SafeWork NSW v Daniel áBeckett Rose

District Court of NSW|2018-08-08

Judgment

On 19 February 2018 Mr Daniel áBeckett Rose (the offender) pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (the Act), that he failed to comply with the health and safety duty imposed upon him by s 19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in its business or undertaking which exposed Mr Kevin Kirshfink (Kirshfink), Mr Hugo Caillol (Caillol) and Mr Ahmed Hadid (Hadid) to a risk of death or serious injury.
This offence, in the case of an individual, carries the maximum penalty of $300,000.
On 19 February 2018 the offender pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (the Act), that he failed to comply with the health and safety duty imposed upon him by s 19(2) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of other persons is not put at risk from work carried out as part of the business. The defendant exposed some residents of Wonga Avenue, East Gosford (Wonga Avenue), namely Ms Belinda Bissett (Bissett), Mr Robert Talbot (Talbot), Mr John Malicki (Malicki) and a visitor to Wonga Avenue, Mr Kirk Palmer (Palmer) who was doing work as a contractor to the homeowner in the front yard of 10 Wonga Ave to a risk.

BACKGROUND

On 25 November 2015, the offender, a sole trader trading as North Shore Gardening and Landscapes, was engaged by the owners of 8 Wonga Avenue, East Gosford, to cut down two large hardwood eucalyptus trees, commonly known as tallowwood trees, from the front garden of 8 Wonga Avenue, East Gosford (the workplace). The two trees were approximately 20 metres and 25 to 30 metres tall respectively.
Following felling the first tallowwood tree using a clear-felling method without any restraints, the offender started to fell the second tree. This tree fell in an uncontrolled manner in the opposite direction to that planned and crashed directly onto the house at 6 Wonga Avenue, East Gosford, causing substantial damage to the roof and front façade of the property.
Whilst the felled tree did not hurt anyone there were three residents and a visitor who were present in Wonga Avenue within what should have been a safe working zone or exclusion zone when the tree was felled. In addition, three employees engaged by the offender were also within the exclusion zone and at risk of being struck by the felled tree.
The offender did not notify SafeWork NSW of the incident until 6 January 2016, approximately six weeks after the incident.
The nature of the offences committed by the offender and the circumstances in which the offences were committed are set out in the Statement of Agreed Facts, and are summarised below.
The offender, who had limited experience in felling and removing trees in residential areas, was engaged by the owners of 8 Wonga Ave to cut down two tallowwood trees in a residential cul-de-sac. The offender visited the property on two occasions to assess the trees however due to his limited experience in tree removal work, he was not competent to plan and assess the risks involved in felling the trees.
On 25 November 2015, the offender undertook the task of felling the two large trees using a chainsaw and what is known as the clear felling method. In felling the first tree, that was approximately 20 metres high, he did not remove any branches from the top or crown of the tree, or use any wedges to assist in controlling the fall direction of the tree. The tree landed across the nature strip and driveways of 8 and 10 Wonga Ave.
Prior to undertaking this work, the offender did not notify the residents of Wonga Ave about the proposed works nor did he take any steps to establish the location of an exclusion zone. This meant that as the tree felling occurred, the resident of Wonga Ave and a visitor moved in and out of the exclusion zone. Whilst the offender had employed two backpackers as ground workers, whose task it was to stand guard to the exclusion zone, they did not do so.
The offender adopted the same clear fell method to fell the second tree, which was approximately 25-30 metres tall. Again, the offender did not remove any branches from the second tree from the top or crown of the tree, and made incorrect cuts to the tree. In the course of felling the second tree the offender was notified by a resident of Wonga Ave, Mr Talbot, who told the offender that he was a qualified Arborist. Mr Talbot told the offender that the back cut was incorrect, that the tree would most likely fall in the wrong direction and that ropes should be used to pull the tree in the right direction.
The offender, acting on that advice, borrowed rope and wedges and attempted to control the fall of the tree with rope. However, the offender did not take any steps to implement an exclusion zone at that time. A gust of wind hit the tree and it fell on one of the houses in Wonga Ave, substantially damaging the roof and front section of the house.
Fortunately nobody was injured or killed.

