SafeWork NSW v Tunny Pty Ltd; SafeWork NSW v Waring

[2022] NSWDC 306

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Tunny Pty Ltd; SafeWork NSW v Waring [2022] NSWDC 306

Hearing dates:

26 July 2022

Date of orders:

3 August 2022

Decision date:

03 August 2022

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

In District Court proceedings 2021/00091503:

(1)   Tunny Pty Ltd was convicted on 26 July 2022.

(2)   The appropriate fine is $160,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Tunny Pty Ltd to pay a fine of $120,000.

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

(5)   Order Tunny Pty Ltd to pay the prosecutor’s costs.

In District Court proceedings 2021/00091528:

(1)   Aidan Arthur Waring is convicted

(2)   I take into account the Victim Impact Statement of Mr Jobson.

(3)   The appropriate fine is $40,000 but that will be reduced by 25% to reflect the early plea of guilty.

(4)   Order Aidan Arthur Waring to pay a fine of $30,000.

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

(6)   Order Aidan Arthur Waring to pay the prosecutor’s costs.

Catchwords:

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

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

COSTS – prosecution costs

OTHER – defendant conducted a business or undertaking involving the dismantling and wrecking of cars for recycling and the sale of used automobile parts – workers were loading a flatbed truck into a shipping container using a wheel loader – tray of the truck fell while suspended and struck worker – failure to undertake risk assessment – failure to establish and maintain exclusion zone - failure to develop and enforce safe work procedure or safe work method statement – failure to provide instruction, information and training

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 10A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E

Fines Act 1996 (NSW), ss 6, 122

Occupational Health and Safety Act 2000 (NSW), s 8(1)

Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32

Work Health and Safety Regulation 2017 (NSW), cll 32, 33, 34, 35, 36, 37, 38, 39

Cases Cited:

Attorney-General of New South Wales v Tho Services Ltd (In Liquidation) [2016] NSWCA 221

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

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Inspector ChristopherDownie v Menzies Property Services [2004] NSWIR Comm 259

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

Texts Cited:

Australian Standard 2359 Part 2, Operations: Powered Industrial Trucks, 2013

Australian Standard 3775.1:2014, Chain slings for lifting purposes

Safe Work Australia, General Guide for Industrial Lift Trucks, July 2014

SafeWork NSW Guide, Toolbox Talk: Take Forking Safety Seriously

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Tunny Pty Ltd (Defendant)
Aidan Arthur Waring (Defendant)

Representation:

Counsel:
M Moir (Prosecutor)
C Magee (Defendants)

Solicitors:
Department of Customer Service (Prosecutor)
Hicksons Lawyers (Defendants)

File Number(s):

2021/00091503; 2021/00091528

Judgment

1. On 15 June 2019 Mr Michael Jobson and Mr David Sammon were loading the dismantled tray of a flatbed truck into a shipping container. Mr Sammon operated a wheel loader to lift and move the tray. The heavy tray fell and struck Mr Jobson on his right torso and knocked him to the ground.

2. Tunny Pty Limited (Tunny) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Mr Jobson to a risk of death or serious injury contrary to s 32 of the Act.

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

4. Mr Aidan Arthur Waring, who was an officer of Tunny, has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 27(1) of the Act to exercise due diligence to ensure that Tunny complied with its duty under s 19(1) of the Act, he failed to comply with that duty and thereby exposed Mr Jobson to a risk of death or serious injury contrary to s 32 of the Act.

5. Section 27 of the Act provides:

“27 DUTY OF OFFICERS

(1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

(2) Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence.

(3) Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation.

(4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation.

(5) In this section, due diligence includes taking reasonable steps:

(a) to acquire and keep up-to-date knowledge of work health and safety matters, and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and

(c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and

(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and

(e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and

Example—

For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include--

• reporting notifiable incidents,

• consulting with workers,

• ensuring compliance with notices issued under this Act,

• ensuring the provision of training and instruction to workers about work health and safety,

• ensuring that health and safety representatives receive their entitlements to training.

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c)-(e).”

