SafeWork NSW v LendLease Building Pty Limited

[2018] NSWDC 99

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v LendLease Building Pty Limited [2018] NSWDC 99

Hearing dates:

6 April 2018

Date of orders:

20 April 2018

Decision date:

20 April 2018

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1) The offender is convicted.
(2) Order the offender to pay a fine of $60,000.
(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.
(5) I note that the parties have agreed that the costs payable are in the amount of $34,483.79 and that such costs are payable within 28 days.

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 – parity – totality – remorse – contrition – appropriate penalty

COSTS – prosecution costs

  OTHER – collision between forklift and worker – use of a spotter when vision obscured

Legislation Cited:

Work Health and Safety Act 2011
Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Regulation 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
DPP v Gregory [2011] VSCA 145
Green v R [2011] HCA 49
Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125
Jahandideh v R [2014] NSWCCA 178
Jimmy v R (2010) 77 NSWLR 540
Markarian v R (2005) 228 CLR 357
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
Veen v R (No. 2) (1998) 164 CLR 465
WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316

Texts Cited:

Australian Standard AS2359.2-2013 Powered Industrial Trucks
SafeWork NSW Safety Alert – Working with or around Mobile Plant (April 2013)
WorkCover NSW Code of Practice - Moving Plant on Construction Sites (2004)
WorkCover NSW Forklift Safety – Reducing the Risks (2010)

Category:

Sentence

Parties:

SafeWork NSW (prosecutor)
LendLease Building Pty Limited (offender)

Representation:

Counsel:
M Moir (prosecutor)
B Hodgkinson SC (offender)

  Solicitors:
SafeWork NSW (prosecutor)
Ashurst Australia (offender)

File Number(s):

2016/217424

Judgment

1. LendLease Building Pty Limited (ACN 000 098 162) (the offender) has pleaded guilty to an offence that being a person conducting a business or undertaking that had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Mr Michael Rice to a risk of death or serious injury contrary to s 32 of the Act.

2. The particulars of the Amended Summons, to which the offender pleaded guilty, were that it failed to take one or more of the following reasonably practicable measures to eliminate or alternatively minimise (if it was not reasonably practicable to eliminate) the risks to the health and safety to workers:

Ensure appropriate traffic management systems were implemented at the premises to prevent pedestrians coming into contact with forklift trucks or their loads when undertaking work in areas where forklift trucks and other vehicles operated, including:

1. having clearly marked vehicle or pedestrian exclusion zones; and/or

2. putting physical barriers in place to separate vehicles or moving plant from pedestrians; and/or

3. using a spotter.

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

BACKGROUND

4. The prosecutor tendered an Agreed Statement of Facts which forms the basis of the background set out below.

5. The offender conducted a business or undertaking which provided construction services.

6. The offender was engaged in work at the Barangaroo South construction site where residential towers R8 and R9 were being built (the site). The offender was the principal contractor at the site and contracted with the Erect Safe Scaffolding (NSW) Pty Limited (ESS) for the supply and erection of scaffolding and associated services at the site.

7. Mr William Evers was employed by Pantel Contracting (NSW) Pty Ltd (Pantel). Pantel provided labour to ESS. In March 2015 Mr Evers commenced at the site and worked as a scaffolder under the direction of ESS. The main duties of Mr Evers were the erection and dismantling of scaffolding.

THE INCIDENT

8. In June 2013 Mr Michael Rice commenced his employment with the offender as a construction worker. The duties of Mr Rice in his employment included driving a forklift and labouring tasks.

9. Throughout his employment Mr Rice was supervised by Mr Michael McGrath, the leading hand for “Team Central” at the offender, and Mr Craig Scannell, the senior site manager for the offender.

10. On 8 August 2015 at around 10:00am Mr Rice was working near the Western Haul Road adjacent to the foreshore storage area, clearing materials from the area to make way for upcoming construction project works. For several weeks prior to the incident, Mr McGrath had been working with Mr Rice to complete this task, which involved the operation of a forklift to move and relocate materials to another area.

11. Mr Rice decided to spray paint a white line at the edge of the area and mark the words “KEEP CLEAR” on the ground so that no one would put materials in the area just cleared.

12. Mr Rice was wearing Personal Protective Equipment at the time of the incident including a high-visibility vest, a hardhat, steel-capped boots, eye protection and one glove.

