SafeWork NSW v Murray Constructions Pty Ltd

[2023] NSWDC 343

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Murray Constructions Pty Ltd [2023] NSWDC 343

Hearing dates:

22 August 2023

Date of orders:

31 August 2023

Decision date:

31 August 2023

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Murray Constructions Pty Ltd was convicted on 2 August 2023.

(2)   The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Murray Constructions Pty Ltd to pay a fine of $450,000.

(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 Murray Constructions Pty Ltd to pay the prosecutor’s 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 – victim impact statements

COSTS – prosecution costs

OTHER – excavator bucket fell from trailer during unloading – worker fatally crushed and another injured – failure to require that loads be supported by or connected to plant prior to load restraint devices being released – failure to prohibit unlicensed persons from performing dogging duties during unloading operations

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 43

Work Health & Safety Regulation 2017 (NSW), cll 54, 55, 81, 85, Sch 3, Sch 4

Cases Cited:

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

Brzozowski v R [2023] NSWCCA 129

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

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

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 BSA Ltd (No. 2) [2023] NSWDC 73

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

Texts Cited:

Safety Assist Publication, “Loading, Unloading, Exclusion Zones”, November 2010

SafeWork Australia Code of Practice, “Managing Risks of Plant in the Workplace”, August 2019

WorkCover NSW Code of Practice, “Moving Plant on Construction Sites”, 2004

WorkCover NSW Fact Sheet, “Safe Unloading and Loading of Trucks for Bulky Goods Retailers”, September 2014

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Murray Constructions Pty Ltd (Defendant)

Representation:

Counsel:
P J Gow (Prosecutor)
R O’Neill (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Bartlett Workplace Lawyers and Consultants (Defendant)

File Number(s):

2022/101139

Judgment

1. On 28 September 2020 three workers employed by Murray Constructions Pty Ltd (Murray) were carrying out unloading operations. During this process, an excavator bucket fell from a trailer and fatally crushed Mr Brian Taylor and injured Mr Brody Street.

2. Murray has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed Mr Taylor and Mr Street 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 $1,766,130‬.

The Risk

4. The risk described in par 13 of the Amended Summons is as follows:

“13. The risk was the risk of workers, in particular Mr Taylor and Mr Street, suffering serious injury or death as a result of being struck and/or crushed by movement of the bucket on or from the trailer while undertaking unloading operations at the site.”

Reasonably Practicable Measures

5. Paragraph 14 of 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:

“14. The defendant failed to comply with its duty under section 19(1) of the Act and failed to ensure so far as is reasonably practicable, the health and safety of workers, in particular Mr Taylor and Mr Street in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate or, alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

a) Requiring that loads, in particular, unstable loads, be supported by or connected to plant (including a crane) prior to load restraint devices being released;

b) Prohibiting unlicenced persons from performing dogging duties during unloading operations.”

Background

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

Background

7. Murray’s business or undertaking involves the design and construction of major civil projects (primarily bridge construction works), the manufacture of prestressed and precast concrete, and transportation.

8. Murray is based in Deniliquin in NSW and operates within regional New South Wales and Victoria.

9. Murray was engaged by Warren Shire Council to replace the existing bridge known as “Wonbobbie Road Bridge” over Marthaguy Creek, Tenandra (about 25km north-east of Warren). Near this area was a construction bypass track and storage area (the site). The overall cost of the project was $694,651.08.

Workers

10. Murray employed Mr Brian Taylor, who was 70 years old at the time of the incident, as a truck driver and labourer. His duties were to load, transport and unload precast bridge componentry and material to sites. Mr Taylor commenced employment with Murray on 22 June 2015.

11. Murray also employed Mr Sandy Norris as a site supervisor and crane driver and Mr Brody Street as a labourer.

The Bucket

12. On 25 September 2020 it was decided to send an excavator sieve bucket (the bucket) from Murray’s precast yard in Deniliquin (the Deniliquin yard) to the site in Tenandra. The bucket was 1.3m long x 1.05m high x 800mm deep and weighed 795kg. It had an 80mm deep pin hitch at the base making it heavier on one side.

