Aaron Vincent Piergrosse ('the defendant') entered a plea of guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) ('WHS Act'). By virtue of his plea, the defendant has admitted that he failed to comply with a duty under s 19(1) of the WHS Act to ensure, so far as reasonably practicable, the health and safety of workers. The details of the offence are recorded in the Amended Summons filed in Court on 22 November 2021 and are summarised below.
The offence carries a maximum penalty of $300,000.00.
The defendant was a 'person conducting a business or undertaking' and operated a regional tree removal business in Albury Wodonga in partnership with his wife. At all material times, the defendant managed the business and oversaw its daily activities. The business traded as 'Curtis Tree Lopping Specialists' ('Curtis').
The defendant had completed a Certificate III in Arboriculture in 2017 and received specific training in identifying risks associated with tree dismantling and pruning work, identifying trees and inspecting them for structural defects, and designing and adjusting rigging systems.
Mr Andrew Dixon ('Mr Dixon') was employed by Curtis as a trainee arborist and had commenced a Certificate III in Arboriculture. He had achieved competency in five Units of Competency ('UoC'), but he had not commenced any units for Inspect Trees for Access and Work or Dismantle Trees. Mr Dixon had commenced a UoC for Use Standard Climbing Technique to Access Trees, but he had not finished the practical training component required to complete the unit.
Curtis also employed Mr Lachlan Hampton ('Mr Hampton') and Mr Johnny Teixeira ('Mr Teixeira') as labourers/groundsmen. Mr Hampton began working for Curtis approximately one week prior to the incident, while Mr Teixeira worked for Curtis for three days before the incident.
In or around January 2019, Curtis was engaged to remove a pencil pine tree from a residential property at 365 Centenary Street, Albury ('the property'). The property was a 'workplace' for the purposes of s 8 of the WHS Act. It is typical for the bark of pencil pine trees to be 'included' or ingrown, where it turns inwardly at the junction of branches or co-dominant stems. When bark inclusions are present, there is a risk of branch failure when pressure is placed onto the branch. This risk varies depending on the age of the tree.
On 30 January 2019, the defendant, Mr Dixon, Mr Hampton and Mr. Teixeira attended the property and discussed how the task should be completed. The defendant completed a Job Safety Analysis ('JSA') that did not refer to any assessment of the tree, record any risks associated with removing the tree, or specify any controls to be implemented to manage risks.
Mr Dixon's role was to climb and dismantle the tree. Mr Hampton and Mr Teixeira were to drag and stack branches in the laneway at the back of the property. The defendant was to operate the compact loader to collect and drive the branches to the woodchipper, which was located approximately 70m away.
Mr Dixon removed the tree's lower branches using a chainsaw and pole saw. He ascended the tree and started to dismantle it. The defendant would intermittently observe Mr Dixon when he was not operating the compact loader.
To remove the tree's five co-dominant stems, or 'leaders', Mr Dixon used a form of the 'butt tying' rigging technique. This method involved:
1. attaching slings to the leaders and a carabiner before cutting between the slings using a 'step cut' method;
2. dropping cut sections of the leader, which would be caught by the slings; and
3. detaching the sling, letting the cut sections fall to the ground below.
This technique involved inevitable shock loading because the weight of the cut branches was caught by the slings after a short period of freefall. This method did not involve using a lowering rope or pulley to lower branches to the ground in a controlled manner after they were cut.
As Mr Dixon was removing the last leader, he expressed concern to Mr Teixeira, who was on the ground, about the fork splitting. Mr Dixon butt tied the leader and cut the branch using the step cut method. The cut limb dropped onto the slings and shock loaded.
The tree bent and loud cracks emanated from it. The leader that Mr Dixon was working on sheared at the point where it met the trunk. Mr Dixon was flung from the tree and fell approximately 8m to the ground. Both sections of the leader landed on his chest and Mr Dixon died as a result of blunt force traumatic injury to the chest.
The SafeWork NSW investigation identified that the final leader had bark inclusion at the point where it failed and had torn/sheared away from the tree.
