Consideration
49Counsel agreed that the primary consideration in sentencing requires a determination of the objective seriousness of the offence in accordance with the above principles. This involves examining the nature and quality of the offence as set out in the agreed statement of facts and the evidence.
50The charge and the particulars establish the parameters in which the objective seriousness of the offence should be considered by the court: Morrison v Powercoal (No 3) [2005] NSWIRComm 61 (at [76]).
51The particulars of the charge allege that on 13 April 2007 the defendant failed to assess and manage the risk of a forklift colliding with a person and crushing him, in particular, Mr McMaster.
52The risk manifested itself through the failure of the defendant to ensure that keys to the forklift were secured so that unauthorised persons could not access or operate the forklift and that the forklift was properly maintained, in particular, that the handbrake was in working order.
53These were the two simple steps that should have been taken in order to ensure the safety of Mr McMaster and remove the risk to his health and safety. The forklift could simply not have been operated if the keys were not available. Furthermore, the forklift could not have, in the circumstances, where it was parked, collided with Mr McMaster and crushed him if the handbrake was working.
54There are four significant matters which require consideration and determination in deciding the appropriate penalty for this offence. The first is the degree of culpability for the breach of the occupational health and safety that can be attributed to the acts or omissions of the defendant. It is necessary to deal with this issue in order to decide the gravity of the offence to which the defendant has pleaded guilty.
55The second issue is linked to the first and involves an assessment of the degree of culpability that can be attributed to Levira and Mr McMaster, arising out of the relevant acts or omissions.
56The third and fourth issues are also related. They involve a determination of the relevant factual questions, or questions of fact and degree relating to the subjective circumstances of the defendant and how any conclusion in that regard should be factored into the final assessment of the relevant penalty.
57In dealing with the first of these questions, the failure here is essentially a failure to guard against the use of the forklift in colliding with Mr McMaster and crushing him. The defendant's evidence was that Mr McMaster was told not to use the forklift after it became aware he was using it when he drove the forklift through a wall. An instruction was given by the defendant which failed to ensure Mr McMaster's safety as it relied on adherence to the instruction.
58The risk could have been guarded against in a number of ways, but simply telling someone not to use the forklift was not a matter that guaranteed or ensured safety. As the particulars state, the opportunity to use the forklift was available when keys were left in the ignition, irrespective of the competence or otherwise of non-employees to drive a forklift or operate it.
59The ramp which was provided by Levira was not operational. This fact had been brought to the attention of Levira, who was aware that the forklift was being operated by Mr McMaster. The further step that should have occurred to avoid the risk was to ensure that the handbrake was in working order. The defendant failed to ensure that the forklift was properly maintained.
60Mr Docking submitted that errors or negligence of the person not in the employment of the defendant should reflect on the degree of culpability for the purposes of sentencing: Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143 at [15]. In this matter, Mr McMaster used the forklift knowing that the defendant had prohibited its use at the depot. He used it knowing that the handbrake did not work on 13 April 2007.
61Furthermore, Mr McMaster's actions led to the instability and imbalance of the forklift in circumstances where the tines were left raised at truck tray height instead of lowering them close to the ground when the forklift was left unattended. Secondly, Mr McMaster placed removable 1230mm slippers over the fixed tines. The forklift was also left idling which permitted it to vibrate and move in an area where the defendant had never used a forklift.
62In respect of causation, the proper approach to the distinction between the ultimate event and the underlying risks has been the subject of comment in a number of cases. In Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8, Walton J, stated at 27 - 28:
"The standard of foreseeability is objective, but it is not necessary that the precise causal circumstances of exposure to the risk and the consequent accident were reasonably foreseeable: Shannon v Comalco Aluminium Limited (1986) 19 IR 358 at 364; The University of Sydney.
In Inspector Hannah v Rice Growers Co-Operative Limited (unreported, CT90/88, 20 November 1990), Fisher P commented, in relation to an offence under s 15 of the Act, that (at p7-8):
"It was true that it may be difficult to anticipate the way in which even an obvious and avoidable risk may work itself out. Most serious accidents are not anticipated. This does not excuse any employer from a failure to employ a safe system of work incorporating obvious and desirable safety measures." "
63In my view, the above observations of his Honours are applicable in this case. While the accident resulted from a combination of events, the defendant was aware that from time to time Levira employees were using the forklift. However, the keys were left in the forklift and the handbrake did not work. In these circumstances, the occurrence of an accident of the type, that occurred, was reasonably foreseeable. The prospect of an employee of Levira continuing to use the forklift was foreseeable. It was against this very danger that a procedure was introduced after the incident. That procedure was the locking of the keys to the forklift in a drawer.