13. Mr Allan Davies would be driving a truck holding a large concrete bridge beam (the beam) to the site and it was decided to place the bucket on top of the beam. The beam was 23m long x 700mm deep x 600mm wide and had reinforcing steel protruding out of the top. Murray employees used a telehandler to lift the bucket onto the bars protruding from the top of the beam. They then used synthetic straps to secure the bucket to the top of the beam.

14. A photograph of the bucket sitting on top of the beam is to be found in Exhibit PX 1, Tab 6, p 14.

15. During the trip to the site both straps were damaged by the edge of the beam. Mr Davies replaced the damaged straps with chains.

16. Due to recent rain and boggy conditions, the loaded trailer was left in Warren to be transported to the site later.

17. On 28 September 2020 Mr Taylor delivered a concrete bridge beam to the site. Mr Taylor, Mr Norris and Mr Street unloaded that beam using a crawler crane. The workers then went to Warren to pick up the trailer holding the beam and the bucket that was left there on 25 September 2020. When the workers arrived, it appeared to them that the bucket had moved during the trip to Warren. Mr Taylor unhitched his empty trailer and coupled the loaded trailer to his prime mover and set off for the site.

The Incident

18. At about 5.00pm Mr Taylor arrived back at site with the loaded trailer and was directed to park adjacent to the beam previously delivered to site and left on the ground. No one else was present at the site when they arrived or while they were unloading the trailer.

19. The three workers began undoing the tie down chains securing the load. Mr Norris identified that the bucket was heavier on the passenger side and at risk of falling when the chains were undone. He yelled out to the others to stop undoing the chains until they had secured a sling from the crane to the bucket.

20. Both men stopped undoing the chains. Mr Norris got into the crane, slewed the boom around and positioned the crane hook and sling over the bucket. However, one of the securing chains had already been released, meaning there was only one chain securing the bucket to the beam.

21. Mr Street put on his hard hat at Mr Norris’ direction and climbed onto the beam to sling up the bucket using a D shackle. Mr Taylor was not in Mr Street’s line of sight. Before Mr Street could put the pin in the D shackle all the tension on the one remaining securing chain released and the bucket fell 2.4m from the passenger side of the trailer to the ground.

22. The bucket crushed Mr Taylor against the concrete beam that was on the ground beside the trailer. His upper body was pinned, and he was bent forward over the beam with the bucket pressing against his back. As the bucket fell, it also hit Mr Street on the hip and pushed him off the beam to the ground.

23. An ambulance arrived at the scene at about 5.45pm. Ambulance officers confirmed that Mr Taylor had died after performing an initial assessment and an ECG. Post-mortem radiology revealed extensive crush injuries to his chest and spine.

24. Mr Street suffered soft tissue injuries to his hip and buttocks and post-traumatic stress disorder (PTSD). Mr Street was unable to work for about three months on account of the PTSD and later recommenced full-time work on selected duties.

Information, Instruction and Training

25. Mr Taylor held a Heavy Vehicle Driver Licence and a Forklift (LF) High Risk Work Licence.

26. Mr Taylor received a Safety and Environment Handbook issued by Murray (the handbook) which stated on p 2 under the heading “Accidents”:

“The old saying ‘accidents will happen’ is no longer acceptable as an excuse for someone being injured. Accidents do not happen – they are caused. Caused because of FAILURE – failure to plan, supervise or perform work in a safe manner, failure of machinery or equipment. The ever increasing cost paid in pain and suffering is a burden all members of the community have to bear. The remedy is obvious. Keep thinking and acting SAFELY”.

27. Page 8 of the handbook at point 10 “Operating Plant, Equipment and Vehicles” stated that:

1. The Safe Work Australia Code of Practice Managing Risks of Plant in the Workplace August 2019 (the Code) provides practical guidelines to prevent injury to people when moving plant is in use on construction sites.

2. It is important to make an assessment each day if potential hazards associated with moving plant could be encountered during the construction work planned for the day.

3. Hazards can occur with plant when:

1. People are in the same work area as moving plant, including workers carrying out maintenance on plant.

2. Entry to the worksite during or after work is uncontrolled.

3. Plant is poorly maintained.

4. Plant is operated in the vicinity of overhead or buried electrical cables or buried gas mains.

5. The ground on which plant operates is not stable.

6. Operators attempt to use plant on a task for which the plant was not designed.

7. The load on the plant is unstable or unknown or exceeds the rated capacity of the plant.

8. Hazardous atmospheres are present (eg confined space).

28. Page 23 of the handbook at point 12 “Suspended Loads” stated:

“When plant is carrying suspended loads, do not pass under or work under the boom or lifting arm. Do not stand between the load and a solid object, where you could be crushed if the load should swing. Stand in a position where you are clearly visible to the plant operator.”

