SafeWork NSW v KML Auto Electrics Pty Ltd

[2022] NSWDC 439

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v KML Auto Electrics Pty Ltd [2022] NSWDC 439

Hearing dates:

23 September 2022

Date of orders:

30 September 2022

Decision date:

30 September 2022

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine for the offence is $500,000.00, and that will be reduced by 25% to reflect the plea of guilty.

(3)   Accordingly, I order the defendant to pay a fine of $375,000.00.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, agreed in the sum of $32,600.00 exclusive of GST.

Catchwords:

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

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – discount of 25% for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – capacity to pay

COSTS – prosecutor’s costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Fines Act 1996 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety Regulation 2017 (NSW)

Cases Cited:

Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319

Bulga Underground Operations v Nash (2016) 93 NSWLR 338

Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610

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

Kirk v Industrial Court (NSW) (2010) 239 CLR 531

Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464

Markarian v The Queen (2005) 228 CLR 357

Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling v The Queen (2012) 35 VR 399

R v Cage [2006] NSWCCA 304

R v MA [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK [2006] NSWCCA 272

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398

SafeWork NSW v Haines Bros Earthmoving Pty Limited [2019] NSWDC 69

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

SafeWork NSW v Komatsu Pty Ltd [2020] NSWDC 314

SafeWork NSW v Piergrosse [2022] NSWDC 174

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

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

WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Texts Cited:

How to manage work health and safety risks, August 2019 Code of Practice

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
Empire Contracting Pty Ltd (Defendant)

Representation:

Counsel:
Mr N Read (for the Prosecutor)
Mr J Galluzzo (for the Defendant)

Solicitors:
Ms E Derrig, Department of Customer Service (for the Prosecutor)
Mr T Eckersley, Nelson Keane & Hemingway Lawyers (for the Defendant)

File Number(s):

2021/000312861

Judgment

1. KML Auto Electrics Pty Ltd (‘the defendant’) has pleaded guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (‘the Act’). By virtue of its plea, the defendant has admitted that it failed to comply with its primary duty to ensure the safety of workers pursuant to s 19(1) of the Act so far as reasonably practicable, and its failure exposed Darby Paxton (‘Darby’) to a risk of serious injury or death.

2. The offences are recorded in the Summons filed on 3 November 2021.

3. The Prosecutor’s Sentence Tender Bundle (‘PTB’) became Exhibit A. After the defendant had been convicted, the prosecutor tendered Victim Impact Statements from Darby’s family. The statement of Mr Paxton, father of Darby, became Exhibit B, the statement of Mrs Paxton, mother of Darby, became Exhibit C and the statement of Miss Paxton, sister of Darby, became Exhibit D.

4. The defendant read an affidavit of Kurt Michael Lew, the director of the defendant, which became Exhibit 1.

BACKGROUND

5. The defendant carried out an auto electrical repair business, which included repairing auto electrics, air conditioning repairs and fitting accessories. The defendant operated its business from a workshop at 5R Transport Drive Brocklehurst, NSW (‘the workshop’). At all material times, Mr Kurt Michael Lew (‘Mr Lew’) was a director of the defendant and worked in the business.

6. In or around October 2019, Darby completed two weeks of work experience with the defendant while completing secondary schooling. On 6 January 2020, Darby commenced employment with the defendant as a first-year apprentice auto electrician. At the time of the incident, Darby was 18 years of age and had only 18 days of experience in the auto-electrical industry including his work experience.

7. In or around January 2020, the defendant was engaged to undertake electrical repair work on a 2001 Izuzu FVY1400 tilt cab truck (‘the truck’). The cabs of tilt cab trucks tilt forwards to allow access to the internal engine bay and electronics. The electrical work required to be undertaken on the truck required the cab of the truck to be raised.

8. The truck was equipped with a cab tilt stay system (‘CTSS’) to secure the cab in a raised position. The CTSS comprised of a folding stay arm, a spring-loaded lever and a manually installable lock pin. The lock pin was attached to the stay arm by a bright yellow chain. The stay arm had a small sticker of a red arrow and the word ‘lock’ pointing to the pin hole.

