SafeWork NSW v ProjectCorp Australia Pty Limited

[2017] NSWDC 169

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v ProjectCorp Australia Pty Limited [2017] NSWDC 169

Hearing dates:

13 June 2017

Date of orders:

22 June 2017

Decision date:

22 June 2017

Jurisdiction:

Criminal

Before:

Judge D. Russell

Decision:

(1) The offender is convicted.
(2) I impose a fine of $90,000.
(3) I order pursuant to Section 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 $15,000.

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 – parity principle – appropriate penalty

SENTENCING PRINCIPLES – parity – totality – remorse – contrition – appropriate penalty

COSTS – prosecution costs

OTHER – need for clear prohibition on operating machinery in an unsafe manner – need for supervision to ensure machinery is not operated in an unsafe manner

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;
Green v R [2011] HCA 49;
DPP v Gregory [2011] VSCA 145;
Jimmy v R (2010) 77 NSWLR 540;
Markarian v R (2005) 228 CLR 357;
WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316;
Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125;

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor);
ProjectCorp Australia Pty Limited (Offender)

Representation:

Counsel:
Ms P. McEniery (Prosecutor);
Mr M. Cahill (Offender)

 

Solicitors:

  SafeWork NSW (Prosecutor)
Holman Webb Lawyers (Offender)

File Number(s):

DC 2014/249992

Judgment

1. ProjectCorp Australia 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 Kieran Dodge 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.

Facts

3. The parties presented an Agreed Statement of Facts which can be summarised as follows.

4. The offender was a business that delivered specialised and complex construction works of ranging types and values, including design and construct, construct only and construction management works, to a variety of sectors in the construction industry. The company NMK Pty Limited (NMK) was in the business of providing contract hire, underpinning, shoring systems, excavation and demolition services to the construction industry.

5. On 26 August 2013 Mr Kieran Dodge was operating a Hyundai Excavator 210LC7 at the construction site of a block of residential units at 24 Tryon Road, Lindfield (the site). The offender was the principal contractor at the site. NMK was contracted by the offender to perform excavation and demolition works. Laison Earthmoving and Plant Hire Pty Limited (Laison) was contracted by NMK to provide labour for the demolition and excavation works at the site. Mr Dodge was employed by Laison as a machine operator.

6. At about 11.30am on 16 August 2013 Mr Dodge was operating the excavator close to the back of the site, loading soil, reinforced concrete blocks and rubble into trucks. While operating the sifting bucket of the excavator, a piece of steel reinforcing bar flew into the open cabin of the excavator and pierced Mr Dodge’s skull. An x-ray taken at Royal North Shore Hospital indicated that the bar penetrated the frontal bones, extending 85mm, lying above the orbital plates with a depressed fracture of the superior orbital plate.

7. At the time of his injury Mr Dodge was operating the excavator with the glass front screen of the excavator locked open into a fixed position on the roof. This meant that there was no protection whatsoever between himself and the front of the excavator.

8. Mr Dodge spent two weeks in hospital. In the process of removing the piece of bar from his forehead, hospital staff also had to remove a piece of his forehead. Due to the chances of seizure, he was unable to drive a vehicle for six months. He suffers from a permanent loss of both smell and taste. However, he has returned to work.

9. The excavator was owned by NMK. It had an enclosed cabin. The front safety window of the excavator was made of glass which complied with Australian Standard AS/NZS 2080:2006 Safety Glazing for Land Vehicles.

10. The Operator’s Manual for the excavator was located in its cabin. The manual specified under the heading “Protection against Falling or Flying Objects”, the following:

“Be sure to close the front window before commencing work.”

11. At the time of the incident SafeWork Australia’s Managing the Risks of Plant in the Workplace Code of Practice July 2012 was in force and applicable to the work being performed at the site. A Hazard Checklist outlined at Appendix B in the Code identified that a risk associated with using plant is that persons can be injured coming into contact with flying objects. Part 3.3 of the Code provides:

“Supervisors should take action to correct any unsafe work practices associated with plant as soon as possible, otherwise workers may think that unsafe work practices are acceptable.”

