Consideration
31As can be observed from the principles set out above, the primary consideration in sentencing requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the agreed statement of facts and the evidence.
32Without repeating what is contained in the agreed statement of facts, in considering the seriousness of the offence, it is relevant to set out the important matters. The risk in this matter was the potential for a forklift to collide with a person and cause a crush injury. The risk arose as a result of the defendant failing to instruct Mr McMaster that he was not to operate the forklift at the site.
33The defendant also failed to provide training to Mr McMaster to operate the forklift, particularly in respect of the need to conduct regular inspections of any forklift to ensure it was safe to operate. In addition, the defendant failed to ensure that Mr McMaster held a certificate of competency in forklift operations before he used the forklift. The conclusion to be drawn from the WorkCover licensing documentation is that licences issued before 1996, which would include the licence issued to Mr McMaster, continued in force until 31 December 2012.
34Ms McDonald acknowledged that there was a distinction between not holding a certificate of competency and not ensuring that someone has a certificate of competency. The defendant has admitted that it never saw Mr McMaster's copy of the certificate of competency, although Mr Capper's evidence was that on numerous occasions, he asked Mr McMaster for a copy of the certificate and Mr McMaster did not provide it to the defendant.
35Mr Capper's evidence also demonstrates that the defendant had an informal system of work that required any employee who was to operate a forklift to be licensed and to provide evidence of that licence.
36In light of this evidence, I propose to proceed to sentence on the basis that Mr McMaster had a certificate of competency. However, it was never actually produced to the defendant.
37Mr Capper's evidence was that if any of the employees were required to drive a forklift, they would be supervised and observed driving and operating it to ensure that they had the competence and expertise required. Although the defendant's OHS system was undocumented, the defendant required observation and supervision of employees to ensure that they were competent to drive a forklift. In my view, in respect of this particular, the criminality or the culpability of the defendant in respect of this omission is minimal.
38The final two particulars deal with a failure to provide a metal ramp in sound condition to allow the bread dollys to be moved from the truck to the depot and a failure to provide supervision to ensure that Mr McMaster used the metal ramp to wheel the bread dollys off the trailer and into the depot. The evidence establishes that a metal ramp was provided and the primary system of work was the utilisation of the metal ramp to remove the bread dollys from the truck.
39Mr Capper's evidence was that he was aware that from time to time that the defendant's employees "sometimes did use a forklift at McLeods instead of the metal ramp because using a forklift required far less physical effort".
40The defendant had a system in place that enabled any complaint about the functioning and/or safety of vehicles, or concern with equipment to be written in the "Plod Book". Mr Capper's evidence was that if issues arose in respect of the ramp, a mechanic would be despatched to repair the ramp. The defendant has admitted that the ramp was not in sound condition on 13 April 2007.
41In respect of the failure to provide any supervision to ensure the metal ramp was used to wheel bread dollys off the trailer, the evidence is that the defendant had an informal undocumented system which involved training the employees in this work. This included Mr Capper observing and checking that the employees were not exposed to risks to their health and safety. The deficiency in this system is highlighted by the steps taken after the incident when the defendant introduced a written procedure for delivering the bread to McLeods and also a written procedure in respect of the operation of a forklift.
42The prosecutor submitted that the risk, in addition to the failure to provide training to Mr McMaster in the operation of forklifts gave rise to the risk of an employee being crushed by a forklift through its incorrect operation.
43The prosecutor submitted that the risk of the forklift colliding with a person and crushing them, was obvious and foreseeable.
44Ms McDonald submitted the defendant had no knowledge about the broken handbrake on the forklift and that it was not reasonably foreseeable that the handbrake would be broken and not identified and subsequently fixed by McLeods. The defendant also had, in my view, a reasonable expectation that the forklift would not be provided in a dangerous state by McLeods. It was McLeods' lack of maintenance that was the primary cause of the incident and the risk to health and safety. In addition, McLeods, clearly, made the forklift available to employees of the defendant as the key was left in the ignition. McLeods were also aware that the defendant's drivers were using the forklift, as was the defendant (see SAF 21). In such circumstances, the defendant should have provided training to its employees in respect of the need to carry out regular inspection of the forklift to ensure it was safe to operate. This would have identified the defect with the handbrake. It should have also ensured the metal ramp was in sound condition because if it was not, it was foreseeable that employees would use some other means to unload the dollys of bread, for example, a forklift.
45Taking into account these circumstances of this particular offence, I find that the risk was therefore reasonably foreseeable.
46The foreseeability of the risk is a factor to be taken into account when assessing the level of culpability of the defendant: Capral Aluminium Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [81] - [82]; (2000) 99 IR 29.
47An offence may be characterised as a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken in circumstances where such measures were available and feasible: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476.
48It is clear from the evidence, that the conduct of both the defendant and McLeods contributed to the incident.
49Ms McDonald submitted that from the defendant's driver's perspective, the forklift was used in the early hours of the morning before workers arrived at McLeods' depot. The only person to be placed at risk from the defendant's perspective would be the driver.
50Counsel conceded that the risk to its employee was a serious risk, but observed that Mr McMaster had recovered from his injuries and that he is now working full time driving a truck for Basin Sands Logistics.
51Pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 , the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: see Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18] and Capral Aluminium Ltd at [94] - [95].
52Taking these factors into account, the offence falls towards the mid-range of seriousness.
53It is appropriate in respect of this incident and this prosecution to consider the contribution of another entity to the risk to safety in the assessment of penalty. The principle is that where another person has contributed to a detriment to safety, the question remains, in assessing penalty, what are the specific culpabilities of the defendant. The statutory obligations placed on the defendant is not diminished by the notion that other entities may have contributed to the risk to safety.
54In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125, Walton J, Vice-President, explained the approach to be taken at [242]:
The common thread running through this line of authorities is the principle that where it may be contended that an entity, other than a defendant, has contributed to a detriment to safety (either by advice or common enterprise), the question remains, in assessing penalty, what are the specific culpabilities of the defendant, the statutory obligations placed upon the defendant not having been diminished by the notion that other entities may have contributed to the risk to safety (see, for example, Morrison v Waratah at [46]). The contribution of the other entity is only relevant to the extent that its contribution casts light upon the real level of culpability of the defendant: Morrison v Waratah at [46] and McDonald's at 437. Such an analysis may assist in understanding the reasonableness of the defendants' actions, and may include an assessment of systems which were operating at the time of an incident giving rise to the prosecution. However, in sentencing, a factor, such as a lack of control by a defendant employer engaged on a multi-employer worksite, will normally not result in a significant diminution in the objective seriousness of an offence: Morrison v Waratah at [46]. It will be plain from the foregoing discussion that it would be wrong, in law and principle, to approach such considerations as if some apportioning of the overall penalty between the defendant and the other entity was being undertaken by the Court (see Morrison v Waratah at [46] and Morrison v Powercoal (2005) at [123] and [124]).
55The prosecutor submitted that the culpability of the defendant and McLeods was "broadly equal in terms of the omissions". In my view, for the reasons set out earlier, at particularly [44], this defendant's culpability is greater than the contribution of McLeods to the generation of the risk.