29. Mr Taylor was inducted to the site of Marthaguy Creek Bridge on 3 September 2020. Part of his induction stated, “SWMS to be read, understood and complied with”.

30. Murray’s Safe Work Method Statement for Loading and Unloading of Plant and Materials (the Unloading SWMS) stated the following measures to lessen the risk of being “struck by object: objects falling when unloading truck objects slung from crane”:

1. Materials and equipment stacked securely.

2. All personnel wear appropriate PPE where required (eye, foot, head protection).

3. Workers stand back while crane gradually takes load.

4. Personnel kept clear when lift is in progress.

5. Loads slung correctly.

6. Loads not slung over personnel.

7. Taglines are used to prevent loads swinging.

8. Exercise extreme caution.

9. Use tools in accordance with manufacturers operating and safety instructions.

31. The Unloading SWMS also required the following measures to lessen the risk of “Loading and Unloading procedures in designated areas”:

1. Where possible, as little as possible, reverse truck to load or unload.

2. Report to office before commencement of loading or unloading takes place.

3. The person who is responsible for lifting the loading or unloading operation must ensure the loading or unloading can be done in a safe environment.

4. Make sure there is a safe exclusion zone around the vehicle before loading or unloading commences.

5. Make sure area is clear of pedestrians and other unauthorised personnel.

6. Make sure load is evenly distributed along trailer when loading trailer.

7. Load binders, straps, chains and load dogs to be inspected before use.

Systems of Work Prior to the Incident

32. There were no systems in place to prevent persons falling from the beam while slinging the bucket to the hook of the crane.

33. There was no requirement that unstable loads, such as the bucket in this case, were to be secured to a crane before securing chains were released. The Unloading SWMS did not stipulate this.

34. The Safe Work Method Statement for General Crane Activities (the Crane SWMS) identified the risk of falling objects when unloading and required, “workers to stand back while crane gradually takes the load and personnel kept clear when lift is in progress”. The Crane SWMS also did not stipulate that loads are to remain secure until their weight is taken by the crane.

35. The Crane SWMS identified the potential hazard of falling loads and crushing injury and requires that, “Loads [are] not to be lifted over personnel. All personnel except dogman/rigger to keep clear until load positioned”.

36. Mr Street had been employed by Murray for about three years and in that time had been involved in loading and unloading trucks. He had slung loads in the past and was slinging loads on the day of the incident but did not have a high-risk work licence to carry out the dogging work required to perform such activity. It was known to Murray that Mr Street did not hold a dogging licence as required by: its own SWMS for Working at Heights; s 43 of the WHS Act; and cll 81 and 85, Sch 3 and Sch 4 of the Work Health & Safety Regulation 2017 (NSW) (the Regulation).

Steps Taken Following the Incident

37. Murray developed a safe system of work to finish unloading the semi-trailer in compliance with a Prohibition Notice issued to it by SafeWork NSW (SafeWork).

38. In compliance with an Improvement Notice, Murray reviewed its Unloading SWMS and found that it addressed the risks.

39. Murray held a toolbox meeting on 23 November 2020 in the Deniliquin yard in relation to loading and unloading trucks. The workers were instructed by Mr Jeremy Murray (a director of Murray) to make sure the crane is connected to the load before releasing the chains that are securing the load. All workers associated with loading and unloading operations were instructed to be in sight of the operator or otherwise out of the exclusion zone. Workers were also instructed to make sure they have a clear area free of any obstructions and trip hazards that would limit access and egress. Flagging or bollards were to be erected as per the process for loading or unloading plant and equipment. The Unloading SWMS was to be followed.

Guidance Material

40. Clauses 54 and 55 of the Regulation address managing the risks associated with objects falling on a person by providing a safe means of raising and lowering objects.

41. The Code states at pp 13-14 that unloading operations are frequently linked with deaths and injuries to workers, and that loads are to be lifted or suspended in a way that ensures the load remains under control during the activity.