9. To secure the cab in position using the truck’s CTSS, the cab is raised manually towards the front of the truck and once the cab reaches its fully raised position, the spring-loaded lever automatically latches into position within the unfolded stay arm. The lock pin is then installed into the stay arm to prevent it from folding and causing the cab to lower in the event of inadvertent contact with the lever.

10. The cab is lowered using the reverse process: the lock pin is removed, the lever is pressed to release the spring-loaded stay arm, and the cab is manually lowered.

11. At approximately 12:00pm on 13 January 2020, Mr Lew and Darby raised the truck’s cab. When fully raised, Mr Lew heard the lever click into place in the stay arm and shook the cab to ensure it was secure. He did not inspect the CTSS to determine if it was fitted with a lock pin, presuming that it did not have one due to its age.

12. The cab of the truck was in a raised position until the incident on 15 January 2020. Mr Lew and Darby worked beneath the truck’s raised cab in the days leading to the incident, including Monday afternoon and Tuesday, 14 January 2020. During these times, Darby worked on the truck independently and in conjunction with Mr Lew.

THE INCIDENT

13. On Wednesday 15 January 2020, at approximately 8:15am, Darby arrived at the workshop. Mr Lew and Darby commenced working together to bolt lights on a trailer. At approximately 8:45am, Mr Lew was called to attend a broken-down truck approximately 40 minutes from the workshop. Prior to leaving the workshop, Mr Lew told Darby to finish bolting lights on the trailer and place scrap materials in a bin.

14. After completing the tasks allocated to him, Darby continued to work on the truck. Whilst undertaking work beneath the truck’s raised cab, Darby inadvertently contacted the lever, which caused the stay arm to release and the cab to fall on him. He was crushed and trapped by the cab of the truck.

15. Mr Lew returned to the workshop at approximately 12:15pm. Shortly afterwards, Darby’s body was identified beneath the truck’s cab. Mr Lew and a worker from the adjacent business, Mr Lachlan Swain (‘Mr Swain’), lifted the cab.

16. Mr Lew and Mr Swain removed Darby’s body from the engine area under the cab. At approximately 12:51pm, emergency services arrived at the workshop, but Darby could not be revived. The cause of Darby’s death was mechanical asphyxia from prolonged compression of his chest, which restricted his breathing.

17. On 16 January 2020, Inland Truck Centre (‘ITC’) in Dubbo inspected the truck’s CTSS. Mr Swane from ITC identified that it was recently replaced because it had multiple stickers and no signs of wear and tear. Regarding the operation of the CTSS, Mr Swane said that firm pressure to the spring-loaded lever was needed for it to be released, and that once the spring-loaded lever was disengaged, the stay arm required minimal to no assistance to enable the cab to lower. A ‘slight rock’ was sufficient for the stay arm to pass back over its centre and allow the cab to come down.

RELEVANT GUIDANCE MATERIALS & STATUTORY OBLIGATIONS

18. Part 3.1 of the Work Health and Safety Regulation 2017 (NSW) (‘the WHS Regulation’) relevantly provides that in managing risks to health and safety, duty holders must identity reasonably foreseeable hazards that could cause risks to health and safety, per clause 24. Clause 35 of the WHS Regulation requires duty holders to eliminate risks to health and safety so far as is reasonably practicable, and to minimise those risks so far as is reasonably practicable if elimination of risks is not possible. If it is not reasonably practicable for duty holders to eliminate risks to health and safety, they must minimise risks, so far as is reasonably practicable, by doing one or more of the following:

• substituting the hazard, wholly or partly, giving rise to the risk with something that gives rise to a lesser risk;

• isolating the hazard from any person exposed to it; and

• implementing engineering controls.

19. Part 3.2 Division 10 of the WHS Regulation relevantly provides that a person conducting a business or undertaking (‘PCBU’) at a workplace must manage risks to health and safety associated with objects falling on a person if the object is reasonably likely to injure the person, per Clause 54.

20. Clause 55 of the WHS Regulation states that where it is not reasonably practicable to eliminate the risks to health and safety associated with an object falling on a person, a PCBU must minimise the risks by providing and maintaining a safe system of work, including:

• preventing objects from falling freely, so far as is reasonably practicable; or

• if it is not reasonably practicable to prevent objects from falling freely, providing a system to arrest the fall of falling objects, so far as is reasonably practicable.