6. The maximum penalty for the offence is a fine of $300,000.

The Risk

7. The risk is described in par 8 of the Tunny Amended Summons (PX 1, Tab 1) and par 10 of the Waring Amended Summons (PX 1, Tab 2) as follows:

“The risk was the risk of workers, in particular Mr Jobson, being struck and injured by a suspended load, in particular the Tray, falling from the Loader.”

Reasonably Practicable Measures

8. Paragraph 9 of the Tunny Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act as follows:

“9. Tunny failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Jobson, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if not reasonably practicable to eliminate, the risk:

(a) Undertaking a risk assessment for the process of lifting the Tray using the Loader, including the use of the slip-on jib attachment in conjunction with the Loader, the pallet forks and the slip-on fork extensions, to move an object such as the Tray which identified the need for:

I. An exclusion zone to be in place when loads of this nature were suspended from the Loader; and/or

II. The provision and use of equipment that was suitable for the task of lifting the Tray and which prevented any unintentional detachment of the Tray while it was suspended from the Loader, such as a chain sling and a lifting hook that complied with Australian Standard AS 3775.1:2014; and/or

III. All persons slinging and directing loads of this nature to have the appropriate qualifications for dogging or rigging work.

(b) Establishing and maintaining an exclusion zone to prevent workers from walking under or close to loads suspended from the Loader; and/or

(c) Developing and enforcing a safe work procedure for using the Loader which:

I. Warned workers of the risks of suspended loads and set out the measures to eliminate or minimise exposure to the risk of suspended loads; and/or

II. Involved inspecting the lifting equipment including the chain and hook, prior to slinging and moving suspended loads; and/or

III. Included making available, and directing the use of, equipment that was suitable for the task of lifting suspended loads and which prevented any accidental disengagement of suspended loads while they were suspended from the Loader, such as a certified jib attachment, a proper lifting hook and a proper chain sling for lifting purposes; and/or

(d) Providing workers, in particular Mr Jobson, with instruction, information and training in the selection of suitable lifting equipment, the application of appropriate slinging techniques, and the method of inspecting and checking the condition of the lifting equipment, to safety move suspended loads with the Loader.”

9. Paragraph 11 of the Waring Amended Summons pleads that Mr Waring failed to comply with his duty under s 27(1) of the Act, by failing to exercise due diligence to ensure that Tunny complied with its obligations under s 19(1) of the Act, being the obligations outlined in para [8] above. Paragraph 12 pleads particulars of the reasonable steps the defendant should have taken in exercising due diligence:

“(a) Making available and directing the use of equipment that was suitable for the task of lifting loads using the Loader, such as a certified jib attachment, a proper lifting hook and a proper slinging chain; and/or

(b) Providing resources to Tunny to ensure that it had processes to develop, implement and enforce work health and safety systems in relation to the work of lifting suspended loads with the Loader, such as enforcing exclusion zones and the use of adequate equipment to enable suspended loads to be lifted and moved safely; and/or(c) Directing Tunny to develop and implement a safe work procedure or safe work method statement for the work of lifting suspended loads with the Loader which had regard to risks associated with loads being suspended using the Loader; and/or

(d) Verifying, by making enquiries, or reviewing documentation that Tunny had in place a safe work method statement or safe work procedure for the work of lifting suspended loads with the Loader; and/or

(e) Verifying, by making enquiries, or inspecting documentation that workers including Mr Jobson were adequately informed and trained in the safe work procedure or safe work method statement prior to undertaking the work of lifting loads using the Loader.”

Background

10. The parties presented an Agreed Statement of Facts (PX 1, Tab 3) and this material is summarised below.

11. Tunny conducted a business or undertaking that involved the dismantling and wrecking of cars for recycling and the sale of used automobile parts. It conducted its operations from Lot 2, Pacific Highway, Lake Munmorah NSW 2259 (the site). Mr Waring was the sole director of Tunny.

12. Tunny engaged eight workers at the site, including:

1. Mr Simon Dunn, site manager. Mr Dunn was the sole person running and managing Tunny. He had been the Site Manager for seven years.

2. Mr Michael Jobson, yard hand. Mr Jobson commenced working for Tunny in 2017. His duties included dismantling and scrapping cars. He did not hold any high-risk work licence. Mr Jobson was not authorised to operate a forklift or similar items of plant and equipment and was not authorised to undertake dogging work.

