SafeWork NSW v Macleay River Protein Pty Limited

[2017] NSWDC 204

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Macleay River Protein Pty Limited [2017] NSWDC 204

Hearing dates:

8 August 2017

Date of orders:

11 August 2017

Decision date:

11 August 2017

Jurisdiction:

Criminal

Before:

Russell, DCJ

Decision:

1 The offender was convicted on 8 August 2017.
2 I impose a fine of $375,000.
3 I order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
4 I order that the offender pay the prosecutor’s costs agreed in the sum of $32,000.

Catchwords:

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

 

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty

 

SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty

  COSTS – prosecution costs

Legislation Cited:

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

Cases Cited:

Veen v R (No. 2) (1998) 164 CLR;
R v McNaughton (2006) 66 NSWLR 566;
Baumer v R (1998) 166 CLR 51;
BW v R [2011] NSWCCA 176;
R v Wilkinson (No. 5) [2009] NSWSC 432;
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610;
Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37;
R v Thomson & Houlton (2000) 49 NSWLR 383;
R v Borkowski (2009) 195 A Crim R 1;
Jahandideh v R [2014] NSWCCA 178;
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Macleay River Protein Pty Limited (Defendant)

Representation:

Counsel:
Malcolm Scott (Prosecutor)
Ms W. Thompson (Defendant)

  Solicitors:
SafeWork NSW (Prosecutor)
Moray & Agnew (Defendant)

File Number(s):

2016/351464

Judgment

1. Macleay River Protein Pty Limited (the offender) has pleaded guilty to an offence that as a person who had a health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (the Act) it failed to comply with that duty and thereby exposed the late Jason Noble to a risk of death or serious injury contrary to s 32 of the Act.

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

Prosecution’s Evidence

3. Mr Jason Noble, an employee of the offender, died in the course of his employment on 4 August 2015 when he was crushed between a forklift carrying a very large bin, and a wall.

4. The parties presented an Agreed Statement of Facts which is summarised below in paragraphs 5-74.

5. The offender was a company in a group of companies (the Eversons Group). The Eversons Group employed about 200 people in total. The offender conducted a plant which processed inedible animal by-products which came from an abattoir located at the site at 60 Collombatti Road Frederickton, New South Wales (the site). The offender also processed animal by-products from external customers and produced meat meal and tallow.

6. The late Mr Jason Noble was employed by the offender, having commenced on 25 June 2015. He was employed by an associated company for three months before that. Mr Noble’s duties included: general rendering duties; processing dehydrated blood; driving a forklift as a trainee forklift driver; and general duties in and around the rendering plant.

7. Since the start of his employment on 25 June 2015 Mr Noble had been required by the offender to operate a forklift. Part of those duties were to use the forklift to remove empty bins from the rendering plant during the 2-9pm shift on 4 August 2015.

The Forklift

8. There were four forklifts on site at the relevant time, three grey Crown forklifts and the forklift involved in the incident, an orange Toyota Forklift with serial number 24446 (the Toyota forklift) which was approximately 30 years old. It was owned by the offender.

9. The Toyota forklift was used as a backup forklift inside and outside the rendering plant to move steel rendering bins around the site, move pallets inside the rendering plant and when other forklifts were being serviced. The Toyota forklift was usually parked inside the rendering plant.

10. Training was not conducted using the Toyota forklift. Mr Noble conducted his training on the Crown forklifts. The Crown forklifts had a different handbrake system to the Toyota forklift.

11. Both the Toyota forklift and the Crown forklifts were serviced by Crown Equipment on a regular basis. Field technician Shane Page completed the last service on 4 March 2015 (the service) for the Toyota forklift. Mr Page had serviced forklifts for the offender for approximately 6 or 7 years.

12. The service invoice notes work on the oil filter, filter lube oil, air filter secondary, air filter primary, oil hydraulic, and labour.

13. Mr Page conducted general maintenance and safety checks, such as grease, change oils, lubricate moving parts, check for wear on components, including a handbrake adjustment and lubrication.

14. Mr Page noted the handbrake lever and the notches on the lever of the Toyota forklift handbrake were worn consistent with the age of the forklift but formed the opinion that, at the time of testing (4 March 2015), the wear on the pawl system was not affecting the operation of it. These components were not replaced at the service. However, the extent of the wear on the pawl could only be determined by disassembling the handbrake.