13. At the time of the incident Mr Rice had completed clearing materials and rubbish from the area and was crouched over to spray paint the words “KEEP CLEAR” on the ground. As he was spray painting the words on the edge of the area and the road he was struck by a load of scaffolding components on a forklift operated by Mr Evers.

14. Mr Evers was engaged by ESS only as a scaffolder and operating a forklift was not part of his regular duties. On the day before the incident Mr Evers was asked by his ESS supervisors to operate the forklift the following day because the regular driver was unable to work. ESS did not ascertain whether Mr Evers held the required licence to operate a forklift.

15. Mr Evers was required by ESS to move scaffold materials with the forklift from residential tower R8 and relocate them to a temporary yard north of T1. Mr Evers did not hold a valid High Risk Work (HRW) licence to operate a forklift in NSW. Mr Evers had driven the forklift on the day prior to the incident.

16. Mr Evers commenced work on 8 August 2015 at approximately 7:00am and collected the forklift keys at the ESS shed from the ESS Site Administrator.

17. ESS did not advise the offender that Mr Evers was to be operating a forklift on behalf of ESS on that day. At approximately 8:00am Mr Rice introduced himself to Mr Evers as they were both working in the same area that day.

18. Prior to the incident Mr Evers had moved approximately 30 loads with the forklift.

19. At the time of the incident Mr Evers was about half way to his destination. He was carrying a load of two mixed stillages that contained about 160 metal scaffolding tubes. The load was approximately 1.8 metres high and weighed approximately 2 tonnes. While he was driving the forklift along the Western Haul Road, Mr Evers did not have a clear view in front of the forklift. His view was obstructed by the height of the load.

20. As Mr Evers was travelling he caught sight of movement in front of the load and heard someone yell “NO!” He immediately applied the brakes and the abruptness of the braking caused the load on the forklift to fall. The scaffolding components in the stillages toppled over and struck Mr Rice.

21. Mr Evers applied the handbrake and exited the forklift and began lifting material off Mr Rice to enable him to slide out from under it. At this point, Mr Jordy Lawson had arrived after having witnessed the incident from where he was standing. Mr Beswick of ESS arrived shortly after and immediately called for an ambulance. The offender’s personnel arrived on the scene and called for First Aid to attend.

22. Immediately after the incident, Mr McGrath operated a forklift to move some concrete jersey kerbs in order to prevent vehicles driving through the incident scene while Mr Rice was being attended to.

INJURIES AND AFTERMATH

23. As a result of the incident Mr Rice sustained serious injuries including a bruised pelvis, crushing trauma, a ligament tear in his right knee, soft tissue damage and cuts under his arms as a result of the emergency response.

24. Mr Rice was in hospital for 12 days following the incident. He was required to wear a leg brace for six weeks and undergo physical therapy and rehabilitation.

25. Mr Rice has not yet returned to his pre-injury duties. He is currently certified for work on suitable duties. He faces further surgery on his knee and a period of rehabilitation.

SYSTEMS OF WORK BEFORE THE INCIDENT

Training of workers

26. ESS staff were required to comply with the offender’s Site Rules and complete the offender’s site induction requirements.

27. Before any employees or contractors commenced work on the Barangaroo site, they were required to undertake a site induction by the offender.

28. When workers were inducted onto the site, the offender required workers to provide details of their certification/licences for the work they nominated they were to undertake at the site for the purposes of the offender verifying the certification/licence. The information was recorded on an Induction Attendance Record held by the offender. Mr Evers and his ESS supervisors, and Mr Rice, had completed this induction.

29. The offender’s workers who nominated forklift operation as part of their work were issued with a Safe Work Method Statement (SWMS) that identified the risks associated with the operation of a forklift on site. The workers who were inducted with the SWMS were required to sign to indicate their knowledge and understanding of its contents.

30. Mr Evers was engaged to work on the site as a scaffolder. He did not nominate forklift operation as part of his site duties. However, forklift operation and traffic management were covered in his site induction.

31. ESS had their own SWMS for ‘Use of a Forklift’ (OHS4E.1) dated 4 February 2014 which states:

“As per LendLease instruction. Employees are to have current WorkCover license for operating a forklift. At no time are un-licensed operators to operate forklift.”

32. Clause 81 and Schedule 3 of the Work Health and Safety Regulation 2011 (NSW) provide that a person must not carry out high risk work, (which includes operating a forklift), without a high risk work licence.