3. Mr David Sammon, full-time licensed forklift operator. Mr Sammon commenced working for Tunny on 13 June 2019.

Plant and Equipment

13. A Volvo BM L30 wheel loader (the loader) was used to transport cars and trucks around the site for dismantling and related purposes. The loader had been modified for these purposes in that it had been fitted with pallet forks, slip-on fork extensions and a slip-on jib attachment. Chain slings were also used in conjunction with the loader. The extensions and attachment extended the length of the tynes on the loader in order to enable cars and trucks and/or parts of cars and trucks to be lifted and moved around the site as required (PX 1, Tab 7, Photo 15).

14. The loader does not meet the definition of a forklift truck under the Work Health and Safety Regulation 2017 (the Regulation) and therefore a high-risk work licence was not required to operate it.

The Incident

15. On 15 June 2019, Mr Jobson and Mr Sammon attended the site and commenced the task of loading a flatbed truck into a shipping container. As part of the task it became necessary to detach the flatbed truck’s tray for it to be loaded into the shipping container.

16. Mr Sammon was operating the loader to lift and move the tray. The tray weighed approximately 1,000kg.

17. The fork extensions attached to the tynes of the loader had been inserted at the base of the slip-on jib attachment. Mr Jobson wrapped a chain sling around the tie-down bar of the tray and placed the grab hook on the end of the chain on the jib attachment. The grab hook was not closed and there was no safety clip or spring-loaded hatch on the hook.

18. As the tray was lifted and suspended on its side, Mr Jobson walked over to Mr Sammon who was sitting in the loader and spoke to him.

19. Mr Jobson then walked behind the tray and Mr Sammon lost sight of him. The hook became detached and the chain gave way. The tray then fell away from the jib and toward Mr Jobson, who attempted to run away. The tray struck Mr Jobson on his right torso and knocked him to the ground.

Injuries

20. Mr Jobson was transported by CareFlight to John Hunter Hospital.

21. Mr Jobson sustained fractures to his spine and ribs as well as internal injuries. He was required to wear a back brace for approximately six weeks.

22. Mr Jobson has not returned to work since the incident. Mr Jobson was 52 years of age at the time of the incident.

Guidance Material

Work Health and Safety Regulation 2017

23. Tunny was required under cll 32-39 of the Regulation to:

1. Identify reasonably foreseeable hazards that could give rise to a risk to health and safety.

2. Eliminate identified risks so far as is reasonably practicable.

3. If it is not reasonably practicable to eliminate the risk, then minimise the risk so far as is reasonably practicable by implementing control measures in accordance with the hierarchy of control.

4. Maintain implemented control measures so that they remained effective.

5. Review, and if necessary, revise, risk control measures so as to maintain, so far as is reasonably practicable, a work environment that was without risks to health and safety.

6. Ensure that information, training and instruction provided to a worker is suitable and adequate having regard to:

1. The nature of the work carried out by the worker;

2. The nature of the risks associated with the work at the time the information, training or instruction is provided; and

3. The control measures implemented.

Safe Work Australia, General Guide for Industrial Lift Trucks, July 2014

24. The Safe Work Australia, General Guide for Industrial Lift Trucks, dated July 2014 was available prior to and at the time of the incident. The Guide provided information about managing health and safety risks for people who carry out activities involving industrial lift trucks.

Australian Standard 2359: Powered Industrial Trucks, 2013

25. The Australian Standard 2359: Powered Industrial Trucks, dated 2013 (Trucks Standard) was available prior to and at the time of the incident. Part 2 of the Trucks Standard was titled “Operations” and provided operational standards for powered industrial trucks.

26. The Trucks Standard specified requirements for self-propelled industrial trucks, including:

1. The operation of self-propelled industrial trucks (sections 2-3).

2. Procedures covering site conditions and for the design of workplaces in which self-propelled industrial trucks are used (section 5).

3. The maintenance, repair and modification of self-propelled industrial trucks (section 6).

Australian Standard 3775.1:2014: Chain slings for lifting purposes

27. The Australian Standard 3775.1:2014: Chain slings for lifting purposes (Chain Slings Standard) was published in December 2014. The Chain Slings Standard specified requirements for chain slings for lifting purposes.