AFTER THE INCIDENT

On the day of the incident the offender made a claim on his insurance policy through his insurance broker Davelcorp Insurance Brokers Pty Ltd (Davelcorp), and was told by Davelcorp that the damage caused by the second tree would be covered. The offender conveyed that information to the people concerned. On 3 December 2015 the offender was notified in writing by Vero that the incident was covered by the policy.
On 2 September 2016 the offender was notified by Vero that indemnity under the policy had been declined, as the policy was an incorrect one and did not include tree-felling.
On 15 February 2017 the owners of 6 Wonga Avenue, Gerald Bissett and Michael Bissett, commenced proceedings in the District Court against the offender for damages arising from the property damage to the home and loss of rental income. On 19 February 2017 the offender filed a civil claim and cross-claim against Davelcorp for various causes of action. Davelcorp filed a defence to the cross-claim.
On 27 February 2018 the proceedings were resolved with Davelcorp paying the Bissetts $100,000 and the offender paying the Bissetts $30,000. In order to pay the agreed sum to the Bissetts, and his own legal fees, the offender and his wife had to re-finance his home. The mortgage was at that time $438,000 and the new finance package was for the maximum amount they could borrow in the sum of $620,000. This allowed the offender to raise about $137,000 to draw upon to pay the Bissetts $30,000 and his own legal fees for the civil proceedings in the sum of $35,102. The damage to the property was ultimately made good.

SYSTEMS OF WORK BEFORE THE ACCIDENT

Whilst he had visited the property on two occasions prior to the felling of the trees, the offender, due to his inexperience in felling and removing trees in residential areas, was not competent to plan and assess the risks involved in felling the trees. No risk assessment or safe work method statement was prepared.
Prior to undertaking the works the offender did not notify the residents of Wonga Ave about the works that were proposed, nor did he establish the location of an exclusion zone. This meant that during the works being performed, residents and visitors to Wonga Ave moved in and out of the exclusion zone. Similarly, the offender had employed to backpackers to stand guard at the exclusion zone, however they did not do so.
In removing the first tree, the offender did not remove any branches from the top or crown of the tree, nor did he use any wedges to assist in controlling the fall of the tree. It landed across the nature strip and driveways of 8 and 10 Wonga Ave.
In adopting the same method to fell the second tree, the offender again did not remove and branches from the top or crown of the tree, and made incorrect cuts to the tree. Subsequent to the advice received from Mr Talbot the offender borrowed some ropes from Mr Hadid, a chipper contractor. The offender however did not take any steps to implement an exclusion zone.
Whilst Mr Hadid and the offender were trying to throw a rope around the tree, a gust of wind hit the tree and it fell in the opposite direction and onto the house at 6 Wonga Ave. The offender however took no steps to establish an exclusion zone.

AFTER THE INCIDENT

The offender gave an undertaking to SafeWork that he would no longer engage in any high-risk work relating to tree removal, pruning or grinding. The offender informed his insurer that he would no longer engage in any high-risk work relating to tree removal, tree pruning or tree grinding.
Neither the offender nor his company have provided any more professional services involving the felling of trees.
The offender completed a course on work safety in the construction industry in which he learnt about assessing risks in a work place, how to avoid and minimise risk and reporting incidents. He subsequently compiled a Work Safe Method Safety Statement for use by himself, employees and sub-contractors.

Prior History

The offender has not previously appeared before the courts on health and safety matters.