42. The Safety Assist publication “Loading, Unloading, Exclusion Zones” dated November 2010 states at p 3 that if the truck driver ceases to be in the direct line of sight of the operator, then the activity should immediately stop and not resume until a direct line is re-established. The WorkCover NSW Fact Sheet “Safe Unloading and Loading of Trucks for Bulky Goods Retailers” dated September 2014 also states at p 1 that effective communication between the plant operator and driver should be used.

43. The WorkCover NSW Code of Practice “Moving Plant on Construction Sites” published in 2004 prescribes at p 13 that:

1. A person slinging a load must have a dogging certificate

2. When moving loads, consideration must be given to the stability of the load and the centre of gravity

3. The load must be safely controlled and secured.

Evidence for the Defendant

44. Mr Jeremy Stephen Murray affirmed an affidavit on 17 August 2023 (DX 1). He has been the managing director of Murray since 2017.

The Company

45. Murray is a family-run business founded in 1981 and incorporated in 1988. The company carries out bridge construction (including the manufacture of prestressed and precast bridge components), general construction, levee banks projects, demolition and asbestos removal. Murray has two directors, Mr Murray and his father Mr Stephen Murray.

46. Murray has employed up to 30 employees in the past but currently has 23 employees. Murray mainly employs labourers, dogmen, crane and excavator operators and truck drivers.

47. Murray holds the following qualifications and accreditations:

1. Triple certification from DLCS International for its Occupational Health and Safety Management System, Quality Management System and Environmental Management System.

2. Federal safety accreditation by the Federal Safety Commissioner.

3. Prequalified by Transport of NSW in bridge construction and manufacture of prestressed precast bridge components.

4. Demolition Restriction Licence issued by SafeWork.

Work Health and Safety Approach and Systems

48. In addition to the above listed qualifications, Murray has a full-time Quality Safety and Environment (QSE) officer who manages its safety systems and provides or organises safety training. The QSE officer is responsible for ensuring that all documentation and systems are kept up to date with regulations and accreditations. Mr Craig McDonald was the QSE officer from October 2018 to September 2020, Mr Jason Howell from December 2020 to December 2022 and Ms Margaret Byer since March 2023.

49. In April 2023 Murray employed a precast manager whose principal responsibilities include organising day-to-day operations in the precast yard and maintaining a safe environment.

Induction and Training

50. All employees are required to complete an induction package upon engagement with Murray. Employees are also required to read through the handbook issued by Murray and sign the back page stating that they have read and understood its contents. This is countersigned and retained by Murray. Mr Norris, Mr Street and Mr Taylor had completed the induction and signed the handbook acknowledgement page.

51. Mr Norris started at Murray as a casual labourer but was eventually promoted to a supervisor role. He received internal training and also obtained a dogman licence and crane licence, and qualifications in first aid, traffic control and working near overhead powerlines. Mr Norris went on personal leave following the incident and did not return to work. He resigned on 12 February 2021.

52. When a new project begins, the site is set up with safety signage, flagging, site safety rules, emergency equipment and contact numbers, an emergency assembly area, and toilet and hand wash facilities. A site library is also at the site, which contains current legislation, codes of practice, material safety data sheets, hazard reports, the project specific safety management plan, the project quality plan and the environmental management plan.

50. The work team then completes a site induction, which covers the measures listed in the previous paragraph. Safe Work Method Statements are read prior to any work commencing. There is also a form for team members to add any concerns relating to risks that they may have. Mr Norris, Mr Street and Mr Taylor all signed site induction forms.

Expenditure and Investment in Safety

54. Both prior to and post the incident, Murray has invested heavily in work health and safety. Some key investments and commitments include:

1. Mandating daily, rather than weekly, toolbox talks on all projects.

2. Safety focus in senior monthly management meetings, which is integrated into toolbox talks.

3. Addition of a Safe Work incident release to remind works of the consequences of not working safely.

4. Mr Murray and Operations Manager Mr John Offord attended the Wagga Motors Workplace Health and Safety Discussion in October 2022.

5. Using the Worx Induction App to share induction information, maintenance issues and toolbox talks with workers and provide Murray with real time data and sign in information.