33. The “LendLease instruction” requirement in the ESS SWMS was also listed as a risk register item for ESS to discuss in their daily pre-start talk with their workers.

34. Collision and personal injury due to safety requirements not being observed were identified as hazards and risks in the ESS SWMS, and the requirement that forklifts be operated by qualified and authorised personnel was listed as a control measure.

35. The ESS SWMS also required that employees must be inducted into the SWMS and that supervisors must ensure that all employees have read and understood the SWMS prior to commencing work. Mr Evers had not signed the SWMS induction statement to say that he had read and understood the document.

36. During SafeWork NSW’s investigation, Mr Evers stated that no SWMS had been developed in relation to the work he was undertaking immediately prior to the incident.

37. The ESS SWMS did not address the hazard or risks of travelling with a load on a forklift that is too high or which obstructs the driver’s vision.

38. The offender’s training records show that Mr Evers completed the site induction on 14 April 2015 and received a copy of the Site Rules. He signed an acknowledgement form which indicated that he had read and had the rules explained to him and agreed to abide by the Site Rules.

39. The offender’s site induction package recognised that being struck by plant is a key cause of fatalities in the construction industry and outlines steps to approach plant safely but did not address how to work around plant safely.

Traffic Management

40. ESS did not have any specific safe systems of work, policies or procedures in relation to traffic management at the site. ESS was required to follow the offender’s procedures at the site.

41. The offender had a Site Access Map dated 30 June 2014 that was specific to the area of the incident and which dealt with traffic management in respect of flow and direction.

42. The offender’s Site Rules provided some rules relevant to traffic management, including in relation to site access, vehicle access and plant and equipment.

43. The Site Rules included a 10 km per hour speed limit for forklifts and required that directional signage be followed and spotters be used when vision is obscured or when reversing. The Site Rules also stated that only appropriately trained/ticketed, competent persons were to operate plant and equipment.

44. Those Site Rules were not being followed or enforced by the offender’s site management at the time of the incident.

45. The offender had a SWMS for forklift operation that identified the risks of operating a forklift on site.

46. The offender had Construction Global Minimum Requirements (GMRs) in place which include requirements in relation to pedestrian and vehicle safety.

47. The area in which the incident occurred was a storage area next to a haul road. The storage area was a shared space for workers/pedestrians and vehicles such as forklifts. The haul road was a thoroughfare for vehicles operating at the site, and it was routinely used by forklifts.

48. The offender had installed jersey kerb blocks along the middle of the haul road restricting each lane of traffic to move in one direction only, and had placed directional and speed limit signage along the haul road.

49. The offender did not provide any form of separation (physical or administrative) to ensure an exclusion zone between any forklift operations and pedestrians, such as Mr Rice, in the area where the incident occurred.

50. This is contrary to the offender’s requirements outlined in section 2.4 ‘Pedestrian and Vehicle Safety’ of the offender’s Global Minimum Requirements (GMR) which required that measures, such as physical barriers, should be in place to segregate pedestrians and vehicles where work is undertaken near an active road.

51. The offender’s SWMS in relation to forklift operations (document No. LL08 dated 1 November 2013) identified injury to workers and obscured vision as hazards and risks when using a forklift on site and use of a spotter as the control measure. A spotter was not being used at the time of the incident.

52. Mr Scannell, senior site manager for the offender held overall responsibility for the area where the incident occurred and Mr McGrath directly supervised Mr Rice.

53. Mr Evers was directly supervised on site by Mr MacAskill, the ESS site supervisor, and Mr Beswick, the ESS leading hand.

GUIDANCE MATERIAL

54. Australian Standard AS2359.2-2013 Powered Industrial Trucks (the Standard) was available prior to the incident for purchase via Standards Australia’s website.

55. Section 3.4, AS 2359.2-2013 Powered Industrial Trucks Part 2: Operations sets out that the purpose of an effective traffic management plan is, as far as reasonably practicable, to achieve “complete physical separation of trucks and mobile plant from people within the work area”.

