SafeWork NSW v Shaun David Scott Mehan

[2018] NSWDC 391

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Shaun David Scott Mehan [2018] NSWDC 391

Hearing dates:

21 November 2018

Date of orders:

13 December 2018

Decision date:

13 December 2018

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   The offender is convicted.
(2)   The appropriate fine is $30,000 but that will be reduced to $10,000 by reason of incapacity to pay and further by 25% to reflect the plea of guilty.
(3)   Order the offender to pay a fine of $7,500.
(4) Order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(5)   Order that each party is to pay its or his own 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 – appropriate penalty

SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty

COSTS – prosecution costs

Legislation Cited:

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

Cases Cited:

Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
Baumer v R (1998) 166 CLR 51;
Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37;
BW v R [2011] NSWCCA 176;
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610;
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; 93 NSWLR 338
R v Borkowski (2009) 195 A Crim R 1;
R v McNaughton (2006) 66 NSWLR 566;
R v Rahme (1989) 43 A Crim R 81 at 86
R v Thomson & Houlton (2000) 49 NSWLR 383;
R v Wilkinson (No. 5) [2009] NSWSC 432;
Veen v R (No. 2) (1998) 164 CLR;

Texts Cited:

SafeWork NSW Hazardous Manual Tasks Code of Practice, 2011

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Shaun David Scott Mehan (Defendant)

Representation:

Counsel:
M Cahill (Prosecutor)
Self-represented (Defendant)

  Solicitors:
SafeWork NSW (Prosecutor)

File Number(s):

2017/118289

Judgment

1. Mr Shaun David Scott Mehan (Mr Mehan) has pleaded guilty to an offence that as a person who had a health and safety duty under s 27 of the Work Health and Safety Act 2011 (the Act), to exercise due diligence to ensure that Sydney Mechanical & Air Conditioning Services Pty Limited (SMAC) complied with its duty under s 19(2) of the Act, he failed to comply with that duty and the failure to comply with that duty exposed Mr Kyle Stuart and Mr Matthew Picone 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 $300,000.

Background

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

4. SMAC was in the business of the supply, delivery, installation and service of air conditioning systems. Mr Mehan was the sole director of SMAC.

5. Located within the basement level of 55 Castlereagh Street, Sydney (the premises) was a restaurant and karaoke bar. The managing agent of the premises contracted SMAC to supply, deliver and install an Air Conditioning Unit (the unit) within the premises.

6. Mr Picone and Mr Stuart, respectively, were first and second year apprentices employed by SMAC. On 24 April 2015 Mr Stuart and Mr Picone were assisting Mr Mehan in the delivery of the unit to the basement of the premises for installation. The unit weighed approximately 525 kilograms. Mr Stuart and Mr Picone were working under the direction and supervision of Mr Mehan.

7. After arriving at the site, Mr Mehan held a toolbox meeting with Mr Stuart and Mr Picone, discussing how the unit was to be unloaded onto a dolly for delivery to the top of the stairs to the basement and how the unit was to be moved by the three men, manually, down the stairs to the basement. During the meeting, Mr Stuart and Mr Picone each signed a SMAC toolbox talk document and a Safe Work Method Statement regarding the installation of the unit.

8. Afterwards, Mr Mehan, Mr Picone and Mr Stuart manually transferred the unit onto a dolly. The three men then pushed the unit to the entrance hall of the building, sliding the unit off the dolly and to the top of the stairs.

9. Mr Picone then positioned himself behind the unit, while Mr Mehan and Mr Stuart went to the basement of the premises, climbed the stairs and positioned themselves on the stairs below the unit. From the top of the stairs, Mr Picone pushed the front of the unit onto and down the staircase. At the same time, Mr Stuart and Mr Mehan took the weight of the unit and pulled it onto the staircase from below.

10. Shortly after, Mr Mehan instructed Mr Picone to join him and Mr Stuart on the staircase below the unit. As instructed, Mr Picone made his way to the basement of the premises and then up the staircase on which Mr Mehan and Mr Stuart were supporting the unit from below, so that that all three men were positioned on the stairs below the unit.

11. Looking up the stairway from the basement of the premises, Mr Mehan was located to the right of the stairway below the unit. Mr Stuart was stationed to the left of the staircase below the unit and Mr Picone was stationed to the right. Because of the narrowness of the staircase, Mr Picone was stretching over Mr Stuart and Mr Mehan, to reach the unit.

12. Mr Mehan, Mr Picone and Mr Stuart then stepped backwards down the staircase while leaning upwards, resisting the weight of the unit. Approaching the bottom of the staircase, Mr Stuart was unable to sustain the weight of the unit, causing all three men to lose control of it.

13. The unit fell towards the bottom of the stairs. At the same time, the three men attempted to make their way to the bottom of the stairs without being struck by the unit. As Mr Stuart attempted to descend the stairs, with the unit falling down the stairs behind him, Mr Stuart was partially blocked by Mr Picone. Mr Stuart lost his footing and began falling towards the bottom of the staircase.