28. The Chain Slings Standard provided that chain slings used for lifting purposes are required to have a grade rating of at least 80, comply with the Chain Slings Standard and have the relevant details clearly marked on a durable tag as illustrated in Figure 10 of the Standard.

29. Both the chain and hook used to lift the tray had only a grade rating of 70. A grade 70 hook and a grade 70 chain are used in transporting applications for restraining loads and the tying down of loads, otherwise known as “lashing”. There was no durable tag with the relevant details on the chain used to lift the tray.

30. Clause 5.13.3 of the Chain Slings Standard, entitled “Chain shortening devices”, provided information on how grab hooks are to be used. Figure 8 of the Chain Slings Standard provided that chain slings with hooks used for lifting are typically fitted with a spring-loaded latch, and the grab hooks are designed to shorten or reduce the leg or sling.

31. The chain used to lift the tray only had one grab hook. There were no other components such as joining devices, hooks with a spring-loaded latch, master links or tags fitted that would be typical in a compliant chain sling configuration as illustrated in Chain Slings Standard.

32. The chain sling and grab hook arrangement was not appropriate for the task of lifting the tray. It did not comply with the Chain Slings Standard and was not designed for lifting.

SafeWork NSW Guide, Toolbox Talk: Take Forking Safety Seriously

33. The SafeWork NSW guide, Toolbox Talk: Take Forking Safety Seriously, was available prior to and at the time of the incident. The Guide provided information on how to hold toolbox talks with workers about working safely with forklifts, and contained a guided toolbox talk to go through with workers.

Training and Supervision

34. At the time of the incident Tunny had no established safe work procedure that related to the task of lifting and transporting vehicles and auto parts at the site using the loader.

35. Mr Jobson and Mr Sammon received no instruction, training or information on how to perform the task of lifting and transporting vehicles and auto parts at the site using the loader. Mr Jobson and Mr Sammon received no instruction on using the loader in this manner in conjunction with pallet forks, slip-on fork extensions, slip-on jib attachments and chain slings with hooks.

36. Tunny had not conducted any assessment of the risk associated with lifting the tray using the loader. As a result, there was no safe work procedure in place to deal with the task of detaching the tray from the flatbed truck in order to load it into a shipping container.

37. There was no formal consultation mechanism in place for considering health and safety matters at the site.

38. Tunny provided no instruction, training or information to Mr Jobson or Mr Sammon in relation to the risks associated with using the loader in the manner that it was being used and did not provide any procedure to enable Mr Jobson or Mr Sammon to control the risks.

39. On the day of the incident neither Tunny nor Mr Waring provided supervision of Mr Jobson and Mr Sammon undertaking the task of loading the flatbed truck into the container. Mr Jobson and Mr Sammon were essentially self-directed in the performance of the task.

40. Neither Tunny nor Mr Waring had put in place a system of work which provided that no worker was permitted under or near the suspended load of the loader.

Systems of Work Following the Incident

41. Following the incident SafeWork NSW issued an Improvement Notice to Tunny. In response to the Improvement Notice, Tunny:

1. Replaced the loader with a new forklift.

2. Disposed of the jib attachment.

3. Developed a Safe Work Method Statement for the tasks of forklift start up and loading and unloading materials (including using only one attachment at a time).

4. Trained its relevant workers in the Safe Work Method Statement.

5. Provided forklift licence training to its workers.

Evidence for the Defendant

Affidavit of Mr Simon Dunn

42. Mr Simon Dunn affirmed an affidavit on 25 July 2022 (DX 1). Mr Dunn is the manager of Tunny. Mr Dunn is the nephew of Mr Waring. He commenced working for his uncle in 2012. He took over management of the wrecking business in 2014. At that time Mr Waring retired and moved to Tasmania. Since then Tunny has paid a $50,000 fully franked dividend to Mr Waring each year.

43. Mr Dunn has hired workers who are qualified and experienced. Prior to the incident in 2019 policies and procedures relied “on informal systems” and on “workers experience and expertise to undertake tasks safely” (DX 1, par 18).