21. SafeWork NSW published ‘How to manage work health and safety risks, August 2019 Code of Practice’ (‘the Code’) prior to the incident. It relevantly provides that:

‘A safe and healthy workplace does not happen by chance or guesswork. You have to think about what could go wrong at your workplace and what the consequences could be. Then you must do whatever you can (in other words, whatever is “reasonably practicable”) to eliminate or minimise health and safety risks arising from your business or undertaking’ (page 7);

‘Many hazards and their associated risks are well-known and have well established and accepted control measures. In these situations, the second step is to formally assess the risk is unnecessary. If, after identifying a hazard, you already know the risk and how to control it effectively, you can implement the controls without undertaking a risk assessment’ (page 8);

‘Managing work health and safety risks is an ongoing process that needs attention over time but particularly when any changes affect your work activities. Examples of when you should work through the steps in this code include […] introducing new workers to the workplace’ (page 10);

‘Identifying hazards in the workplace involves finding things and situations that could potentially cause harm to people’ (page 11);

‘A risk assessment can help a person conducting a business or undertaking to determine how severe a risk is, whether any existing control measures are effective, [and] what action should be taken to control the risk. […] Many hazards and their associated risks are well-known and have well established and accepted control measures. In these circumstances, the second step to formally assess the risk is not required. If after identifying a hazard you already know the risk and how to control it effectively, you may simply implement the controls’ (page 14);

‘A risk assessment should be undertaken when there is uncertainty about how a hazard may result in injury or illness’ (page 14);

‘A detailed risk assessment may not be required in the situation where there are well-known and effective controls that are in use in the particular industry that are suited to the circumstances in your workplace. In this situation, you may be able to simply implement the control measures’ (page 15);

‘Some problems can be fixed easily and should be done straight away, while others will need more effort and planning to resolve’ (page 18);

‘If it is not reasonably practicable to eliminate the hazard and associated risks, you must minimise the risks in accordance with the hierarchy of controls’ (page 20);

‘Control measures put into operation will usually require changes to the way work is carried out. In these situations, it is necessary to support the control measures with work procedures, training instruction, information and supervision’ (page 22).

22. On 18 February 2013, Northern Territory WorkSafe issued a Safety Alert after a station hand carrying out maintenance work on a truck suffered fatal injuries when a cab fell onto him.

23. The safety alert was available online prior to the incident and it provided:

1. the purpose of the alert was to remind workers and PCBUs to properly engage all safety mechanisms before undertaking maintenance work on vehicles and machinery;

2. a locking pin is required to be inserted into the cab support to prevent the cab from being accidentally disengaged and falling back into place; and

3. stated that all safety mechanisms should be engaged and checked before the commencement of maintenance work on vehicles or machinery.

24. In or around 2016, SafeWork NSW issued a Safety Alert highlighting the risks of workers being hit or crushed when working on heavy vehicles and trailers. It identified the need for precaution before working on heavy vehicles or trailers at risk of moving or dropping and warned to never work under or near vehicles that do not have a secondary support or safety system in place.

25. Videos explaining how the truck’s CTSS operated were available before and at the time of the incident, showing how to secure the cab in a raised position by inserting the safety pin in the stay arm.

SYSTEMS OF WORK PRIOR TO THE INCIDENT

26. The lock pin was an engineering control that guarded against the risk of the cab falling and injuring or killing a person in the event of any inadvertent contact with the lever.

27. Mr Lew did not inspect the stay arm to determine if it was fitted with a lock pin, however, he was aware of lock pins as a control measure to guard against the risk. Had the defendant inspected the CTSS, Mr Lew would have identified that it was fitted with a lock pin to be inserted prior to undertaking work beneath the raised cab.

28. The defendant did not undertake a risk assessment of the risks associated with works to be done on the truck, particularly working beneath the raised cab. Had he done so he would have identified the risks and how to control them effectively. A risk management approach would have identified the risk of the cab falling and crushing a worker, including by inadvertent contact with the lever. It would also have identified control measures to be implemented and maintained when working beneath the cab, particularly the need to insert the lock pin.

