SafeWork NSW v Linda June Priest

[2024] NSWDC 276

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Linda June Priest [2024] NSWDC 276

Hearing dates:

2, 4 July 2024

Date of orders:

11 July 2024

Decision date:

11 July 2024

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

In District Court Proceedings 2022/387532 being a charge under s 32 of the Work Health and Safety Act 2011 (NSW):

(1)   Linda June Priest is convicted.

(2)   The appropriate fine is $10,000 but that will be reduced by 15% to reflect the plea of guilty.

(3)   Order Linda June Priest to pay a fine of $8,500.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   Order Linda June Priest to pay the prosecutor’s costs agreed in the amount of $30,000.

In District Court Proceedings 2022/387524 being a charge under s 46 of the Work Health and Safety Act 2011 (NSW):

(1)   Linda June Priest is convicted.

(2)   The appropriate fine is $4,000 but that will be reduced by 15% to reflect the plea of guilty.

(3)   Order Linda June Priest to pay a fine of $3,400.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5)   No order for costs.

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 – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – quad bike – worker rode onto dam wall – bike tipped over – worker struck and trapped – labour hire company – failure to inquire as to the nature of work to be done by labour hires – failure to ensure company undertook risk assessment – failure to ensure protective equipment was installed and provided to workers – failure to consult, co-operate and co-ordinate to ensure safety

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 21A, 22

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 46

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

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

BW v R [2011] NSWCCA 176

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

DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

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

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

SafeWork NSW v Integrated Agricultural Developments Pty Ltd [2024] NSWDC 243

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125

WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316

Texts Cited:

Australia/New Zealand Standard AS/NZS 1698:2006 – Protective Helmets for Vehicle Users, 20 February 2006

SafeWork NSW, Code of Practice, How to Manage Work Health and Safety Risks, August 2019

SafeWork NSW, The A-Z of Farm Safety, 20 May 2019

Safe Work Australia, Labour Hire: Duties of Persons Conducting a Business or Undertaking, 3 February 2020

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Linda June Priest (Defendant)

Representation:

Counsel:
N Evans (Prosecutor)
K Averre (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Gemini Legal (Defendant)

File Number(s):

2022/387532
2022/387524

Judgment

1. The defendant Linda June Priest is a sole trader who provided labour hire services to the agricultural sector. Ms Priest employed Mr Shaun Simms as a labourer/farmhand and placed him to work on a labour hire arrangement with Integrated Agricultural Developments Pty Ltd (IAD). On 1 June 2021, while performing his duties with IAD, Mr Simms was riding a quad bike which tipped over. The quad bike struck and trapped Mr Simms, causing serious injuries.

2. In District Court Proceedings 2022/387532 Ms Priest has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act), she failed to comply with that duty and thereby exposed Mr Simms to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The maximum penalty for the offence is a fine of $353,430.

4. In District Court Proceedings 2022/387524 Ms Priest has pleaded guilty to an offence that as a person who had a work health and safety duty under the WHS Act in relation to the same matter in which IAD had a duty under the WHS Act, she failed to consult, co-operate and co-ordinate activities with IAD, contrary to s 46 of the WHS Act.

5. The maximum penalty for the offence is a fine of $23,460.

6. Section 46 of the WHS Act provides:

“If more than one person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter.”

The Risk

7. In both proceedings, the risk is pleaded as follows:

“The risk was the risk to workers, including Mr Simms, of death or serious injury or illness as a result of operating a quad bike at the Site, without wearing a suitable helmet, and where the quad bike did not have an operator protective device fitted (the risk).”

Reasonably Practicable Measures

Failure to Comply with s 19(1) Duty: s 32 Offence

8. In District Court Proceedings 2022/387532, par 13 of Annexure A to the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the WHS Act as follows:

“The Defendant failed to ensure so far as is reasonably practicable the health and safety of workers generally, and in particular Mr Simms, in 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 risk:

Inquiring of IAD as to the nature of the work to be done at the Site by workers to be placed there by the Defendant;

Undertaking, or ensuring IAD undertook, an adequate risk assessment for the work to be done at the Site involving the use of quad bikes at the Site;

Requesting IAD to develop a safe work procedure or safe work method statement for use of quad bikes at the Site;

Requesting IAD to install operator protective devices on all quad bikes used at the Site;

Directing, or ensuring IAD directed, workers at the Site not to use quad bikes that were not fitted with operator protective devices;

Providing, or ensuring IAD provided, suitable helmets and that all workers At the Site were required to wear when operating quad bikes [sic];

Providing, or ensuring IAD provided, adequate training, instruction and information to workers in relation to the safe use of quad bikes.”