[2]
RELEVANT GUIDANCE MATERIALS
SafeWork Australia published the SafeWork Australia Guide to Managing Risks of Tree Trimming and Removal Work, July 2016 ('SWA Guide'), which was available to Curtis prior to the incident. It provided that before working on a tree, a competent person should conduct a thorough visual assessment to consider the tree's condition, structural integrity, location, and hazards. This would determine whether the tree is safe to access, the method of access to be used, and safe systems of work on-site. The SWA Guide noted that consideration should be given to the tree species and any visual signs of structural faults, such as bark inclusions. It also stipulated that only trained workers with competency in the relevant UoC should perform tree trimming or removal.
WorkCover NSW had published the Amenity Tree Industry Code of Practice 1998 ('WorkCover Code') prior to the incident, which was available to Curtis. It provided that before work commences, a competent person should be nominated to control the work by identifying potential hazards, assessing any risks, planning the work, instructing crew members, and ensuring that all personnel are appropriately trained. It also specified that there needs to be a competent person nominated to control the work, and that person should be continuously assessing risks. It also provided that the use of ropes and lowering devices systems should be used where branches are too heavy to be dropped safely. A hazard assessment checklist should include assessing the tree for included bark.
[3]
SYSTEMS OF WORK PRIOR TO THE INCIDENT
In or around July 2017, Curtis obtained a generic Occupational Health & Safety and Injury Management Manual. It included general information on risk identification and assessment, but not information relevant to managing the risks arising from Curtis' work.
Prior to the incident, the defendant was qualified to identify and assess risks associated with dismantling trees and implementing measures to minimise risks so far as was reasonably practicable. This included his training on identifying trees and inspecting them for structural defects, designing rigging systems to allow for load and impact force, and monitoring and adjusting these systems.
From this training, the defendant ought reasonably to have known that pencil pine trees typically had bark inclusions and carried the risk of structural failure. He did not identify this possibility, which ought to have informed the method of work to be used for dismantling the tree, specifically, using a rigging technique that minimised the risk of branch failure so far as was reasonably practical.
The defendant was also aware of the risk that shock loading could potentially compromise rigging systems. He had received training on the use of lowering devices and ropes to lower tree limbs in a controlled manner. The rigging method that Mr Dixon employed during the incident was not a standard technique used by arborists. It caused considerable force to be applied to the bark inclusions when branches dropped on the slings. It increased the likelihood that the bark inclusions would fail because the branch fell onto the slings with static force instead of being lowered to the ground via a rope in a controlled manner.
The defendant knew of suitable and available rigging methods that could have minimised the risk of the branch failing. These included using a pulley and lowering rope, cutting branches into smaller sections, or using the adjoining property to fell sections into so that the climber was not above defective parts.
Mr Dixon was a trainee arborist and did not have the qualifications to undertake tree removal or rigging work without adequate supervision. If Mr Dixon were to perform this work, the defendant was the most appropriate person to supervise him to ensure that safe methods of work and rigging techniques were used to minimise the risk so far as reasonably practicable. However, the defendant was periodically away from the worksite. Had a competent safety observer been supervising Mr Dixon at the time of the incident, hazards that required consideration of altering the method of work could have been identified.
As a result of the defendant's failure to comply with his duty, a worker engaged by the partnership, Mr Dixon, was exposed to the risk. Unfortunately, Mr Dixon fell about 8m when dismantling the pencil pine tree. Two large branches from the tree fell and landed on his chest, and Mr Dixon sustained fatal injuries.
[4]
STEPS TAKEN AFTER THE INCIDENT
After the incident, Curtis developed and implemented a Safe Work Method Statement ('SWMS') for Tree Climbing Felling, and prepared and utilised work activity sheets for 'Tree Removal' and 'Tree Climbing & Spur Work'. These documents identify hazards and controls to minimise risks and set out standard work methods to complete work. Requirements include thoroughly and visually assessing the tree/limb for a likelihood of splitting, ensuring that a spotter is present at all times, and completing a JSA and site-specific SWMS.
The SWMS identified the hazards of 'structural defects' and identified controls as:
'Thoroughly inspect tree prior to cutting to assess the site size and technique for limb removal or felling. Adjust piece sizes to ensure control. Employ ropes/rigging to lower and control falling limbs as required.'
[5]
SENTENCING
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 and others on workplace premises. 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 Crimes (Sentencing Procedure) Act 1999 (NSW) ('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.'
[6]
OBJECTIVE SERIOUSNESS OF THE OFFENCE
The duty of the defendant requires that it ensure the health and safety of workers as far as 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.