6. Maintaining accreditation with DLCS International and OFSC.

The Incident

55. Mr Murray was not present when the truck was loaded by Mr Davies and Mr Greig Reid on 25 September 2020.

56. At 4.00pm on 27 September 2020 Mr Murray and Mr Taylor met at the Deniliquin yard to discuss the work for the next few days, which included unloading two trailers, staying the night in Warren and coming home.

57. Mr Murray arrived at the precast yard on 28 September 2020 at about 6.00am and Mr Taylor at 6.30am. At about 6.45am Mr Murray spoke to Mr Norris and Mr Street about the tasks to be completed at the site, which included the unloading of the two trailers, and reminded them of the necessary safety checks and procedures. Mr Taylor left for Warren at 7.30am.

58. At about 5.20pm Mr Murray was informed of the incident in a phone call from Mr Norris. Mr Murray advised him to call an ambulance and Mr Alex Martin, who was with Mr Murray at the time, also called an ambulance.

59. Mr Murray called his father to inform of the incident and then drove five minutes to his house to pack his bag before leaving to pick up his father. The two men left for Warren at about 5.40pm. About half an hour into the journey, Mr Murray was informed by Mr Norris that Mr Taylor had passed away.

60. Mr Murray and his father did not arrive in Warren until about 12.30am on 29 September 2020. They went first to the police station and then to the site. There was no one at either location so they went to Mr Norris and Mr Street’s motel. When they arrived, Mr Street was asleep. They spoke to Mr Norris and assured him that they would provide him and Mr Street with any support they required.

61. The next morning Mr Murray and his father returned to the site but again there was no one there. Later that morning Mr Murray’s father drove Mr Norris and Mr Street home.

Steps Taken Since the Incident

62. Following the incident:

1. Murray coordinated a group counselling session for all workers and encouraged workers to seek private sessions with the counsellor.

2. Mr Norris and Mr Street were also provided with ongoing professional support with doctor referrals, workers compensation claims and an injury management specialist.

3. Murray held a toolbox meeting on 23 November 2020 in relation loading and unloading trucks. The workers were instructed:

1. to ensure that the crane is connected to the load before releasing the chains securing the load.

2. to be in sight of the operator or otherwise out of the exclusion zone.

3. to ensure they have a clear area free of any obstructions and trip hazards that would limit access/egress.

4. flagging or bollards are to be erected as per the process for loading and unloading plant and equipment.

5. the Unloading SWMS is to be followed and toolbox meetings are to be held before commencing work.

63. Site inductions, safety inspection reports and SWMS forms are completed on every site to ensure adherence to Murray’s safety protocols.

64. The truck drivers all hold heavy vehicle licences and have completed training on heavy vehicles. Murray has conducted internal training on heavy vehicle regulations.

SafeWork

65. On 29 September 2020 Mr Murray met with Inspector Kevin Pile from SafeWork to discuss the incident and do a walkthrough of the site. Thereafter Murray was issued with a Non-Disturbance Notice and an Improvement Notice. On 30 September 2020 Inspector Madeline Christensen attended the site and did a walkthrough. Following Inspector Christensen’s visit, Mr Murray received an email from Inspector Pile releasing the site back into Murray’s control.

Aftermath of the Incident

66. Mr Murray stated, “I feel like we have done everything that we can to the point where it is up to the team on-site and the individual to take responsibility of their wellbeing and safety”. Mr Murray further stated that he does not understand why the workers “departed from proper safety practice”, particularly as Mr Norris told him after the incident that he “knew the bucket would fall”. These paragraphs in the affidavit were the subject of submissions which are considered below.

Brian Taylor

67. Mr Taylor had worked with Murray since June 2015 and was a valued family friend as well as employee. He was respected within the business, easy to get along with and always willing to help others. Mr Murray said that Murray “deeply regrets and sincerely apologises for the pain and heartache this incident has caused Brian’s wife, his children, his extended family and friends”.

68. Murray has assisted the family by checking in with Mr Taylor’s wife and daughter, providing assistance to Mrs Taylor with the process of engaging with workers compensation claims and injury management specialists, supporting funeral arrangements, and assisting with ongoing maintenance of Mrs Taylor’s property in Deniliquin.

Response to Prosecution

69. On behalf of Murray, Mr Murray accepted responsibility for not documenting the requirement that loads be supported by plant prior to releasing the load restraint devices and for not requiring Mr Street to have a dogging licence.