12. Australian Standard AS2601-2001:The Demolition of Structures provides at 1.8 1(b) that:

“All plant and equipment used on the demolition site shall be used and maintained as recommended by the equipment’s supplier and/or manufacturer.”

13. NMK had a Site Specific Safe Work Method Statement entitled “Bulk and Detail Excavation” dated 20 April 2013 (the NMK Statement). Item 13 said: “All plant to be used in accordance with manufacturer’s operating instructions and load limits”, that “adequate competent supervision” is to be provided and that bobcats are “never” to be started “unless all safety guards are in place”.

14. On 13 June 2013 NMK prepared a Site Specific “OHS Policies and Procedures for ProjectCorp Australia Pty Limited”. Part 15.0 provides:

“NMK Pty Ltd will ensure that, if safety features or warning devices are incorporated into plant, the features or devices are used as intended.”

15. On 24 July 2013, by way of a Safe Work Method Statement Checklist, ProjectCorp accepted NMK’s “Bulk and Detail Excavation Statement”.

16. The NMK Statement was signed by Mr Dodge on 25 July 2013.

17. ProjectCorp’s “Site Safety Rules for Workplace Health and Safety Hazard Based Environments, Revision A”, dated 28 December 2012, under the heading “Working with Plant”, relevantly provided:

“All plant and equipment brought onto site is to be guarded to prevent worker injury from moving and rotating parts, crush and nip points and materials that may be given off during the use of the item.”

18. Mr Dodge had been trained by his employer Laison to keep the window of the excavator closed at all times.

19. In a Record of Interview with SafeWork NSW Inspectors on 6 September 2013, Mr Garth Caldwell, the ProjectCorp Site Supervisor said:

“I noticed this morning he was loading with the window on and again, in between everything going on, on site, I didn’t take much notice after that…”

20. Both counsel agreed that I should proceed on the basis that Mr Caldwell had not seen Mr Dodge operating the excavator with the front window open. There is no evidence that Mr Caldwell knew that the excavator was being operated with the window open, or that he knew that Mr Madden had seen this and ignored it.

21. Mr Jonathan Madden was the NMK site supervisor who was also present at the site. On several occasions leading up to the incident Mr Madden had observed Mr Dodge operating the excavator with the window open. On those occasions Mr Madden failed to instruct Mr Dodge to close the window. In a Record of Interview with SafeWork NSW Inspectors on 12 September 2013 Mr Madden said:

“It is his choice to open the window and he had the window open on previous days.”

22. ProjectCorp failed to ensure that Mr Dodge was provided with a specific instruction that the excavator was to be operated with the front window closed.

23. ProjectCorp failed to ensure that the work health and safety policies for the site were enforced at the time of the incident.

The Offender’s Evidence

24. Mr Cahill read the affidavit of Mr Tim John Bigeni sworn on 8 June 2017. Mr Bigeni was present at the sentence hearing but was not required for cross-examination.

25. Mr Bigeni is the sole director of the offender. He graduated from the University of Technology Sydney in 1995 with a Bachelor of Science in Building and Construction Management. He worked part-time in the construction industry during his studies at university and since graduation has worked full-time in the industry. He started the company ProjectCorp in about May 2001.

26. The offender is a licensed building company and is an approved building contractor with the Department of Public Works and Services for contract works up to $1,000,000. The offender has been a member of the NSW Master Builders Association since 2001. It is externally accredited by Best Practice with an integrated management system for Work Health and Safety, Quality Assurance and Environmental Management to the current Australian Standards.

27. The offender has never been prosecuted by SafeWork NSW or been issued with any Improvement Notices by SafeWork NSW. The offender employs three full-time staff and uses various sub-contractors and labour hire companies to perform physical works on site.

