SafeWork NSW v Travis Brown

[2017] NSWDC 337

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Travis Brown [2017] NSWDC 337

Hearing dates:

16 November 2017

Date of orders:

24 November 2017

Decision date:

24 November 2017

Jurisdiction:

Criminal

Before:

Judge D. Russell

Decision:

In relation to the offence under s 19(1) of the Work Health and Safety Act 2011:

 

(1)   The offender is convicted.
(2)   Order the offender to pay a fine of $60,000.
(3)   Order that 50% of the fine is to be paid to the prosecutor.
(4)   Order the offender to pay the prosecutor’s costs agreed in the sum of $21,455.88.

 

In relation to the offence under s. 38(1) of the Work Health and Safety Act 2011:

 (1)   The offender is convicted.
(2)   Order the offender to pay a fine of $1,500.
(3)   Order that 50% of the fine is to be paid to the prosecutor.

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

  OTHER – fall from height – need for risk assessment – need for falls prevention system

Legislation Cited:

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

Cases Cited:

Veen v R (No. 2) (1998) 164 CLR;
R v McNaughton (2006) 66 NSWLR 566;
Baumer v R (1998) 166 CLR 51;
BW v R [2011] NSWCCA 176;
R v Wilkinson (No. 5) [2009] NSWSC 432;
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610;
Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37;
R v Thomson & Houlton (2000) 49 NSWLR 383;
R v Borkowski (2009) 195 A Crim R 1;
Jahandideh v R [2014] NSWCCA 178;
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338

Texts Cited:

Managing Risks of Falls at Workplaces
National Code of Practice For The Prevention of Falls in General Construction

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Travis Brown (Defendant)

Representation:

Counsel:
Ms P. McEniery (Prosecutor)
Mr B. Taylor (Defendant)

  Solicitors:
SafeWork NSW (Prosecutor)
Australian Business Lawyers & Advisors (Defendant)

File Number(s):

2016/3172452016/317261

Judgment

1. Mr Travis Brown (the offender) has pleaded guilty to an offence that being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (the Act) he failed to comply with that duty and thereby exposed Mr Ian Dodemaide 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.

3. The offender has also pleaded guilty to an offence that being a person conducting a business or undertaking, he failed to ensure that the regulator SafeWork NSW was notified of a notifiable incident immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking had occurred, contrary to s 38(1) of the Act.

4. The maximum penalty for the offence is a fine of $10,000.

BACKGROUND

5. The prosecutor tendered a joint signed Statement Of Facts and a Prosecution Sentence Tender Bundle which form the basis of the background set out below.

6. The T & C Brown Family Trust (the Trust) was established by a Deed of Trust dated 1 June 2010. The trustees of the Trust at the time of the incident were the offender and Carinda Brown.

7. Travcar Pty Ltd became the corporate trustee of the trust on 16 May 2016.

8. The Trust traded as Browns Engineering and the business name “Browns Engineering (Echuca-Moama)” was registered on 31 May 2010.

9. The offender, as a trustee of the Trust conducted a business or undertaking, being the manufacture of house boats and general steel fabrication work at a workshop at Lot 73, Graham St, Moama, New South Wales (the site).

10. At all material times, Mr Ian Dodemaide was employed as a steel fabricator by the Trust. He commenced full time employment with the Trust on 21 October 2013. The main duties of Mr Dodemaide included the manufacture of house boats and general steel fabrication work such as wall frames, roof trusses and pontoons.

11. Mr Dodemaide was qualified as a first class sheet metal worker and also held a forklift and Elevated Work Platform (EWP) licence. Mr Dodemaide did not have any formal qualifications as a roofer. He had undertaken roof sheeting work for other employers and had some experience in this type of work in the past.

12. Mr Dodemaide was provided with work health and safety information and training when he commenced employment in 2013 in the form of verbal instruction including general induction and training on all equipment and machines he would be operating. No formal records of this training were kept. Mr Dodemaide was not provided with any training in relation to working from heights.