Further Supervisor Training

70. Mr Murray stated, “One of the issues that arose following investigation into the subject incident is that Sandy Norris (Supervisor) gave Brian Taylor an instruction not to undo the chains until the load was secured. The evidence of Sandy and Brody Street was basically that Brian did not hear or did not follow this instruction”. I will ignore this hearsay summary of statements made by persons not called as witnesses. I accept the submission of counsel for SafeWork that it is to be ignored because it conflicts with agreed facts.

71. Murray has arranged a two-day workshop to provide its supervisors with additional leadership and safety training. Murray intends to repeat these workshops in the future or provide refreshers to ensure a culture of safety.

Delay

72. Murray fully cooperated with the SafeWork investigation. When the prosecution was commenced in May 2022, Murray began liaising with SafeWork to enter into an enforceable undertaking. The application process was not finalised until December 2022. However, in January 2023 Murray received advice from counsel and soon thereafter Mr Murray gave instructions for Murray to offer a plea of guilty to certain particulars. This was eventually accepted by SafeWork.

Consideration

73. 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).

Objective Seriousness of the Offence

74. 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].

75. 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].

76. 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.”

77. 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].

78. 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.

79. 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.

80. 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.”

81. 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.”

82. 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.”

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

1. The risk was actually known by the offender and in any event was the subject of available guidance material.

2. The likelihood of the risk occurring was quite high. The photograph of the bucket precariously perched on top of the concrete beam (PX 1, Tab 6, p 14) shows that this was an accident waiting to happen, unless all appropriate precautions were taken.

3. The obvious potential consequences of the risk created by a 765kg irregularly-shaped bucket becoming unstable and falling 2.4 metres onto a worker were death or serious injury.

4. There were two available reasonably practicable steps to eliminate or minimise the risk, neither of which were taken by Murray.

5. There was no particular burden or inconvenience in these steps being implemented.

6. Mr Taylor died in the incident and Mr Street was seriously injured.

7. The maximum penalty for the offence is a fine of $1,766,130‬, which reflects the legislature’s view of the seriousness of the offence.

8. Mr Murray’s view (DX 2 pars 58 and 59), before the incident, that an experienced operator such as Mr Norris should have known what to do without proper safety documentation, and Mr Murray’s acquiescence to Mr Street carrying out dogging work without a licence, bespeaks a rather haphazard approach towards the duty imposed on Murray, which was to ensure safety: s 19(1) of the WHS Act.

9. The same can be said of Mr Murray’s view (DX 2 par 52) that Murray had done everything it could and it was then up to the team on site and the individuals to take responsibility for their own wellbeing and safety. The plea of guilty by Murray is the clearest indication possible that this view is not correct as Murray had not done everything it could. That statement by Mr Murray smacks of “victim blaming”.

84. I find that the level of culpability of Murray is in the mid range.

Deterrence

85. 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].

86. The penalty must reflect the need for specific deterrence. Murray is still conducting a business involving potentially dangerous activities. Its operations involve working with heavy machinery and heavy materials, and the continuing engagement of workers.

Aggravating Factors

87. Counsel for SafeWork submitted (MFI 1, par 24) that there was an aggravating factor to be taken into account, because the injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. Counsel for Murray disputed this (MFI 2, pars 14 and 17), submitting that SafeWork had not proved beyond a reasonable doubt that the contraventions by Murray played a causative role in the death and the injuries.

88. Section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 provides that where “the injury, emotional harm, loss or damage caused by the offence was substantial”, that is an aggravating factor to be taken into account in determining the appropriate sentence for an offence.

89. Counsel for Murray submitted that while by its plea of guilty Murray admitted the elements of the offence, one of which was that it exposed its workers to a risk of death or serious injury, the two reasonably practicable measures which it failed to take were administrative measures, and while they would have no doubt minimised the risk, they would not have eliminated the risk. In those circumstances it was submitted that the prosecution had not proved beyond a reasonable doubt that the death and the injury were “caused by the offence” as required by s 21A(2)(g).

90. In reply, counsel for SafeWork submitted that Murray had accepted that its breaches caused the risk, because par 16 of the Amended Summons pleaded:

“The fatal injuries sustained by Mr Taylor, and the injuries sustained by Mr Street, were manifestations of the risk.”

