SafeWork NSW v Bay Trusses & Frames Pty Ltd

BACKGROUND

1. The defendant is a registered corporation conducting a business or undertaking that involves building frames and trusses for houses and the transportation of those frames and trusses.
2. Mr Ian Hunter Livingstone ('Mr Livingstone') is the Managing Director of the defendant.
3. The defendant operates its business or undertaking from three locations: 81 Enterprise Drive, Beresfield ('Enterprise Drive workplace'); 26 Balook Drive, Beresfield ('26 Balook Drive') and the worksite, 19 Balook Drive.
4. As at July 2017, Mr Fing was contracted as a truck driver with the defendant, having commenced working for them in 2011. Mr Fing's main duties included driving an articulated vehicle, and loading and unloading frames and trusses.
5. Mr Rodney Purser ('Mr Purser') was employed by the defendant as a leading hand. He commenced employment with the defendant in February 2016 and held a licence to operate a forklift.
6. Mr Kel Bourke ('Mr Bourke') was employed in the role of logistical coordination and was in effect Mr Fing's supervisor.
7. Mr Craig Ward ('Mr Ward') was the production manager of the steel joist division located at the workplace.

PLANT AND EQUIPMENT

1. On the day of the incident, Mr Fing was driving an articulated vehicle owned by the defendant, ISUZU CVD prime mover, registration BA63DX ('the truck').
2. The flatbed trailer attached to the truck had a registration of 568176.
3. A Toyota SAS 50 forklift (model no. 8FD50N) owned by the defendant was used to load the truck.

THE INCIDENT

1. On 11 July 2017, Mr Fing drove to the Enterprise Drive workplace where two packs of floor sheets were loaded on the front of the trailer bed of the truck and two timber frames and truss 'frame packs' were loaded behind the floor sheets across the full width of the trailer. The load was secured.
2. Mr Fing drove the truck to the 19 Balook Drive worksite and parked it in preparation for the trailer to be loaded by forklift with two packs of steel joists and a bundle of timber.
3. The operator of the forklift was Mr Purser.
4. Mr Fing and Mr Purser discussed where the steel joists were to be positioned. Mr Fing climbed onto the trailer and stood in the space between the loaded frames and the rear end of the trailer to observe the loading operation and to direct the positioning of the joist packs.
5. The first load of steel joists was successfully loaded onto the trailer using a "shunt forward" method. Mr Fing was standing on the back of the truck. As Mr Purser used the "shunt forward" method, the pack of steel joists rolled off the forklift tynes and landed at an angle on top of the first load of steel joists.
6. Mr Fing was concerned the steel joists would fall off the truck on the driver's side and moved towards that side to alert any pedestrians. At this time Mr Fing fell from the truck trailer to the concrete surface at the rear of the trailer.
7. As a consequence of the fall, Mr Fing sustained serious injuries. He fractured his C6 vertebrae in his neck and was diagnosed with a traumatic brain injury. He has been diagnosed with central cord syndrome and has nerve damage from the spinal cord injury. Mr Fing had a winged left scapula and was later found to have partial tears in his rotator cuff.
8. Mr Fing has not returned to work.

SYSTEMS OF WORK BEFORE THE INCIDENT

1. A risk assessment titled 'Climbing on frame and truck loads on trucks' dated June 2011 had been conducted at the defendant's Enterprise Drive workplace.
2. The risk assessment allowed for the truck drivers to climb on truck loads. The risk assessment was last reviewed in June 2010 when it had been developed for the Enterprise Drive workplace. The risk assessment had not been specifically prepared for the 19 Balook Drive worksite where the incident occurred. The ground at 19 Balook Drive was uneven and sloping and there was limited area to allow for movement of multiple trucks and exclusion zones for loading.
3. A risk assessment had not been conducted on the risks associated with loading and unloading of delivery vehicles with mobile plant (including forklift trucks) at the workplace.
4. There was in place a Safe Operating Procedure ('SOP') titled 'Loading & Unloading' (November 2012). The SOP directed forklift drivers to; '- …ensure the truck driver is at the front of the truck & remains in view… - Make sure the truck driver is not standing on the opposite side of the truck… - Beware of knocking or tipping packs off the other side of the truck, and - Avoid climbing on truck as much as possible.'
5. The SOP was prepared for the Enterprise Drive workplace.
6. Mr Fing had signed the SOP. Mr Purser and Mr Ward had not seen the SOP.
7. Mr Purser was not formally trained on the loading procedure and learnt the procedure by 'observing' the previous forklift operators while they performed that task.
8. The established practice for loading trucks at the workplace did not include a pedestrian exclusion zone around the truck nor a specified safety zone for the driver.
9. Timber gluts were not provided for use when loading the joist packs, to eliminate the need for the forklift operator to 'shunt' or 'jolt' the packs off the forklift tynes.
10. The established systems or practices at the workplace did not include forklift drivers not commencing loading or unloading trucks until the truck driver and any other pedestrians are inside the designated safety zone.
11. The established systems or practices at the workplace did not include an instruction that forklift drivers must have a clear line of sight to the truck driver before commencing loading or unloading trucks and should cease operating the forklift if they cannot see the truck driver.
12. The established systems or practices at the workplace did not include an instruction that truck drivers are to remain in the designated safety zone while their trucks are being loaded or unloaded by forklifts or other mobile plant.
13. The defendant did not clearly prohibit drivers accessing the vehicle tray or trailer while it is being loaded or unloaded at the workplace.
14. There was no system or practice at the workplace which ensured that the lashing of loads be conducted from ground level or from a mobile work platform.