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 (NSW) (1999) 90 IR 464, 474-5. Subjective factors should not be permitted to produce a sentence that fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31]
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) 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].
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 Ltd (No. 3) (2005) 147 IR 117.
The Court of Criminal Appeal examined the sentencing process with regards to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). Justice Basten at [34], under the heading 'Assessment of Risk' said:
'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).
The defendant's duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the WHS Act: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The risk of a person being injured or killed by falling whilst dismantling a pencil pine tree, at height, was both obvious and serious. I have had regard to the principle that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards arising from work (ss 3(1)(a) and 3(2) of the WHS Act).
Paragraph 11(a)-(d) of the Amended Summons sets out the admitted failures of the defendant.
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 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.'
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 graduation 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:
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: Ibid [34];
The availability of steps to eliminate or minimise the risk: Ibid [34];
Whether those steps are complex, burdensome or mildly inconvenient, or if mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] and [53];
Whether the risk was known to, or ought reasonably have been known to or identified by the offender;
Whether the risk was an obvious or clear one; and
The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).
In my view, the following matters are relevant to determining the objective seriousness of the defendant's offending:
1. The risk was obvious and known, or ought to have been known, to the defendant. The risk is a fundamental risk associated with the task of climbing a tree to dismantle it, hence the industry standardised training on appropriate climbing and rigging techniques to minimise it, so far as reasonably practicable.
2. The likelihood of the risk manifesting was very high in the circumstances where:
1. There was no adequate assessment of the tree undertaken prior to commencing the work to identify the likelihood of bark inclusion as a structural defect. The species of tree was one that typically had included bark and this ought to have been known to the defendant based on his training;
2. A non-standard rigging technique was used, which caused considerable force to be applied to the bark when the branches dropped onto the slings. The rigging technique that was used increased the likelihood that bark inclusions would fail because the branches dropped onto the slings with static force and shock load; and
3. The tree was being dismantled by a trainee arborist who had not completed the requisite Units of Competency in Dismantling Trees and was not formally qualified to undertake the work.
1. The gravity of the risk was very significant, and included a risk of death, which most unfortunately occurred. In my view, the likelihood of something catastrophic happening was high, and these circumstances demonstrate a significant departure from the standard of care, which led to Mr Dixon's death.
2. There were simple and straightforward steps, in accordance with standard rigging techniques, which could, and should have been taken to avoid the risk, in particular:
1. Identifying that the species of tree had a likelihood of bark inclusion as a structural defect; and
2. Developing, implementing and maintaining a safe method of work for removal of a tree, in particular, a safe rigging technique that involved the use of lowering ropes to lower branches that could not be dropped safely or were too heavy to be controlled by hand and cutting the branches into smaller sections.
3. Lowering ropes (or lowering devices) are used to lower branches that cannot be safely dropped by hand. Lowering ropes are commonly used in the industry and are referred to in the industry guidance material. Using lowering ropes and cutting the branches into smaller sections would have eliminated, or substantially reduced, the risk of shock loading causing branch failure.
1. I find that the measures required to control the risk were known to the defendant. The defendant, through his completion of the Certificate III in Arboriculture, had received training in identifying trees and inspecting them for structural defects, designing rigging systems to allow for the load and impact, and monitoring and adjusting rigging systems. During his training, the defendant was made aware of the risk of shock loading resulting in potential compromise of rigging systems. The defendant had specifically received training on the use of lowering ropes and lowering devices to lower tree limbs in a controlled manner. The types of rigging methods available to minimise the risk of branch failure were known to the defendant.
2. There was readily available guidance material which set out the need to undertake a thorough visual hazard assessment of the tree prior to commencing work, including an assessment for structural integrity and included bark, in order to inform whether the tree is safe to access, and the safe systems of work to be implemented.
[7]
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 persons are not exposed to risks to their health and safety at the workplace: 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 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 that 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] 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.'
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 tree pruning at height. The amenity tree industry is notoriously dangerous and involves the management of a number of different risks, including the use of chainsaws at height, and the risks identified in the Amended Summons.
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. 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 of the defendant to reoffend. I note that the defendant continues to perform the same work as he did when the incident occurred, albeit with many changes to his procedures.
I accept that the defendant's affidavit (Exhibit A) demonstrates that in the period subsequent to the incident, the defendant undertook a number of steps to improve safety in response to the incident, upon which he has spent about $27,500.00.
