(e) providing adequate facilities for the welfare of the employees at work.
(2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.
9 The starting point for the assessment of an appropriate penalty is a consideration of the objective seriousness of the offences with which the defendant is charged.
10 In considering the seriousness of the offences, the Court is entitled to take into account the totality of the relevant circumstances that applied at the time that the incident occurred. It is uncontroversial that at the time of the incident, the defendant did have in place a project management plan and a project safety management plan which required an assessment to be made of the work to be undertaken and the risks associated with that work. This in turn led to the development of work methods statements and an assessment of what training needed to be undertaken for the work to be carried out safely.
11 Under the management plan, a project team was established by the defendant and a number of risk assessments were undertaken. The effect of the work method adopted by the defendant was that trees would be pushed over by a bulldozer and would then be cut up whilst on the ground using chainsaws and an excavator. These work methods statements did not contemplate that trees would be felled other than by being pushed over with the use of a bulldozer. Indeed, instructions were given to this effect and in particular employees and others engaged in the road project were precluded from using excavators or from cutting down trees using a chainsaw. There was evidence that on 8 December 2006, the roadwork site had been attended by a Mr Ian McGrath who saw and assessed trees in the vicinity that needed to be removed. He issued a direction to Mr Connell that they were not to be cut down, as referred to in [26] of the agreed statement of facts. Unfortunately, the direction was issued verbally and not in writing. If it had been issued in writing it is possible that it would have come to the attention of Mr Scott Paul, who had been absent on 8 December 2006 and that Mr Paul may not have permitted Mr Connell to attempt to cut down the tree.
12 The combined use of a chainsaw with the proposed assistance of an excavator in felling what has been characterised as a "problem tree" was clearly an unsafe method of felling the tree. The defendant by its plea of guilty admitted its failure to adequately inform those carrying out the work that they were not to use a chainsaw and excavator for this purpose and to adequately enforce that instruction.
13 The result is that the work was undertaken in circumstances that were inherently unsafe.
14 Given the nature of the work and the inherent dangers associated with work of that kind, the breach by the defendant of the provisions of the Act must be seen to be objectively very serious.
15 Notwithstanding this, the circumstances that surround this unfortunate and tragic incident are not to be seen as representing a worst-case offence. The defendant clearly had in place comprehensive and detailed processes and protocols associated with the carrying out of the work. The offences committed by the defendant arose out of a gap in what was otherwise a comprehensive and serious attempt to comply with its occupational health and safety obligations. Nevertheless, the existence of this gap is reflective of a serious breach of the defendant's responsibilities under the legislation.
16 In determining an appropriate penalty the Court is also required to take into account the deterrent effect that any penalty will create. There is both a general deterrent effect, which serves as a warning to others undertaking similar activities, and a specific deterrent, which the imposition of a penalty will create for this defendant. In this latter regard, I note that not only did the defendant exhibit a comprehensive and serious commitment to its occupational health and safety obligations prior to the incident but, on the evidence, has taken constructive and detailed steps to endeavour to remove any other gap in its occupational health and safety policies and procedures. The specific deterrent effect of any penalty on this defendant should be ameliorated accordingly.
17 There are a number of subjective factors that the Court is entitled to take into account in mitigating any penalty to be imposed. The defendant pleaded guilty to amended charges at the earliest appropriate time, it co-operated fully with the prosecutor and the WorkCover Authority of New South Wales in and about enquiries and investigations into the accident and it has exhibited in a tangible and positive way remorse and contrition for the incident, including financial and other support given to the family of the late Mr Connell. Indeed, there has been public recognition in the renaming of a bridge in the area as the Terry Connell Bridge. Furthermore, I am satisfied that the defendant has, as I have already indicated, a positive, constructive and responsible attitude to its occupational health and safety obligations and that otherwise the defendant may be regarded as a good corporate citizen.
18 It is also necessary that I mention the principle of totality. Both charges arise out of the one incident and the same course of conduct. It would be inappropriate, in these circumstances, to impose separate penalties by reference to each of the charges without ensuring that the totality of the penalties imposed in both cases reflect the overall criminality of the defendant arising out of the particular incident which gave rise to these proceedings.
19 The defendant has had a prior conviction for a breach of the Act. A penalty of $20,000 was imposed by the Chief Industrial Magistrate on 14 March 2003 arising out of a prosecution following an incident which occurred on 4 December 2000. The fact of this prior conviction mandates the quantum of the maximum penalty that applies for each offence as being $825,000.
20 I should mention that the fact that there is only one prior offence is representative, in my opinion, of an excellent safety record. In stating this, I take into account that the defendant Council covers a geographic area of approximately 3,422 square kilometres. The Council is responsible for the maintenance of about 524 kilometres of local sealed road, 58 kilometres of regional sealed road and 429 kilometres of unsealed gravel roads. It currently has 142 full-time equivalent staff within its Roads and Recreation Services Division, which is responsible for planning and completing infrastructure projects including roads, footpaths, bridges and parks.
21 Having regard to all of the matters to which I have referred, including the objective seriousness of each of the offences, the need to reflect the deterrent effect of penalties imposed, and having regard also to the subjective matters to which I have referred, I conclude that an appropriate penalty for each offence would be $150,000. However, taking into account the principle of totality, which clearly applies in the circumstances of these proceedings, it is my opinion that a total penalty of $175,000 is appropriate in all the circumstances.
22 The prosecutor sought orders for the payment of a moiety and costs, which were not opposed.
Orders