vehicle. The modifications were made to the water tank so that kerosene could be used to flush out the emulsion pipelines of the Autopatch Vehicle. This was contrary to the design of the Autopatch Vehicle. The Autopatch Vehicle should have been used in accordance with the manufacturer’s recommendations.

9. The work systems in place at the time were inadequate in that they did not sufficiently address the significant hazards associated with the storage and use of kerosene in the Autopatch Vehicle.

10. Mr Jenkins used an LPG open flame gas torch to heat components of the Autopatch Vehicle without having done any sort of risk assessment as to whether this was a safe work practice.

11. It would have been a simple task for CRS and Mr Jenkins to either undertake or arrange a risk assessment of the modifications to the Autopatch Vehicle, the use of kerosene as a cleaning agent and the work practices utilised by Mr Jenkins.

12. Mr Pollard and other workers were placed at risk of death or serious injury, being the risk of being seriously or fatally injured by the Autopatch Vehicle.

13. The existence of the risk was known or should have been known as the risk was identified in:

1. The "CRS Project/Workplace Risk Assessment For Laying Bitumen", dated 22 June 2015;

2. The Operators Manual titled “Safety Procedures & Operating & Maintenance Instructions for Paveline Autopatch”.

14. The risk of this accident happening was an obvious risk.

15. The likelihood of the risk coming home was quite high.

16. Simple remedial steps were available which would have completely avoided the risk.

17. The injuries sustained by Mr Pollard on 1 July 2015 were a manifestation of the risk.

18. This is not a case where there was a solitary casual and careless act. Mr Jenkins modified the equipment so that the water tank carried kerosene, he cleaned the hoses out with kerosene not water, and he then used an open flame to heat the equipment, when it already had a built-in safe water heating system. CRS and Mr Jenkins created the risk in the first place.

88. I find that the offenders’ level of culpability is in the mid-range.

DETERRENCE

89. 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 at [180].

90. The penalty must reflect the need for specific deterrence. The offender is still conducting a business. Many of its operations involve the use of potentially dangerous equipment. It has 14 employees.

AGGRAVATING FACTORS

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

MITIGATING FACTORS

92. Neither offender has previous convictions, so they do not have a significant record of previous convictions: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.

93. Both the offenders were otherwise of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. The steps which the offenders took after the incident demonstrate this. CRS has been in business since 2008.

94. The offenders are unlikely to re-offend: s 21A(3(g) of the Crimes (Sentencing Procedure) Act 1999.

95. The offenders have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offenders have taken positive steps to guard against the risk of an incident such as this ever happening again. CRS has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.

96. The offenders have shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offenders have provided evidence through Mr Jenkins that they have accepted responsibility for their actions and have acknowledged that the injury to Mr Pollard was caused by their actions.

97. The offenders entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is not appropriate to give the defendants a 25% discount for an early plea. Originally they pleaded not guilty to the offences. However, the plea was changed to guilty on 28 September 2017. The change of plea meant that the matter, from that point on, did not have to be prepared as a full trial. The plea of guilty also obviated the need for Mr Pollard to give any evidence. It is appropriate to apply a discount of 20%.

98. The offenders gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The offenders co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

CAPACITY TO PAY A FINE

99. I am required to have regard to s 6 of the Fines Act 1996 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 still be warranted as a result of the seriousness of the offence and the need for general deterrence.

100. There was ultimately no submission made that any fines should be reduced.

COSTS

101. The parties have agreed to an order that the offenders are to pay the prosecutor’s costs as agreed or assessed.

PENALTY FOR CRS

102. The offender is convicted.

103. The appropriate fine is $200,000 but that will be reduced by 20% to reflect the plea of guilty.

104. I impose a fine of $160,000.

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

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

PENALTY FOR MR JENKINS

107. The offender is convicted.

108. The appropriate fine is $50,000 but that will be reduced by 20% to reflect the plea of guilty.

109. I impose a fine of $40,000.

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

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

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Decision last updated: 10 November 2017