Failure to Comply with Duty: s 46 Offence

9. In District Court Proceedings 2022/387524, par 17 of Annexure A to the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 46 of the WHS Act as follows:

“The Defendant failed to consult, co-operate and co-ordinate activities with IAD who held a duty in relation to the safe use of quad bikes at the Site, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable:

Make inquiries with IAD as to the nature of work to be performed at the Site and the required training and experience of workers to be placed at the Site;

Inquiring of IAD as to risk assessments for work to be done at the Site;

Making inquiries of IAD to as to whether the work at the Site involved dangerous activities such as the use of quad bikes [sic];

Coordinating with IAD to ensure the provision and maintenance of a safe system of work for the use of quad bikes;

Checking with IAD to confirm (and if not require) that there was an effective communication system in relation to the safe use of quad bikes at the Site and preventing or prohibiting Mr Simms from using quad bikes if he was not trained and experiences in their safe use [sic];

Requesting IAD to develop and enforce exclusion zones at the Site where quad bikes could not be safely used;

Requesting IAD to ensure all workers at the Site were correctly inducted and trained in the safe use of quad bikes at the Site;

Requesting IAD to prohibit workers from using quad bikes if they were not fitted with rollover protection and/or if adequate helmets were not being use [sic].”

Background

10. The parties presented an Agreed Statement of Facts and this material is summarised below.

L J Priest

11. In March 2017 Ms Priest, trading as L J Priest, commenced operating a labour hire business, providing labour to the agricultural sector, specifically to orchards and vineyards. Ms Priest employed approximately 19 workers.

12. Mr Timothy Gary Priest, the son of Ms Priest, was the operations manager of the labour hire business.

13. On or about 17 February 2020 Mr Simms commenced employment as a labourer/farmhand with Ms Priest.

14. In or around August 2020 Mr Simms was placed by Ms Priest as a labour hire worker with IAD. As part of this role, Mr Simms was required to carry out general manual farmhand duties. These duties included slashing, vine maintenance, weed control, and trellis repairs.

15. Mr Justin John Jarrett was a director of IAD. IAD operated a vineyard and winery with 170 hectares under vines. Mr Jarrett worked within the business of IAD.

16. IAD operated its business from three vineyards, one of which was located at 101 Caldwell Lane, Borenore NSW 2800 (the Borenore property). All three vineyards were owned by Mr Jarrett and his wife. IAD was a service trust, controlled by Mr Jarrett, which provided agricultural services to Mr Jarrett and his wife.

IAD’s Quad Bikes

17. IAD had four quad bikes which were used by its employees and labour hire workers when carrying out tasks at its properties.

18. There were no operator protective devices (OPDs) fitted to any of IAD’s quad bikes.

19. IAD provided full-face motorcycle helmets for its employees and labour hire workers to wear while operating the quad bikes, but the wearing of helmets was not enforced by IAD.

The Incident

20. On 1 June 2021 at approximately 7.30am, Mr Simms arrived at the Borenore property to commence work.

21. At around that time, Mr Priest attended the site to ensure the labour hire needs of IAD were met. At no stage was Mr Priest made aware that Mr Simms would be required to perform controlled hazard reduction burns (backburning) or be required to operate a quad bike. Mr Priest did not inquire as to whether quad bikes would be used for the work.

22. On that day, Mr Simms was directed by Mr Brendan Jarrett to work with Mr William Steer, a worker employed directly by IAD, to fix wires. Mr Brendan Jarrett then instructed Mr Simms and Mr Steer to carry out a backburn of blackberry bushes in one of the paddocks using the quad bikes.