13. Both the offender and Mr Quinton Burke generally supervised all employees including Mr Dodemaide.

THE INCIDENT ON 11 FEBRUARY 2015

14. On the day of the incident the offender attended the workplace at around 7:00 – 7:30am however at around 9:30 – 10:00am he and his wife left to attend a funeral.

15. From about 5 February 2015, Mr Dodemaide volunteered to work on a new extension to the workshop on the site known as the storeroom or compressor room (the room). This work was in addition to his usual paid duties.

16. The work to the room undertaken by Mr Dodemaide involved cladding the walls. The roof to the room also needed to be framed and clad with a combination of roof sheeting and skylight panels. That roof, when installed, was to be at a height of approximately 4 metres from the ground.

17. On 10 February 2015 another worker employed by the Trust, Mr Quinton Burke, had commenced roofing the room by installing two roofing sheets. A Genie scissor lift was used by Mr Burke to access the roof internally and to install the roofing sheets.

18. Mr Burke did not have any formal qualifications or professional experience in roofing. While undertaking the roofing work on 10 February 2015 and using the Genie scissor lift Mr Burke was not provided with and did not use a safety harness or other fall prevention equipment.

19. On 10 February 2015, the offender was aware that Mr Burke had commenced the roofing work in the form of framing and baton work to the room and that he was not using any safety harness or other fall protection equipment.

20. At about 11 am on the morning of 11 February 2015, Mr Dodemaide was asked by Mr Burke to complete the roofing to the room. Mr Burke was the informal supervisor of the workshop at the time, as the offender was not at the site.

21. Mr Dodemaide was not provided with any fall prevention systems such as a fall harness or safety mesh for use while completing the roofing work.

22. At approximately 3.30pm, Mr Dodemaide commenced the task of installing roof sheeting and skylight panels to the room. To undertake the roofing work Mr Dodemaide used the Genie branded scissor lift to access the roof from inside the room and convey the roofing sheets up to the roof. In order to secure the roofing sheets, he climbed out of the scissor lift.

23. Mr Dodemaide was out of the scissor lift and attempting to screw an iron roofing sheet in place when the sheet slipped sideways which exposed an opening in the roof. Mr Dodemaide fell approximately 2.8 metres through the opening in the roof of the workshop, onto a compressor and from there another metre onto a concrete floor. Mr Dodemaide lost consciousness momentarily as a result of falling from the roof.

INJURIES

24. Mr Dodemaide sustained serious injuries as a result of falling approximately 2.8 metres through the roof of the workshop, onto a compressor and from there another metre onto a concrete floor. The injuries included five fractured ribs, a punctured lung and fractures at the L1 and L2 vertebrae. He was taken by ambulance to Echuca Hospital where he received treatment including pain control, x-rays and CT scans. He was then airlifted to the Alfred Hospital, Melbourne and remained there as an inpatient for 14 days.

25. Mr Dodemaide has returned to work however he still experiences pain with his back and his hip as a result of the fall. As part of his injury management plan he attends physiotherapy and takes medication for the pain as a result of his injuries.

FAILURE TO NOTIFY THE REGULATOR

26. “Notifiable incident” is defined in s.35 of the Act and includes “a serious injury of a person”. That phrase is defined in section 36 of the Act and relevantly includes an injury requiring the person to have immediate treatment as an in-patient in a hospital.

27. Mr Burke was present at the site when Mr Dodemaide fell through the roof and onto the concrete floor. In addition to calling the ambulance Mr Burke contacted the offender and advised him of the incident.

28. The offender stated that he did not notify the incident to SafeWork (then Work Cover NSW) as he notified the insurer and believed WorkCover had also been notified as a result.

29. The regulator was not notified about the incident, until 11 May 2015. SafeWork NSW was not notified by the offender or the other trustee Carinda Brown.

SYSTEMS OF WORK

30. At all material times, clause 78(1) of the Work Health and Safety Regulation 2011 (WHS Regulation), required the offender, as a person conducting a business or undertaking to manage risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person.

31. At all material times, clause 79 of the WHS Regulation required the offender to minimise the risk of a fall by providing adequate protection against the risk by providing and maintaining a safe system of work including by either:

1. providing a fall prevention device;

2. providing a work positioning system; or

3. providing a fall arrest system.