Code of Practice: Managing the Risk of Plant in the Workplace

1. Prior to and at the time of the incident, the SafeWork NSW Code of Practice 'Managing the Risks of Plant in the Workplace' (July 2014) ('the Plant Code of Practice') was available to the defendant.
2. The Plant Code of Practice provided:

• that a person conducting a business or undertaking ('PCBU') must provide workers and other persons who are to use a plant with information, training, instruction or supervision that is necessary to protect them from risks arising from the use of the plant (page 16);
• that a PCBU's management must take action to correct any unsafe work practices associated with plant as soon as possible, otherwise workers may assume that unsafe work practices are acceptable (page 16);
• that certain types of plant, such as forklifts, require the operator to have a high-risk work licence before they can operate the plant (page 17); and
• a hazard list checklist template to be used by a PCBU in managing risks associated with plant (page 35). The hazard checklist includes a section addressing the risk of fall from height.

1. The WorkCover NSW Guide to Safety in the Road Freight Transport Industry ('Freight Guide') was available to the defendant at the time of the incident, and encourages a PCBU to; 'Review all tasks that are performed at height and consider ways to perform it at ground level, or from a solid platform. Where possible, configure loads so there is no need to access the tray or trailer.'
2. The Freight Guide details traffic management measures when loading or unloading using mobile plant. Selected measures include: 'Exclusion zone and safety zone • Specify a pedestrian exclusion zone around the truck. • Specify a safety zone for the driver - e.g. at the front of the truck, in the amenities area or in the cabin, if it is safe to do so. • Erect sturdy barriers, such as fences or gates, around the safety zone - or, if these are unavailable, use chains or tape. • No-one should enter the exclusion zone without the mobile plant operator's approval. • The mobile plant operator should not begin loading/unloading until everyone is clear of the exclusion zone. • Maintaining an exclusion zone around the truck while loading/unloading will also eliminate the risk of anyone being hit by falling loads. Mobile Plant • Ensure mobile plant is appropriate for the loads and workplace. Work environment • Provide a safe loading/unloading surface area.'
3. On 4 March 2015 SafeWork NSW issued a safety alert relating to falls from flatbed trucks and trailers. This safety alert is published on the SafeWork website and includes a YouTube video.
4. The Workplace Health and Safety Regulations 2011 (NSW) ('the Regulations') were in force at the time of the incident. Regulation 32 clarifies that Part 3.1 of the Regulations 'applies to a person conducting a business or undertaking who has a duty under these Regulations to manage risks to health and safety.'
5. Regulation 38(1) states that: 'A duty holder must review and as necessary revise control measures implemented under these Regulations so as to maintain, so far as is reasonably practicable, a work environment that is without risks to health or safety.'
6. Regulation 38(3) also stipulates that: '… a change to the workplace includes … a change to the workplace itself … '
7. Regulation 39 provides: '(1) This regulation applies for section 19 of the Work Health and Safety Act to a person conducting a business or undertaking. (2) The person must ensure that information, training and instruction provided to a worker is suitable and adequate having regard to: (a) the nature of the work carried out by the worker; and (b) the nature of the risks associated with the work at the time the information, training or instruction is provided; and (c) the control measures implemented. (3) The person must ensure, so far as is reasonably practicable, that the information, training and instruction provided under this regulation is provided in a way that is readily understandable by any person to whom it is provided.'
8. Regulation 78 states that: '(1) A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person. … (3) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that any work that involves the risk of a fall to which sub-regulation (1) applies is carried out on the ground or on a solid construction.'
9. Regulation 79 outlines specific requirements to minimise the risk of a fall: '(1) This regulation applies if it is not reasonably practicable for the person conducting a business or undertaking at a workplace to eliminate the risk of a fall to which Clause 78 applies. (2) The person must minimise the risk of a fall by providing adequate protection against the risk in accordance with this regulation. (3) The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by: (a) providing a fall prevention device if it is reasonably practicable to do so; or (b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system; or (c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable. (5) In this regulation, fall prevention device includes: (a) a secure fence; and (b) edge protection; and (c) working platforms; and (d) covers.'