44. Mr Dunn annexed the financial records for the business for the years 2017, 2018, 2019, 2020 and 2021. Counsel for the defendants took the court through the financial records for 2021 in some detail. The wrecking business had a turnover of $915,000 in round figures. It made a nett profit before tax of $28,000. The business had assets of $217,000 and liabilities of $246,000, including an outstanding loan to Mr Waring of $203,000. The cash flow of the business fluctuates from month to month. Bank statements annexed to the affidavit demonstrated this.

45. Overall the financial statements for the business showed that in each year it had an income of around $1,000,000. In each year it made a profit before tax. It is clearly a small family business with only a few employees.

46. Mr Dunn explained that a long-term customer of the business named “Victor” delivered a shipping container to the premises to be filled with scrap metal. Tunny sold scrap metal to Victor. Victor enlisted the assistance of the two workers to fill the container on a weekend. He paid the workers. The workers used equipment provided by Tunny.

47. Mr Dunn gave evidence of the Improvement Notices issued by SafeWork NSW and the steps which were taken to comply with those Notices. Since the incident Tunny has created a large number of written safe working procedures for tasks done on the site. Training has been provided to the workers in these new policies and safe working procedures. Tunny intends to engage an expert to assist in conducting a work health and safety programme review.

48. Mr Dunn expressed his personal remorse for the incident and offered an apology to Mr Jobson for the injuries that he has suffered. He said that the business has endeavoured to take steps to ensure that such a thing never happens again.

Affidavit of Mr Aidan Waring

49. Mr Aidan Waring affirmed an affidavit on 25 July 2022 (DX 2). Mr Waring is the sole director of Tunny. Mr Waring is 80 years of age and has resided in Tasmania since 2014. He bought the wrecking business in 1978 and ran it from then until 2014. Mr Waring’s nephew Mr Dunn has continued to manage the business since 2014.

50. Mr Waring was completely unaware of the work being done on the day of the incident. He had not provided any instruction to any of the workers, as he had not been involved in the day-to-day running of the business since 2014.

51. Mr Waring owns three properties in Tasmania. There is no mortgage on his primary residence. There is no mortgage on commercial premises, from which he conducts a fruit and vegetable business. There is a mortgage on a third property, which is to be sold and which will realise approximately $200,000 nett.

52. Mr Waring has received $53,000 in franked dividends each year from Tunny. He has also received a modest income from the third property. He does not charge rent for the commercial premises.

53. In financial year 2020 Mr Waring had a total income of $75,385. In financial year 2021 his income was $70,681.

54. Mr Waring expressed remorse over the incident and apologised to Mr Jobson.

Consideration

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

Objective Seriousness of the Offence

56. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

57. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

58. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

59. 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].

60. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

61. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

62. The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely’. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.”

63. Further at [42] his Honour continued:

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

64. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

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

1. The risk was foreseeable. Further, there was guidance material directed to this particular risk.

2. The likelihood of the risk occurring was significant, as the workers were using inadequate equipment and were not maintaining an exclusion zone under a suspended load.

3. Simple and well-known steps were readily available to eliminate or minimise the risk.

4. There was no great burden or inconvenience in these steps being implemented. Tunny put took proper steps within days of the incident.

5. Mr Jobson sustained serious fractures to his spine and ribs as well as internal injuries.

6. The potential consequences of the risk were death or serious injury.

7. The maximum penalties for these Category 2 offences are $1,500,000 for Tunny and $300,000 for Mr Waring, which reflects legislature’s view of the seriousness of the offences.

8. Tunny had no formal safety policies. Tunny had not provided appropriate training and instruction to its workers. It was not good enough for Tunny to have an “informal” safety system. In plain English, it had no safety system.

9. Mr Dunn was unaware that this work was to be done on a weekend when he was not at the site. The incident happened at the Tunny yard and involved Tunny’s workers and equipment. The work was being done for a Tunny customer.

10. Mr Waring had not been involved in the running of Tunny since 2014. Yet he was the sole director and was paid significant franked dividends every year by the company. Not only did he fail to exercise due diligence as defined in s 27(5) of the Act; he exercised no diligence whatsoever. Section 27(1) of the Act says that an officer must exercise due diligence. It is not optional. If you are a director you have the duty.

66. I find that the level of culpability of Tunny is in the mid range.

67. I find that the level of culpability of Mr Waring is in the mid range.

Deterrence

68. 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; (2016) 93 NSWLR 338 at [180].