23. Mr Brendan Jarrett offered Mr Simms a full-face helmet to wear while riding the quad bike but he declined to use it.

24. At approximately 10.00am Mr Simms and Mr Steer each rode a quad bike towards the location of the blackberry bushes, within an undulating paddock, to commence the backburning.

25. The quad bike operated by Mr Simms had about 30 litres of diesel in its rear 100-litre spray tank which was used to spray the blackberry bushes before Mr Steer set them alight with a drip torch.

26. At approximately noon after the backburning had begun, Mr Simms rode the quad bike up onto the unsealed roadway that bordered the wall of the irrigation dam in the paddock to keep an eye on the fire and to ensure that it was burning safely.

27. Mr Simms noticed a large flame. He stopped and attempted to reverse his quad bike at low speed to better observe what was happening.

28. While Mr Simms was reversing he felt the quad bike begin to tip over. He lost his balance and the quad bike rolled sidewards down the dam wall (the incident).

29. Mr Simms became trapped beneath the quad bike. The quad bike’s rear rack and spray tank came into contact with his pelvic region.

30. Mr Steer witnessed the incident and contacted emergency services. Mr Simms was treated at the scene by NSW Ambulance officers before being transferred by air to Orange Health Service. Mr Simms was treated at Orange Health Service for two weeks for a fractured sacral spine and pelvis. He did not require surgery for his injuries.

SafeWork NSW Inspection

31. At approximately 3.40pm on 1 June 2021, SafeWork NSW (SafeWork) Inspector Matthew Isaacson visited IAD’s Borenore property and met with Mr Steer. Inspector Isaacson observed the following:

1. A large vineyard with a number of buildings with a signpost for “See Saw Wines” at the main gate.

2. A building identified by Mr Steer and described by him as “the main shed”, situated around the middle of the property. It was a large steel shed clad in galvanised sheeting, approximately 10 metres wide and 30 metres long.

3. Inside the shed were a number of farming implements and pieces of plant.

4. Located in the shed near the entrance was a red Honda quad bike fitted with a yellow plastic spray tank on the rear frame.

5. The site of the incident was approximately one kilometre in an easterly direction from the main shed.

6. The scene of the incident was an irrigation dam wall. The area surrounding the dam wall had an extensive area of recently burnt off vegetation consisting mainly of blackberry bushes.

7. The gradient angle of the dam wall was approximately 22 degrees.

8. From the top of the dam wall, scrape marks and flattened scrub were visible on the ground, consistent with a quad bike overturning down the hill.

Available Guidance Material

32. Prior to the incident SafeWork had published a Code of Practice (PX 1, Tab 13) titled “How to manage work health and safety risks” (August 2019) (the Code). The Code relevantly provides that:

1. A risk assessment can help a person conducting a business or undertaking (PCBU) 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. If, after identifying a hazard, the PCBU already knows the risk and how to control it effectively, the PCBU may simply implement the controls.

2. A risk assessment should be undertaken when there is uncertainty about how a hazard may result in injury or illness.

3. Some problems can be fixed easily and this should be done immediately, while others will need more effort and planning to resolve.

4. If it is not reasonably practicable to eliminate the hazard and associated risks, the PCBU must minimise the risks in accordance with the hierarchy of controls.

5. 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.

33. Prior to the incident, on 20 May 2019 SafeWork published a guide (PX 1, Tab 14) titled “The A-Z of Farm Safety” (the Farm Safety Guide). This guide was available online.

34. The Farm Safety Guide relevant provides:

1. H – Helmets: protective headgear is essential for any activity where there is a possibility of a worker falling and hitting their head, including when riding a quad bike, and protective helmets for vehicle users should comply with Australian/New Zealand Standard AS/NZS 1698:2006 “Protective helmets for vehicle users”, 20 February 2006 (AS/NZS 1698:2006).

2. Q – Quad Bikes: being aware of your vehicle’s limitations and how to operate it safely is paramount:

1. Choose wisely – the right vehicle is crucial, as is making sure any attachments are suitable for your quad bike.

2. Protect yourself – wearing a helmet as well as appropriate footwear, clothing and personal protective equipment is essential.