Considerations

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

Objective Seriousness of the Offence

The proportionality principle requires that sentence should neither exceed nor be less than the gravity of the crime having regard to objective circumstances: Veen v R (No. 2) (1088) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1998) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the time limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] MSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.
The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 in the matter of Nash v Silver City Drilling (NSW) Pty Limited ; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96;93 NSWLR 338. His Honour Justice Basten at paragraph 34, under the heading 'Assessment of Risk' said: 'The sentencing judge commenced his consideration with the proposition that 'greater culpability attached to the failure to guard against 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 on assessment of all those factors.' Further at paragraph 42 his Honour continued: '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 and overall evaluation of various factors, which may pull in different directions.'
My findings about the offender's level of culpability are based on the following: 1. Employees of the offender, in particular Mr Kirshfink, Mr Caillol and Mr Hadid were at risk of suffering serious injury as a result of being crushed or struck by either or both of the trees, or part of the trees whilst they were being felled. 2. Persons other than the workers, in particular Ms Bissett, Talbot, Malicki and Palmer were at risk of serious injury and death, and the offender failed to take any reasonably practical steps to eliminate or minimise the risks. 3. The offender should have taken the following steps; 1. Ensure that a competent person (being someone with the appropriate skills and knowledge in tree felling in residential areas) planned, controlled and assessed the risks involved in felling the trees; 2. Conducted a risk assessment with respect to how the trees would be felled by evaluating the site and adequately addressing any precautions required for the felling of the trees, including; 1. Establishing and enforcing a safe work zone, or exclusion zone, that extended at least twice the tree height away from the tree being felled 2. Establishing and enforcing a drop zone, that extended at least one and a half times the length of the section being felled or dropped 3. Ensuring that he had available all the equipment necessary to do the tree felling as safely as possible, such as ropes, cables, elevated work platform and/or winches for pulling or holding trees 1. Ensuring that the control measures identified in the risk assessment were established and enforced 2. Controlling pedestrian and vehicular traffic whilst the work was being undertaken 1. In accordance with the Amenity Tree Industry Code of Practice 1998 the safe working zone or exclusion zone should have extended at least twice the height of the trees and as such would have extended over most of Wonga Ave. 2. None of the residents of Wonga Ave were informed of a safe zone or exclusion zone prior to the works commencing. Nor were they told about the location of a hazardous, unsafe area. There was no signage, safety cones, tapes or barricades of any kind or any kind of safety perimeter used or erected to prevent pedestrians or vehicles from entering the exclusion zone. 3. The offender did not have formal qualifications relating to tree removal and had limited experience in tree removal, in particular in residential areas. His work had consisted mainly of general gardening and landscaping work. Kirshfink and Caillol were employed to control traffic however neither of them had any training or qualifications in traffic management. 4. The risks associated with tree felling are well known, particularly in residential areas. The offender was untrained in tree felling and had limited experience in so doing. He did not have the correct equipment for the task, nor for the creation of an exclusion zone. The risk of an uncontrolled fall of a tree in the process of felling is not extremely unlikely, and could almost be categorised as probable. It is an inherently hazardous activity and the outcome was obvious and foreseeable. 5. The offender was insufficiently trained to identify such risks, and being so inexperienced, he did not deal with any of the risks associated with the task. 6. The risks associated with felling of two very large trees clearly poses a grave risk of serious crush industries or death, given the size and weight of the trees. Fortunately this did not materialise. However substantial damage was caused to the house located a 6 Wonga Ave. It can be inferred that the homeowners suffered a financial and emotional cost such that they instituted legal proceedings to have their home repaired. This is also an aggravating factor. 7. The simple and straightforward step that the offender could have taken to avoid the incident was to refer the owners of 8 Wonga Ave to a qualified arborist. 8. Whilst the offender notified his insurer on the day of the incident, he did not notify SafeWork until 6 weeks after the incident, and only then after he was prompted to do so by notification from his insurer.

DETERRENCE

Based on matters deposed to in his affidavit, I accept that the offender has shown contrition and remorse. He has accepted full responsibility for his actions, and is ashamed by his conduct. He has sought counselling from a psychologist, even before the indemnity under the policy of insurance was denied. I accept that he is a person of good character based on the references tendered on his behalf. He provides voluntary assistance to his local community by chopping and delivering firewood to those who cannot afford to heat their homes.
He has undergone further training and agreed not to do any further high-risk work in felling trees. He has continued to operate a landscaping business through his company however I accept that it is not inherently dangerous. He has no antecedents, has very good prospects of rehabilitation and is unlikely to re-offend. The need for specific deterrence is therefore low.
In imposing a penalty in relation to this offence, general deterrence must be provided for. 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. I am satisfied that the changes in management practices have been made and there is evidence before me of those changes. It is conceded by the Prosecution that I can take this into account on sentencing.

AGGRAVATING FACTORS

The fact that an unskilled person who lacks experience in conducting inherently dangerous work for financial reward without an adequate risk assessment being conducted in a residential area is of significant concern.
Such unsafe practices and lack of use of appropriate equipment must be discouraged. The serious risks of injury identified in the Code of Practice must draw attention to the serious and very real risks associated with tree work.
Having been warned by Talbot of the concerns over his methodology, the offender continued to expose employees and other persons to the risk of serious injury.

MITIGATING FACTORS

The offender pleaded guilty at the first available opportunity and ought therefore be entitled to a 25% discount based on the utility of the plea.
The damage to the property concerned has been made good.
He has no antecedents and is a person of good character. He has demonstrated contrition and remorse, and has accepted full responsibility for his foolish conduct.