91. In entering a plea of guilty, Murray pleaded guilty to the elements of the offence. Those elements in an offence under s 19(1) of the WHS Act are:

1. The defendant owes a work health and safety duty.

2. The defendant has breached the work health and safety duty, by failing to take appropriate reasonably practicably measures.

3. The breach of duty exposed workers to a risk of death or serious injury.

92. The occurrence of death or injury is not an element of the offence, and thus a plea of guilty to the charge is not an acceptance that the creation of the risk has caused a death or an injury. The fact that a Summons contains a pleading such as par 16 in the present Amended Summons “does not and cannot elevate it to be an element of the offence”: SafeWork NSW v BSA Ltd (No. 2) [2023] NSWDC 73 at [368].

93. I therefore find that the SafeWork has not established the presence of the aggravating factor put forward in submissions.

Mitigating Factors

94. Murray has no prior convictions. This is an impressive record given the length of time it has been in business in a heavy and potentially dangerous industry: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

95. Murray is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. Murray has been in business for 35 years.

96. Murray is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

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

98. Murray entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give Murray a 25% discount for an early plea.

99. I find that Murray has not shown remorse for the offence. The word “remorse” is defined in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, which provides that remorse shown by an offender is a mitigating factor, but only if “the offender has provided evidence that he or she has accepted responsibility for his or her actions”.

100. The Court of Criminal Appeal has recently considered the concept of “remorse” as defined in the legislation in Brzozowski v R [2023] NSWCCA 129. At [58] the court said:

“Regret, which was expressed by the applicant, may be regret at the commission of the offence or regret as to the consequences of the offence. The kind of regret that is equivalent to remorse is a deep regret at the commission of the offence; not a regret as to its consequences.”

101. Mr Murray expressed regret for the consequences of the offence, as summarised in par 67 above (see DX 1, par 55). However, he did not express regret, on behalf of the offender, at the commission of the offence. I am reinforced in reaching that conclusion by taking into account the views of Mr Murray summarised in subpars 83(8) and (9) above (see DX 1, pars 52 and 58).

Capacity to Pay a Fine

102. 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.

103. 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.”

104. There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statements

105. The defendant was convicted at the sentence hearing on 22 August 2023.

106. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a).

107. By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence:

1. Any personal harm.

2. Any emotional suffering or distress.

3. Any harm to relationships with other persons.

4. Any economic loss or harm that arises from any matter referred to in (1) – (3) above.

108. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement – s 30D(1).

109. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1).

110. By s 28(2) a family victim in relation to an offence may prepare a Victim Impact Statement that contains particulars of the impact of the primary victim’s death on the family victim or other members of the primary victim’s immediate family. Members of a primary victim’s immediate family include children and grandchildren of the deceased – s 26.

111. A Victim Impact Statement of a family victim may also be taken into account by the court in connection with the determination of punishment for the offence, on the basis that the harmful impact of a primary victim’s death on family victims is an aspect of harm done to the community – s 30E(3). Such statements can only be taken into account on punishment if the prosecutor applies for this to occur, and the court considers it to be appropriate. In the present instance the prosecutor applied for this to occur and I determine that it is appropriate to take the statements into account.

112. The court received six written Victim Impact Statements from members of Mr Taylor’s family.

Victim Impact Statement of Libby Taylor (PX 2)

113. Ms Libby Taylor is the daughter of Mr Taylor. She read her statement aloud to the court.

114. Ms Taylor said that the day her father died was the worst day of her life. Along with her grief, she felt betrayed by the way Murray handled her father’s death. This was a sentiment shared in many of the Victim Impact Statements tendered. Ms Taylor now experiences syncope, sleep disturbances and nightmares as a result of the trauma from her father’s death. When it gets hard, she is saved by one of her father’s favourite sayings, “don’t put things off, you could be dead tomorrow”.

115. Ms Taylor portrayed Mr Taylor as a loving father and grandfather, and as a hard worker. Before her father’s death Ms Taylor and her family had planned to spend the school holidays with him in Deniliquin and build a cross country course together. It now breaks her heart to hear her daughter Isabelle say things like, “we should be doing this with Pa, he’d love this”.