15. The handbrake was tested during the service by Mr Page on a flat surface, and an inclined surface of approximately ten to fifteen degrees and the Toyota forklift held.

16. The handbrake on the Toyota forklift is a T piece ratchet pull style handbrake with a cable connected to the brake drums connected to the front drive tyres. Pulling on the handbrake lever pulls on the drum brakes. The handbrake has a lever with notches on it that moves, when pulled, through a pawl system with a sprocket that is a locking mechanism. The brake is released by lifting the T-handle slightly to release pressure on the pawl before turning the T-handle to disengage the brake.

17. Examination of the handbrake lever and the notches in the lever on the Toyota forklift after the incident found that they were worn allowing the handbrake to release with minimal pressure.

18. The Toyota forklift has a forward gear, a neutral position and a reverse gear.

19. The Toyota forklift has two lift fork tines (tines) extending from the front of the forklift used to lift loads.

The Steel Bins

20. At the relevant time the offender owned and used about 10 steel bins for purposes including transporting inedible animal material, cattle hides, manure, fat and bones and general garbage from the boning room from the abattoir on the site to the offender’s rendering plant on site.

21. The steel bins were moved on forklifts between the abattoir and rendering plant on site throughout the work day.

22. The bins were scattered around the site and were moved regularly a couple of times per hour generally between the abattoir and the rendering plant.

23. Many workers moved the bins. It was not a designated job.

24. The steel bins were hosed out at the end of the last work shift alongside the wall opposite to where the incident occurred, then moved to the wall where the incident occurred to drain ready for the next day.

25. There was no formal regular maintenance of the steel bins. Maintenance was conducted after visual inspections and as needed and included welding chains that hold the bin to the forklifts and fixing hinges.

26. The steel bin relevant to the incident (the bin) weighed approximately 322kg and was 1375mm long by 1230mm high. A gate is attached pivoting from the top and opening at the bottom.

The Incident

27. On 4 August 2015 Mr Noble started work on the afternoon shift from 2pm to 9pm.

28. Mr Andrew Whyte, Manager was responsible for allocating the work for the afternoon shift. Mr Whyte was employed between 8 June 2015 and approximately 30 August 2015.

29. At the start of the shift at around 2pm Mr Whyte instructed Mr Noble to operate the Toyota forklift to remove the empty bins from the rendering plant. He gave a toolbox talk with the main instruction being to use a buddy system and do things as safely as possible.

30. Mr Whyte told Mr Noble that he was booked into Tertiary And Further Education (TAFE) on 21 August 2015 for his high risk forklift licence.

31. Mr Whyte ended his shift at around 3.30-4pm.

32. Mr Purcell was the immediate supervisor for Mr Noble and Mr Jordan Crossingham on the afternoon shift.

33. Mr Purcell did not hold a high risk forklift licence.

34. Mr Jesse Everson, Property Environment Manager, was responsible to oversee the site including the abattoir, maintenance shed and rendering plant. He had day to day supervision of the site and 200 employees in the Eversons Group. He holds a high risk work licence for operating a forklift.

35. At the time of the incident Mr Everson was conducted welding work on site in a welding shed with Mr Jason Nobel’s brother, Mr Brendan Noble.

36. The offender had two Closed Circuit television cameras (CCTV) on the site at the truck wash area and the workshop (Camera 1 and Camera 2).

37. At approximately 4.55pm on 4 August 2015 Mr Jason Noble used the Toyota forklift to move the bin to a wall next to a maintenance workshop at the site (the wall).

38. The steel bins were often hosed out and placed along the wall to drain at the site.

39. Adjacent to the wall was a 4.350 metres concrete paved area at a gradient of approximately 4.43 degrees, sloping down towards the workshop.

40. At the relevant time a steel railing ran along most of the wall attached by dyna bolts. The railing was to stop bins going into the wall. There was sufficient space of about 500mm to allow a person between the wall and the railing.

41. The incident occurred between where the railing ended and the wall without the railing began. The incident pulled the railing from the wall. The bins were normally stored on the railed section to allow them to drain into the stormwater drain running along the wall (after the bins were hosed out on the other side of the road).

42. CCTV footage shows the following sequence of events:

1. At approximately 4.55pm Mr Noble used the Toyota forklift to move the bin in front of the wall which was about 20 metres from the rendering plant.

