SafeWork NSW v Big River Group Pty Ltd

SafeWork NSW v Big River Group Pty Ltd - [2023] NSWDC 499 - NSWDC 2023 case summary — Zoe

[3]

Previous incident on 29 October 2019

Barry Williams ('Mr Williams') was a truck driver employed by Ron Crouch.
On 29 October 2019, Mr Williams attended the site to collect steel formwork. Mr Williams parked his truck in the loading zone and Mr Worldon commenced loading packs of steel formwork onto Mr Williams' truck.
Mr Williams was standing beside his truck to assist the loading when Mr Worldon reversed the forklift over Mr Williams' left foot causing him to fall. Mr Williams sustained a laceration to the head in addition to an ankle injury.
An incident notification was submitted to SafeWork NSW on 6 November 2019. On 8 November 2019, Mr Dorward wrote to SafeWork NSW providing an investigation report and outlining short term corrective actions identified in the report, including: 1. The defendant's Forklift Operating Procedure had been reviewed and adjusted to include graphical representations of safe zones around a truck in the loading zone. 2. All drivers were re-inducted before being allowed to continue collecting loads from the site to ensure they were aware of the new procedure in the loading zone. 3. New signage was installed at the front and rear of the loading areas of the site showing where drivers were permitted to stand during loading. 4. The driver induction had been updated to include references to new signage which had been installed. 5. Toolbox talks were completed across all shifts covering all employees. 6. The defendant also erected new signage at the site indicating exclusions zones in the loading areas. The signage was installed at both the Northern and Southern entrances to the site depicting: 1. Four 'safe zones' marked in green: Two on the driver and passenger sides of a truck cabin and two at the rear corners of a truck parked in the loading zone at the site. 2. Two 'exclusion zones' marked in red along both sides of a truck parked in the loading zone at the site.
SafeWork NSW emailed an inspection report to Mr Dorward on 4 February 2020. Under the heading 'advice provided to the Duty Holder' the report stated: 'In regards to Incident at the workplace on the 29/10/2019; improvements were made post incident. Inspector further recommended physical barricades could also be explored to improve pedestrian separation at front of premises, however it was noted the space for loading/unloading and storing loading was limited.'

[6]

Systems of work before the incident

At the time of the incident, the defendant had a Traffic Management Plan ('TMP') in place. The TMP provided that:

Forklifts share many traffic zones with pedestrians.
Forklift operators must be observant of personnel working around machinery and constantly check blind spots and mirrors.
The driver of a truck must remain clear of the trailer at all times and stand in the designated area next to the truck cabin (in full view of the forklift operator).
Pedestrians must give way to forklift and heavy vehicle traffic. Pedestrians are to utilise all walkways where possible.
In a shared forklift / pedestrian zone it is the pedestrian's responsibility to ensure the vehicle / forklift operator is aware of their presence.

The TMP did not include any adequate controls to prevent truck driver and other pedestrians from being struck by mobile plant such as:

Clearly marked exclusion and/or safe zones using lines or markings on the ground or different coloured surfacing;
A dedicated location outside of the loading zone where truck drivers were required to wait while their truck was being loaded or unloaded;
An exclusion zone in the loading zone for the operation of mobile plant which truck drivers and pedestrians were not permitted to enter unless authorised to do so;

The implementation of physical barriers to separate the exclusion zones, footpaths and/or walkways from the loading zone to prevent the entry of truck drivers and other pedestrians while mobile plant were loading or unloading trucks.
At the time of the incident, the defendant had a forklift safe operating procedure titled Forklift Operator - Loading Trucks ('SOP') which included a section titled Loading/Unloading Trucks and a questionnaire and provided that the forklift operator must:

Not load or unload until the driver is clear of the trailer and standing next to truck cabin.
Keep a visual on the truck driver at all times.
Not continue to load a truck if the truck driver starts securing the load or moving around the truck.
Stop immediately if the truck driver will not remain clear and report to sales/despatch office.

The SOP did not include controls to:

Ensure that truck drivers were to wait in a designated area while loading and unloading in the loading zone and that pedestrians were not in the loading zone whilst forklifts were in operation.
Prevent truck drivers and other pedestrians from entering the loading zone while forklifts were in operation by use of physical barristers, unless authorised.
Require that forklift operators would not commence and/or proceed with loading and unloading while truck drivers and other pedestrians were in the loading zone.

At the time of the incident, the defendant had in place a safe operating procedure for forklifts at the site titled Ausply Site Forklift Safe Operating Procedures ('Ausply SOP') which included:

A photograph of the signage which graphically depicted the safe zones around a truck.
A forklift operator must make sure that the area is clear of all pedestrians before commencing to load or unload trucks.
A forklift operator must stop immediately if visual contact with the truck driver was lost.

