SafeWork NSW v Twin Connect Pty Ltd

[2024] NSWDC 568

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Twin Connect Pty Ltd [2024] NSWDC 568

Hearing dates:

27 November 2024

Date of orders:

29 November 2024

Decision date:

29 November 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Twin Connect Pty Ltd is convicted.

2   I impose a fine of $180,000.

3   The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – duty of employer – risk of death or serious injury – injury to worker

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine

SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Jahandideh v R [2014] NSWCCA 178

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Twin Connect Pty Ltd (Offender)

Representation:

Counsel:
K Curry (Prosecutor)
M Shume (Offender)

Solicitors:
Department of Customer Service (Prosecutor)
Gillis Delaney Lawyers (Offender)

File Number(s):

2023/451340

Publication restriction:

None

JUDGMENT

1. Twin Connect Pty Ltd (the offender) appears for sentence after pleading guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (the Act) in that it failed to ensure the health and safety of workers while at work in the business or undertaking, pursuant to s 19(1) of the Act and thereby exposed Amanda Newton to a risk of death or serious injury.

2. The maximum penalty for the offence is a fine of 17,315 penalty units ($1,782,579).

Facts

3. The parties have presented an Agreed Statement of Facts. I have taken the entirety of this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentenced imposed.

The persons conducting a business or undertaking

4. The offender carried on a business or undertaking as an Authorised Service Provider (ASP) of electrical and telecommunications infrastructure.

5. The offender was engaged by Vocus Communications Pty Ltd (Vocus) to conduct directional drilling and the installation of telecommunication pipes and pits along a 4km stretch of Wallgrove Road, Cecil Park (the site). Vocus was the principal contractor for the site.

6. The offender engaged or caused to be engaged Connect Traffic Management Pty Ltd (CTM) as an independent contractor to provide traffic control plans for the project and to undertake traffic control and traffic management at the site, including by providing traffic controllers when required.

7. The contract price for the construction and installation of the works was $316,260.00. Works began at the site intermittently from 9 December 2021.

8. CTM commenced work at the site on 15 December 2021.

The workers

9. The offender engaged or caused to be engaged the following workers at the site:

1. Raymond O’Connor, the offender’s drill operator;

2. Amanda Newton, CTM traffic controller;

3. Shaun Cerruto, the offender’s civil crew team leader;

4. Jason Strehle, CTM team leader; and

5. Stephen Grant, the offender’s drilling crew team leader.

10. Ms Newton commenced employment with CTM on 2 June 2021 as a casual traffic controller. She holds a current SafeWork NSW Traffic Control Work card.

The incident

11. At approximately 8:50pm on 17 January 2022, Mr O’Connor was operating a 3.5 tonne Kubota excavator (the mobile plant). He was tasked with backfilling a trench and cleaning up the site.

12. Mr O’Connor gave instructions to Ms Newton that she would be required to stand with the slow bat to control traffic and at times when he needed to enter the lane of traffic.

13. Mr Cerruto was spotting Mr O’Connor and was instructed to let Ms Newton know when to stop the traffic. At the same time, Mr Cerruto was undertaking general maintenance tasks including grooming the road.

14. Whilst Mr O’Connor was in the process of backfilling the trench, Ms Newton was struck and partially run over by the reversing mobile plant.

15. Ms Newton had her back to the excavator and was unaware of its movements. She stated that she did not hear any reversing warning signal coming from the mobile plant.

16. Mr O’Connor had originally thought he had run over a traffic cone. As such, he moved the mobile plant forward, backwards and then swung around to see what he had hit. He saw Ms Newton laying on the ground.

17. Upon realising that he had struck Ms Newton, Mr O’Connor immediately turned the mobile plant off and went to render aid to Ms Newton, as did Mr Cerruto.

18. Both Mr O’Connor and Mr Cerruto observed a mobile phone on the ground nearby Ms Newton.

19. Ms Newton stated that she believes her phone rang a short time before the incident. Her mobile phone records confirm the following three phone calls were made to/from her phone on the evening of the incident:

1. 8:41pm – 3 minutes;

2. 8:46pm – 1 minute; and

3. 8:47pm – 2 minutes.