69. The penalty must reflect the need for specific deterrence. Tunny is still conducting a business. Its operations involve the dismantling and wrecking of cars for recycling, the sale of used automobile parts and the continuing engagement of workers. While Tunny has taken steps to improve its safety systems, Mr Waring gave no evidence that he has made any attempts since the incident to exercise due diligence, in spite of continuing as the sole director of Tunny.

Aggravating Factors

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

Mitigating Factors

71. Neither Tunny nor Mr Waring have a prior record of conviction: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

72. Tunny and Mr Waring are otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps taken after the incident demonstrate this. Tunny has been in business for 25 years. Mr Waring is 80 years old and has led a blameless life. His sentence will be much reduced as a result of this factor alone.

73. Tunny and Mr Waring are unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

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

75. Tunny and Mr Waring have shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Waring has provided evidence that both he and Tunny have accepted responsibility for their actions and have acknowledged that the injury to Mr Jobson was caused by their actions.

76. Tunny and Mr Waring 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 both Tunny and Mr Waring a 25% discount for their early pleas.

77. Mr Waring, on behalf of Tunny, gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. He cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

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

79. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

80. I am not satisfied that the fine which I will impose upon Tunny should be reduced because of any restriction on capacity to pay. The income and profit of the business has been slightly reduced because of the effects of the COVID-19 pandemic. However, the business still has a healthy turnover and relatively modest overheads. It still makes a profit. Clearly the business has an ability to borrow from its founder Mr Waring. Given the size of the fine which I propose to impose, I do not think that there is any need for a reduction because of the financial position of Tunny. I make the same finding in relation to Mr Waring. However, I will take into account the modest size of the operation in imposing fines.

Victim Impact Statements

81. Tunny was convicted at the sentence hearing on 26 July 2022. I refrained at that stage from convicting Mr Waring, to enable his counsel to make a submission that no conviction should be recorded. This matter is dealt with below.

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

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

1. Any personal harm

2. Any emotional suffering or distress

3. Any harm to relationships with other persons

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

84. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B.

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

86. The court received a written Victim Impact Statement from Mr Michael Jobson (PX 5).

87. Mr Jobson said that on the day of the incident his life changed dramatically. As a result of the incident he sustained the following injuries:

1. Injury to the thoracic spine – fracture at T11/T12.

2. Injury to the lumbar spine – fracture at L3.

3. Injury to the urological system as a result of the lumbar spine injury.

4. Injury to the right shoulder and right arm.

5. Right sided rib fractures.

6. Traumatic pancreatitis.

7. Psychiatric injury – depression and anxiety.

88. Mr Jobson stated that the incident has had a profound impact on him. He continues to suffer from ongoing severe pain and an ongoing burning, tingling nerve pain radiating from his right flank to his right hip, right groin and down his right leg. Mr Jobson stated that the sensation is like he is consistently being kicked in the crotch. He is also suffering from a loss of enjoyment of life as he is severely depressed and anxious, ongoing pain and aching in his right shoulder and right arm and ongoing pain in his middle and lower back.

88. Mr Jobson has been unable to work since the incident. He suffered a breakdown of his relationship with his partner. Mr Jobson stated that every day he wishes he was not involved in the incident.

89. I take all of those matters into account on sentence.

Costs

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

Application for no Conviction against Mr Waring

92. Section 10(1) of the Crimes (Sentencing Procedure) Act 1999 provides that a court that finds a person guilty of an offence may, without proceeding to conviction, make an order directing that the relevant charge be dismissed. Section 10(3) provides a list of factors to be taken into account by the court. Chief among these is the person’s character, antecedents and age. The court may also take into account the trivial nature of the offence, but I find that this was not a trivial offence. The court may also take into account the extenuating circumstances in which the offence was committed, but I find no such extenuating circumstances. However, as Mr Waring is 80 years old, and has an unblemished record, proper consideration must be given to a s 10 order.

93. Section 10A of the Crimes (Sentencing Procedure) Act 1999 provides that a court that convicts an offender may dispose of the proceedings without imposing any other penalty.