29. The defendant did not develop, implement and maintain a system of work for undertaking work beneath the raised cab of the truck.

30. In the days leading up to the incident, Mr Lew and Darby worked beneath the truck’s raised cab when the lock pin was not inserted. The defendant did not provide any information to Darby about hazards associated with working under the truck’s raised cab and the controls to ensure his safety, particularly the need to insert the lock pin into the stay arm to prevent the cab falling due to inadvertent contact with the lever.

31. RISK

32. The risk is described in Annexure “A” to the Summons in the following terms:

‘[11] The risk was the risk of workers, in particular Mr Paxton, suffering serious injury or death as a result of being crushed and trapped by a cab of a tilt cab truck.’

VICTIM IMPACT STATEMENTS

33. As referred to above, members of Darby’s family made Victim Impact Statements which they each read to the Court. This was incredibly brave of Darby’s father, mother and sister, and was unbelievably sad.

34. The heartache that Darby’s family endures is unending, unrepentant and devastating. The family now cannot get together to celebrate any milestone event as the absence of Darby makes it unbearable. Their grief is oppressive.

35. Darby’s dad, Mr Paxton, is tortured by the fact that he was not able to do his job to protect his son. He punishes himself every day with the knowledge that Darby was alone when he died, and the agony that Mr Paxton feels imagining his son crying for his father, or someone to save him, has broken Mr Paxton. He states that there are no words to express the relentless sorrow and overwhelming sadness he feels to have had the promise and the future of his son’s life taken from him.

36. Darby’s mum, Mrs Paxton, is suffering immense trauma and ongoing loss due to separation from Darby which overwhelms her. Mrs Paxton is trying to keep close to Darby by attending his grave and his garden as in some way, she feels she is doing something for her lost son. Again, the terror that Darby must have felt, being alone and trapped under the cab of a truck play over in her mind and will always continue to haunt her. Mrs Paxton feels as if her family unit has been diced up into tiny broken pieces and they cannot get together for family gatherings due to the pain and grief of Darby not being part of that unit anymore.

37. Mrs Paxton’s employment has been terminated as she is unable to work full-time due to her inability to focus on her work as a nurse, and the fact that she felt that work was just totally irrelevant and empty due to her debilitating loss and grief. However, Mrs Paxton’s pain is compounded by her feelings of not being able to help her daughter, Darby’s sister, cope with the pain of the loss, the interruption of her studies, and the cost of her psychological treatment and support. Covid certainly made things more difficult, but Darby’s death has been extremely tormenting and stressful to Mrs Paxton.

38. Miss Paxton, Darby’s sister, is suffering greatly, and her heart is broken. She is missing out on what should be some of the most exciting and happy years of her life as a consequence of the shock of losing Darby. Every aspect of her life has been negatively impacted, and she finds that she is overwhelmed by feelings of guilt when she achieves milestones without Darby by her side. She stated:

‘I am and forever will be traumatised by having my brother taken away from me.’

39. Having had the honour of hearing the statements of Darby’s family, it is evident that Darby was a loved, adored and integral part of his family. It was impossible for those who heard the statements to be unmoved. The grief they feel is acute and their devastation seems endless. I convey my deepest sympathy to Darby’s father, mother and sister, and hope that they may, at some time, find some softening of their suffering.

SENTENCING

40. The penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the Act.

40. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘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.

42. The Court is to approach a sentencing exercise on the basis of it being one of ‘instinctive synthesis’: Markarian v The Queen (2005) 228 CLR 357.

43. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [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 judgement without any attempt to state precisely how any given factor has influenced the judgement.’

OBJECTIVE SERIOUSNESS OF THE OFFENCE

44. The duty of the defendant requires that it ensure 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.

45. 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 (NSW) (1999) 90 IR 464, 474–5.

46. 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 (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465.

47. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 (‘Capral Aluminium’) at [81].

48. 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 Ltd (No. 3) (2005) 147 IR 117.

49. 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 [31].