SYSTEMS OF WORK FOLLOWING THE INCIDENT

1. Following the incident, SafeWork NSW issued Improvement Notice No. 7-309475 to the defendant. In response to this Notice, on 17 July 2017 the defendant conducted a Safety Talk on Loading Roof Trusses & Wall Frames, at the 19 Balook Drive workplace. A record of the Safety Talk was produced to SafeWork NSW. The record 'identified that loading joists onto delivery trucks at Unit 7/19 Balook Drive exposed workers to a number of risks', because:

• 'The ground surface at the premises is uneven and slopes causing the forklift to load on sloping ground.
• The sloping gradient of the surface caused the delivery truck to be parked on an uneven surface.
• Due to the uneven surfaces, there was a great potential for loads to move and/or slip and caused great difficulty when loading joists.
• On occasion, when loading at these premises, drivers would be required to climb onto the load.
• The forklift in use at the premises was not suited for loading joists as the load was required to be 'jolted' by the forklift numerous times to place onto the delivery truck.'

1. Effective 18 July 2017, the defendant ceased the loading of delivery trucks at 19 Balook Drive entirely and transferred that operation to its Enterprise Drive workplace.

CONSIDERATIONS

1. I have had regard to the objectives set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the Sentencing Act') for the purpose of sentencing.

THE NATURE OF THE DUTY

1. The nature of the duty is one that requires a PCBU to ensure as far as reasonably practicable the health and safety of workers at the workplace. The notion of reasonable practicability is informed by the considerations found in section 17 of the Act. The defendant, by its plea of guilty, has admitted that the measures to ensure safety pressed by the prosecutor would have been reasonably practicable.
2. The duty is one of strict liability: section 12A of the Act. Consequently, there is no relevant mental element to the offence whether it be reference to intent, carelessness or recklessness.
3. The defendant's duty was to exercise due diligence to ensure that the business complied with its duty under section 19(1) of the Act. Its duty was to take "reasonable steps" to ensure the business had, and implemented, processes for complying with its duty: section 27(5) of the Act. The defendant failed to take reasonable steps to identify and manage the risk.

MAXIMUM PENALTY

1. The maximum penalty for a corporation in respect of an offence under section 32 of the WHS Act is $1.5 million. The level of the fine prescribed evidences a legislative intention that the offence is to be treated seriously: Markarian v The Queen [2005] NSWIRComm 25 at [30] and [31].

SENTENCING PRINCIPLES

1. The penalties imposed must give effect to the intention of the Act, in particular, protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: section 3A of the Act.
2. The court is to be guided by the provisions of the Sentencing Act which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.
3. The approach to sentencing has been identified by Russell DCJ in SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 at [109] in this way:
4. 'The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing , known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.'

OBJECTIVE SERIOUSNESS OF THE OFFENCE

1. The duties of the defendant require that it ensure the health and safety of workers as far as is reasonably practicable. This duty is not delegable and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
2. Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking in to account such factors.
3. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474-5.
4. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab industries Pty Ltd (2000) 49 NSWLR 700 at 714.
5. The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen [2012] VSCA 82 at [62].
6. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61.
7. In Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 Basten JA explained the approach to sentencing as follows: '[34] The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than to guard against the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors. ….. [42] The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.'
8. The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, will point to an objectively more serious offence.
9. It is evident that three was insufficient space at the premises to move the trucks around. There had been a risk assessment done, but only at the Enterprise Drive site, and not at the site where the incident occurred where the ground was sloping and uneven.
10. There were significant steps taken to ensure that the safety of the site was improved, but it did not happen immediately, and took some time to complete. Traffic management plans for the sites were created but for this particular site it was dated 14 May 2018, more than 1 year after the incident.
11. I also note that the defendant and Mr Fing had worked together for many years and that Mr Livingstone thought that Mr Fing was an experienced truck driver. Whilst I accept that climbing onto trucks to tie straps may have been common in the industry, the defendant cannot rely on the experience of Mr Fing to exculpate its WHS duties.
12. Part of the reason Mr Fing fell off the truck was because he was concerned for the safety of a pedestrian walking alongside the truck. The defendant indicated that after the incident they spent $8,000.00 to put in place an exclusion zone on all three premises, indicating that they were inexpensive and an easy method to minimise the risk.
13. The offence falls within the mid-range of objective seriousness.