32. At all material times clause 299 of the WHS Regulation required the offender to ensure that a safe work method statement for high risk construction work be prepared before high risk construction work is commenced.

33. On and prior to the day of the incident, the systems of work at the site for working from heights were unsafe as the offender:

1. did not have any documented systems, policies or procedures in place for working from heights generally, including the safe use of the Genie scissor lift.

2. did not have any documented systems, policies or procedures in place for high risk construction work, being construction work that involved a risk of a person falling more than two metres;

3. did not conduct any formal toolbox meetings with staff to discuss work health and safety issues.

34. The offender allowed workers to use the Genie scissor lift and undertake construction work involving working from heights on the roof of the room without requiring those workers to acquire any training competencies including the use of fall prevention systems.

35. The offender failed to provide workers who were using the Genie scissor lift that involved working from heights with any fall prevention devices or fall arrest systems.

36. Prior to the roofing of the room being undertaken, no documented risk assessments were conducted by the offender or any other worker for the task of installing the roof sheeting to the room.

37. The task of installing roofing sheeting on a building had not been undertaken by the offender or his workers at the site prior to the construction of the extension to the workshop. This type of roofing work was not a normal part of the duties of either Mr Burke or Mr Dodemaide. Neither Mr Dodemaide nor his supervisor at the time, Mr Burke, had any specific training in relation to it.

38. On 11 February 2015, Mr Dodemaide was not adequately supervised while undertaking the roofing work to the room. Mr Burke was responsible for supervising Mr Dodemaide, however he allowed Mr Dodemaide to work on his own at a height of approximately 4 metres without any safety equipment. The supervision of Mr Dodemaide while he was conducting the roofing consisted of Mr Burke checking his progress occasionally.

Codes of Practice & Guidance Material

39. SafeWork Australia’s Code of Practice, ‘Managing Risks of Falls at Workplaces’, March 2015, sets out what steps are reasonably practicable to avoid the risk of a fall from heights. Examples include:

1. conducting an adequate risk assessment with respect to employees working at heights upon the premises;

2. providing employees with adequate fall prevention systems at the premises including:

1. fall arrest harnesses;

2. guard railing;

3. safety mesh.

3. providing and enforcing a safe work method statement in relation to working at heights;

4. providing adequate information, instruction and training to employees in relation to working at heights;

5. providing adequate supervision to employees with respect to working at heights.

40. While this Code was not in force at the time of the incident, there was no objection to it being received into evidence to demonstrate the reasonably practicable steps which could and should have been taken.

41. The National Code of Practice For The Prevention of Falls in General Construction, issued in April 2008 and published by SafeWork Australia was in force and was applicable to work performed at the site.

42. The offender failed to ensure so far as reasonably practicable the health and safety of workers engaged by him as a trustee for the Trust in that he failed to adhere to the regulations and codes of practice as outlined above.

43. The failures by the offender exposed workers, including Mr Dodemaide, to a risk of serious death or injury as a result of a fall from height. The risk was obvious, identifiable and foreseeable.

44. The risk of Mr Ian Dodemaide, an untrained employee, who was not provided with any safety equipment, falling off the roof while sheeting it, could have been eliminated at little cost by the offender engaging an appropriately qualified roofing contractor to perform the job.

45. The cost of providing appropriate fall protection systems, including a fall harness, would have also been minimal for a business that was then regularly requiring its workers to work from heights while undertaking their usual duties of working on houseboats.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

46. On 27 May 2015, an Inspector from SafeWork NSW inspected the site. The Inspector observed the workshop area where the incident occurred, and the roofing structure in the room which was comprised of roofing support beams and battens constructed of galvanized box sections. Safety mesh wiring was installed under the roof sheeting and skylight panels. The safety mesh was not installed in accordance with the manufacturer’s specifications. The safety mesh was cut short, not properly tied and joining cleats had not been installed.