56. Appendix A of AS 2359.2-2013 Powered Industrial Trucks Part 2: Operations provides information and guidance for partial separation where total separation cannot be achieved. Amongst the hazards listed in the Standard to be considered in the traffic management plan are areas where people (workers) and trucks (including forklifts) may interact; and areas where pedestrians may cross the travel paths of trucks. The traffic management plan should also consider risks to the trucks themselves when operating or travelling, such as lack of visibility. The Standard provides exclusion and separation zones as a measure to address hazards, and notes that if total separation is not possible other control measures should be adopted, including scheduling the work of trucks and mobile plant for times when pedestrians are not present; signage; physical barriers and devices providing a clear view of other users such as mirrors or cameras.

57. WorkCover NSW Code of Practice - Moving Plant on Construction Sites, was readily available at the time of the incident, and provides guidance on controlling the risk of moving plant on constructions sites. In relation to zones where both pedestrians and plant operate the Code includes the following control measures:

1. Isolating vehicles and plant used in or around the site and work area from persons on the site or work area. For example, vehicles or persons may be guided around or past the work area.

2. Using fencing, barriers, barricades, temporary warning or control signs, or a combination of these to secure the area where moving plant is used.

3. Planning the direction that plant moves, so the visibility of operators is not restricted.

4. Using spotters/safety observers to control traffic movement.

58. WorkCover NSW’s publication Forklift safety – reducing the risks was available on SafeWork NSW’s website at the time of the incident. At page 18 it provides:

1. The best way to reduce the risk of forklift-related injuries is to separate pedestrians and forklifts.

2. Separating pedestrians and forklifts is the most important aim of your traffic management plan.

59. SafeWork NSW’s Safety Alert – Working with or around mobile plant dated April 2013 was available on SafeWork NSW’s website at the time of the incident. This publication confirms the risks associated with mobile plant and provides appropriate controls for traffic management. It relevantly states:

1. Control measures within the traffic management plan could include, but are not limited to:

1. bollards, barriers, safety rails, exclusion zones etc to separate pedestrians from moving plant and vehicles.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

60. Following the incident, the offender implemented a system requiring identification and confirmation of the HRW licence to be clearly displayed on the forklift at all times during forklift operations, reinforced the restrictions on access to keys of forklifts, and provided refresher training to all forklift operators and workers working in the vicinity of forklifts.

61. The offender also improved the access route to the Western Haul Road.

THE EVIDENCE FOR THE OFFENDER

62. Much of the evidence for the offender came from the affidavit of Dr Ross William Trethewy dated 29 March 2018. Dr Trethewy is the offender’s Head of Environment Health and Safety Australia.

63. The offender is a large company with many large projects. It employs 2183 employees across Australia. Its systems and approaches have been successful in managing risks on large scale projects. The offender has developed systems that operate in order to meet its own internal high standards, but also those of the industry. It operates in a high-risk industry with a large number of workers.

64. The GMRs implemented by the offender operate across all operations of the offender on every site. These are in addition to the SWMS which are designed to set out the steps for particular tasks.

65. Internal and external inspections and audits, independent of the project or site, are implemented at quarterly and annual intervals. Internal and external auditors may choose to audit a random selection of plant operators’ qualifications.

62. The offender established the Barangaroo Skills Exchange to provide training to workers on projects in the Barangaroo South construction precinct. Over 17000 workers have been site inducted and the peak work force across related projects was 2700 workers per day. It was submitted by senior counsel that this was the only incident at Barangaroo involving a breakdown of systems, which demonstrated that the systems that had been put in place and developed by the offender were working satisfactorily.

63. The site access map dated 30 June 2014 was specific to the area where the incident occurred. It related to the traffic management in respect to flow and direction to and from that area. This map delineates the roadways but does not deal with the rest of the site.

64. Before employees and contractors commence work at Barangaroo South on a construction precinct and its related construction projects, they must undertake an extensive site induction. During the induction, workers are required to provide details of the certification/licence for the work they nominate to undertake at the site. This enables the offender to verify the relevant certification/licence or other competency requirements for each worker nominated to work at the project. Both Mr Evers and Mr Rice were inducted into the Site Rules.

65. The offender was unaware that Mr Evers was driving the forklift. ESS had a SWMS for forklift operators which required the operator to use a spotter when there was obscured vision. This was not done, and in any event Mr Evers had not been inducted as a forklift driver by ESS, as he was only a scaffolder. The offender accepted that use of a spotter was an appropriate step in managing the risk.