The Ausply SOP did not include controls to:

Depict the boundaries of safe and/or exclusion zones on the ground in the loading zone through the use of visible lines or other markings and/or coloured shadings on the ground;
Ensure that truck drivers were to wait in a designated area whilst their truck was parked in the loading zone and forklifts were in operation;
Prevent truck drivers and other pedestrians from entering the loading zone while forklifts were in operation by use of physical barriers;
Require that forklift operators not commence or proceed with loading and unloading while anyone else was in the loading zone.

[7]

Guidance material

In July 2014, SafeWork Australia published the General Guide for workplace traffic management ('Traffic Management General Guide') which was at all material times available to the defendant. The Traffic Management General Guide provided information relating to the management of traffic risks at workplaces. In particular, the Traffic Management General Guide recommended the creation of a traffic management plan, ensuring that pedestrians not be allowed in vehicle operating areas, the use of physical (even temporary) barriers to separate mobile powered plant and pedestrians.
In July 2014, SafeWork Australia published the General Guide for Industrial Lift Trucks ('ILT General Guide') which was at all material times available to the defendant. The ILT General Guide recommended that workplaces be set up so that the paths of pedestrians and industrial lift trucks did not cross and identified the installation of barricades and bollards as control measures.
In May 2019, SafeWork NSW published a guide for employers titled Forklift Safety Starts with you which was at all material times available to the defendant. It identified that separation of pedestrians and forklifts using physical barricades was the best way to ensure that people were not struck by forklifts.
On 4 February 2020, SafeWork NSW by email to Mr Dorward provided to the defendant a SafeWork NSW Forklift High Impact Harm - Compliance / Verifications Tool which covered whether a PCBU had adequate control systems in place to separate pedestrians and forklifts. Considerations that were identified included: 1. Total physical separation of forklifts from pedestrians where practicable, such as barricades, guard rails, fencing and overhead walkways. 2. Other pedestrian separation controls such as painted, well-defined walkways crossings and safe zones. 3. The provision of delivery driver safe zones. 4. A TMP and or site rules.
On 6 July 2020, SafeWork NSW published a safety alert titled Working with or around mobile plant safety alert which confirmed that if elimination of the risk was not possible and practicable, duty holders should develop a TMP and deploy control measures including barriers, bollards, safety rails and exclusion zones.

[8]

Systems of work following the incident

SafeWork NSW issued the defendant with the following improvement notices following the incident: 1. Improvement Notice 7-384975 which required the defendant: 1. To ensure, so far as is reasonably practicable, the health and safety of workers and other persons by managing the risks associated with persons being struck by moving plant and vehicles; and 2. To ensure risks to health and safety are eliminated and where it is not reasonably practicable, to ensure risks are minimised using control measures in accordance with cl 36 of the Work Health and Safety Regulation 2017 (NSW). 1. Improvement Notice 7-384976 which required that the defendant ensure, as far as is reasonably practicable, that the workplace is maintained so as to allow for persons to enter, exit and move about without risks and that the layout of the workplace is safe for work to be undertaken, specifically for the loading of trucks at the loading/reception area of the site.
On 29 October 2020, the defendant introduced an updated Safety Induction Training Manual. Part B of that document applied to contractors including truck drivers and provided: 1. The establishment of a designated loading and unloading area at the front of the site which was separated from pedestrian and vehicle traffic by a collapsible safety barrier. 2. Trucks must be parked within the designated loading and unloading zone. The driver must sign in at reception and wait in the driver safe zone for further instructions from the defendant's employee loading/unloading the trucks. 3. Once the driver is confirmed to be located within the driver safe zone, barriers are installed and with no pedestrians in the loading zone, forklift activity can commence. 4. If the loading zone is occupied on arrival and the barricades are in position the truck is to wait off-site until the area is cleared and the barricades lowered. The driver is to wait in their cabin or may proceed to reception to complete the sign in process to proceed to the designated driver safe zone. 5. If personnel are required to enter the designated loading/unloading area for any purpose the forklift is to be parked in the designated 'Fork Safe Zone', engine switched off, tyres lowered and handbrake activate before personnel enter the area. 6. In the event any unauthorised pedestrians, including employees, enter this zone while loading or unloading the forklift operator is to cease immediately all forklift operations, direct the pedestrian to the reception area and report the incident to their manager for investigation.
On or about 29 October 2020, the defendant introduced an updated version of the Ausply SOP which, consistent with the updated Safety Induction Training Manual, provided: 1. The establishment of a loading and unloading area at the front of the site separated from pedestrian and vehicle traffic by a collapsible safety barrier; 2. That the forklift operator is to install the safety barricades once the truck has been parked and the driver is waiting in the safe zone; 3. The forklift operator must make sure the area is clear of all pedestrians and must not move the forklift from the 'fork safe zone' until the operator has confirmed that the truck driver is located within the driver safe zone.