64A further factor that should be taken into account in assessing the objective seriousness of the offence is whether death or serious injury occurred. The seriousness of an injury or a death does not dictate the size of any penalty but it does demonstrate the seriousness of the detriment to safety occasioned by the offence: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992) at 9; Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 (at 464); Tyler v Sydney Electricity (1993) 47 IR 1 at 5.
65In Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364, the Full Bench (Wright J President, Walton J Vice-President, Boland J) stated at [33]:
"[33] Thus, it may be the case that an employer prosecuted under s 15 of the Act was aware of a serious risk to the health and safety of its employees but took no action to eliminate the risk, notwithstanding that simple and straightforward remedial steps were available. The gravity of such an offence, despite the fact no one was injured and having regard to relevant subjective factors, might be assessed at the high end of the range of penalty available to be imposed on the offender. On the other hand, another employer may have had a good safety record, a safe system of work in place, provided a high level of training, instruction and supervision but through a combination of inadvertence on the part of an employee and a momentary lapse in supervision, a fatality occurs. The assessment of the objective seriousness of the offence could conceivably be at a level lower than that applied to the first employer and, having regard also to subjective considerations, might attract a lower penalty. Importantly, however, in the latter example, the occurrence of death may indicate that the risk to which the deceased employee was exposed, despite the employer's demonstrable commitment to providing a safe workplace, represented a serious detriment to safety deserving of a higher penalty than otherwise might be the case."
66This is a matter, which in my view, could properly fall within the second example referred to by the Full Bench in the above decision. The defendant had been in operation for four years at the time of the incident. On two occasions, Mr Thomas telephoned Mr Capper, the sole director of Levira and complained that his employees were using the forklift. The defendant was entitled to believe that Levira's employees would discontinue using the forklift. However, this court has on numerous occasions, emphasised that an employer must be proactive in its approach to occupational health and safety in respect of both its employees and non-employees.
67It has been emphasised on numerous occasions by this court that an employer must be proactive in ensuring health and safety. In WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2001] NSWIRComm 50; (2001) 105 IR 81, Walton VP and Boland J, (Kavanagh J dissenting) stated at [45] - [46]:
"[45] The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 - 312 and WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248.
[46] We agree with the conclusions of the Full Bench in Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 [at 15] as follows:
"The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257:
"Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry."
(See also WorkCover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; (2000) 100 IR 64 at 722).
68In Inspector Simpson v Tomago Aluminium [2005] NSWIRComm 117 at [28], Boland J stated:
"It cannot be assumed that because a worker, even an experienced one, has received extensive training and instruction in relation to safety procedures that such training and instruction cancels out any possibility that he or she will not place themselves at risk in relation to a dangerous piece of machinery that is not guarded to the maximum possible degree. Workers may act foolishly, as demonstrated in cases such as WorkCover v TRW Steering & Suspension Australia Ltd [2001] NSWIRComm 52 at [13] and Inspector Woodington v Thiess Services Pty Ltd [2004] NSWIRComm 20 at [70]. That is why the obligations on an employer under the Act require that employer to actively search out and, where it is at all possible, eliminate any risk to health and safety."
69See also Inspector Beacham v Delta Shelving Systems Pty Ltd [2012] NSWIRComm 103 per Staff J at [73]; Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 and McLean v Tedman (1984) 155 CLR 306 at 311 - 312.
70Applying these principles, there is no basis to conclude that the conduct of Mr McMaster minimised the liability of the defendant. However, as the Full Bench observed, such matters may reflect on the degree of culpability of the defendant for the purpose of sentence.
71I note that the company had in place occupational health and safety policies prior to the accident and that there had been no accidents at the bakery either before or since the incident.
72Mr Docking also pointed to the extenuating circumstances in which the offence was committed for the purposes of s 10(3)(c) of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act"). This section provides:
(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
...
(c) the extenuating circumstances in which the offence was committed,
73In addition to the matters to which I have already referred, counsel submitted that a safe ramp was not provided for the removal of the bread dollys, despite Mr McMaster advising Levira that the ramp did not work.
74In addition, Mr Docking submitted that no other person was exposed to the risk apart from Mr McMaster as no other employees worked or were present at the depot at the time of the offence and/or the planned delivery of the bread. The area where the incident occurred was a pedestrian and people free area of the defendant's premises.
75In my view, the offence should be assessed as being at the mid-range of seriousness.