47. As the safety mesh was not installed below the roof sheeting in accordance with manufacturer’s specifications, a verbal direction was given by the Inspector to sign the roof internally and externally indicating that the safety mesh was not installed properly and that it was unsafe.

48. As a result of the incident SafeWork NSW took enforcement action issuing prohibition notices and improvement notices in order to minimise the risks associated with working from heights at the site.

49. In response to the enforcement action the offender was required to take a number of actions and has:

1. redesigned the method of construction of the houseboats to minimise the working at heights risk involved when building houseboats on the site;

2. consulted with workers through toolbox and safety talks;

3. completed a health and safety course along with two other workers;

4. implemented logbooks for the use of the Genie scissor lift and a forklift.

THE EVIDENCE FOR THE OFFENDER

50. The evidence for the offender came from the affidavit of Mr Brown sworn 16 November 2017. His evidence in relation to the system of work in place before the incident and improvements to that system since the incident, has been summarised above.

51. The offender purchased the business, Brown’s Engineering (the business), and its associated site/workshop from his father in the period 2010 to 2011. This was funded through a mortgage with the Commonwealth Bank. The business and site were then owned by a family trust known as the ‘T & C Brown Family Trust’. The offender and his wife were both trustees at the time of the incident.

52. When the offender took over the operation of the business the formal work place systems in effect were quite limited. Much of the plant and equipment used was old, out-dated and did not meet current safety standards. Due to the need to modernise plant and equipment the business has operated on a reduced profit since the offender took over its operation in 2010.

53. The offender had worked in the business with his father for 13 years prior to taking it over. The business currently operates as a general steel fabrication business and also manufactures made-to-order houseboats. It presently employs 7 people, including the offender.

54. The offender is a qualified boilermaker but otherwise has no formal qualifications. In 2016 he drew a taxable income of $20,000 from the business. His wife was paid $5,000.

55. The couple have a Macquarie Bank home loan of $796,000, on which they pay interest only of approximately $3,000 per month. They pay $12,000 per annum for their children’s schooling. How those expenses were funded on a joint income of $25,000 was not explained.

56. The offender employed Mr Dodemaide on 21 October 2013. At the time his employment commenced, no formal training or induction processes were in place, nor were there any formal health and safety policies, procedures or systems. The offender said that he was reliant upon the general training and trade qualifications of the persons he employed, and gave Mr Dodemaide oral instruction only. Mr Dodemaide was employed only to undertake general metal fabrication work associated with houseboat and other metal fabrication production tasks, such as welding, grinding, cutting and folding of metal. Mr Dodemaide was never employed by the offender to undertake roofing work.

57. The offender was aware that Mr Dodemaide had a qualification to use a scissor lift, but did not expect him to be required to use it. It was used infrequently before the accident, and has since been sold.

58. In October 2014 the offender commenced extensions to the workshop, which were carried out by a contractor. After the contractor finished, roofing work was necessary, for security and weather reasons. In January 2015 further work was commenced on the workshop. On 10 February 2015 the offender instructed Mr Burke to weld a frame for the workshop roof. The offender says that at this time he reminded Mr Burke that they had previously engaged a roofing contractor in relation to the workshop expansion.

59. The offender asserts that at no time did he instruct Mr Burke, or any other employee, to undertake any roofing work that included the laying and securing of roofing sheets. His understanding was that Mr Burke would use the scissor lift to access the area and weld a frame for the roof, but would not go upon the roof itself, and this would be instead done by the roofing contractor.

60. On the day of the incident, both the offender and his wife attended the business premises. They left at 10am to attend the funeral of another employee’s child. At no time on the day of the incident did the offender give instructions to any employees to undertake any work in relation to the roofing of the workshop.

61. The offender asserts that Mr Burke instructed Mr Dodemaide to undertake some work on the workshop, including the placement of roofing sheets. The offender was not present at the time of the instructions given by Mr Burke, nor was he present during the incident itself.

50. The offender had no contact with Mr Burke after the 10 February 2015 conversation until approximately 3:40pm on 11 February 2015. At this time the offender was notified that an incident had occurred and that Mr Dodemaide had sustained serious injuries.