[10]

Sentencing

The purpose of sentencing is dealt with in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') which provides: '3A Purpose of sentencing The purposes for which a court may impose a sentence on an offender are as follows- to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote rehabilitation of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender, to recognise the harm done to the victim of the crime and the community.'
The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, ensuring the safety, health and welfare of workers who may be exposed to the risk.
I have had regard to the principle contained within the WHS Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the WHS Act.
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.
The Court is to approach a sentencing exercise on the basis of it being one of 'instinctive synthesis': Markarian v The Queen (2005) 228 CLR 357.
The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way: '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 judgement without any attempt to state precisely how any given factor has influenced the judgement.'

[11]

Objective seriousness of the offence

The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120 at [27]: '…The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of offending.'
An offence relating to a breach of s 19 of the WHS Act 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 and Anor (No 3) (2005) 147 IR 111; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 ('Lawrenson Diecasting').
Subjective factors play a subsidiary role: Lawrenson Diecasting at 474-5.
The duty of the defendant requires that it ensure so far as reasonably practicable, that the health and safety of workers is not put at risk from the work carried out as part of the conduct of the business or undertaking. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
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 workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) (1988) 164 CLR 465.
The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 ('Capral Aluminium') at [81].
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 [31].
The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). His Honour Justice Basten, under the heading 'Assessment of Risk' said at [34]: 'The sentencing judge commenced his consideration with the proposition that '[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event 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 upon an assessment of all those factors.'
His Honour further observed at [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, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known.'
I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.
The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).
Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include: 1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Nash v Silver City [34]; 2. The availability of steps to eliminate or minimise the risk: Nash v Silver City [34]; 3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City [34] and [53]; 4. Whether the risk was known or ought reasonably have been known to or identified by the offender; 5. Whether the risk was an obvious or clear one; and 6. The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).
However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying: 'It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.'
The following matters are relevant to determining the culpability of the defendant: 1. The defendant had a prior incident of a similar nature occur at its premises in Forest Hill on 29 October 2019. 2. As a result of that incident, the defendant took steps to amend its procedures to improve safety of drivers interacting with forklift trucks whilst loading and unloading operations were in place. Those changes are described in paragraph [15] of the Agreed Statement of Facts ('ASOF'). 3. Paragraph [17] of the ASOF refers to an Inspection Report from SafeWork to the defendant, and it refers to physical barricades but notes the fact that there is limited space for such barricades. 4. Almost exactly one year later on 27 August 2020, a very similar accident occurred, in that a driver was impacted by a forklift truck, whilst the fork lift truck was engaged in loading of a vehicle. 5. Clearly, the steps put in place by the defendant following the 29 October 2019 incident were inadequate to meet the defendant's duty. 6. The Traffic Management General Guide (see Tab 9 of PTB) provides detailed guidance, and provides in very clear terms that pedestrians and vehicles cannot interact, if the safety of the pedestrians is to be protected. 7. In the Traffic Management General Guide, issues such as barricades or guard rails, high impact traffic control barriers, temporary physical barriers, separate, clearly marked footpaths or walkways etc are referred to. 8. These and other guidance related documents were available to the defendant at all relevant times. 9. The risk of a severe injury to a pedestrian being struck by a forklift is well known, not only by the defendant. The defendant had taken some steps to address the risk, but there were clearly inadequate. 10. It follows therefore, that the steps taken by the defendant following the 2020 incident must have been available to be taken following the 2019 incident (see Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261 at [268]). 11. The fact that Mr Billington and Mr Lipscombe were both standing in what was depicted to be a 'safe zone' at the time when Mr Lipscombe was struck by the forklift points to the underlying inadequacy of the procedures at that time. 12. Mr Lipscombe suffered significant injuries.
The matters set out above when considered together point to objectively serious offending. This is because the seriousness of the foreseeable harm to workers was extreme, and the steps available to avoid the risk were known, or ought reasonably to have been known by the defendant. Moreover, there had been a previous incident in almost identical circumstances one year prior to this incident.