50. The Court of Criminal Appeal examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (‘Nash v Silver City’). Justice Basten at [34], under the heading ‘Assessment of Risk’ said:

‘The sentencing judge commenced his consideration with the proposition that ‘[g]reater 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 upon an assessment of all those factors.’

51. His Honour further observed at [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, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.’

52. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.

53. 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 at [17]–[18] (Latham J).

54. The defendant’s duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the Act: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

55. The following matters are relevant to determining the culpability of the defendant:

1. The risk was obvious and foreseeable;

2. The control measures were obvious and known to the defendant. Mr Lew was aware of the availability of lock pins as a control measure to eliminate the risk (ASOF at [41]);

3. The Manual for the vehicle also referred to the lock pins and method of raising and lowering the cab (PTB Tab 8);

4. There were simple, available and straightforward steps which could have been taken to immediately avoid the risk, which were known to the defendant. There were no costs associated with the steps as follows:

1. Had an inspection been undertaken of the cab tilt stay system, it would have been readily identifiable that the stay arm was attached to a lock pin. The lock pin could have been inserted immediately, thereby eliminating or minimising the risk;

2. The cab could have been lowered when no work was required to be undertaken. This would have removed the hazard of the suspended cab and eliminated the risk altogether;

3. The defendant could have developed and implemented a safe system of work for working beneath the raised cabs of trucks, which:

a.   required the lock pin to be inserted into the cab stay arm when the cab was raised;

b.   prior to undertaking any work beneath the raised cab, required checking the lock pin was inserted; and

c.   provided that unless no work was required to be undertaken on the truck, the cab was to be lowered (ASOF at [45]).

4. The defendant could have provided information and instruction to Darby, a young and inexperienced worker, about the hazard and the required control measures to ensure his safety;

5. The potential consequences of the risk were catastrophic. The weight of the suspended cab had the potential to cause serious injury or death if it fell upon a person;

6. The likelihood of the risk materialising was reasonably high. It was not unexpected that Darby would undertake work on the truck in the circumstances where he had previously undertaken work on the truck in the days leading up to the incident both independently and in conjunction with Mr Lew (ASOF at [21]–[22]);

7. It was foreseeable that a person working in a position under the cab may accidentally contact the lever on the stay arm causing the cab to fall. The risk could have materialised at any time from midday on 13 January 2020 to 15 January 2020, when Darby and Mr Lew were undertaking work under the raised cab without the lock pin installed;

8. Darby tragically suffered fatal injuries. He was only 18 years old at the date of the incident.

9. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

‘It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring 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 mitigation steps could have been taken.’

56. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

57. The objective seriousness of an offence under s 32 of the Act is considered in the context of the gradation of offences contained in ss 31–32 of the Act: Nash v Silver City at [54]–[56]. The matters relevant to objective seriousness for a s 32 offence include:

• The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Ibid [34];

• The availability of steps to eliminate or minimise the risk: Ibid [34];

• Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] and [53];

• Whether the risk was known or ought reasonably have been known to or identified by the offender;

• Whether the risk was an obvious or clear one; and

• The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).

58. The general risk is not novel or unique. It is a risk of working under a suspended load. In 2013 and 2016 Northern Territory WorkSafe and SafeWork NSW respectively issued Safety Alerts following similar incidents involving the auto repair industry.

59. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was extreme, and the steps available to avoid the risk were known and readily available.

DETERRENCE

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

61. 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 (Hungerford J).

62. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.

63. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 at [177]–[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be 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 at [74]–[75] which said:

‘[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.’

64. General deterrence must be a significant feature of the sentence imposed upon the defendant. It 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 of death or serious injury associated with working in the business of motor vehicle repairs including large trucks.

65. 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 other factors.

66. General deterrence is necessary to heighten and focus the attention of companies engaged in the auto electrical repair industry. The risk associated with working underneath the raised cabin of a tilt cab truck is glaringly obvious.

67. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend. The prosecutor very fairly concedes that as Mr Lew has stated that he will never employ an apprentice again, the issue of specific deterrence is limited in these circumstances. I accept that is correct.

68. The defendant company was registered in October 2019. Apart from the director, Mr Lew, and his wife, Maryann Lew, the company never employed an apprentice or worker. Until the company was registered and Mr Lew decided to rent part of a shed as a work site, the defendant operated as an auto electrician from the back of a vehicle.

