SafeWork NSW v KD & JT Westbrook Pty Ltd

The incident on 22 September 2014

1. On or about 22 September 2014 Mr Hill directed the musterers to the Old Woolshed paddock to muster the sheep in that paddock for lamb marking.
2. At about 6.30am on 22 September 2014 Mr Staker and Mr Killeen left Waka to head to the Old Woolshed paddock. It was a cold morning and they rode their motorcycles slowly to avoid getting colder. When they arrived at the gate to the paddock they lit a fire and waited for Mr Hill to arrive in the gyrocopter.
3. The Old Woolshed paddock was approximately 6 kilometres long and 7 kilometres wide or about 18,000-20,000 acres, and consisted of sandy terrain, with open flats between the hills. There were low level mulga and salt bushes, and the ground was somewhat uneven, with mounds and 'washout areas' where water had run away leaving compacted dirt.
4. When Mr Hill arrived he began to fly over the paddock in a grid pattern to locate the sheep and to start them moving. Mr Hill noticed two dingoes on the western edge of the paddock. He radioed Mr Staker and Mr Killeen, saying words to the effect of 'I have two dogs underneath me'. Mr Staker and Mr Killeen rode towards the gyrocopter. When the musterers approached the dingoes they ran in separate directions. Mr Killeen pursued one dingo and Mr Staker pursued the other.
5. Mr Killeen chased his dingo with the intention of destroying it. He intended to follow it until it tired and so that he could hit it with a rock or a stick. He eventually deliberately collided with the dingo whilst travelling at about 70 kph, causing him to fall off his motorcycle. The dingo then bit him on the leg before escaping through a fence. Mr Hill saw Mr Killeen pick up his bike and presumed that he had fallen off it in the chase. Mr Killeen estimated that the chase lasted for about 30 minutes.
6. Meanwhile, Mr Staker radioed Mr Hill and told him that he had lost his dingo in a swamp area. Mr Hill told Mr Staker to leave it and come over to where Mr Killeen was. A short time later, Mr Hill could not raise Mr Staker on the radio. He flew back towards the swamp area and saw Mr Staker lying face down on the ground next to his bike. Mr Hill radioed Mr Killeen and told him to come to where he was hovering.
7. When Mr Killeen arrived, he observed that Mr Staker was lying face down, and his head looked like it had been pushed back into his shoulders. He had no pulse and was not breathing. Mr Killeen performed cardio pulmonary resuscitation (CPR) alone for around an hour until Mr Crozier arrived. During this time, he observed a female dingo sitting under a tree about 100m away that was not the dog he had been chasing.
8. Mr Hill remained in the air and radioed the homestead at Waka to contact emergency services. The NSW Ambulance Service recorded the call as being received at 8:05am.
9. Rusty Forbes, a volunteer ambulance officer and registered nurse, attended the incident scene at 10:05am. She conducted an examination of Mr Staker, observing deformity to the right side of his face and skull. Ms Forbes was in contact with a doctor who pronounced Mr Staker dead at the scene.
10. Following the incident, the offender introduced and enforced a requirement that employees and contractors wear helmets at all times while riding motorcycles at Lake Stewart. This policy was implemented at minimal cost to the offender. All workers riding motorcycles at Lake Stewart after the incident complied with this requirement.

The offender's case on sentence

1. The offender relied on an affidavit of Kelvin Westbrook, the director of the offender, affirmed on 5 February 2019. Mr Westbrook was present in Court and not required for cross-examination. His evidence can be summarised as follows.
2. Mr Westbrook stated that he was deeply saddened by the death of Mr Staker. After the offender became aware Mr Staker's mother would have difficulty meeting the costs associated with the funeral, it paid for all of the funeral expenses.
3. The offender's primary operations are based out of their feedlot in Loxton, South Australia. Following the incident, the offender made the decision to cease any form of commercial or agricultural enterprise at Lake Stewart, as it is unable to supervise employees and contractors on a daily basis. The property has been completely destocked and the offender intends to sell it after the next significant rainfall.
4. In response to the incident, the offender modified its systems of work. It introduced a policy, which provides that everyone who operates a motorcycle on the offender's property or on public roads must wear a helmet. The offender has also made the decision to no longer use the services of contractors, where possible.
5. One month prior to the incident, the offender engaged a Work Health and Safety (WHS) specialist to review and implement WHS policies, procedures and training. The specialist put in place a number of policies and procedures and began training staff at Loxton. The offender is committed to retaining a qualified person in the role of WHS coordinator for as long as the company is in operation.
6. The offender is an active participant in the Loxton community, regularly providing financial support to local organisations and events. In addition, the offender does what it can to assist associates, employees and contractors who are in need, for example, by providing a loan or acting as guarantor.
7. The offender acknowledges that further education regarding the need for contractors to wear helmets would be beneficial, and does not oppose a publication order.
8. The offender also relied on three character references, which attest to its excellent reputation within the community and charitable work. In particular, they note his willingness to help others in the area and generosity in supporting clubs, schools and other members of the local community.