3. Operator protection – consider fitting an OPD to your quad bike to prevent being crushed or asphyxiated in the event of a roll over.

4. Drive carefully – take extra care when riding in rough terrain and on steep slopes, and be aware of hidden obstacles, especially if carrying cargo.

35. Prior to the incident, on 18 June 2019 SafeWork published six videos to help improve quad bike safety on farms by debunking some commonly held misconceptions about quad bike use. The videos were available online prior to and at the time of the incident and relevantly provided that:

1. Fitting OPDs to quad bikes can prevent riders from being crushed in a rollover.

2. Fitting after-market accessories, including OPDs to quad bikes should not completely void the manufacturer or consumer warranty.

3. Helmets should always be worn on quad bikes, and helmets for conditionally registered vehicles must comply with AS/NZS 1698:2006.

4. Quad bike training benefits all riders regardless of their experience level.

36. Prior to the incident, on 3 February 2020, Safe Work Australia published a guide (PX 1, Tab 15) titled “Labour hire: duties of persons conducting a business or undertaking” (Labour Hire Guide). The Labour Hire Guide was available online before the incident.

37. The Labour Hire Guide relevantly provides:

1. All labour hire PCBUs and host PCBUs have a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of labour hire workers engaged by, or caused to be engaged by, or whose activities are influenced or directed by, the PCBU.

2. All duty holders in a labour hire arrangement must consult, co-operate, and co-ordinate with each other so far as is reasonably practicable.

3. Before engaging labour hire workers to carry out work, a host PCBU should:

1. Verify, in consultation with the labour hire PCBU, that the selected workers have the necessary qualifications, licences, skills and training to carry out the work safely.

2. Consult with the labour hire PCBU on work health and safety (WHS) matters including in relation to who will provide any necessary equipment such as personal protective equipment (PPE).

4. Before placing labour hire workers, a labour hire PCBU should:

1. Gather information about the work and the workplace, including the work environment, organisational arrangements, health and safety risks associated with the work, and any skills and knowledge the worker will require to safely undertake the work.

2. Verify and work with the host PCBU to ensure that site-specific and task-specific induction, training and PPE is provided to labour hire workers in a way that is suitable, adequate, and readily understandable to them.

3. Ensure that workers have the necessary qualifications, licences, skills and training to safely carry out the work.

IAD

38. IAD did not have any safe work procedures for operating quad bikes.

39. At the time of the incident, there were no OPDs, or other rollover protection systems installed on IAD’s quad bikes.

40. An OPD is an engineering control that guards against the risk of a quad bike rider being crushed by the quad bike in the event of a rollover.

41. IAD did not enforce the use of suitable helmets while operating quad bikes.

42. IAD did not establish exclusion zones or communicate information to workers about terrain which was unsuitable for quad bikes.

43. IAD did not provide adequate training, instruction, and assessment to workers in the safe use of quad bikes. IAD did not ensure that workers were competent in their operation of quad bikes before allowing workers to perform work that required the use of quad bikes.

38. IAD did not consult with Ms Priest about risks to the health and safety of workers placed with IAD, in relation to the safe use of quad bikes, or at all.

Ms Priest

45. Ms Priest did not conduct any hazard or risk assessment at IAD’s Borenore property before placing the labour hire workers, including Mr Simms, to work there.

46. Ms Priest did not assess workers’ competency on quad bikes.

47. Ms Priest did not provide any training to workers on the safe use of quad bikes.

48. Ms Priest did not consult with IAD about risks to the health and safety of workers to be placed with IAD, in relation to the use of quad bikes or at all.

49. Ms Priest was unaware what safe work procedures, if any, IAD had in place for operating quad bikes. Ms Priest did not ask whether Mr Simms would be riding quad bikes and was not aware that he was riding quad bikes at the Borenore property.

Evidence for the Defendant

50. Ms Priest affirmed an affidavit on 2 July 2024 (DX 1). Ms Priest operated a labour hire business and traded as LJ Priest.

51. Ms Priest is from Orange, NSW and is currently 64 years old. She left school after Year 12 and moved to live and work in Sydney. In Sydney Ms Priest mainly did factory work before returning to Orange when she was 21 years old. In Orange Ms Priest continued working in a factory “on the line”.

