Inspector Brian Dell v Kevin John Teeling

5 There followed a most unfortunate series of events which culminated in the very tragic death of Master Martin. It is unnecessary to refer to the precise details leading up to the accident. It is sufficient to observe that the three workers were engaging in what was referred to during the proceedings as some "horse play". At some stage, Master Martin climbed through the back of the press and reached through the machine in order to turn on the tap. At that moment, Mr Martin, not realising where his son was, operated the hydraulic control lever of the press pushing it upwards and causing both the compactor plate and the horizontal steel plate to retract towards the rear of the press. Master Martin died instantly. Systems in place prior to the offence 6 Upon employment, workers received a general site induction which was informal and not documented. No risk assessment had been undertaken with regard to the operation of the press. As a result, a number of serious hazards associated with the operation of the press and at least two unsafe work practices which had developed unchecked over time were prevalent at the time of the offence. There was no documented system in place for the safe operation of the press. There was no documented set of instructions for its operation. The defendant did not provide any co-ordinated formalised training at the site. Instead, employees received verbal "on the job" instructions concerning the operation of the press. The employees learned how to operate the press by observing other staff members. There was no guarding or other controls which might have prevented workers from gaining access to dangerous moving parts of the press while it was in operation. The absence of guarding and other controls facilitated the development of the unsafe work practices. From time to time, employees placed their hands inside the compaction chamber of the press in order to hold down the materials being compacted while the press was in operation. Operators would also, from time to time, climb into the compaction chamber through the "in-feed" opening to compress the materials being loaded before the compactor was engaged. 7 Parts of the press were damaged or otherwise defective. The "in-feed" chute had two broken hinges attached on its rear side. A red button "cut out switch", the purpose of which was to stop the press in the event persons tried to gain access to dangerous moving parts, did not work on the day of the offence. The press was not otherwise fitted with any isolation device. The control lever, however, would stop the press, if released by the operator during a cycle (after travelling a further several centimetres). 8 The defendant provided personal protective equipment (PPE), namely earmuffs, for the use of staff operating or working near the press. There was also an informal verbal reporting system in place whereby employees could report any problems to Mr Teeling or Mr Ron Coleman (the usual supervisor in charge at the premises). 9 Although it cannot be said from these matters that the defendant had no system in place geared towards the safety of its employees, the paucity of safe work procedures, instructions and training, the lack of adequate supervision, the existence of workplace hazards and unsafe work practices all point to some very serious deficiencies in the defendant's systems of work. When these deficiencies are considered in combination they suggest that the defendant paid minimal regard to the importance of implementing occupational health and safety systems at the time of the offence in order to ensure the workers could operate the press safely and without fear of injury. 10 This finding alone compels the conclusion that the offence was objectively very serious. The risk to safety was obvious and foreseeable 11 It was an agreed fact that from time to time the workers, including Master Martin, would climb into the compaction area of the press through the in-feed chute to pack down material before the press was activated. The risk to Master Martin's safety in these circumstances was both obvious and foreseeable, a fortiori when one takes into account that at the time of the accident the cut-out switch, which was the only isolation device available, was inoperative. The unsafe work practice exposed employees directly to the risk of the press being inadvertently activated while they were present within the compaction chamber and in the path of the hydraulically powered compaction plate and the horizontal plate attached at the top of the compaction plate. 12 At the time of the accident, Master Martin was a 16-year old school boy. He lacked full and proper appreciation of the risks involved in the operation of unguarded machinery because of his age and his inexperience. Master Martin's inexperience may be gauged from the paucity of safety training and instruction he received from the defendant, the inadequacy of supervision and the fact that he had been exposed to unsafe work practices which involved placing his body, or parts of his body, in the path of moving parts of the press. 13 The defendant candidly acknowledged the seriousness of the offence. In doing so, he informed the Court that he did not seek to minimise in any way the gravity of the offence. In particular, he did not seek to rely on the evidence which suggested that the employees involved in the circumstances immediately before the accident had indulged in "horse play". I should observe that in any event the Court would be disinclined to take into account any such submission, were it to be made, that the antics of the workers, including Master Martin, in any way contributed to the circumstances of the risk to which Master Martin was exposed, and that those antics mitigated or in some way diminished the defendant's criminality. 14 This is primarily so for two reasons. First, the often quoted and well-known observation that the Act was "designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety" operates to diminish the force of the submission: see WorkCover Authority NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 254. Secondly, given the age and inexperience of Master Martin, the defendant had an increased responsibility to ensure his safety, a proposition which has been recognised in a number of authorities decided in this jurisdiction. Some of those authorities were collected by her Honour Justice Kavanagh in Inspector Richard Mulder v GRD Minproc Ltd [2008] NSWIRComm 82 at [14] in which her Honour observed: The defendant carries an additional burden of responsibility for ensuring the safety of young and inexperienced employees on its worksite and this is reflected in the seriousness of the offence. In WorkCover Authority of NSW (Inspector Maddaford) v Coleman ( 2004) 138 IR 21, the Full Bench said at [96]: . . . we wish to highlight the responsibilities that are associated with the employment of young people, who are for the most part industrially inexperienced and particularly vulnerable. . . . We note and adopt in this regard what was said by the court in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 (at [230]): ... the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, ... must enhance the seriousness of the offence.