69. I note that the defendant continues to perform the same work as it did when the incident occurred, however, it submits that it has put in place a number of procedures to demonstrate its commitment to safety on site.

70. From Mr Lew’s affidavit (Exhibit 1), the defendant has engaged HMC Group Solutions Pty Ltd to undertake an audit of the company’s practices. Mr Lew is scheduled to undertake and complete a non-accredited Workplace Health and Safety Training Program, a SafeWork NSW HSR training course and a nationally recognised first aid training course. However, none of these courses have been undertaken, and I note that Mr Lew only made arrangements for this further training more than two years after the incident.

71. I accept that the prospects of rehabilitation of the defendant are reasonable, but the need for an element of specific deterrence is still necessary in these circumstances.

AGGRAVATING FACTORS

72. For an aggravating factor to be established, I must be satisfied beyond a reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing). It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. Darby’s death is an aggravating factor. The injury and emotional harm caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act.

MITIGATING FACTORS

73. The defendant has no previous convictions: s 21A(3)(e) of the Sentencing Act.

74. I accept that the defendant has reasonable prospects of rehabilitation: s21A(3)(h) of the Sentencing Act.

75. Mr Lew’s affidavit (Exhibit 1) demonstrates the acceptance of responsibility for the defendant’s failures, and has demonstrated remorse and contrition; s21A(3)(i) of the Sentencing Act.

76. The defendant entered a plea of guilty early, which of itself demonstrates remorse, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis. Thus I will allow the deduction of 25% for the utilitarian value of the pleas in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s21A(3)(k) of the Sentencing Act.

77. The defendant co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act.

78. The written submissions on behalf of the defendant make submissions as to the defendant’s ability to pay a fine. The submissions record that the company is a small family business, and the only source of income for Mr Lew. The submissions state as follows:

‘[15]   The range of penalty is also to be determined by the size of the corporate offender and its ability to absorb a fine. (footnote omitted)

1. The court has a duty to ensure a level of a penalty as will compel attention to safety issues so that persons are not exposed to risks. At the same time the court has a corresponding duty not to impose a penalty that is oppressively high.’ (footnote omitted)

   79. Counsel for the defendant made no additional submissions as to the financial capacity of the defendant to pay a fine, and specifically did not make an application under s 6 of the Fines Act 1996 (NSW). I have taken the defendant’s financial circumstances into account, but the fine imposed needs to reflect the objective seriousness of the offence. I accept the submission that the payment of the prosecutor’s costs is a matter that I can take into consideration when setting the appropriate penalty, and I have done so.

   80. The breach is especially egregious as there was no requirement for a risk assessment to be performed, as the risk was known, and the manner in which to alleviate it was also known. Darby was a very vulnerable worker – he was 18 years old, this was his eighth day on the job and he had not started his TAFE apprenticeship, having enrolled to commence in March 2020.

   81. It is an agreed fact at [19] of the ASOF as follows:

‘Mr Lew did not inspect the cab tilt stay system to determine whether it was fitted with a lock pin. Mr Lew presumed the truck did not have a lock pin due to its age.’

82. Further, at [41]:

‘Mr Lew assumed that the truck was not fitted with a lock pin due to its age, however he did not undertake any inspection of the cab arm to determine whether it was fitted with the lock pin. Mr Lew was aware of the availability of lock pins as a control measure against the risk of a raised cab falling.’

83. I find it very difficult to understand how, given the passages in the ASOF above, and all of the circumstances, Mr Lew could leave a very vulnerable young worker, on his own in the workshop, on his eighth day of work, unsupervised and with no other persons present, for some hours, when he, Mr Lew, did not inspect the cab tilt stay system, and made incorrect assumptions as to the availability of control measures. The risks were so obvious and the potential consequences catastrophic. That is a message that needs to be made very clear to all industries, not just motor repairs, that a blatant disregard for the safety of a vulnerable worker will not be tolerated.