Victim Impact Statement of Matthew Owen Taylor (PX 3)

116. Mr Matthew Taylor is the son of Mr Taylor. He read his statement aloud to the court.

117. Mr Mathew Taylor spoke of the inspiring effect his father had upon him and the social impact he had in the community. It was his father’s leadership qualities that motivated Mr Matthew Taylor to join the Defence Force. Mr Matthew Taylor also ran a domestic mechanical service business with his father which he can no longer sustain, placing him in financial hardship.

118. Mr Matthew Taylor described how the passing of his father has impacted what was previously a close family, causing a great deal of stress and money issues. Beyond the emotional and financial costs of his loss, Mr Matthew Taylor said that the unjust situation has brought into sharp focus some of the oversights that occur within government agencies.

Victim Impact Statement of Isabelle Sargent (PX 4)

119. Ms Isabelle Sargent is the granddaughter of Mr Taylor. She read her statement aloud to the court.

120. Ms Sargent was only 12 years old when her grandfather died. She called him “Pa” and he called her “Izzylu”. Ms Sargent said of her grandfather that he was “all about fun”. She spoke of their many adventures together and how many celebrations they had to look forward to. Together they were going to do up a car that he had bought for her.

121. Ms Sargent described the grief and hardship she suffered. Her grandfather’s death forced her to grow up quickly and be strong for her family who were also struggling. Particularly difficult for her was viewing her grandfather’s body at his funeral. Although it was hard, she is “made tough for Aussie conditions” as her grandfather used to say to her.

Victim Impact Statement of Alexa Taylor (PX 5)

122. Ms Alexa Taylor is the granddaughter of Mr Taylor. Her statement was read aloud to the court by her father Mr Matthew Taylor.

123. Ms Taylor described her grandfather as a “steadfastly reliable and an honest and kind man,” and as the “support that helped tie our family together when things got hard”. Ms Taylor wrote of her cheerful memories of her grandfather and the future plans they had made together, including one in which he would show her his top-secret fishing spots. She has spent many nights thinking about what they could have done together.

124. Her grandfather’s death has changed her confidence and outlook on life. She now sees everything that can go wrong in every setting. She is reminded of her grandfather every time she goes to the bush, sees a kookaburra, or hears someone talk about how Richmond is doing in the AFL.

Victim Impact Statement of Jennifer McFarlane (PX 6)

125. Mrs Jennifer McFarlane is the sister of Mr Taylor.

126. Mrs McFarlane wrote of the great relationship she had had with her brother and that she now has many sleepless nights thinking of the tragedy. She said she was denied closure over his death because she was not able to attend his funeral due to the COVID-19 lockdown. At the same time she was dealing with her father’s death. She described how it also impacted her mother, who died only a few months later, to lose her son.

127. Mrs McFarlane said that her brother was just starting to enjoy part-time retirement and his family. Family functions now have a huge hole without his fun-loving disposition.

Victim Impact Statement of Lynette Beaumont (PX 7)

128. Ms Lynette Beaumont is the ex-wife of Mr Taylor. She read her statement aloud to the court.

129. Ms Beaumont recounted the history of her relationship with Mr Taylor. They had met when she was only 16 years old and married the following year. They remained married for 24 years and had 2 children together. When Mr Taylor re-married, Ms Beaumont said the family just got bigger and they all celebrated every occasion together. She spoke of his creativity and the love and care he had for his family. Mr Taylor’s death has fractured the family relationship they once shared.

130. The impact of the death is one of devastation. She described her grief as primal to her core and said that she struggles with depression. Her sadness is worsened by the effect on her children and the family. Ms Beaumont said that when she first heard a kookaburra laughing following Mr Taylor’s death it was bizarre to hear anything laugh. Now all kookaburras are named “Brian”, the “King of the Bush”, and she and her daughter feel comforted by their presence.

131. Mr Taylor was a hard-working and conscientious employee of Murray. He was a loving and happy father, brother and grandfather. He was in many ways the linchpin of the Taylor family and is greatly missed by all. I will take into account these Victim Impact Statements in fixing a penalty.

Costs

132. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs.

Penalty

133. My orders are:

1. Murray Constructions Pty Ltd was convicted on 22 August 2023.

2. The appropriate fine is $600,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Murray Constructions Pty Ltd to pay a fine of $450,000.

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 Murray Constructions Pty Ltd to pay the prosecutor’s costs.

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Decision last updated: 31 August 2023