51. The offender contacted Mr Dodemaide’s wife immediately following this conversation and he then attended Echuca Hospital.

52. While Mr Dodemaide was recovering from his injuries, the offender and his wife provided some assistance to Mr Dodemaide’s family, which included the purchase of hampers and groceries. Mr Dodemaide returned to work on a graduated work plan on 13 April 2015. Over time he resumed full duties and continued to work in his pre-injury role until May 2017, when he resigned. During this time Mr Dodemaide took at least 110 work hours of time off for leg and back pain, which was not funded by the insurer, but for which he was voluntarily paid by the offender.

53. On 11 February 2015, the offender’s wife contacted WorkCover NSW’s insurance agents, with whom the business held its statutory workers compensation insurance policy. She informed them of the incident and alerted them to the hospitalisation of Mr Dodemaide. She subsequently completed an online form, which the offender asserts included the ‘WorkCover NSW’ logo.

54. On 12 February 2015, the offender received an email confirming receipt of the injury notification.

55. The offender and his wife both believed that they had notified WorkCover NSW by carrying out the above steps, until they were contacted by a WorkCover NSW/SafeWork inspector.

56. The offender was interviewed by SafeWork NSW inspector Mr Troy Stephens on 2 September 2015. The offender says that in this interview, he incorrectly identified the day of the incident as a Tuesday, not a Wednesday.

57. As a result of the incident, the offender decided it was necessary to implement formal work health and safety procedures, and training for staff. All existing and new staff are now inducted into these procedures. The offender and two senior staff members also attended a 5 day SafeWork approved workplace safety course. The offender appointed a ‘health and safety representative’ from staff, and appointed a formal foreman with specific work health safety obligations. Formal tool-box talks with all employees, where changed work processes are discussed, are now held regularly.

58. The offender has changed the processes of work which carry a risk relating to working from heights. This includes, but is not limited to, the re-engineering of the process of constructing different stories of houseboats.

59. The offender asserts that he has always endeavoured to ensure his staff’s safety, but understands that the workshop systems in place at the time of the incident were deficient. The offender expresses a deep regret that Mr Dodemaide was injured, and appreciates that this may have had a detrimental effect on his life and physical health.

60. The offender expressed remorse for the incident and wishes he had been present on the worksite at the time it took place. He believes that had he been present, Mr Dodemaide would never have been injured, as the roofing work would never have taken place.

61. The offender believes that the changes instituted will prevent any further incidents in the future, but acknowledges that the incident should never have happened.

62. The offender was cross-examined by counsel for SafeWork. It was established by that cross-examination that for 30 years prior to this incident the construction of houseboats had involved workers being four metres above the ground fixing a plywood flooring base to the frame of the roof of each vessel. There was no risk assessment and no falls protection employed. There were about 16 man hours of work in attaching the plywood to the top of the frame, and during those hours the workers were four metres above the ground with no training or equipment to protect them from a fall which could have caused serious injury or death.

63. Mr Brown was cross-examined regarding an interview he had with a SafeWork inspector in September 2015. Mr Brown maintained that he knew that Mr Burke was doing the roof batten work from a scissor lift but he was not aware that Mr Burke had himself put sheets on top of the frame, to commence construction of the roof. However, in his interview with the SafeWork inspector the following was recorded:

Q 93   ….WorkCover does understand that you’d previously discussed with Quinton that the work was to be completed by himself. Is that correct?

A.   We were talking about roofing um, Quinton had the suggestion that he could roof it, I suggested using --- [interview interrupted].

Q 95   Recommencing the statement at 2.29pm. The last question was about the discussion of the work to be completed on the roof and Mr Brown will continue his answer.

A.   Yes. So there was discussion between Quinton and myself about Quinton hopping on the roof to complete the roofing um, I wanted to use our regular plumber who has done work on our factory over the years um, from there – that was earlier on in the piece and from there the work was um, yeah, the work was started and that’s, yeah, that’s where it is, the work was started and it should not, yeah, should not have been started and that’s, yeah, that’s the break in the system, in my system.