[12]

Victim Impact Statement and comments

Mr Billington dialled in through the AVL and listened to the proceedings. He also made a few comments at the conclusion of the sentence hearing, which voiced his concern that this incident not happen again on any building site. His comments were very generous and respectful.
Mr Lipscombe provided a Victim Impact Statement ('VIS') which became exhibit B.
Mr Lipscombe's VIS was very moving and distressing to read. I am so grateful that I had the privilege of reading that statement, and that Mr Lipscombe had the strength to write such a poignant piece.
At the time of the incident, Mr Lipscombe remembers falling to the ground, and seeing the forklift drive off his leg, which he could see there was a lot of blood and a big flap of his leg on the ground. He thought he was going to die and yelled 'please don't let me die'.
He spent 32 days in hospital some of which he was in an induced coma, and when he awoke he was told that he may lose his leg, and was flown to Sydney for further reconstruction surgery performed by orthopaedic and plastic surgeons. He also underwent numerous skin grafts and experienced severe pain.
Mr Lipscombe left hospital in a wheelchair and modifications to his home were necessary to accommodate his lack of mobility. He has spent the last 3 years attending medical appointments in Wagga Wagga, Canberra and Sydney, and he finds the travel long and painful.
The consequences of the incident have changed Mr Lipscombe's life dramatically as he can no longer enjoy the activities that he did with his family prior to the accident, including fishing, gardening playing with his grandchildren and holidaying with his partner to name a few.
He is constantly in pain and is very anxious in a car. He has trouble sleeping and now walks with a limp and suffers from depression and anxiety. He has had to see a psychologist and generally feels that he cannot enjoy his life which makes him angry and frustrated. He remains reliant on pain killers and anti-depressants, and suffers from nightmares.
The financial impact on Mr Lipscombe has been significant and thus his standard of living has been lowered, which has put a strain on his relationship. He states in the final paragraph of the VIS: 'I am a very different man now due to the accident both mentally and physically and wish to god it never happened.'
I thank Mr Lipscombe for the statement, and hope that he may receive some closure once this proceeding is concluded.

[13]

Deterrence

In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that workers are not exposed to risks to their health and safety by work carried out as part of the conduct of the defendant's business or undertaking: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 ('Bulga') at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be 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 at [74]-[75] which said: '[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] NSWIR Comm 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.'
General deterrence must be a significant feature of the sentence imposed upon the defendant. It 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 of death or serious injury associated with other PCBUs working in an industry where timbers are supplied and distributed and building supplies which are then distributed to the construction industry.
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 WHS Act very seriously.
General deterrence is a significant factor when safety obligations are breached, save for in exceptional circumstances (see Bulga at [52]). It is to be approached in the context of the industry in which the defendant is engaged, the types of duties, as well as the broader hazards and risks associated with the industry.
An industry which involves the manufacture of timber products and steel products, both of which are loaded onto heavy vehicles necessitating the use of forklifts, and then transported to distribution sites or directly to construction sites, is an industry that performs high risk work, and additional preparations and observation of safety issues are crucial to protect the safety of workers.
This is not a defendant who had no systems in place - there were some good policies in place, but more needed to be done. Moreover, an incident very similar to this had occurred 12 months previously.
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 other factors.
In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend. In that context I note that the defendant continues working in the business of supplying manufactured steel and timber products, and their transportation.
Having regard to the affidavit of Mr Dorward of 20 October 2023 (exhibit 1), I am of the view that this incident has acted as a wake-up call to the defendant and I believe that the systems and mindfulness as to safety within the works performed by the PCBU are now appropriately heightened.
The changes and improvements made by the defendant following this incident demonstrate an expansion of the safety and training provided to all levels of employees within the business, including the members of the Board. It also demonstrates a significant awareness of the duties under the WHS Act, and a commitment to safety.
I accept that the prospects of rehabilitation of the defendant are very good, and that there have been improvements made and stringent systems are now in place, however the need for an element of specific deterrence is still necessary in these circumstances.

[15]

Mitigating factors

In Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following: 'We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.'
The defendant has not been subject to any prior convictions under work health and safety law: s 21A(3)(e) of the Sentencing Act. This is a significant matter in my mind. The defendant has been operating in the industry for 103 years with no prior convictions. This is a very good record for works performed in high risk circumstances, and this record is a significant mitigating factor.
I accept that the defendant is a corporate citizen of good character and has made significant charitable donations as an active contributor to and sponsor of its community: s 21A(3)(f) of the Sentencing Act. After the bushfires which caused the shut down of the premises in Forest Hill, rather than make that workforce redundant, the defendant offered all workers relocation to the defendant's Grafton site. This is also a significant mitigating factor.
I accept the defendant is unlikely to reoffend: s 21A(3)(g) of the Sentencing Act, and I accept that the defendant has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act, for reasons as explained above.
I accept that the defendant has demonstrated that it has accepted responsibility for the offence and has acknowledged the injury, loss and damage caused by the offence: s 21A(3)(i) of the Sentencing Act.
The defendant co-operated with SafeWork NSW during its investigations: ss 21A(3)(m) of the Sentencing Act.
The defendant entered a plea to an Amended Summons on 15 May 2023, and I accept that defendant is entitled to the usual 25% deduction for the utilitarian value of the plea in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383.

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Judgment (18 paragraphs)

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Legislation Cited (5)

Cases Cited (27)