PREVIOUS INCIDENT

1. In his affidavit, Mr Livingstone deposes that as the Managing Director of the defendant he is responsible for the operations across the three sites that the defendant operates from. Mr Fing is his brother-in-law and is an experienced truck driver. Mr Livingstone and Mr Fing have worked together for many years. He has apologised to Mr Fing and his family personally and on behalf of the defendant. I accept that the remorse and contrition expressed by Mr Livingstone and the company are genuine.
2. At paragraph 20 of his affidavit, Mr Livingstone states as follows: 'Although at the time of the accident the company had undertaken steps to make the workplace safer, the company acknowledges by its plea and by the comprehensive measures taken since the incident that those steps were insufficient and should have been better able to prevent the injury.'
3. The following paragraphs of his affidavit detail the very extensive and costly steps that have been taken since the incident. The direct expenses exceed $740,000.00 and also contain the significant cost per annum of moving the operations of loading of trucks from 19 Balook Drive to the Enterprise Drive workplace. I note that the defendant also purchased adjacent land to the Enterprise Drive site to allow the loading to take place at that site. The purchase price for this additional land was $1.65 million.
4. The defendant has also retained Howsafe to undertake extensive audits and review all the safety procedures and compliance at all of the defendant's premises.
5. The significant steps that were taken after the incident are detailed in paragraphs 21-73 of Mr Livingstone's affidavit and whilst I have taken them into account I do not propose to repeat them here.
6. It is clearly apparent that the company has had a "wake-up call" and the lengths to which they have gone with regard to the safety of workers at the work sites has been extensive and expensive.
7. However, it causes me concern that this amount of work was necessary after the incident. It also causes me some unease as to what exactly were the systems and processes in place at the worksite prior to the incident, in circumstances where so much was found to be lacking after the incident and needed to be replaced and added to. The fact that the systems prior to the incident needed so much rectification does make me question whether the defendant had much regard at all for the safety of its workers prior to the incident.
8. Of even greater concern to me is that the defendant previously pleaded guilty to an offence under section 8(2) of the Occupational Health and Safety Act 2000 (NSW). The offence described in the summons was failing to ensure that persons other than the defendant's employees were not exposed to a risk of health and safety on the conduct of the defendant's undertaking while at his place of work. The details of the offence appear to have been that on 11 October 2011, Mr Lance Bligh ('Mr Bligh') fell from the top of some frames and trusses which were on a trailer owned by the defendant in the vicinity of a residential construction site near Stanhope Gardens.
9. Senior Counsel for the prosecution directed my attention to the Judgment of Finnane J of 7 August 2014 in this matter. The exact circumstances of how Mr Bligh fell are uncertain, and his Honour found that was difficult to know what happened as no one witnessed the fall. However, Mr Bligh was found on the road beside the defendant's truck with a massive lump on the back of his head. He was taken to hospital suffering from extreme head injuries, and ultimately passed away as a consequence of those injuries.
10. At page 3 of the Judgment, his Honour stated as follows: 'So before Mr Bligh's accident it was said by Mr Livingstone, who is the director of the defendant company and who is the transport manager, that before his accident it was necessary for him to climb on to the load on multiple occasions and to get on to the load in the way I have described he had to check the load and then later on he had to unload.'
11. It is apparent that in late 2011 when Mr Bligh died, the defendant must have been on notice that its procedures and systems with regard to work health and safety were lacking. Certainly by August 2014, when the defendant was sentenced by this Court for the offence that caused Mr Bligh's death, the defendant must have understood that its work health and safety procedures were most inadequate. Yet, less than three years later, Mr Fing fell from one of the defendant's trucks and was badly injured.
12. The previous offence in 2011, the year Mr Livingstone bought the business, for which the company was sentenced in 2014 looms large in my mind. That incident involved the death of a man who fell from either the top of the load on, or directly from the defendants truck, seems to not have created a sufficient impact on the defendant such that it would appropriately address its safety obligations.