76. It is plain from the interview with the SafeWork inspector that the offender was aware that Mr Burke was going himself to get on top of the frame and install sheets (“hopping on the roof to complete the roofing”). Further, it is plain from the record of interview, as well as the affidavit of the offender, that the offender never told Mr Burke that he must not get on the roof and never arranged for a roofing contractor to do the sheeting work on the roof.

77. In fact, it emerged during cross-examination, that the offender himself, some days after the incident, had got into the scissor lift and finished the roof sheeting by his own hand. A contractor was never brought to the site to do the roofing work, even after the incident.

78. In those circumstances, I reject the submission made by counsel for the offender that the offender gave instructions to Mr Burke not to undertake the roof work. I also reject the submission made by counsel for the offender that the offender ever said to Mr Burke words to the effect: “We should get the roofing contractor back in to do the work”. When I raised the matters above with counsel for the offender, he very properly withdrew both submissions.

79. I am satisfied beyond a reasonable doubt that the offender knew that Mr Burke intended to get on top of the frame and install roofing sheets himself, without any falls protection. Such work involved being out of the scissor lift and on top of the frame.

80. I find that the offender did not know that Mr Burke allowed Mr Dodemaide to do the roofing work, as the offender was not present at the time when Mr Burke gave this instruction to Mr Dodemaide. Nevertheless, the offender should have insisted that a qualified roofing contractor do the roof sheeting, and should have forbidden Mr Burke to do it himself or to get anyone else to do it, apart from a qualified tradesman.

The Evidence of Quinton John Burke

81. Mr Burke holds a boilermakers ticket in metal fabrication as well as a forklift licence. He was originally in the employ of the offender’s father. At the time of the incident he was employed as a boilermaker and was unofficially the foreman of the workshop. His duties included general metal fabrication and engineering work, such as cutting, bending and welding of metal to manufacture items such as houseboats, ute trays and other fabricated metal products. Mr Burke did not hold an official title or role description as foreman, but as the longest serving and most experienced employee, the other staff approached him for direction and assistance. This was particularly so when the offender began to spend more time in the office rather than workshop.

82. Since the incident, Mr Burke has had his position as foreman formally confirmed and his role now officially obliges him to provide supervision, training and delegation of tasks to the other employees.

83. In Mr Burke’s experience with the business, he observed that the number of formal systems in place, in particular relating to work health and safety, were quite limited from the time it was run by the offender’s father. Mr Burke asserts that before the offender took over the running of the business, the plant and equipment that was used was old, out-dated and not the best in regards to safety. He has noticed that the offender has invested in upgrading plant and machinery to make things safer and more efficient.

84. Mr Burke was interviewed by a SafeWork Inspector on 2 September 2015 in regards to the 11 February 2015 incident. A copy of that interview was attached to his affidavit. Mr Burke did make a number of clarifications in his affidavit in relation to that interview. These clarifications are set out in the following paragraphs.

85. Before the incident took place, Mr Burke in discussion with the offender agreed that a roof would be placed on the open storage area of the workshop, so that it would become a dry storage area.

86. On 10 February 2015, Mr Burke had a discussion with the offender in relation to works that were to be undertaken in the dry storage area. It was decided that Mr Burke would weld up the framework structure for the roof of this area. During this conversation it is Mr Burke’s recollection that the offender said he would engage the roofing plumber he had used previously for other workshop renovations, in relation to the roof sheeting work that would be required.

87. Following on from this discussion, Mr Burke welded a frame for the roof structure, utilising the scissor lift to do so. He believes he was approximately 2 metres off the ground whilst carrying out this work. After this task was completed, in the late afternoon, Mr Burke made the unilateral decision to undertake some sheeting work by placing iron sheeting on the roof and screwing the sheeting onto the frame. He used the scissor lift to access the roof area while carrying out this work and believes he was approximately 3 metres off the ground. Mr Burke remained in the scissor lift at all times, only leaning out of it to access the roof area. He did not have any further discussions with the offender about what work he carried out on 10 February 2015.