20. These records are consistent with Ms Newton using her mobile phone for six out of the eight minutes between 8:41pm and 8:49pm, and that her phone was in use at 8:49pm when the incident occurred.

21. Ms Newton admitted in her statement to the NSW Police Force that she was using her mobile phone at the time of the incident.

Injuries

22. Following the incident, Ms Newton was taken by ambulance to Liverpool Hospital.

23. As a result of the incident, she sustained an open distal tibia fibula fracture of her left leg and pelvic fractures. She underwent two operative surgeries on her left leg.

24. Ms Newton was discharged from Liverpool Hospital on 2 February 2022 to Sydney Southwest Private Hospital for further rehabilitation. She continues to receive physical and psychological treatment for her injuries.

SafeWork NSW inspection

25. At approximately 9:20pm on 17 January 2022, NSW Police attended the site and conducted initial inquiries into the incident. SafeWork was subsequently notified of the incident after hours by NSW Police.

26. On 18 January 2022, SafeWork NSW inspector, Aaron Hession, attended the site at 10:00am. Inspector Hession made inquiries into the incident and collected information from members of the offender’s site management team.

27. At approximately 12:00pm on 18 January 2022, Inspector Hession attended a unit in Revesby where he inspected the mobile plant which was involved in the incident and took photographs of it.

The offender’s systems of work prior to the incident

28. The offender had the following documented systems of work at the time of the incident:

1. Safe Work Method Statements (SWMS) relating to “Trenching and Conduit Installation” dated 8 June 2021 and “Installation of Pits” dated 8 June 2021, which identified the high risk of working in or adjacent to a roadway and works in an area of movement of powered mobile plant. The SWMS also subsequently identified the hazard of personal injury due to being stuck/crushed by an excavator.

2. “Daily or Client Individual Site SWMS/Risk Assessment” and Prestart talks completed prior to commencement of works, including on the night of the incident, and signed by all workers on site, including Ms Newton.

3. Plant Risk Assessment for the Kubota Excavator TC 53 dated 30 June 2020.

4. Daily Prestart Inspection of the excavator.

5. “Traffic Control Plan – Pipe Installation” (TCP) dated 24 November 2021, prepared by CTM for the offender.

29. On the night of the incident, works were not being conducted in accordance with the control measures outlined by the offender’s documented safe systems of work, including:

1. There were no physical (concrete) barriers in place separating the work site from live traffic. Traffic cones were established along the roadside to delineate the work area from the lane of traffic.

2. Mobile plant was not kept at least one metre away from barriers as there were no barriers in place at the time of the incident. The work area in which the excavator was moving required the plant operator to track along the shoulder of Wallgrove Road at a 45-degree angle with his back toward the road. Ms Newton was struck within a metre of live traffic, causing her to land on the road. The exclusion zone for the mobile plant would have been expected to extend on to the oncoming traffic lane in order for the excavator to safely navigate whilst conducting the works.

3. An exclusion zone and no-go zones were not established and maintained to separate pedestrians from the mobile plant. At the time of the incident, there was no physical barrier to separate workers from mobile plant such as witches’ hats, barrier tape or concrete barriers.

4. The allocated spotter, Mr Cerruto, was conducing tasks other than monitoring the movement of the mobile plant at all times, as was required, including raking and grooming the road.

5. Communication was being kept between the workers through “line of sight” visual observations, hand signals and verbal communication by yelling. Two-way radios were not being used by the workers.

6. On the night of the incident, Mr Grant advised Mr Strehle that a last-minute decision had been made for a secondary work area to be set up approximately 400m away from the incident site, which required a separate traffic control set up. Ms Newton remained at the original work area while Mr Strehle headed to the secondary area. The TCP required two traffic controllers at each worksite. Due to the separation of the teams, Ms Newton was the sole traffic controller at the incident site.

7. There was no external lighting such as flood lights at the location of the incident. There was no street light within the immediate vicinity of the incident, the closest street light being 50m away on the adjacent road.

8. Ms Newton was unaware of the offender’s SWMS relevant to the works being performed on the night of the incident. She was not instructed by the offender that there was a designated exclusion zone on site and was not provided with instructions not to enter it. She used her common sense to not go near the excavator. Ms Newton was verbally instructed by the plant operator that she would need to stand with the slow bat to control traffic, and at times when he needed to enter the lane of traffic, the spotter would advise her when to stop the traffic.