2. Mr Noble stopped the Toyota forklift, tilted the mast forward to lower the tines, and got out of the Toyota forklift. He applied the handbrake.

3. Mr Noble walked between the front of the Toyota forklift and the wall and pushed and kicked the bin positioned on the front of the Toyota forklift.

4. The Toyota forklift remained where it was parked by Mr Noble for approximately 37 seconds.

5. The Toyota forklift moved forward quickly, pinning Mr Noble between the bin on the forklift tines and the wall.

6. Mr Noble was pinned between the bin on the Toyota forklift and the wall for approximately 10-12 minutes.

7. At approximately 5.09pm Mr Brendan Noble, brother of Mr Jason Noble drove towards the incident (on his way home from work) and stopped.

8. Mr Brendan Noble jumped out of the vehicle and into the Toyota forklift. He is seen to reach for the handbrake. Mr Brendan Noble started the Toyota forklift and reversed it away from the wall. Mr Brendan Noble later could not recall if the handbrake was on or off.

9. Mr Jordan Crossingham alerted Mr Nick Purcell and both called triple 000. The ambulance arrived approximately 20 minutes later.

10. Mr Jesse Everson and Mr Brendan Noble performed Cardio Pulmonary Resuscitation on Mr Noble during this time.

43. It appears that the Toyota forklift moved forward after holding for approximately 37 seconds as a result of the handbrake releasing.

44. An examination of the Toyota forklift was undertaken by the Police on 19 August 2015. The examination found: “No contributing mechanical faults or defects were detected. The vehicle’s braking system, including the handbrake, operated correctly on level and inclined surfaces”.

45. A further examination of the handbrake assembly was undertaken by Dr White on behalf of SafeWork NSW. This included viewing the CCTV footage. Dr White formed the opinion that at the time Mr Brendan Noble got into the Toyota forklift the handbrake was no longer engaged. Dr White after dissembling the handbrake found the pawl to be worn out.

46. The Toyota Operator’s Manual for the Toyota forklift specified that the parking brake mechanism should be inspected every 12 months for ‘ratchet wear and damage’ and that worn parts should be replaced.

Injuries

47. Mr Noble suffered fatal injuries with the post mortem report noting the cause of death as traumatic asphyxia, the term for the mechanical restriction to breathing, in this case from pressure on the chest.

Systems of Work Before the Incident

Training for Mr Noble

48. Mr Noble did not hold a High Risk Licence to operate a forklift (forklift licence) as required by s 43 of the Act.

49. Mr Noble was booked to start TAFE training on 21 August 2015 to obtain his forklift licence to operate a forklift.

50. On 31 July 2015 Mr Jeremy Bate from TAFE sent Mr Noble a “Final Review Study Guide” and “Final Review Assessment” to complete prior to commencing TAFE training on 21 August 2015.

51. Mr Noble completed all the questions on the Final Review Assessment except number 4.1.(c) on page 94: “What must you do when you park on a slope or ramp (inclined surface)”. The answer provided in the Final Review Study Guide is “Do the normal parking procedure and chock the wheels of the forklift. Chocking the wheels will stop the forklift rolling away”. A copy of Mr Noble’s Final Review Assessment was obtained by SafeWork NSW from the offender after the incident.

52. Mr Noble began operating a forklift for the offender on 1 July 2015 under the supervision of Mr Whyte (Manager) and Mr Robert Breckell (Operator) both of whom were licensed to operate the Toyota forklift.

53. At the time of the incident Mr Noble was not supervised by a licensed forklift driver.

Access to the keys of the forklifts on site

54. There were four forklifts on site at the relevant time: three Crown forklifts, and the Toyota forklift.

55. There was a system in place to control the use of the forklifts on site whereby each forklift driver would keep the keys to the forklift they were using on them and return the keys to a key holder on the workshop wall after use.

56. This system was not enforced and sometimes the keys would also be left in the ignition of the forklifts allowing general access.

Parking a forklift on an incline

57. Prior to the incident the offender had not carried out a worksite assessment identifying areas where a forklift could be parked on an incline or the suitability of a forklift for the site.

58. There was no risk assessment done on the risk of getting caught between the Toyota forklift and a stationary object.

59. There was no system in place to prohibit the parking of a forklift on an incline or providing for the chocking of the wheels of a forklift parked on an incline.