66. The offender has voluntarily given financial support to assist Mr Rice to cover the shortfall resulting from his workers compensation payments and insurance arrangements, which arose under the industrial agreement related to his employment. To date this financial assistance has been approximately $2,600 per week. The offender has paid $332,800 to Mr Rice over the past 32 months. Mr Patterson, the chief Operating Officer, informed the Court upon direct enquiry that the offender would continue to provide that level of financial assistance to Mr Rice until he could perform his full duties. He has yet to return to his full pre-injury duties and is currently certified to work 7 hours per day, 5 days per week on suitable duties. He will shortly undergo surgery to his knee and following a rehabilitation period will undertake further physiotherapy to enable him to return to full pre-injury duties.

67. All General Managers of the offender took part in a national telephone conference and were informed of the incident. The circumstances surrounding the incident were discussed and control measures relating to forklift operations and licensed operators were reinforced.

68. Site inspections and audits have continued to include the random selection of forklift operators to check for evidence of an appropriate ticket of competency.

69. A national EHS alert - Fall of load/impact with structure or personnel forklifts/industrial lift trucks - was issued in November 2015 across all of the offender’s building projects. This was done with a view to reinforce a number of the offender’s requirements.

70. The offender’s workplace delivery code was implemented in 2016. This code applies to all of the offender’s construction projects and outlines a set of requirements for mobile plant operators regarding competency.

71. It was agreed by the prosecutor and the offender that both ESS and the offender were responsible for the supervision of traffic management in the area where the incident occurred.

CONSIDERATION

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

OBJECTIVE SERIOUSNESS OF THE OFFENCE

77. 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].

78. 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].

79. 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].

80. 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.

81. 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.”

82. 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.”

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

1. Workers on the site were placed at risk of death or serious injury, if struck by a moving forklift or its load. The risk was obvious, identifiable and foreseeable.

2. The risk to which Mr Rice was exposed was a serious risk to his health and safety. He could easily have been killed in the accident.

3. The existence of the risk was known to the offender and was identified in:

1. Australian Standard AS2359.2-2013 Powered Industrial Trucks;

2. WorkCover NSW Moving Plant on Construction Sites Code of Practice;

3. SafeWork NSW Forklift safety – reducing the risks;

4. SafeWork NSW Safety Alert – Working with or around mobile plant;

5. The offender’s Safe Work Method Statement/Job Safety Analysis for Forklift operations dated 4 November 2013.

4. Mr Rice had been working in the area where the incident took place for many weeks prior to its occurrence. The incident was readily foreseeable as he was working on foot on the border between the road and the storage area.

5. The offender’s Safe Work Method Statement/Job Safety Analysis for Forklift operations dated 4 November 2013 made no reference to other traffic management systems such as physical barriers and exclusion zones. In addition to this, there was no evidence from the offender of any other Job Safety Analysis.

6. The offender’s GMR refers to the need for barriers and other control measures. This indicates there was a failure by the offender to comply with its own policies and procedures. No explanation was given as to why this was the case.

7. No spotter was in place in the area where the incident occurred. A spotter would have effectively eliminated or at least greatly reduced the risk to Mr Rice.

8. The offender’s training records show that Mr Evers completed the site induction on 14 April 2015 and received a copy of the Site Rules. Mr Evers signed an acknowledgement form which indicated that he had read and had the rules explained to him and agreed to abide by the Site Rules.

9. The offender’s Site Map dated 30 June 2014 did not contain any engineering controls and it cannot be considered to be a traffic management plan. The creation and management of a traffic management plan and of pedestrian safety was the responsibility of the offender.

10. The particular risk of the collision between Mr Evers and Mr Rice was not one actually known to the offender and ignored by it.

11. This was a large site with many workers and there is no indication that there was a breakdown of the systems applicable to the site, apart from this incident.

12. Had ESS checked whether Mr Evers was licensed as a forklift driver, or if Mr Evers was inducted by ESS as a forklift driver, he would have known to use a spotter.

84. I find that the offender’s level of culpability is in the low range.

DETERRENCE

85. The penalty imposed in relation to these offences 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].

86. The penalty must reflect the need for specific deterrence. The offender is still conducting a very large construction business, and operates many sites which are potentially high risk.

AGGRAVATING FACTORS

87. The offender has a record of previous convictions, which is relevant under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act. However, given the size and scope of the operations of the offender, and given that it has not had a conviction this century, I do not regard the record of previous convictions as a substantial or important aggravating factor. I simply note it.