The offender’s actions following the incident

30. The offender took the following actions after the incident:

1. implemented a requirement for exclusion zones to be designated with hard or soft barricades and an entry/exit point for operator only;

2. implemented access ways for pedestrians, delineated from the work/exclusion zone;

3. provided appropriate lighting for night works;

4. required that a spotter does not undertake simultaneous work tasks;

5. developed a standard operating procedure for “mobile plant interface”; and

6. implemented an open communication rule between spotters and plant operators.

The Offender’s Case on Sentence

31. The offender read and relied upon the affidavit of Michael Lemke affirmed 20 November 2024. The following is a summary of this evidence.

32. Mr Lemke is the sole director and company secretary of the offender.

Personal details

33. Mr Lemke is 45 years of age. He has a twin brother, Kristopher Lemke.

34. Mr Lemke completed school up to Year 11. He did not obtain his Higher School Certificate.

35. He did a pre-apprenticeship course for six months at Gymea TAFE in about 1996 and then began a four-year course as an apprentice electrician.

36. In the second year of his apprenticeship Mr Lemke began working as an apprentice electrician with LiteMaster Electrical (LiteMaster) in Mortdale.

37. Mr Lemke completed his apprenticeship in about 2000 or 2001 and continued working with LiteMaster as an electrician for six months.

38. Subsequently, he worked as a casual labourer for a period of six months before becoming a self-employed sub-contractor operating under the business name “Michael Lemke Electrical”. Mr Lemke performed various electrical works for three principals, Extenda Home, Andrew Walsh Electrical and Oz Build.

39. Mr Lemke also did Level 2 electrical work involving connections from the network to homes. He obtained his Level 2 Electrician Licence in approximately 2010 by completing Ausgrid courses in overhead connections, underground connections and point of attachment/metering.

The offender

40. Mr Kristopher Lemke is a qualified Telstra technician whose work involved fixing domestic telephone lines and faults as well as installations. Mr Lemke and Mr Kristopher Lemke decided to combine their skills in electrical and telecommunications to form the offender.

41. The offender was registered on 6 July 2011.

42. Mr Kristopher Lemke was also a director of the offender from 6 July 2011 to 28 June 2022. Since that date Mr Lemke has been the sole director of the company.

43. During the first 12 months Mr Lemke and Mr Kristopher Lemke conducted the works themselves, doing electrical connections including Level 2 electrical work on connections from the network to the house and NBN fibre lead-ins from the street to the house.

44. The company grew and progressed up to a peak of 80 employed staff including office workers, HR staff, accounts staff, project managers, site supervisors, construction managers, machine operators, labourers, electricians and apprentices.

45. The offender’s major clients were TPG, Vocus, John Holland, CAI and Optus.

46. Some of the offender’s major projects included the Rozelle Interchange, Ashfield Town Centre, Lane Cove Town Centre and Hurstville Plaza.

47. The main work of the offender involved the installation of substations, telecommunications systems and fibre slicing.

48. Between 2019 and 2022, the ramifications of the COVID-19 pandemic and lockdowns had a significant effect on the offender’s business and revenue with contracts being postponed and other expected work not going ahead. Petrol prices and construction costs also increased significantly during this period.

49. Mr Lemke deposed that the offender also had an issue with one of its projects with John Holland, whereby the offender was promised a variation and after the variation works were completed, the offender was not paid. This put significant financial pressure on the offender, and it could not sustain such a loss.

50. On 27 September 2022, Bradd Morelli and Stewart Free of Jirsch Sutherland were appointed as joint and several voluntary administrators over the offender.

51. On 22 November 2022, Mr Morelli and Mr Free ceased their appointment as voluntary administrators, a deed of Company Arrangement was entered into, and Mr Morelli was appointed the Deed Administrator.

52. The offender has not continued to trade since entering into administration.

53. Mr Lemke stated in his affidavit that the administration of the Deed is nearing an end and that he understands Jirsch Sutherland have made payments including final payments to creditors.