DETERRENCE

1. In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in section 3A(b) of the Sentencing Act.
2. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The Prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence.
3. The Court of Criminal Appeal in Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. [75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.'
4. General deterrence must be a significant feature of the sentence imposed upon the defendant. Trucks and their use create a significant risk of injury to workers in a variety of industries, and the operation and conduct of operators of those vehicles must be properly and appropriately assessed as to the risk of operation not only to the operator, but to those working around the trucks, and appropriate action must be taken to deal with the assessed risks.
5. Similarly, general deterrence can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks associated with the operation of forklifts in an industrial context.
6. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendant to re-offend.
7. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors.
8. In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]: 'There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald's) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd [2001] NSWIRComm 263; (2001) 109 IR 316.'
9. The defendant continues to operate the business with significant changes to address the issues of work health and safety. I believe there must be an element of specific deterrence given this is the second incident where someone fell from one of the defendant's trucks. I believe the prospect of rehabilitation is reasonable.

MITIGATING FACTORS

1. The defendant entered a plea of guilty at an early stage and is entitled to a discount of 25% based on the utilitarian value of the plea: sections 21A(3)(k) & 25D of the Sentencing Act.
2. Mr Livingstone at paragraphs 12 and 13 of his affidavit expresses remorse and regret that Mr Fing was so badly injured whilst at work. I accept that the entry of the early plea is also an exemplar of the acceptance of the responsibility for the accident, and a recognition of the defendant's desire to improve its work practices. I have taken these matters into account in coming to my decision: section 21A(3)(i) of the Sentencing Act.
3. I accept that the remorse and contrition expressed by Mr Livingstone and the company are genuine.
4. Paragraphs 74 - 75 of Mr Livingstone's affidavit detail the extensive donations that have been made by the defendant over many years, and I do not propose to repeat them here. The financial extent to which the company has contributed to society both in Australia and overseas is large, for which it ought be commended: section 21A(3)(f) of the Sentencing Act.
5. The defendant co-operated with the SafeWork investigation and co-operated with all statutory notices issued by SafeWork NSW, including two Prohibition Notices and six improvement notices: section 21A(3)(m) of the Sentencing Act.

AGGRAVATING FACTORS

1. The injuries sustained by Mr Fing were significant and he has not yet returned to work: section 21A(2)(g) of the Sentencing Act.
2. I have previously referred to my concerns with regard to the previous breach that resulted in Mr Bligh's death.
3. I consider the prior conviction to be an aggravating factor: section 21A(2)(d) of the Sentencing Act. Similarly, the amount of rectification work that was required after this incident causes me to question the defendant's attitude to workplace safety.
4. Whilst the charitable donations and community involvement are a considerable factor to demonstrate that the defendant is of prior good character and a good corporate citizen, the previous conviction to a large extent cancels out the charitable and community works given the objective seriousness of the offence.

CAPACITY TO PAY A FINE

1. An application under section 6 of the Fines Act 1996 (NSW) was not made, however, Counsel for the defendant drew my attention to the fact that the defendant's business is heavily involved in the building and construction sector which it was submitted that the changing financial circumstances in the COVID-19 crisis, may have implications for the defendant's future viability. This is referred to in paragraphs 77-79 of Mr Livingstone's affidavit.
2. The defendant bears that evidentiary onus of convincing me that I should exercise my discretion to limit the amount of the fine. The defendant's capacity to pay is relevant, but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 179 at [16].
3. Mr Livingstone does not say that the defendant does not have the capacity to pay a fine, nor is there any evidence before me that such incapacity exists. Moreover, the large expenditure made by the defendant to purchase additional property, make significant changes to the defendant's various work sites, and the substantial charitable donations to my mind to not indicate that I should reduce the fine on the basis of the defendant's ability to pay, and I will not do so.

PENALTY

1. I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the defendant would be $400,000.00 and that will be reduced by 25% to reflect a plea of guilty. 3. I accordingly order the defendant to pay a fine of $300,000.00. 4. 50% of the fine imposed is to be paid to the prosecutor. 5. The defendant is to pay the prosecutor's costs as agreed in the sum of $27,500.00.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2020