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

MITIGATING FACTORS

89. The offender is otherwise of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act. The steps which the offender took after the incident demonstrate this. The offender has voluntarily made substantial payments to date which have topped up the workers compensation payments to Mr Rice. Further, the offender through Mr Patterson indicated to the court that it would continue to provide that level of financial assistance to Mr Rice until he can perform his full duties. I propose to sentence the offender and moderate the penalty on the basis that this promise will be observed.

90. The offender is unlikely to re-offend: s 21A(3)(g) of the Crimes (Sentencing Procedure) Act.

91. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act. The offender has taken positive steps to guard against the risk of an incident such as this ever happening again.

92. The offender has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act. The offender proved that it has accepted responsibility for its actions and has acknowledged that the injury to the victim was caused by its actions.

93. The offender entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act. The court must take into account the fact that the offender has pleaded guilty, when it pleaded guilty, and the circumstances in which it indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act. In my view the offender indicated its intention to enter a plea of guilty at the earliest possible opportunity. The prosecutor did not dispute this. It is appropriate to apply a discount of 25%.

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

PARITY

95. ESS was also prosecuted for a breach of its health and safety duties arising under s 19(1) of the Act, relating to the same incident in which Mr Rice was injured. On 15 December 2017 ESS was convicted of the offence and ordered to pay a fine of $90,000 (after a 25% reduction in penalty for an early plea). ESS was also ordered to pay the prosecutor’s agreed costs of $37,000 – [2017] NSWDC 365.

96. The prosecutor submitted that the culpability of the offender was greater than the culpability of ESS. It was put that the offender had failed to ensure that its own policies and procedures were followed. The offender was the principal contractor for the construction project, whereas ESS was one of a number of contractors engaged at the site, and as such had overall responsibility for traffic management and pedestrian safety in and around the area where the incident occurred. This failure was submitted by the prosecution to be “ongoing for at least several weeks prior to the incident”, reflecting the complete absence of a traffic management plan.

97. In addition, under cl 315(a) of the Work Health and Safety Regulation 2011, the offender was obliged to manage the risks to health and safety associated with the movement of construction materials. The offender allocated Mr Rice the duties he performed. Mr Rice had been performing those duties for several weeks leading up to the day of the incident, including duties which were performed on foot. The offender had permitted the use of forklifts in close proximity to the incident area for quite some time.

98. Senior counsel for the offender submitted that the offender was less culpable than ESS. In the alternative, he submitted that the two parties were equally culpable.

99. Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v R [2011] HCA 49 at [30].

100. The principle operates in the nature of a “check” required of the sentencing Court: DPP v Gregory [2011] VSCA 145 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v R (2010) 77 NSWLR 540 Justice Campbell said:

“An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence.”

101. The court should not use a co-offender’s sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v R at [32]; Markarian v R (2005) 228 CLR 357.

102. It is appropriate for the court to consider the respective contributions of ESS and the offender. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125 at [241].

103. I find that the culpability of the offender was less than the culpability of ESS. Mr Evers was operating a forklift owned by ESS. The ESS supervisors took no steps to ascertain whether or not Mr Evers held an appropriate forklift licence. Nor did they supervise his work or require him to use a spotter when he was carrying a load on the forklift which impeded his view. ESS failed to ensure that its own policies and procedures were followed. However, the offender was the principal contractor on the site and the injured worker was one of its employees. It had appropriate procedures in place, in the sense that it required all workers on the site to undergo a site induction, which included induction on forklift safety. It also required that all contractors on the site ensure that anyone driving a forklift had appropriate certification.

CAPACITY TO PAY A FINE

104. 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 still be warranted as a result of the seriousness of the offence and the need for general deterrence.

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

COSTS

106. The parties have agreed to an order that the offender is to pay the prosecutor’s costs as agreed or assessed.

PENALTY

107. I find that the appropriate sentence, once I take into account the lesser culpability of the offender and the parity principle, and give due weight to the voluntary ongoing financial support provided by the offender to Mr Rice, is a fine of $80,000.

108. The offender is convicted.

109. The appropriate fine is $80,000 but that will be reduced by 25% to reflect a plea of guilty.

110. I impose a fine of $60,000.

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

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

113. I note that the parties have agreed that the costs payable are in the amount of $34,483.79 and that such costs are payable within 28 days.

**********

Decision last updated: 20 April 2018