52. Ms Priest had two children and worked as a seamstress at various places when her children were young. Ms Priest then became an assistant nurse and worked in residential care for about 10 years.

53. When Ms Priest’s children were teenagers, Ms Priest worked in daycare from her own house. Ms Priest then had another child at the age of 40 and subsequently worked as a waitress and a kitchen hand.

54. In around 2014 Ms Priest started pruning with her son, Mr Priest. Ms Priest and Mr Priest went from property to property doing pruning work. They soon found that they had too much work, so they started a business. In 2017, once Ms Priest and Mr Priest started employing people, Ms Priest registered the business as LJ Priest and obtained an Australian Business Number. The office for Ms Priest has always been at Mr Priest’s property.

55. The business provided labourers and manual workers to properties in the Orange area to perform tasks such as pruning, weed and pest control, driving tractors, and harvesting.

56. Mr Priest was Ms Priest’s operation manager from the outset as Ms Priest said, “[h]e knew the industry and was better at dealing with the workers than I”.

57. As the business grew, they had about 21 permanent employees and anywhere up to 200 seasonal workers.

58. Ms Priest said that her role within the business was limited. She did not do paperwork and largely undertook manual work, until she started looking after her sick mother in 2020.

59. Ms Priest drew an income of $1,000 a week.

60. While Ms Priest looked after her mother, Mr Priest took care of the business and kept Ms Priest informed of matters, including Mr Simms’ incident and injuries. Ms Priest said that from time to time her sister looked after her mother, during which Ms Priest would assist with the business “by doing things like warning off the cockatoos and occasionally running people to work or running fuel”.

61. Ms Priest’s daughter Amanda and Mr Priest’s wife also worked in the business.

62. The business leased an orchard in Ms Priest’s name. Ms Priest thinks the leased orchard is still in her name and that it made a profit last year but that it “does not generally make a profit”. Ms Priest said that Mr Priest informed her that the lease had been taken over by his business, Send it Contracting.

63. Ms Priest has no prior offences.

64. Ms Priest is on the St Barnabas Church of England Committee and was a “very active” volunteer until 2020 when her mother’s illness caused her to step back.

Involvement Following the Investigation

65. As a result of the investigation that led to the present charges, the employment contracts for workers were transferred to Mr Priest’s business which is based in Nashdale, NSW.

66. Ms Priest said that “the incident highlighted the issues surrounding the business operating in my name and the responsibilities which I had”.

67. Ms Priest continued to work when she was not looking after her mother and continued drawing $1,000 a week from the business.

68. Ms Priest sold the assets of the business, which included things like hydro-ladders (cherry pickers) and paid the business debts. The last invoice for work done was sent in November 2023 and the business was wound up this year.

Current Employment

69. Ms Priest currently does some work for Mr Priest’s business, running fuel, supplies and people to where they need to go as directed by Mr Priest. Ms Priest is paid $350 per week.

70. Ms Priest also received an inheritance from her mother that she uses to live on. There is approximately $50,000 of the inheritance left.

71. Ms Priest does not receive Centrelink benefits and is not eligible for the pension for another three years. Ms Priest said that she will look for work to earn an income.

72. Ms Priest has not contributed to her superannuation for the last ten years and has a present balance of $43,721 (DX 2).

73. Ms Priest does not own her home but rents it for $430 per week. Ms Priest said that utilities cost her about $100 per week and her car, a 2009 Isuzu D Max worth approximately $10,000, costs about $80 per week for expenses such as registration and insurance.

74. Ms Priest described herself as living “a fairly frugal life”. She said that her inheritance “will not last long”.

75. Ms Priest annexed to her affidavit as “LJP 1” her tax return for the 2021/2022 financial year, which she said is the last tax return she has done. Ms Priest said that her tax returns are prepared by her accountant.

Mr Simms’ Accident and Post-Incident

76. Mr Simms started working with Ms Priest one year before the incident.

77. Ms Priest learned of the incident “immediately after it happened”. She said that she and Mr Priest spoke about the incident and made sure that Mr Simms could maintain employment after he “recovered and recuperated”. Mr Priest arranged for Mr Simms to work as a supervisor in a packing shed at Canobolas, NSW. Mr Simms is still working there.