88. Mr Burke recalled that the offender and his wife left the worksite on the morning of 11 February 2015 in order to attend a funeral of another employee’s child. He noted that a number of other staff were absent for the same funeral. Mr Burke does not recall having any conversation at all with the offender before he left.

89. At the start of the work day 11 February 2015, Mr Burke assigned tasks to the other workers including Mr Dodemaide, who was undertaking curing work. Mr Dodemaide finished this task at lunchtime, then he approached Mr Burke for another job to do. Mr Burke directed him to place the iron sheeting on the roof of the storage area and affix it using the scissor lift.

90. Mr Burke states that at no time did he alert the offender to that fact that Mr Dodemaide was carrying out work relating to the roofing of the storage area. Mr Burke states that he made this decision alone.

91. Mr Burke states that at that time he believed that both he and Mr Dodemaide were capable of undertaking the work safely, as they were both qualified tradesmen.

92. Following the incident occurring, Mr Burke informed the offender at approximately 3:40pm the same day of what had happened. During this discussion, Mr Burke informed the offender that he had been installing the roof sheeting the previous day, and that Mr Dodemaide had been carrying out the same work when he was injured on 11 February 2015.

93. Following the incident Mr Burke asserts that he has witnessed a significant change in the culture at the work place. He is aware that the offender and his wife have spent significant money employing consultants to assist with work health and safety policies and procedures, and that they have made significant changes to the processes at work for any tasks that might require working at a height, particularly in relation to the building of houseboats.

94. Since the incident and Mr Burke’s formal promotion to foreman, he has been significantly involved with work health and safety issues, and with the development of new work procedures to assist with providing a safe work environment.

95. Mr Burke asserts that safety has become a paramount consideration at the business, with formal training, inductions and regular tool box talks. Mr Burke states that he has been sent to a number of safety related courses since the incident which have assisted him in thinking about and planning for a safer work environment. The offender has said to Mr Burke that he feels very sorry for the injuries Mr Dodemaide sustained, and Mr Burke is sure that the offender’s remorse is genuine.

CONSIDERATION

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

OBJECTIVE SERIOUSNESS OF THE OFFENCE

97. 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].

98. 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].

99. 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].

100. 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.

101. 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.

102. 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.

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

1. The cost to the offender of overcoming the risk would have been small. An appropriately qualified roofing contractor had been used by the offender before and it would have been a simple matter to engage them again. This would have eliminated the risk entirely;

2. Employees of the offender, including Mr Dodemaide, were placed at risk of death or serious injury as a result of a fall from height. The risk was obvious, identifiable and foreseeable;

3. The existence of the risk was known or should have been known as the risk was identified in:

1. clause 78(1) of the WHS Regulation;

2. clause 79 of the WHS Regulation;

3. clause 299 of the WHS Regulation;

4. the National Code of Practice For The Prevention of Falls in General Construction, issued in April 2008 and published by SafeWork Australia.

4. The offender failed to adhere to the regulations and code of practice as outlined above;

5. The systems of work at the site for working from heights were unsafe as the offender did not have any documented systems, policies or procedures in place for:

1. working from heights generally, including the safe use of the Genie scissor lift.

2. high risk construction work, being construction work that involved a risk of a person falling more than two metres;

6. The offender did not conduct any formal toolbox meetings with staff to discuss work health and safety issues.

7. No documented risk assessments were conducted by the offender or any other worker for the task of installing the roof sheeting to the room.

8. The offender allowed workers to use the Genie scissor lift and undertake construction work involving working from heights without requiring those workers to acquire any training competencies including the use of fall prevention systems.

9. The offender did not provide those workers with any fall prevention devices or fall arrest systems.

10. The offender did not adequately supervise or train its employees to manage the risk associated with the work assigned to them. Mr Burke was responsible for supervising Mr Dodemaide, however he allowed Mr Dodemaide to work on his own at a height of approximately 4 metres without any safety equipment,

11. The cost of providing appropriate fall protection systems would have been minimal for a business that frequently required its workers to work from heights when they undertook their usual duties;

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

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

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

15. The injuries sustained by Mr Dodemaide on 15 February 2015 were a manifestation of the risk.

16. This was not a one-off failure by the offender, it was a prolonged course of conduct. While the roofing job was a unique event, the SafeWork inspection discovered that during the construction of houseboats, employees had been working at heights, without any falls protection, for many years.