28. The NMK Site Specific Safe Work Method Statement dated 20 April 2013 specified that excavators had to be operated in accordance with the Operators Manual.

29. Mr Dodge was inducted onto the site on or about 5 August 2013 and he attended numerous toolbox talks on the site. He signed a completed induction form on 5 August 2013.

30. Mr Bigeni, on behalf of the offender, apologised for the incident and for the breach of the Act. In his affidavit Mr Bigeni acknowledged the risk of Mr Dodge being struck by demolished material while operating the excavator with the front window open and said that this should have been addressed by operating the excavator in accordance with the Operators Manual, in particular, ensuring that the front safety window was closed.

31. Mr Bigeni acknowledged on behalf of the offender that the failure to identify and address the risk of being struck by demolished material resulted in the incident in which Mr Dodge sustained serious personal injury.

32. Mr Bigeni deposed that the offender is and always has been committed to safety and understands the importance of the need to comply with the Act and related legislation and codes.

33. Following the incident the offender took the following steps:

1. On 16 August 2013 an Incident Investigation Report was completed by Mr Caldwell. Suggested corrective reaction was to review Safe Work Method Statements and conduct toolbox talks with site personnel regarding correct procedures including manufacturer’s recommendations for operating methods of an excavator on site.

2. Counselling services were offered to employees who were on site when the incident occurred.

3. A complete Risk Assessment Review was conducted of all Safe Work Method Statements for the site. Toolbox meetings with all staff were held, regarding the incident and the need to operate machinery in accordance with operating instructions and directions from management.

4. On 20 August 2013 the offender engaged the Master Builders Association to undertake an external safety audit and risk assessment at the site. This resulted in a report with a number of recommendations, which were acted upon.

5. On 23 August 2013 the offender held a training session to review the work health and safety systems, procedures and forms with all staff.

6. On 8 October 2013 the offender facilitated further work health and safety training for all staff.

34. Mr Bigeni deposed that since the accident:

1. It has been a condition of all the offender’s sites that all excavation works carried out must be done with the cabins of the excavators being enclosed at all times, regardless of the task.

2. The offender has maintained its certifications with Best Practice Certification for meeting the Standards for Quality Management, Environmental Management and Occupational Health and Safety Management Systems.

35. The offender has assisted and co-operated with SafeWork NSW (formerly WorkCover NSW) in relation to the investigation and has provided all documents requested.

36. The offender continues to provide its management and supervisory staff with ongoing instruction and training, and undertakes regular reviews of its WHS management systems and performance.

Consideration

37. 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

38. 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].

39. 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].

40. 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].

41. 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.

42. The risk in this case was certainly foreseeable. The risk was one of serious injury or death.

43. The serious injuries to Mr Dodge are relevant to the objective seriousness of the offence.

44. The measures required to obviate the risk were simple and did not involve any cost to implement.

45. I find that the objective seriousness of the offence is in the low range.

Deterrence

46. 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].

47. The penalty must reflect the need for specific deterrence. The offender continues to operate in a high risk industry, and while the amount of work it does has declined in recent years, it still works on a large number of sites where many workers are exposed to potential risks if there is a breach of the Act. The penalty imposed must reflect the need for the offender to be proactive in identifying situations when this may occur and devising ways to avoid the risks involved.

48. The offender’s response to this incident has been thorough and conscientious. The offender has taken considerable steps to improve its safety systems and the level of supervision on its sites. The offender has demonstrated its remorse through its plea of guilty and the statement of Mr Bigeni to that effect in his affidavit.

Aggravating Factors

49. The injury and damage caused to Mr Dodge by the offence was substantial: Section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. While Mr Dodge has been left with serious disabilities, as counsel for the prosecutor correctly put it, he was incredibly lucky not to have been more gravely injured or even to have died in this accident. The photographs which were tendered showing Mr Dodge being attended to at the scene by Ambulance officers, with the steel bar embedded in his forehead, speak volumes in this regard.