As to the vulnerability of young workers see also: WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd (t/as Style Wise Interiors) (2002) 113 IR 78 at [100]; Inspector Paul Wade v Litchfield Roofing (Australia) Pty Ltd [2005] NSWIRComm 394; WorkCover Authority of New South Wales (Inspector Dubois) v James Nicholas Denson; JB Metal Roofing Pty Limited and Garry James Denson [2007] NSWIRComm 119 at [64]-[65]. Probable consequences 15 The gravity of the risk to safety consequential upon an inadequately trained, instructed and supervised child working in the vicinity of unguarded machinery with exposed dangerous moving parts is obvious. The tragic death of Master Martin manifests the enormity of the risk. Remedial steps available prior to the offence 16 There were a number of straightforward and relatively inexpensive steps that could have been implemented by the defendant in order to reduce or even eliminate the risk. This point is illustrated by the post-offence measures taken by the defendant which have been set out in Mr Teeling's affidavit, as well as in the Agreed Statement of Facts. 17 After the offence, the defendant engaged a guarding specialist to examine the press and make recommendations for appropriate guarding and its installation in order to prevent access to all dangerous crush points, including the hydraulic ram. In addition, the defendant developed safe operating procedures for all persons operating the press and developed an induction manual for the premises. Deterrence 18 General deterrence, as a guiding principle on sentence, has particular application on two bases relevant to the circumstances of the offence under consideration. First, the circumstances involved an unguarded industrial machine which contained large moving dangerous parts. Secondly, the worker at risk, Master Martin, was a young, inexperienced school boy. Both of these matters highlight the seriousness of the offence. With regard to the former matter, the observations of Walton J, Vice-President, in WorkCover Authority of New South Wales (Inspector Ankucic) v Crown in the Right of the State of New South Wales (Department of Education and Training) (2002) 112 IR 1 (cited with approval in WorkCover Authority (NSW) (Inspector Lai) v Rexma Pty Ltd (2008) 172 IR 210) are relevant: [41] For a number of reasons, I consider the evidence established that the offence in this case was an extremely serious one. The offence resulted from the existence of an unguarded circular saw in a classroom used by students of secondary school age. It scarcely needs to be said that the presence of unguarded machinery constitutes one of the most pernicious and infamous dangers to the health and safety of persons in the workplace. It is this very type of danger that prompted persistent and ongoing legislative attempts by governments to compel the correction of such obvious and serious faults in the systems and plant employed in the operations of employers: see WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 at 100 and Department of Mineral Resources (NSW) (Chief Inspector Terry) v A M Hoipo & Sons Pty Ltd (1999) 99 IR 137 at par 53. [42] The dangers presented by an unguarded saw are well known and management at all levels should be vigilant to ensure that unguarded machinery is not used. The seriousness of the detriment to safety in this case was amply demonstrated by the serious injuries sustained by Mr Carpenter. It is well established that, although the gravity of an offence under the Act is not necessarily reflected in its actual consequences, the occurrence of death or serious injury manifests the seriousness of the relevant detriment to safety: see Tyler v Sydney Electricity (1993) 47 IR 1 at 5 and Lawrenson Diecasting (at 476). In the present case, the evidence indicated that there was a risk of injury, not only of a person sustaining injuries as a result of their hand coming into contact with the blade, but due to wood flying up out of the machine. The evidence of Inspector McMartin was that, without the guard in place, there was a real danger of a piece of wood being propelled out of the machine and seriously injuring the operator. 19 With regard to the latter matter, I adopt the observations of Walton J, Vice-President in WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited and Another (2000) 95 IR 383 at 452 where his Honour said: In my view, the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, particularly where the business utilises dangerous equipment, must enhance the seriousness of the offence. Such a circumstance compels the imposition of a sentence which will attract the attention of other persons or corporations operating enterprises with similar features to the necessity of vigilantly ensuring the safety of young and inexperienced workers. 20 The prosecution submitted that some allowance needed to be made for specific deterrence primarily because, as at the date of the defendant's first affidavit (7 October 2009), the defendant employed two casual employees. 