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

105. My findings about the offender’s level of culpability in relation to the offence under s 38(1) of the Act are based upon the following:

1. The offender knew that he had the duty to report the incident to SafeWork, as his explanation for not reporting was that he thought by notifying his insurer, the matter was appropriately notified to SafeWork.

2. The offender, as part of his overall work, health and safety duties, should have known of his obligation to formally notify SafeWork.

1. The completion of a form which had the WorkCover logo on it does provide some explanation for the failure to formally notify SafeWork.

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

DETERRENCE

107. The penalty imposed in relation to these offences 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].

108. The penalty must reflect the need for specific deterrence. The offender is still conducting a business, nowadays by a company rather than a trust. Many of its operations involve the use of potentially dangerous equipment and working at heights. It has 7 employees.

AGGRAVATING FACTORS

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

MITIGATING FACTORS

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

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

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

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

114. The offender has shown remorse for the offence: Section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender proved that he has accepted responsibility for his actions and has acknowledged that the injury to Mr Dodemaide was caused by his actions.

115. 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 he pleaded guilty, and the circumstances in which he indicated an intention to plead guilty: Section 22(1) Crimes (Sentencing Procedure) Act 1999. In my view the offender entered the plea of guilty at the earliest possible opportunity, even before the facts were agreed with the prosecutor. It is appropriate to apply a discount of 25%.

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

CAPACITY TO PAY A FINE

117. 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, he 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.

118. I find that the offender has not discharged his onus of persuading the court to moderate the fine because of economic matters. The information put before the court in relation to the offender’s financial position raises more questions than it answers. In the 2016 tax year (the last for which a return is available) the offender and his wife had a joint income of $25,000 plus family tax benefits, which were not quantified. From this they pay $36,000 per annum interest only to Macquarie Bank for a home loan and $12,000 in school fees. On top of those substantial payments, they obviously have to run and maintain a household which consists of themselves and three young children. How this lifestyle is funded on the modest income paid by the business was not apparent from any material put before the court.

119. The court finds that there was not a full and frank disclosure of the financial position of the offender, or his wife, or his business. In those circumstances the offender has failed to discharge the evidentiary onus upon him and the fine will not be reduced for any economic considerations.

VICTIM IMPACT STATEMENT

120. A written Victim Impact Statement, signed by Mr Dodemaide and his wife and dated 12 October 2017, was placed before the court. Mr Dodemaide said that he still had ongoing pain in the back, nerve damage and pain in the chest. He has a stomach hernia which will require surgery and more time off work. The Victim Impact Statement informed the court of the very bleak time which Mr Dodemaide, his wife and his two young girls, had been through since the incident. He described the family has having been “affected in every way possible – physically, emotionally, socially, financially and spiritually”. Mr Dodemaide hated being back at work at Browns Engineering. He felt insignificant and unimportant. His income was reduced and financially the family went backwards. He eventually resigned from Browns Engineering and described this as “one of the best days of my life, it was if a huge weight was taken off my shoulders”.

121. Mr Dodemaide had to move away from the country town in which his family was located, to find work away from home between Monday and Friday. He only got to see his wife and children on the weekends.

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

COSTS

123. The parties have agreed to an order that the offenders are to pay the prosecutor’s costs agreed in the sum of $21,455.88.

PENALTY IN RELATION TO OFFENCE UNDER SECTION 19 OF THE ACT

124. The offender is convicted.

125. I take into account the Victim Impact Statement.

126. The appropriate fine is $80,000 but that will be reduced by 25% to reflect the plea of guilty.

127. I impose a fine of $60,000.

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

129. I order the offender to pay the prosecutor’s costs agreed in the sum of $21,455.88.

PENALTY FOR OFFENCE UNDER SECTION 38(1) OF THE ACT

130. The offender is convicted.

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

132. I impose a fine of $1,500.

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

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Decision last updated: 24 November 2017