60. There were a number of chocks on site at the relevant time in the mechanical workshop, but none were kept on the forklift itself.

61. There was a safe work procedure titled “Forklift Truck Petrol/Diesel” developed on 1 May 2013. It said nothing about chocking the wheels if parked on an incline.

62. There was a work instruction on driving a forklift up a ramp to load a hogger (with waste) and use of the handbrake.

Guidance Material

63. Australian Standard AS: 2359.2-2013, Powered industrial trucks. Part 2: Operations Section 2.3.1 “Authorization of Operators” provides that “a record of authorised operators shall be kept and a system implemented to limit truck usage to authorised operators only. These may include authorisation certificates, electronic databases, fleet management systems, pin codes and swipe cards”.

64. Australian Standard AS: 2359.2-2013, Powered industrial trucks. Part 2: Operations provides at Section 3.5(a) “Unattended Trucks” that the “the truck shall be parked on level ground, wherever practicable, with the parking brake applied and, where it is unavoidably parked on an incline, the wheels shall also be chocked”.

65. The Toyota Operators Manual for the Toyota forklift also states: “Caution be sure to use chocks when parking on an incline.”

Systems of Work following the Incident

66. Following the incident, the Toyota forklift was taken out of service and removed from site.

67. A toolbox talk was held on 5 August 2015 with instructions given that a Forklift Key Register was being implemented and an instruction that no-one was to drive a forklift without a current forklift licence; that a checklist was to be filled out prior to any forklift being used on site; and that drivers were to remove the key from the forklift and keep it in their pockets so no-one else could use it.

68. A work instruction for “Hide Bin Pick-up” was issued in October 2015 which stated at the end that “only licenced and trained operators can perform this work instruction”.

69. After the incident the offender installed a new rail adjacent to the wall where the bins are stored to drain and also installed safety traffic walkways.

70. The offender made arrangements for all forklift operators to undergo external re-training in relation to forklift operation.

71. The offender undertook a review of the forklift operation on 1 September 2015 and developed a new operating system. All forklift operators received training on the new system on 20 October 2015. The system included awareness of level ground for the forklifts, the handbrake to be fully on, placing chocks under the wheels and a prohibition not to walk between the forklift and other structures.

72. The offender acquired the Plant Assessor system of hazard management and plant maintenance with training planned for 2 December 2015.

73. The offender engaged Safegroup Pty Ltd to conduct a complete risk assessment of all traffic on the site and develop a Traffic Management Plan including safe work instructions for all jobs performed by forklifts. This Safe Work system of Traffic Management was implemented in January 2016.

The Offender’s Evidence

74. The offender tendered two affidavits of Mr Stafford Paul Everson, the first dated 29 June 2017 and the second dated 20 July 2017. Mr Stafford was present in court but was not required for cross-examination on his affidavits. Mr Everson and his wife are the two directors and shareholders of the offender company. The offender is a company within a group of companies known as the Eversons Group.

75. At the time of the incident the Eversons Group employed about 200 people, including 17 employed by the offender company. The Group is one of the largest employers in the Kempsey-Macleay region.

76. In his first affidavit Mr Everson acknowledged that the company acted in contravention of s 19(1) of the Act. He expressed the deepest regret and extended the company’s condolences to the family of the late Mr Noble for his death. The offender accepted responsibility for having contributed to the death. Mr Everson said that the offender is committed to avoid any repetition of the circumstances which caused the death of Mr Noble. The offender accepts by its plea of guilty that it did not implement all of the steps needed to be taken to prevent the risks to Mr Noble created by the work he was required to carry out on site. These matters were reinforced in Court when counsel for the offender directly addressed the family of the deceased and repeated Mr Everson’s statement.

77. Mr Everson acknowledged that as a trainee forklift driver, Mr Noble should have been supervised by someone with a forklift licence. This did not happen on the day of the accident, as the supervisor, who did have a licence, went home before Mr Noble finished work. No work site assessment had been completed by the offender to identify areas where the forklift involved in the incident could be used and/or parked. A risk assessment had not been done on the risk of an employee getting caught between the forklift and the wall. The offender had not implemented the simple and cheap safety measure of providing wheel chocks for each forklift to be stored on the forklift and to be used whenever the forklift was parked on an incline.