THE SECTION 38 OFFENCE

Sentencing for offences under s 38 of the Act must look to the objectives of the Act as set out in s 3. This includes protecting workers against harm to their health, safety and welfare through the elimination or minimization of risks arising from work, securing compliance with the Act through effective and appropriate compliance and enforcement measures, and providing a framework for continuous improvement and progressively higher standards of work safety.
Section 38 fulfils an important purpose in ensuring that SafeWork has the ability to properly investigate workplace incidents. These investigations would be frustrated by non-compliance with the obligation to notify SafeWork of an incident. See Inspector Lai v Rexma Pty Ltd and Anor [2008] NSWIRC Comm 78.
In Gotico Industries Pty Ltd v Benbow (2001) 103 IR 78 the Full Bench made observations about s 27 of the Occupational Health and Safety Act 1983, the predecessor to s 38 of the current Act : 'We wish to emphasise the significance of s27 of the Occupational Health and Safety Act 1983 (NSW). The provision does not merely impose formal requirements for the notification of accidents in the nature of the registration of an incident, but rather requires a notification of accidents so that the WorkCover Authority of New South Wales may carry out necessary investigations to identify and remedy hazards to safety: see WorkCover Authority (NSW) (Inspector McMartin) v Broken Hill Proprietary Co Ltd (1999) 90 IR 277 at 290 and 295. The section is an important provision ensuring the proper investigation of breached of the Occupational Health and Safety Act and the adoption of appropriate remedial measures to prevent further such occurrences.'
The explanation given by the offender for his failure to notify was that he was unaware that he was required to do so. He states he only became aware of his obligations that he was required to notify SafeWork after being notified by his insurer. Instead, he thought all that was required was that he needed to notify his public liability insurer. Ignorance of his obligations is not a matter that ought be the basis of a reduction of the objective seriousness of the breach, and I have not made a reduction on that basis. The community are entitled to expect that when a dangerous event occurs, the appropriate authorities are notified in a timely fashion so as to allow a full and proper investigation, not hindered by the passage of time.

TOTALITY PRINCIPLE

In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 704, Kirby P said: 'The principle of totality is applicable where the penalty imposed is by way of fine: see R v Sgroi (1989) 40 A Crim R 197 at 203. However, it may be that the principle of totality may not have the same force in the case of the imposition of fines, as opposed to the imposition of imprisonment where it has a special operation: see R v Brown (1982) 5 A Crim R 404 at 407.'
This approach was approved in EPA v Barnes [2006] NSWCCA 246.
Further in Postiglione v R (1997) 189 CLR 295 McHugh J considered the principle and said: 'The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.'

EXTRA-CURIAL PUNISHMENT

Submissions were made on the offender's behalf that he has suffered a significant measure of extra-curial punishment in that he has paid $69,411.20 with regard to the civil litigation commenced against him by the Bissetts and his own costs and disbursements as a consequence of him having committed the offences.
In Silvano v R [2008] MSWCCA 118 the plurality, in considering the issue of extra-curial punishment, noted at [26] what James J said in R v Daetz; R v Wilson (2003) 139 A Crim R 398 at 411: 'A sentencing court, in determining what sentence it should impose on an offender, can properly take in ot account that the offender has already suffered some serious loss or detriment as a result of having committed the offence.'
Further at [29] James J explained that the principle which he stated in Daetz: '….was stated by me in the context of determining whether a sentencing court can properly take into account "extra-curial punishment", that is loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his offence or at least by reason of the offender having committed the offence. Cases in which such extra-curial punishment occurred include the cases of R v Allpass (1993) 72 A Crim 561 and R v Clampitt-Wotton (2002) 37 MVR 430, both of which were referred to in Daetz, and in Daetz itself.'
I accept there has been extra-curial punishment bestowed on the offender as a direct consequence of these offences, and I have taken that into account in sentencing him.