Consideration

1. I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness

1. The offence is one of some objective gravity.
2. The risk of serious injury or death as a result of a fall from or a collision involving a motorcycle was a foreseeable one. There were occasions when the musterers would ride their motorcycles at speeds of up to 80km/hour and that increased the risk and the gravity of the likely consequences.
3. The offender was aware of the risk and made available helmets compliant with the Australian Standard.
4. The offender was aware through Mr Hill's observations that the musterers, on occasion, rode their motorcycles in an unsafe manner.
5. The remedial steps available were simple and could be implemented without cost and with minimal inconvenience to the offender. After the incident, the offender introduced a policy requiring persons at the property to wear a helmet if they were riding a motorcycle. This policy could have been enforced with minimal additional supervision. The workers should have also been instructed on the need to wear a helmet and the possible consequences of not doing so.
6. The likelihood of the risk occurring was significant. The offender knew or ought to have known that falls from motorcycles on the property were fairly common.
7. The risk included a risk of death.
8. Mr Staker received significant head injuries as a result of the fall including serious skull fractures in areas in which a helmet would have provided protection. Those fractures were capable of causing his death.
9. I have had regard to the maximum penalty for the offence.

Deterrence

1. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].
2. There is also a need for specific deterrence, but it is reduced. The offender continues to operate a business that presents some dangers to its workers. To its credit the offender reacted to the incident immediately introducing the requirement for workers to wear a helmet whist riding a motorcycle on the property. The offender has resolved to sell Lake Stewart after the next significant rainfall because Mr Westbrook cannot have personal oversight of workers on the property when he is based in Loxton. I am satisfied that the offender is unlikely to reoffend in New South Wales, in the operation of Lake Stewart.

Aggravating factors

1. The injury, harm and loss caused by the section 32 offences was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk.
2. The offender submitted that the aggravating factor cannot be established because of my finding at [143] of the verdict judgment, in which I found that I could not be satisfied beyond reasonable doubt that the skull fractures sustained by Mr Staker caused his death or that he would not have sustained those fractures if he had been wearing a helmet.
3. In my view, neither of those findings preclude being satisfied beyond reasonable doubt of the aggravating factor for the following reasons. First, I am satisfied beyond reasonable doubt that Mr Staker suffered the skull fractures in the fall from the motorcycle and that is of itself enough to prove actual and substantial harm. Those fractures were sufficient to cause an intracranial haemorrhage and of causing his death. Second, I am satisfied beyond reasonable doubt that the skull fractures were sustained because Mr Staker was not wearing a helmet and I accept Dr Gibson's evidence that the helmet would have provided protection against them.
4. I am satisfied beyond reasonable doubt that the injury, harm and loss caused by the offence was substantial.

Mitigating factors

1. The offender does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender was incorporated in 2008. The offender has operated a feedlot in South Australia as well as the grazing operation at Lake Stewart. Both undertakings involve some risk to workers.
2. The offender is a person of good character: 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The offender had demonstrated itself to be a good corporate citizen. It employs a number of workers in rural areas and has made a significant contribution to the community of Loxton. In addition it has provided financial assistance to a number of its employees.
3. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender took immediate steps to introduce the requirement that workers using a motorcycle on the property were required to wear a helmet. The offender had also employed a health and safety officer who was in the process of systematically reviewing the processes at the feedlot, which was a larger operation than Lake Stewart. The offender subsequently developed policies for implementation at Lake Stewart. I am satisfied on the balance of probabilities that the offender has good prospects of rehabilitation.
4. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse through the affidavit of Mr Westbrook and demonstrated through the offender's financial assistance to Mr Staker's mother. I am satisfied on the balance of probabilities that the offender has accepted responsibility for its actions and demonstrated genuine contrition and remorse.
5. I am not satisfied on the balance of probabilities that the offender is unlikely to reoffend so as to satisfy the mitigating factor provided for by 21A(3)(g) Crimes (Sentencing Procedure) Act 1999, because the offender continues to operate the feedlot and that operation involves inherent risks to workers. However, I am satisfied that the offender has effectively ceased to operate Lake Stewart and is unlikely to reoffend in New South Wales and that should be taken into account in mitigation of the appropriate penalty.