74. Mr Everson said that Mr Noble had been booked to complete his TAFE training and obtain his forklift licence on 21 August 2015. The policy of the offender was that a trainee forklift driver had to be supervised by a licensed forklift driver when operating a forklift. Of course, on the day of the accident, that had not been the case. The offender had a number of chocks in the mechanical workshop on site that could have been used to chock the wheels of a forklift. However, these chocks were not left on each forklift where they would be easily accessible.

75. When Mr Noble died at work, Mr Everson and his wife were on a short holiday. They came back to the site straight away. The company and its staff provided support to Mr Noble’s widow Ms Rachel Nobel and maintained contact with her throughout 2015 and 2016. It arranged and paid for counselling services and support for the family. It met funeral expenses immediately. All staff of the offender were addressed and offered counselling on the day after the death and a number of staff took that up. Twenty-five staff members attended the funeral of Mr Noble and were paid in full for the time away from work. The offender paid for a wake for Mr Noble attended by 500 people at a local club. Ms Nobel continued to receive payments of wages for her late husband from the date of the incident to 9 October 2015. Mr Noble’s brother Mr Brendan Noble had three weeks off work fully paid.

76. The offender took a number of steps after the incident. The Toyota forklift was taken out of service and removed from the site. A toolbox talk was held on 5 August 2015 with instructions given that a forklift key register was being implemented and that no-one was to drive a forklift without a current forklift licence. Refresher training was provided on forklift operating procedures for all forklift drivers. The offender arranged for forklift drivers to undergo external re-training.

77. The offender undertook a review of the forklift operation on 1 September 2015 and developed a new operating system. The new system specifically stated that operators had to be aware of parking only on level ground, or if on an incline the handbrake had to be on and chocks had to be placed under the wheels. Operators were instructed not to walk between the forklift and other structures.

78. The offender engaged external work health and safety expert consultants who conducted a complete risk assessment of all traffic at the site and developed and implemented a traffic management plan. The company continues to monitor and review its work health and safety procedures.

79. Mr Everson deposed that the offender co-operated with SafeWork and its investigation into the incident and made its staff available to provide statements as requested. The offender complied with all notices issued upon it for the provision of documents and information.

80. The evidence shows that the offender is a company of good corporate character. It is involved in a large number of local community initiatives. Mr and Mrs Everson are members of several industry bodies. Both have a close relationship with the employees of the offender and the employees of the Eversons Group.

81. Mr Everson deposed that the death of Mr Noble was personally devastating for all concerned. He gave evidence of two employees who left the employ of the offender shortly afterwards because they could not cope with the aftermath of the accident. The particular supervisor who left the deceased unsupervised left the employ of the offender two weeks later.

82. The Eversons Group has been in business since 1988 and the offender was first registered as a company on 25 November 1994. The offender has no prior convictions under the Act or its predecessors. Prior to the incident the offender had an unblemished work health and safety record with no serious accidents or injuries.

83. Mr Everson attached a large volume of financial statements for the offender to his affidavit. He drew attention to the fact that the nett profit in each financial year is modest. However, the financial material shows that one would have to have regard to all of the companies in the Eversons Group to have a clear picture of the profitability of the Group. Further, it is apparent from the financial material which was attached that the company has significant retained profits and a significant asset base.

84. Counsel for the offender indicated that this material was not being tendered to indicate a lack of capacity to pay a fine.

85. Mr Everson concluded his first affidavit by expressing, on behalf of the company, the deepest remorse and contrition for the risk to which Mr Noble was exposed and for his death. He acknowledged that the death of Mr Noble highlighted deficiencies in the offender’s forklift procedures and resulted in significant changes to the manner in which the offender now operates forklifts at the site.

86. The documentation which now supports the safe working policies of the offender specifically refers to the need to chock the wheels of forklifts which are parked. The new safety procedure documents are exhibited to the second affidavit of Mr Everson. Those documents state more than once: “Wheel chocks must be used when parking forklift on any incline”. They also state: “Trainee forklift drivers must be supervised by a licenced forklift operator at all times”.

Consideration

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

Objective Seriousness of the Offence

92. 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].

93. 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].

94. 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].

95. 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.

96. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. 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.”

97. Further at paragraph 42 his Honour continues:

“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.”