21 In the affidavit, the defendant said that he had closed the business in November 2008 and was attempting to dispose of the equipment and machinery of the business which he hoped to complete by December 2009, after which he planned to retire. He had sold the press for $15,000.00 at the time he made his affidavit. In a second affidavit dated 12 October 2009, the defendant said that he was in the process of developing a rural property outside of Lismore for the purposes of sub-division and he expected to realise about $250,000.00 for each of six blocks upon sale. The defendant, at the time he made his affidavits, was 72 years of age. 22 These matters suggest that the defendant is highly unlikely to re-offend under the provisions of the Occupational Health and Safety legislation. The defendant has no prior convictions. In these circumstances, I take the view that the application of specific deterrence is not called for. 23 The objective factors addressed in these proceedings indicate however that the offence was objectively very serious and I so find. Subjective features 24 The defendant entered a plea of guilty at the earliest or first reasonable opportunity. I propose, in these circumstances, to assess an appropriate penalty for the utilitarian value of the plea at 25 per cent. 25 As a separate consideration from the utilitarian value of the plea, the defendant is also entitled to leniency in recognition of the remorse shown by the plea of guilty. The absence of prior convictions also entitles the defendant to leniency normally extended to an offender who is otherwise not adversely recorded. 26 The defendant also co-operated with WorkCover during the investigation and prosecution of the offence. 27 In his first affidavit, the defendant said that he attended Master Martin's funeral with his family in order to pay his respects. At the time of the accident, he said he attempted to assist where he could. He comforted Mr Martin and organised for him to be driven home. 28 The defendant said he was "absolutely devastated" and was in a state of shock and disbelief on the day of the accident. Shortly after he had arranged for Mr Martin to be driven home he collapsed and was treated by two personnel from the State Emergency Services who had attended the premises that day in response to the accident. After the accident, the defendant engaged the independent expert who performed the risk assessment and made recommendations which the defendant implemented. Those measures, as well as other measures put in place by the defendant following the accident, have been earlier referred to and need no repetition. The defendant also acknowledged in his affidavit that it was his responsibility to have engaged suitably qualified professionals to conduct risk assessments at the premises before the accident occurred. 29 These matters provide evidence upon which the Court may take into account the defendant's remorse in mitigation of the penalty to be imposed. As required under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (CSPA), the defendant by his expressions of remorse and conduct has provided evidence upon which it may be concluded that he has accepted responsibility for his actions and has acknowledged the loss caused by those actions. Capacity to Pay 30 Although the parties appeared to give some initial consideration to the issue of the defendant's capacity to pay a fine under s 6 of the Fines Act 1996, it was not ultimately pressed during the sentence proceedings. The prosecutor had submitted in writing that the material produced by the defendant regarding his financial position suggested that the business retains substantial assets, and the defendant, therefore, had the means to pay a fine. It was put to the Court on the defendant's behalf that bearing in mind the documentation attached to the first affidavit and the information set out in the second affidavit concerning the defendant's current financial position (the profit anticipated from the proposed sale of the sub-division) the defendant did not dispute the prosecution's submissions on the issue. Penalty 31 The maximum penalty for the offence is $55,000. In determining penalty against the defendant I have taken into account the objective seriousness of the offence, the maximum penalty, the factors in mitigation of penalty outlined above, the plea of guilty and the absence of prior convictions. These factors have been considered by reference to the CSPA in particular s 21A and s 22. Based on these matters, I record a conviction against the defendant. Victim Impact Statements 32 During the sentence proceedings, after the prosecution had presented its case on sentence, the Court received four victim impact statements. The first was made by Master Martin's mother, Brenda Martin; the second by Master Martin's sister, Tanisha Martin; the third by his father, Gary Martin; and the fourth by his grandmother, Carol Neal. 33 In accordance with the prevailing law, the Court may receive the statements but may not take them into account in determining an appropriate sentence: Salvatore Previtera (1997) 94 A Crim R 76; Mark Andrew Bollen (1998) 99 A Crim R 510; Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [43]; Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179 at [304] to [322]. 34 I also find, as required under s 27(2A)(b) of the CSPA, for the purposes of receipt of the statements (although it was not an issue raised by the parties) that the offence resulted in (my emphasis) the death of Master Martin, for reasons earlier expressed. 35 Section 28(3) of the CSPA is also relevant to the receipt of victim impact statements provided by family members of the primary victim. The sub-section provides: If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. 36 These statements starkly illustrate the dreadful impact of this tragedy on a family. The Court expresses its deepest sympathy to the Martin family for the loss of a son, brother and grandson. Orders 37 In Matter No IC 2013 of 2008, the Court makes the following orders:

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Judgment (13 paragraphs)

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Cases Cited (13)