14. As the unit fell down the stairs behind him, the unit struck Mr Stuart, pinning his lower torso and legs on the staircase and the landing at the base of the staircase. The unit also pinched Mr Stuart’s right foot. Located at the bottom of the stairs was a doorframe. The downward movement of the unit was restrained by the door frame, preventing the unit from travelling through the doorway and into the basement of the premises. Mr Stuart sustained lacerations to his right foot and a partial de-gloving of his right heel. He returned to work at SMAC in late July 2015.

15. The task of transporting the unit down the stairs to the basement of the premises was a “hazardous manual task” as defined in cl 5 of the Work Health and Safety Regulation, 2011 (NSW) and also as defined in the SafeWork NSW Hazardous Manual Tasks Code of Practice, 2011 (Code) because:

1. the task required the use of “sustained force”, that is, the application of force continually for a period exceeding 30 seconds;

2. the task required the use of “high force”, that is the application of force by more than two persons;

3. the task required the use of sustained posture, that is each of the persons involved in moving the unit, manually down the stairs to the basement of the premises, was required to hold or keep his whole body in a prolonged posture for in excess of 30 seconds; and

4. the task required each of the workers to maintain an awkward posture whilst moving the unit, manually, down the staircase to the basement.

16. The Code is a code of practice approved pursuant to s 274 of the Act, and thus the Code is an “approved code of practice” for the purposes of s 275 of the Act.

17. As a consequence of the hazards inherent in the task of moving the unit to the basement of the premises manually, the Code required “team lifting” and/or “team handling” to have been adopted.

18. SMAC did not use any mechanical devices, plant or equipment that could have been used to reduce or eliminate the risks associated with manually handling the unit down the staircase to the basement. Nor did SMAC provide appropriate instructions and training to its workers in respect of the task at hand. SMAC did not conduct an adequate risk assessment.

19. Prior to the incident SMAC did have in place a safe work method statement (SWMS) in relation to the installation of the unit within the basement of the premises. However, the SMAC SWMS did not address the risks associated with the manual handling of the unit and, more particularly, the SMAC SWMS did not address the risks associated with the delivery of the unit, manually, from street level down the staircase to the basement of the premises.

20. SafeWork NSW issued an improvement notice to SMAC requiring it to, in consultation with workers, review and revise control measures associated with the tasks of manually removing or installing air conditioning units.

21. SafeWork NSW also issued a prohibition notice to SMAC requiring cessation of the practice of attempting to move the unit, or other such similarly sized units (which are also very heavy) without having a competent person assess how to lift/move the load, and using appropriate mechanical aids.

22. In compliance with the prohibition notice referred to above, SMAC engaged the services of Quantum Plant Maintenance to recover the unit from the base of the stairs and to deliver the unit into position for installation within the basement.

23. SMAC developed a revised SWMS for air conditioner unit replacement, which incorporated the use of mechanical aids, straps, trolleys and genie hoists for heavy loads and the elimination of unnecessary manual handling.

24. SMAC revised its system of work for moving items weighing over 80kg and also commenced using certified riggers to conduct risk assessments and to devise methods for the delivery of such units into position for installation on site.

The offender’s evidence

25. The offender first appeared at the sentence hearing on 25 September 2018. He was self-represented. He was directed to bring to court on 23 October 2018 two copies of all the documents which he wished to put before the court in relation to capacity to pay any fine and any other matter relevant to sentence. The offender appeared again for himself on 23 October 2018 and handed up copies of documents that he wished the court to take into account. These were formally marked and considered at the sentence hearing on 21 November 2018.

26. The offender provided a statutory declaration dated 22 October 2018. He said that he had no financial capacity to pay any fine handed out by the court. He had no assets and rising personal debts. He had not worked for six months and his business had failed. By the time of the sentence hearing on 21 November 2018 his company SMAC was in liquidation.

27. The offender said that his debts included $34,000 to St George Bank in relation to finance for a motor vehicle, $8,000 to St George Bank on a credit card and a personal loan from his parents of $31,000.

28. By a statutory declaration the offender accepted full responsibility for what occurred. He said that Mr Kyle Stuart was not just an employee at SMAC but remained one of his dearest friends. Mr Stuart continued to work for SMAC after the accident for three years and finished his air conditioning apprenticeship with the offender.

29. The offender tendered documents from St George Bank to prove the debts to it, and a statutory declaration from his mother to prove the private loan from his parents.

30. Mr Kyle Stuart provided a signed statement dated 22 October 2018. He said that he was a friend of the offender and remained so. The offender was most helpful to him during his recovery. He came to visit him in hospital many times and made daily telephone calls to see if he needed anything. Mr Stuart returned to light duties and said that the offender gave him time off to attend therapy for his foot, and drove him to these sessions.

31. Mr Stuart said that he finished his apprenticeship and remained good friends with the offender. They still catch up regularly.