Since the incident, the defendant has undergone a significant change to its WHS obligations, which has entailed financial expenditure in retaining a safety consultant to develop and implement a new system of work. The defendant engaged the services of an arborist, Mr Andrew Patrick, who is also an industry workplace and health consultant. In conjunction with Mr Patrick and Mr Robert Galbraith, a recognised expert in arboriculture and President of the Arboriculture Association of Australia, the defendant has developed new systems and procedures that are ongoing and pro-active, and the documentation is comprehensive and detailed. The review of the systems was reported to SafeWork NSW.
I accept that the prospects of rehabilitation of the defendant are very good, but the need for an element of specific deterrence is still necessary in these circumstances.
[8]
AGGRAVATING FACTORS
The injury, harm and loss caused by this offence was substantial: s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). For an aggravating factor to be established, I must be satisfied beyond a 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]. It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. In this circumstance, Mr Dixon tragically lost his life.
A Victim Impact Statement prepared by Mr Dixon's wife, Mrs Jessica Dixon, was tendered and became exhibit 2. It was heartbreaking and powerful. Mrs Dixon and her family have been devastated by the loss of Mr Dixon, as he was her best friend, and father/stepfather to Ava and Esmeralda. Their lives have also been irreparably damaged. Mrs Dixon has required psychological help, which is understandable, to try and deal with the tragic and sudden loss of her husband and his passing has had a significant negative financial effect on her. I send my deepest condolences to Mrs Dixon and her family, for everything that the devastating loss of Mr Dixon has inflicted upon them. I hope that with every day the pain of the loss of such a loved and loving man, eases slightly.
[9]
MITIGATING FACTORS
The defendant co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act.
The defendant has no record of previous offences: s 21A(3) of the Sentencing Act.
The defendant entered a plea of guilty on 22 November 2021 and as such this early plea is a mitigating factor: s 21A(3)(k) of the Sentencing Act, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis. Thus, I will allow the deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s 21A(3)(k) of the Sentencing Act.
The defendant has made a number of significant changes to its safe systems of work since the incident and I accept that it is committed to do so. I accept that the defendant has very good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.
Section 21A(3)(i) of the Sentencing Act provides that remorse may be taken into account as a mitigating factor in recognition of the contrition and remorse shown by the defendant, and this has been demonstrated by the defendant's affidavit (Exhibit A). I note that the defendant attended every directions hearing in this matter and I accept that this evidences him taking the matter very seriously. I am also satisfied that he has shown remorse and contrition, and that he has accepted responsibility for the events that caused Mr Dixon's death. As such, the defendant is entitled to some leniency on that basis.
I also note that the defendant has also suffered some significant mental health issues as a consequence of the loss of a worker and a friend and this is explained in the report of Dr Danny Sullivan, Psychiatrist (Exhibit B), which I accept. Further, I note that the business has suffered negative publicity as a consequence of this incident, which is imposing direct financial hardship to the defendant through loss of work. Finally, I note that the defendant and his wife have sold their home and set aside a significant sum to pay the fine. This demonstrates that the defendant is tackling his breach of the WHS Act very seriously, and this is of significance in the balancing of the need for deterrence and the application of leniency, and I have come to my determination bearing these things in mind.
[10]
PENALTY
I make the following orders:
(1) The defendant is convicted.
(2) The appropriate fine is $80,000.00, but that is to be reduced by 25% for the early plea.
(3) I order the defendant to pay a fine in the sum of $60,000.00.
(4) 50% of the fine imposed is to be paid to the prosecutor pursuant to s133(2) of the Fines Act 1996 (NSW).
(5) The defendant is to pay the prosecutor's costs as agreed or assessed.
***
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Decision last updated: 25 May 2022
There were documents prepared prior to the work commencing (Tabs 6 and 7 of Exhibit 1) but these were deficient because the fundamental risk of falling out of a tree was not evident in the documents. It is not a circumstance where the defendant had no regard for the safety of his workers, but that the systems were inadequate to address the risk that unfortunately came home.
Mr Dixon was only 27 years old at the time of his death.
Having regard to the seriousness of the risk and the straightforward steps that could have been taken to overcome that risk, as detailed in the Amended Summons, I am of the view that this offence objectively falls within the middle/high range of seriousness.