Mitigating Factors

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

51. The offender was of good character: Section 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999.

52. The offender has good prospects of rehabilitation: Section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Mr Bigeni gave detailed evidence of the steps which have been taken since the offence, which started almost immediately. The offender has put in place improvements to its procedures so that in documents relating to current sites, there is a clear plain English statement that excavators and other similar equipment must only be used with all windows closed and guards in place. Further, the offender has taken steps to improve the supervision administered on its sites, to ensure compliance with the Act and all Regulations and Codes. These all demonstrate that the offender is rehabilitated, at least in respect of the offence committed on the facts of this case. Counsel for the prosecutor did not dispute this.

53. The offender has shown remorse for the offence by accepting responsibility for its actions and acknowledging that the injuries were caused by its actions: Section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender offered counselling to all workers on the site at the time. Further, Mr Bigeni expressed, on behalf of the offender, remorse for the commission of the offence and the injuries suffered by Mr Dodge. I regard that remorse as genuine.

54. 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. The original Summons in this matter was filed on 25 August 2014. The plea of guilty was not entered until 24 April 2017. Counsel for the offender submitted that this should be regarded as an early plea of guilty and that submission was not disputed by counsel for the prosecutor. Counsel for the prosecutor in her written submissions on sentence set out the procedural history of the matter. Prior to entry of the plea there were “lengthy negotiations between the prosecutor and ProjectCorp regarding an enforceable undertaking that were ultimately unsuccessful”. I accept that the plea of guilty was, in the scheme of things in this case, entered at an appropriately early stage. Further, there was never any intention expressed to do anything other than plead guilty. The offender co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10%-25%, but that is only a guide. The primary consideration in determining where in the range a particular case should fall is the timing of the plea, so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

50. 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.

51. Finally, the offender’s moral culpability for the offence is reduced. The offender did have in place a system which could have prevented the incident, and it had a commitment to safety and a good record which indicated the steps which it had taken to comply with its health and safety duty. What the offender lacked was a plain English direction to the operator of any excavator to have the safety window closed at all times, and to have appropriate supervision to detect any breach of that requirement for working on the site. The offender’s departure from the standard expected of a responsible and safe person conducting a business or undertaking was not substantial.

Parity

57. NMK was also prosecuted for a breach of its health and safety duties arising under Section 19(1) of the Act, relating to the same incident in which Mr Dodge was injured. On 13 April 2015 NMK pleaded not guilty to the offence, but on 9 September 2015 it informed the prosecutor that it changed its plea to guilty. On 23 September 2015 NMK was convicted of the offence and sentenced by his Honour Judge Curtis to pay a fine of $120,000 (after a 20% reduction in penalty for an early plea). NMK was also ordered to pay the prosecutor’s costs of $35,000. In this case the prosecutor accepts that the culpability of NMK was greater than the culpability of ProjectCorp. Mr Dodge was operating an excavator owned by NMK. The site supervisor of NMK, Mr Madden, had been aware that Mr Dodge had operated the excavator on occasions in the recent past with the window open, but had not instructed him to close the window. NMK thus failed to ensure that its own policies and procedures were followed. However, the offender was the principal contractor on the site.

58. The parties to this case were in agreement regarding the principles applicable to enable the sentence given to NMK to be considered.

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

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

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

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

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

63. I find that the appropriate sentence, once I take into account the lesser culpability of the offender and the parity principle, is a fine of $120,000.

Capacity to Pay a Fine

64. 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.

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

Penalty

66. The offender is convicted.

67. The appropriate fine is $120,000 but that will be reduced by 25% to reflect the plea of guilty.

68. I impose a fine of $90,000.

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

70. I order the offender pay the prosecutor’s costs as agreed in the sum of $15,000.

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Decision last updated: 07 July 2017