32. The offender also tendered a signed statement by Mr Jonathan Gardner who was a mutual friend of the offender and Mr Stuart. Mr Gardner was aware of the financial decline of SMAC. He said that the offender had changed from a positive person, to one filled with regret and anxiety. He asked the court to take into account the mental anguish suffered by the offender, as a result of the injury he caused to Mr Stuart.

Consideration

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

Objective seriousness of the offence

34. 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].

35. 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].

36. 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].

37. 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.

38. 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; 93 NSWLR 338. His Honour Justice Basten at paragraph 34, under the heading ‘Assessment of Risk’ said:

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including:

(a)   the potential consequences of the risk, which may be mild or catastrophic;

(b)   the availability of steps to lessen, minimise or remove the risk; and

(c)   whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

39. Further at paragraph 42 his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

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

1. The risk was obvious. Manhandling a 525 kilogram unit down a steep staircase was an accident waiting to happen;

2. The offender failed to conduct an adequate risk assessment in order to identify reasonably foreseeable risks associated with workers manually lifting the unit down a set of stairs;

3. The offender failed to use any mechanical device, plant or equipment to reduce or eliminate the risks associated with manually handling the unit down the staircase;

4. The offender failed to adopt the practice of “team lifting” or “team handling” set out in the Code;

5. The offender failed to provide adequate instructions and training to its apprentice workers in relation to the task at hand;

6. The offender failed to provide a detailed SWMS which addressed the risks associated with the manual handling of the unit and the risks associated with manually delivering the unit to the basement via the staircase.

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

Deterrence

42. 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].

43. The penalty must reflect the need for specific deterrence. SMAC has since gone into liquidation. However the offender proposes to resume employment in the air conditioning industry.

Aggravating factors

44. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

45. The offender has no previous convictions: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.

46. The offender was otherwise of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. The steps which the offender took after the incident demonstrate this.

47. The offender is unlikely to re-offend: s 21A(3(g) of the Crimes (Sentencing Procedure) Act 1999.

48. The offender has good prospects of rehabilitation: s 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. SMAC through the offender, brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.

49. The offender has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has provided evidence that he accepts responsibility for his actions and has acknowledged that the injury to Mr Stuart was caused by his actions.

50. The offender 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 the offender a 25% discount for an early plea.

51. The offender gave assistance to law enforcement authorities: s 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

52. I am required to have regard to s 6 of the 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.

52. I am satisfied that the offender has provided evidence which has put his capacity to pay a fine in issue. The proper course is to assess the appropriate amount of a fine having regard to the gravity of the offence charged, and then reduce the fine to take into account the defendant’s means and impecuniosity – R v Rahme (1989) 43 A Crim R 81 at 86.

53. The evidence shows that the offender has been out of work for some time. His business has failed and his company has gone into liquidation. Because the offender represented himself, I gave him some latitude in putting material before the court. I formed the view that the offender was genuinely trying to assist the court and did not hold anything back. He told the court that he had not worked for the last 18 months and had been living off his own savings. He only had less than $4,000 left. He had been applying for work and hoped to start in three weeks time as an employee doing air conditioning, and earning $1,000 nett per week.

54. The offender submitted that any significant fine would mean that he would go into bankruptcy. That would be devastating for the offender who is trying to get back on his feet financially, and it would result in the prosecutor not being paid any fine or costs imposed by the judgment.

55. The prosecutor submitted that the appropriate course was first to reduce any proposed order for costs to take account of the impecuniosity of the defendant, and only after costs had been reduced, to reduce the fine to be imposed. The prosecutor submitted that where there is a real issue in relation to capacity of a defendant to pay combined costs and a fine, then the costs should be reduced, if appropriate to zero, so as to ensure that the fine to be imposed reflects the objective seriousness of the offence.

56. I propose to proceed in accordance with those submissions.

57. To reflect the objective seriousness of the offence, the appropriate fine would be $30,000. However, I take into account the extremely limited capacity of the offender to pay any fine and costs, and I take into account that the orders imposed should not be crushing, so as to prevent the offender getting back on his feet financially. The evidence referred to above shows that the offender is a genuine, worthwhile person who can hopefully put this event behind him and get on with the rest of his life.

58. I therefore propose to order that each party pay its or his own costs. While the appropriate fine to reflect the objective seriousness of the offence is $30,000, I propose to reduce this to $10,000. That amount will be further reduced by a 25% discount for the early guilty plea, so in the end result the penalty will be a fine of $7,500, with each party to pay its or his own costs.

Penalty

60. I make the following orders:

1. The offender is convicted.

2. The appropriate fine is $30,000 but that will be reduced to $10,000 by reason of incapacity to pay and further by 25% to reflect the plea of guilty.

3. Order the offender to pay a fine of $7,500.

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

5. Order that each party is to pay its or his own costs.

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Decision last updated: 13 December 2018