78. Ms Priest said that after the incident the new employee induction booklet was amended and provided to all employees. This induction booklet “made it clear” that quad bikes were not to be ridden (DX 3). Ms Priest said that Mr Priest informed SafeWork about the amended induction booklet when he was questioned by SafeWork.

79. Ms Priest said that she is “very sorry for what happened” to Mr Simms. Ms Priest acknowledged “the failings which led to what happened” and said that as a result of the incident, she sought to improve the business processes.

80. Ms Priest has never been before a court before and expressed her embarrassment at coming to court for the first time and having a criminal record. Ms Priest reiterated that she is “very sorry that this has happened”.

81. Ms Priest is no longer involved in the running of a business and says that she will not be before a court again.

Consideration

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

Objective Seriousness of the Offence

83. 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 The Queen (No. 2) [1988] HCA 14; (1988) 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] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

84. 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 [1988] HCA 67; (1988) 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].

85. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

86. 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].

87. 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] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

88. 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. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

89. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS 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. Justice Basten at [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.”

90. Further at [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 [event] 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 little, if any, costs.”

91. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS 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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

92. My findings about the defendant’s level of culpability are based upon the following:

1. The risk of a worker being injured on a quad bike was foreseeable by Ms Priest, although nothing was done to minimise the risk.

2. Ms Priest ran the business “hands off” when she had statutory obligations imposed on her by the WHS Act. She was completely ignorant of those obligations, and she did not even inform herself of the work which Mr Simms was to perform for IAD.

3. Labour hire businesses cannot just hand over workers to their clients without discharging their duties under the WHS Act.

4. The likelihood of the risk occurring was significant, particularly where a quad bike had to be manoeuvred quickly in the area of a backburn.

5. The potential consequences of the risk were death or serious injury.

6. Steps were available to minimise the risk, and appropriate steps were taken shortly after the incident.

7. There was no particular burden or inconvenience to implement the steps.

8. A serious injury was caused to Mr Simms.

9. The maximum penalty for the s 32 offence is a fine of $353,430, and the maximum penalty for the s 46 offence is a fine of $23,460. These penalties reflect the legislature’s view of the seriousness of the offence.

10. Quad bikes operate on uneven terrain, so it is important for appropriate measures to be taken to minimise their inherent risks.

93. I find that the level of culpability of Ms Priest for both offences is in the mid range.

Deterrence

94. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS 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; (2016) 93 NSWLR 338 at [180]. It is important to draw to the attention of all labour hire businesses that they have obligations towards their employees, and they cannot just rely on the host employer doing the right thing.

95. The penalty must reflect the need for specific deterrence. Ms Priest is no longer conducting a business, but she still works for her son in the agricultural sector.

Aggravating Factors

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

Mitigating Factors

97. Ms Priest has no previous convictions: s 21A(3)(e) CSP Act.

98. Ms Priest is otherwise of good character: s 21A(3)(f) CSP Act.

99. Ms Priest is unlikely to re-offend: s 21A(3)(g) CSP Act. She is no longer running the labour hire business.

100. Ms Priest has shown remorse for the offence: s 21A(3)(i) CSP. She has provided evidence that she has accepted responsibility for her actions and has acknowledged that the injury to Mr Simms was caused by her own inaction.

101. Ms Priest entered a plea of guilty: s 21A(3)(k) CSP Act. 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) CSP Act. On 20 March 2024 a plea of not guilty was entered and the matter was set down for a three-day defended hearing commencing on 15 May 2024. On 13 May 2024 Ms Priest entered a plea of guilty. There was thus a utilitarian benefit to the plea, and some public expense was saved. It is appropriate to give Ms Priest a 15% discount for the guilty plea.

102. Ms Priest gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. She cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Parity

103. IAD was also prosecuted and convicted for a breach of its health and safety duties arising under the WHS Act, relating to the same incident in which Mr Simms was injured: SafeWork NSW v Integrated Agricultural Developments Pty Ltd [2024] NSWDC 243. IAD was given a 25% discount for its guilty pleas, and was fined $180,000 for the s 32 offence and $15,000 for the s 46 offence.