Adverse Publicity Order

1. A court may make an order under Division 2 of Part 13 of the Act, in addition to any other penalty imposed, if the court finds a person guilty or convicts the person of an offence: section 234 and 235 of the Act.
2. The Court may make an adverse publicity order to publicise the offence, its consequences, the penalty imposed and any related matter: section 236 of the Act.
3. The prosecutor relied on evidence in the sentence proceedings about the desirability of an adverse publicity order in this case. The order was not opposed by the offender. Mr Westbrook accepted in his evidence that further education of rural operators on this issue was required.
4. The prosecutor put forward a form of words for the published notice that was not disputed by the offender (the Notice), which appears at annexure A to this judgment. I have added a reference to the amount of the fine and that the offender is liable for the costs of the proceedings.
5. The offender accepts that it would be appropriate to publish the Notice in The Land, The Farmer Magazine, the Barrier Daily Truth, the Daily Liberal and online for a period of one month on all Fairfax Agriculture Publication Websites.
6. The Land is a weekly publication distributed throughout New South Wales and estimated to reach 89% of farmers. The Farmer Magazine is a monthly publication distributed throughout New South Wales and estimated to reach 95% of farmers. The Barrier Daily Truth is a local daily newspaper published in Tibooburra and the far northwest of New South Wales and has an average readership of 19,000 people. The Daily Liberal is a daily local newspaper published in the Dubbo area and has an average readership of 9,000 people. The Fairfax Agricultural Publication Websites provide access to users in New South Wales as well as the rest of Australia and globally.
7. The prosecution contends that the Notice should also be published in a number of other local newspapers servicing the Orange, Illawarra, Hunter, Wagga Wagga, Tamworth, Bathurst, Narrabri, Goulburn and Moree areas.
8. In my view the Notice should be published in the publications agreed to by the offender because those publications are likely to come to the notice of a significant percentage of rural property owners in New South Wales and in the area where the offence was committed.
9. On the evidence, the cost of a full page publication in the relevant publications and the estimated production cost, (which can be used for each publication), is $37,070.23. The order sought by the prosecution and not opposed by the offender is for a publication in the print media that is at least one-third of the page. Accordingly, I expect that the cost of the adverse publicity order to be less than the amount I have referred to.