84. My attention was drawn by both Counsel to some of my earlier decisions; SafeWork NSW v Haines Bros Earthmoving Pty Limited [2019] NSWDC 69; SafeWork NSW v Komatsu Pty Ltd [2020] NSWDC 314 and SafeWork NSW v Piergrosse [2022] NSWDC 174.

83. In Piergrosse I fined the defendant $80,000.00 which was then reduced by 25% for the utility of the plea. The case involved an inexperienced and unqualified worker who died of blunt force trauma to his chest when he was flung from a tree whilst attempting to prune it.

84. Whilst there are some similarities between Piergrosse and this matter, the defendant in Piergrosse was an individual, and as such the maximum penalty was $300,000.00. In the present case, the defendant has been charged as a PCBU, and the maximum fine is $1,500,000.00.

85. I have no doubt that the family and friends of Darby will feel that my sentence is inadequate, and that it does not address Darby’s terrifying death, their own losses and the suffering that they continue experience. It is trite to say that no monetary sum can ever compensate loved ones who have lost their precious son and brother.

86. Similarly, I have no doubt that Mr Lew and his wife will feel that the punishment is too harsh, given the defendant is a small family company and the family’s financial circumstances.

87. I understand what I imagine are the feelings of the parties affected by this tragic incident. However, my hands are tied by the decisions of the NSW Court of Criminal Appeal and the Sentencing Legislation which provides guidelines as to the appropriate parameters that are applicable for various offences.

88. In Nash v Silver City Drilling the Court addressed the capacity of a defendant to absorb a fine at [59]-[60]:

'[59]   Two factors would indicate that, objectively speaking, the fine should not be at or above the half-way point of the range available. The factors are related. First, the fine will apply to corporate employers of wide-ranging size and ability to absorb a fine. That which would hardly be noticed in the balance sheet of a large corporation may push a smaller corporation to the verge of insolvency, or over. Secondly, it is possible to be satisfied in the case of a small corporation that changes in management practice may diminish significantly the need for individual deterrence. That may not be so powerful a factor with a large corporation which will rely upon general systems and the quality and diligence of its supervisory officers.

1. The size of the operation of the respondent may perhaps be best indicated, on the evidence available in this Court, by the size of the respondent's wages bill in the year to June 2015, which was in excess of $10 million. The evidence also revealed that the company operated in a number of different regions within Australia.'

   91. In Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319, and appeal as to the manifest inadequate fine in a decision of mine, Hoeben CJ at CL (as he then was); Fagan J and Cavanagh J, stated as follows:

‘[19]   All of the company’s conduct in maintaining a sound safety record before this incident and afterwards and its appropriate responses to the accident itself are as would be expected of a responsible trading corporation. The learned sentencing judge appropriately took into account the subjective circumstances referred to above and the need for general and specific deterrence. The dominant factor in determining an appropriate level of penalty is the very high order of negligence that made this infringement such an objectively serious offence of its kind. There is no specific fault in her Honour’s attention to the relevant sentencing factors, including the objective seriousness of the breach, but the level of the penalty arrived at is, in this Court’s view, manifestly inadequate by a factor of four. A starting point of $400,000 would be appropriate, discounted by 25% to $300,000.’

92. In that case, Mr Wild fell through a penetration in a ceiling and fell to the concrete floor below and died as a consequence of his injuries. This was high risk construction work, but there were other workers present on the work site at the time the incident occurred.

93. In my mind that case is very different to the current proceedings. Darby was a very vulnerable, inexperienced eighteen year old on his eighth day on the job. Mr Lew left the premises, and left Darby alone. There was no-one else present during the time that Mr Lew was away. Moreover, Mr Lew did not even check the lock pin as he assumed that the truck would not have one due to it’s age. This makes the objective seriousness of the offending far worse than that in the matter of Jamestrong.

94. Having taken all of those matters into consideration, the appropriate fine for the defendant is $500,000.00. The defendant is entitled to a discount of 25% for the utility of the early plea.

PENALTY

95. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the offence is $500,000.00, and that will be reduced by 25% to reflect the plea of guilty.

3. Accordingly, I order the defendant to pay a fine of $375,000.00.

4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

5. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, agreed in the sum of $32,600.00 exclusive of GST.

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Decision last updated: 30 September 2022