104. 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; the parity principle is not limited to persons charged with the same offences arising out of the same criminal conduct. Its application is governed by consideration of substance over form: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].

105. The principle operates in the nature of a “check” required of the sentencing court: DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 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 The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [139] 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.”

106. 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 The Queen at [32]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

107. It is appropriate for the court to consider the respective contributions of IAD and Ms Priest. 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: WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92; (2009) 186 IR 125 at [241].

108. I find that in relation to the s 32 offence Ms Priest was less culpable than IAD. The quad bikes were owned by IAD but had not been fitted with OPDs. The vineyard where Mr Simms worked was operated and controlled by IAD. It was IAD which directed Mr Simms to carry out the backburning using a quad bike, without take reasonably practicable steps to discharge its health and safety duties.

109. I find that in relation to the s 46 offence, the culpability of IAD and Ms Priest is equal. Both had the same obligation to consult each other. Neither did so.

Capacity to Pay

110. 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: Mahdi Jahandideh v The Queen [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.

111. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

112. Ms Priest is no longer running the labour hire business, although her son now conducts a similar labour hire business. She has been out of the workforce for some time caring for her unwell mother. She now earns a very modest wage doing chores for her son’s business. Ms Priest does intend to look for additional work. She is three years away from having an entitlement to receive an age pension, and presently receives no Centrelink payments. Ms Priest has no assets of note and rents her residence. She has a very modest superannuation balance and no savings. There was no cross-examination of Ms Priest about these financial matters.

113. I propose to moderate the fines which I would otherwise impose, because of a reduced capacity to pay. I will take into account in fixing a fine, that Ms Priest will also be subject to an order to pay the costs of the prosecutor.

Totality

114. Counsel for Ms Priest submitted that the principle of totality would require a reduction in the level of fines. I reject that submission. The charges in the two Summonses do not arise out of the same set of facts. The s 32 charge relates to a particular incident on a day at the vineyard. The s 46 charge relates to an initial failure to consult with IAD when Mr Simms was placed on the vineyard as a worker, which continued when there was no consultation on subsequent occasions. The s 32 offence relates to specific reasonably practicable steps which should have been taken to protect Mr Simms from the risk. The s 46 charge relates to an obligation, imposed by the WHS Act, on parties who have a health and safety duty to consult with each other. There will be no reduction in the fines for the principle of totality.

Costs

115. There will be an order for the defendant to pay the prosecutor’s costs, which have been agreed in the amount of $30,000.

Penalty

116. Counsel for Ms Priest submitted that instead of imposing a fine, the court could find Ms Priest guilty of the offence but make a conditional release order under s 9 of the CSP Act.

117. Section 9(2) of the CSP Act provides that in deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors:

1. The person’s character, antecedence, age, health and mental condition.

2. Whether the offence is of a trivial nature.

3. The extenuating circumstances in which the offence was committed.

4. Any other matter that the court thinks proper to consider.

118. Ms Priest has in her favour the factors of character, antecedents and age. However, the offences were not of a trivial nature, and they were not committed in extenuating circumstances. Further, general deterrence in relation to labour hire businesses is an important factor, and one which in my view requires a fine rather than a conviction with a conditional release order. I reject the submission made by counsel for Ms Priest in relation to s 9.

119. My orders in District Court Proceedings 2022/387532 are:

1. Linda June Priest is convicted.

2. The appropriate fine is $10,000 but that will be reduced by 15% to reflect the plea of guilty.

3. Order Linda June Priest to pay a fine of $8,500.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. Order Linda June Priest to pay the prosecutor’s costs, agreed in the amount of $30,000.

120. My orders in District Court Proceedings 2022/387524 are:

1. Linda June Priest is convicted.

2. The appropriate fine is $4,000 but that will be reduced by 15% to reflect the plea of guilty.

3. Order Linda June Priest to pay a fine of $3,400.

4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

5. No order for costs.

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Decision last updated: 11 July 2024