54. The offender does not hold any assets, is not trading and does not have any income.

55. The offender does not intend to trade once the Deed is finally administered. Mr Lemke intends to deregister the offender when he is legally able to do so.

Safety systems

56. The offender employed a Safety Coordinator who was responsible for creating and developing a SWMS for each job that the offender did. The Project Manager created the job-specific SWMS for each job. Any new SWMS would come to Mr Lemke for approval.

57. The Project Manager also conducted training of staff at the job site, including taking each staff member through the SWMS for the job. The Site Supervisor conducted toolbox talks at the site.

58. Each month, Mr Lemke would arrange for either himself or Mr Kristopher Lemke to conduct a whole company toolbox talk meeting involving all staff at the offender’s office in Revesby-Milperra.

59. Mr Lemke deposed that the offender prides itself on the safety of all workers and other persons who come onto its job sites. Mr Lemke stated in his affidavit that he deeply regrets that Ms Newton was injured as a result of the offender’s failures to ensure its SWMS’ were properly adhered to.

The offender’s involvement in the community

60. During its time, the offender has been involved in various sponsorships, donations and other community contributions. This included multiple monetary donations and sponsorships of between $5,000 and $10,000 to sporting clubs, individuals involved in sporting competitions and schools within the Sutherland Shire.

Consideration

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

Objective seriousness

62. The risk of a worker working on foot being struck by mobile plant was known to the offender and well known in the industry. The offender had recognised the risk in its safety documents and provided for control measures to be implemented to minimise the risk, including the implementation of a delineated exclusion zone, communication by two-way radio, observation of the work by a dedicated spotter, provision of adequate lighting and training relevant workers such as Ms Newton on these requirements. The identified control measures were not implemented on the night of the incident. To be clear, the offender did implement some control measures on the night of the incident but not to the extent that would have complied with the legislation.

63. The likelihood of the risk coming home if appropriate control measures were not taken was moderate. The way that the work was done on the night of the incident led to an increase in the risk coming home.

64. The control measures that should have been implemented were well known to the offender and could have been implemented by it. The isolation measures requiring separation of the worker on foot from the work site involved closing one lane of traffic and in that sense were not simple to implement. The remaining control measures could have been implemented with some minor expense and inconvenience.

65. The risk included a risk of death.

66. The injuries sustained by Ms Newton were serious.

67. I am satisfied that Ms Newton failed to take care for her own safety by taking and/or making mobile telephone calls while she was conducting traffic control.

68. I have taken into account the maximum penalty for the offence.

Deterrence

69. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

70. The need for specific deterrence in this case is substantially reduced. The offender is under administration and is not currently trading. Mr Lemke has also expressed his intention that the offender be deregistered.

Aggravating factors

71. The injury harm and loss caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. The injuries sustained by Ms Newton are sufficient to establish this aggravating factor.

Mitigating factors

72. The offender does not have any previous convictions: ss 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has operated its business since July 2011.

73. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender took appropriate steps to respond to the incident and has demonstrated that it had good prospects of rehabilitation. The weight afforded to this mitigating factor should be reduced taking into account that the offender has ceased trading.

74. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Lemke, on behalf of the offender, has accepted responsibility for its failure to comply with its SWMS and to implement the necessary control measures and expressed remorse for the injury sustained by Ms Newton. I accept this to be a genuine expression of contrition. The plea of guilty also indicates remorse.

75. The offender was a good corporate citizen. The offender has supported sporting and other community organisations through sponsorships and donations.

76. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. He is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

77. The offender co-operated with the investigation conducted by SafeWork NSW: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Capacity to pay a fine

78. The Court is required to have regard to s 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, he or she 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. The offender did not seek to establish a limited capacity to pay a fine.

79. The evidence establishes that the offender has no capacity to pay a fine. There is no money left in the administration. In those circumstances, I am satisfied that I should impose an appropriate fine without regard to the offender’s capacity to pay to give full effect to general deterrence and denunciation.

Penalty

80. Twin Connect Pty Ltd is convicted.

81. I have taken into account the Victim Impact Statement of Ms Newton.

82. The appropriate fine is one of $240,000 which will be reduced by 25% to reflect the discount for the plea of guilty.

83. I impose a fine of $180,000.

84. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

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Decision last updated: 29 November 2024