94. In Attorney-General of New South Wales v Tho Services Ltd (In Liquidation) [2016] NSWCA 221 the Court of Criminal Appeal considered the appropriateness of a s 10 dismissal in relation to a prosecution under the Act. The trial judge had dismissed the charge, and the appellant argued that the court should have convicted the respondent and imposed a fine upon it. The submission was that dismissing the charge without the imposition of a penalty reflected manifest inadequacy.

95. Justices Hoeben and Campbell agreed with the decision of Justice Harrison, who said at [59]:

“A summary of the authorities relevant to the application of s 10 to work health and safety prosecutions is set out in Inspector Christopher Downie v Menzies Property Services [2004] NSWIR Comm 259 at [45]-[60]. The section is available in circumstances that can be characterised as extraordinary and exceptional circumstances. Not only did his Honour fail to identify the existence of such circumstances, it is clear upon the facts of the case before him that none existed.”

96. In Inspector Christopher Downie v Menzies Property Services [2004] NSWIR Comm 259 the New South Wales Industrial Relations Commission was dealing with the dismissal of a charge pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 by a magistrate. The defendant had pleaded guilty to a charge under s 8(1) of the Occupational Health and Safety Act 2000 (NSW).

97. At [55] the Commission said:

1. The court must ensure that the discretion under s 10 is exercised consistently with the scheme and purpose of the Occupational Health and Safety Act (OHS Act).

2. A significant purpose of the OHS Act is to prevent, deter and punish breaches of health and safety requirements.

3. The OHS Act was for the benefit of the public generally.

4. The court had to take into account the clear public policy considerations in the OHS Act and the major penalties which it provided.

98. After stating those propositions, the Commission at [55] said:

“When seen in the light of these considerations, an offence which is objectively serious will, therefore, rarely attract the exercise of a sentencing discretion under s 10 in favour of a defendant.”

99. At [58] the Commission said that there is little value in considering the particular approach taken in other decisions or judgments to the exercise of discretion under s 10, as each matter turns on its own facts.

100. Factors in favour of the exercise of the discretion in favour of Mr Waring include his age, his character and his antecedents.

101. Factors against the exercise of discretion are:

1. The offence was not trivial, but fell in the mid range of objective seriousness.

2. Mr Waring had adopted a completely “hands-off” approach to the running of Tunny, and had made no attempt whatsoever to exercise any due diligence to ensure that Tunny complied with its safety obligations under the Act.

3. This was despite the fact that Mr Waring was, and remains, the sole director of Tunny and receives a significant annual financial benefit from its operation, by way of a franked dividend.

4. Section 27 of the Act provides for individual accountability of officers of companies.

5. “Due diligence” as defined in s 27(5) of the Act includes the taking of specified reasonable steps. Mr Waring did not see it as his function to even attempt to comply with this important legal obligation.

6. The first object of the Act is to secure the health and safety of workers by protecting workers against harm through the elimination or minimisation of risks: s 3(1)(a) of the Act.

7. Section 3(2) of the Act provides:

“In furthering subsection (1) (a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.”

8. Another object of the Act is to secure compliance with the Act through enforcement measures: s 3(1)(e) of the Act.

9. The Act provides for significant penalties.

10. There is a public interest aspect to prosecutions under the Act.

102. Taking those factors into account, and weighing them against each other, I find that the circumstances of this case cannot be characterised as extraordinary and exceptional. It would be inappropriate, having regard to the objects of the Act, and the public interest in seeing it enforced, to dismiss the charge without conviction, or to impose a conviction without penalty.

Penalty

103. My orders are:

In District Court proceedings 2021/00091503:

1. Tunny Pty Ltd was convicted on 26 July 2022.

2. The appropriate fine is $160,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Tunny Pty Ltd to pay a fine of $120,000.

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

5. Order Tunny Pty Ltd to pay the prosecutor’s costs.

In District Court proceedings 2021/00091528:

1. Aidan Arthur Waring is convicted.

2. I take into account the Victim Impact Statement of Mr Jobson.

3. The appropriate fine is $40,000 but that will be reduced by 25% to reflect the early plea of guilty.

4. Order Aidan Arthur Waring to pay a fine of $30,000.

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

6. Order Aidan Arthur Waring to pay the prosecutor’s costs.

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Decision last updated: 03 August 2022