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

(a)   Mr Noble was not the holder of an appropriate licence and should have been supervised;

(b)   Mr Noble was not supervised at the time of the accident;

(c)   Mr Noble had not been instructed by the offender as to the need to use wheel chocks when parking a forklift on an incline;

(d)   There was no risk assessment which identified parking the forklift on an incline as being a risk, that risk being one which could be dealt with by using wheel chocks;

(e)   Wheel chocks were available on the site, but some distance away from where Mr Noble was working. They should have been placed on the forklift itself;

(f)   The offender’s Safe Work procedure for a forklift, which was in force at the time of the accident, said nothing about the requirement to use wheel chocks when parking the forklift on an incline;

(g)   From the matters above, the strong inference arises that it was not part of the system of work at the site, employed by any worker whether licenced or not, to use wheel chocks when a forklift was parked on an incline;

(h)   The cost to the offender of overcoming the risk was nil as it already owned wheel chocks;

(i)   The risk to which Mr Noble was exposed was a serious risk to his health and safety;

(j)   The existence of the risk was known or should have been known as the risk was identified in the publications of the forklift manufacturer, the Australian Standard, and the TAFE documents for trainee forklift drivers.

(k)   The simple expedient of using wheel chocks on an incline was stated plainly in the publication of the forklift manufacturer, the Australian Standard, and the TAFE document given to students for a forklift licence;

(l)   The obvious risk of someone placing their body between a heavy vehicle and a wall, when that heavy vehicle is resting on an incline, was something which was a serious risk to health and safety.

(m)   This is not a case where there was a momentary lapse in ensuring that safe working methods were followed. Until this event, there was no adequate system of work requiring wheels to be chocked on an incline.

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

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

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

102. The risk was one of serious injury or death, as in fact occurred.

103. The injuries suffered were significant in that they were fatal injuries.

104. I find that the offender’s level of culpability is in the mid-range.

Deterrence

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

106. The penalty must reflect the need for specific deterrence. The offender is still conducting a business in the meat processing industry. Many of its operations involve the use of heavy and potentially dangerous equipment. It still has many employees.

Aggravating Factors

107. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. The accident resulted in the tragic death of Mr Noble, who was a young man with a happy marriage and a very young family. His death has had an incalculable impact upon his family.

Mitigating Factors

108. The offender does not have any record of previous convictions: Section 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.

109. The offender was of good character: Section 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. The steps which the offender took after the death demonstrate this, as does the participation of the offender in local community initiatives.

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

111. The offender has shown remorse for the offence: Section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999.  The offender has provided evidence that it has accepted responsibility for its actions and has acknowledged that the death of Mr Noble was caused by its actions.

112. The offender entered a plea of guilty: Section 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstance in which the offender indicated an intention to plead guilty: Section 22(1) Crimes (Sentencing Procedure) Act 1999. In my view the offender entered the plea of guilty at the earliest possible opportunity. It is appropriate to apply a discount of 25%.

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

Capacity to Pay a Fine

114. I am required to have regard to Section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

115. I have no evidence from the offender that it has a limited capacity to pay a fine, so this issue does not arise.

Victim Impact Statement

116. The offender was convicted at the sentence hearing on 8 August 2017.

117. The widow of Mr Noble, Ms Rachel Noble then read a Victim Impact Statement to the court. At the time of the accident the couple had a 10 month-old son, and Ms Noble was pregnant with their second child, a daughter. This statement was clearly expressed in Ms Noble’s own words, and conveyed to the court the love that Ms Noble had for her late husband, as well as the pain and loss suffered by herself and her young family.

118. I take into account the Victim Impact Statement in determining the appropriate punishment for the offence on the basis that the harm caused to the family is an aspect of harm done to the community: s 28(4) Crimes (Sentencing Procedure) Act 1999. I find that it is appropriate to take this into account.

Costs

119. The parties have agreed to a costs order to the effect that the offender is to pay the prosecutor’s costs agreed at $32,000.

Penalty

120. The offender was convicted on 8 August 2017.

121. The appropriate fine is $500,000 but that will be reduced by 25% to reflect the plea of guilty.

122. I impose a fine of $375,000.

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

124. I order the offender pay the prosecutor’s costs as agreed in the sum of $32,000.

I certify that the preceding 123 paragraphs are the reasons for the judgment of his Honour Judge Russell.

Associate:

Date:      11 August 2017

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Amendments

21 August 2017 - New paragraph 111 inserted

Decision last updated: 21 August 2017