CAPACITY TO PAY

Section 6 of the Fines Act 1996 provides as follows: '6 CONSIDERATION OF ACCUSED'S MEANS TO PAY In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) Such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) Such other matters as, in the opinion of the court, are relevant tp the fixing of that amount.'
The onus is on the offender to satisfy the court on the balance of probabilities as to the truth of such evidence and its relevance to the fixing of penalty: McColl v John Watson Building Services Pty Ltd [2004] NSWIR Comm 353; 137 IR 310 at 224. The offender's capacity to pay in relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16].
In Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIR Comm 100 Staff J said at [57]-[58]: 'The principles to be applied in respect of an application under s 6 of the Fines Act were discussed by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 are as follows: '[83] The financial means of the defendant was a matter that was submitted in mitigation of penalty. In this regard I would adopt what I stated in Department of Mineral Resources v A M Hoipo & Sons (at par 50): 'It is proper, nonetheless, to have regard to the financial position and means of the defendant when considering the question of penalty: see Ferguson v Nelmac Pty Ltd (1999) 94 IR 188 at 209. The purpose of a fine is primarily to punish the offender. The burden which will be imposed by virtue of a fine at a particular level will, to some extent, depend upon the financial circumstances and resources of that offender. As a result, the amount and method of payment of a fine will need to take into account, as (2002) 112 IR 284 at 309 far as practicable, the financial resources and income of the defendant: see R v Sgroi (1989) 40 A Crim R 197 at 200-201.' [84] This approach was subsequently adopted in Manpac Industries where the Full Bench of this Court stated (at pars 81-82): '... Section 6 of the Fines Act 1996 provides that in exercising a discretion to fix the amount of any fine a court is required to consider the means of the accused and such other matters as are relevant to the fixing of that amount. That statutory injunction, of course, has long been recognised as an appropriate part of the sentencing process: see, for instance, Warman International (80 IR at 339); WorkCover Authority (NSW) (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 at 333; and Profab Industries (49 NSWLR at 714; 100 IR at 76).' However, and given the primacy of the objective seriousness of an offence in determining an appropriate sentence, the financial situation of a defendant, in our view, needs to be carefully scrutinised. In Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209 - 210, Wright J, President observed: '... Whilst I accept that the imposition of heavy fines would be a burden on the defendant and its financial resources and that consideration should be given appropriate weight on the question of penalty, it does not necessarily result in the Court not imposing a heavy penalty. ...... When viewed in the context of the statutory mandate in s 15 the offences were very serious and provided proper weight is given to the subjective considerations and insofar as deterrence is concerned some tempering thereof, the penalty should reflect the objective seriousness of the offence. ...' I would reiterate what the Court stated in WorkCover Authority (NSW) (Inspector Ankucic) v Lyndhurst Trading Co Pty Ltd (2000) 95 IR 462 at 476: 'Where the means of the defendant to pay any fine is raised, the proper course will be to assess the appropriate amount of the fine having regard to the gravity of the offence charged and then reduce the fine to take into account the defendant's means and impecuniosity: see R v Rahme (1989) 43 A Crim R 81 at 86.''
The offender has provided evidence of his current financial circumstances, and that of his business and of his wife, including tax returns and bank statements. I note that the offender and his wife refinanced the mortgage on their home to the maximum they could borrow to pay for the compensation to the Bissetts, legal costs in the civil proceedings, their legal costs in these proceedings, the fine imposed in these proceedings and the prosecution's costs in these proceedings. I accept that the overall view of the offender's financial circumstances shows that he and his wife are under significant financial stress, and I have taken this into consideration in sentencing him.
But for the mitigating factors, the financial position of the offender and the extra-curial punishment that he has received, a higher penalty than that which I propose, would be appropriate. In all the circumstances, taking into account the discount for the early pleas of guilty and the totality principle, I think the appropriate penalty in the matters are as follows: 1. In matter number 2017/232911 - $10,000 to be discounted by 25% for the early plea 2. In matter number 2017/232962 - $10,000 to be discounted by 25% for the early plea 3. In matter number 2017/232894 - $2,000 to be discounted by 25% for the early plea.

COSTS

The defendant is to pay the defendant's costs and disbursements as agreed or assessed.

PENALTY

My orders are: 1. The defendant is convicted. 2. The appropriate fine in matter number 2017/232911 is $10,000 but that will be reduced by 25% to reflect a plea of guilty. The appropriate fine in matter number 2017/232962 is $10,000 but that will be reduced by 25% to reflect a plea of guilty. The appropriate fine in matter number 2017/232894 is $2,000 but that will be reduced by 25% for the early plea of guilty. 3. I impose a fine of $16,500 in total. 4. I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor. 5. I order the defendant to pay the prosecutors costs as agreed or assessed.

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: 31 August 2018

Occupational Health and Safety Act 1983(NSW)

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