Other matters

1. I have taken into account that the offender will have to meet a substantial costs order for the proceedings.

Penalty

1. The offender is convicted.
2. The offender contended that I could not take the Victim Impact Statement into account because I could not be satisfied that Mr Staker's death was 'a direct result' of the offence as provided for in section 28(3) Crimes (Sentencing Procedure) Act 1999. There is a distinction to be made between the phrases 'a result of' and 'the result of'. The former implies 'more than one result', whilst the latter implies 'only one result': Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 at [37]-[38] per McHugh J, approved in Nominal Offender v GLG Australia Pty Ltd (2006) 228 CLR 529 at [103] per Kirby J.
3. In this context the word 'direct' is used as an adjective. The Macquarie Dictionary defines 'direct' in that context as 'proceeding in a straight line or by the shortest course' and the Oxford English Dictionary defines 'direct' as 'straight, undeviating in course' and 'proceeding from antecedent to consequent, from cause to effect'. I am satisfied beyond reasonable doubt that the death of Mr Staker was a direct result of the offence. If he had been required to wear a helmet he would not have sustained the skull fractures, which were capable of causing his death. As a matter of common sense I am satisfied beyond reasonable doubt that Mr Staker's death was a direct result of the offence.
4. Accordingly, I find that it is appropriate to take into account the Victim Impact Statement prepared by Mr Staker's mother. The harm caused to the deceased's family by the offender is an aspect of the harm done to the community: section 28(4) Crimes (Sentencing Procedure) Act 1999.
5. I impose a fine of $180,000.
6. I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
7. The offender must publish the Notice set out in Annexure A, by causing it to published on or before 19 March 2019, or the first edition of the relevant publication after that date, in one edition of each of: 1. The Land, 2. The Farmer Magazine, 3. The Barrier Daily Truth, and 4. The Daily Liberal (collectively the print media).
8. The Notice in the print media must: 1. be at least 28 centimetres by 5 columns in size or a size of no less than one third of the page in the newspaper, 2. use a minimum type size of 12 point Times New Roman or equivalent; and 3. be in full colour.
9. The offender must publish the Notice, by causing it to be published on or before 19 March 2019, on all Fairfax Agricultural Publication Websites being the websites for: 1. The Land, 2. Stock & Land Journal, 3. Farm Weekly, 4. FarmOnline National, 5. North Queensland Register, 6. Queensland Country Life (collectively the Fairfax Websites).
10. The Notice on the Fairfax Websites must be viewable by clicking through a tile or icon (the tile) located in a central position of the first page accessed on each of the Fairfax websites. The tile must include the words "IMPORTANT PUBLIC NOTICE ORDERED BY THE DISTRICT COURT OF NSW" in capital letters and a minimum type size of 16 point Times New Roman or equivalent and prominently in red on a contrasting background. The Notice when accessed through the tile must occupy the entire webpage displayed.
11. The offender is to notify the prosecutor on or before 5pm on 26 March 2019 with evidence that the adverse publicity order in this judgment has been complied with.
12. The offender is to pay the prosecutor's costs as agreed or assessed.

Annexure A IMIMPORTANT PUBLIC NOTICE In proceedings taken by SafeWork NSW, the District Court of New South Wales has found that K D & J T WESTBROOK PTY LTD has contravened its health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (NSW) ("the Act"), as it failed to comply with that duty and thereby exposed a worker to a risk of death or serious injury contrary to section 32 of the Act. The offence relates to the death of a 20 year old worker engaged by K D & J T WESTBROOK PTY LTD as a contract musterer to muster sheep on a rural property about 100km west of Tibooburra, On 22 September 2014, the worker was riding a two-wheeled motorcycle on the property when he fell and was fatally injured. He was not wearing a motorcycle helmet at the time of the incident. The District Court found that K D & J T WESTBROOK PTY LTD breached the Act by failing to require the deceased worker to wear a helmet, and in particular, a helmet which complied with Australian Standard AS 1698:2006 Protective helmets for vehicle users ("compliant helmet"), thereby exposing him to a risk of death or serious injury in that: The risk that workers could fall and sustain a serious head injury was known or should have been known by K D & J T WESTBROOK PTY LTD, as motorcycles were operated on the property at varying speeds over uneven terrain and on occasions unsafely; K D & J T WESTBROOK PTY LTD provided helmets for its workers, however it did not enforce them to be worn and was aware that its workers did not want to wear them even though they were advised on occasions to do so; Helmets, like personal protective equipment ("PPE") in other industries, can be uncomfortable and inconvenient, but it was reasonably practicable for helmets to be worn while riding motorcycles to minimise the risk arising from work in the agricultural industry; There are now a wide range of compliant helmets in the market that are suitable for mustering work, including motocross helmets, jet helmets and shorty or half helmets, which are lightweight, have enhanced ventilation and sun protection, and do not restrict a riders sideways or peripheral vision, or hearing; K D & J T WESTBROOK PTY LTD should have implemented and enforced a requirement that all workers, including contractors, wear a compliant helmet while riding a motorcycle, and should have provided information, instruction and training to compel workers to wear a compliant helmet The District Court has imposed upon K D & J T WESTBROOK PTY LTD; a conviction for a failure that exposed a worker to a risk of death or serious injury; a monetary penalty of $180,000 for the offence; an order that it pay the costs of the proceedings; and an obligation to publish the details of the order of the Court. This Notice is published and paid for by K D & J T WESTBROOK PTY LTD in accordance with the Order of the District Court of New South Wales made on 19 February 2019 in the proceedings taken by SafeWork NSW.

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 February 2019