SafeWork NSW v Shaun David Scott Mehan

The offender's evidence

1. The offender first appeared at the sentence hearing on 25 September 2018. He was self-represented. He was directed to bring to court on 23 October 2018 two copies of all the documents which he wished to put before the court in relation to capacity to pay any fine and any other matter relevant to sentence. The offender appeared again for himself on 23 October 2018 and handed up copies of documents that he wished the court to take into account. These were formally marked and considered at the sentence hearing on 21 November 2018.
2. The offender provided a statutory declaration dated 22 October 2018. He said that he had no financial capacity to pay any fine handed out by the court. He had no assets and rising personal debts. He had not worked for six months and his business had failed. By the time of the sentence hearing on 21 November 2018 his company SMAC was in liquidation.
3. The offender said that his debts included $34,000 to St George Bank in relation to finance for a motor vehicle, $8,000 to St George Bank on a credit card and a personal loan from his parents of $31,000.
4. By a statutory declaration the offender accepted full responsibility for what occurred. He said that Mr Kyle Stuart was not just an employee at SMAC but remained one of his dearest friends. Mr Stuart continued to work for SMAC after the accident for three years and finished his air conditioning apprenticeship with the offender.
5. The offender tendered documents from St George Bank to prove the debts to it, and a statutory declaration from his mother to prove the private loan from his parents.
6. Mr Kyle Stuart provided a signed statement dated 22 October 2018. He said that he was a friend of the offender and remained so. The offender was most helpful to him during his recovery. He came to visit him in hospital many times and made daily telephone calls to see if he needed anything. Mr Stuart returned to light duties and said that the offender gave him time off to attend therapy for his foot, and drove him to these sessions.
7. Mr Stuart said that he finished his apprenticeship and remained good friends with the offender. They still catch up regularly.
8. The offender also tendered a signed statement by Mr Jonathan Gardner who was a mutual friend of the offender and Mr Stuart. Mr Gardner was aware of the financial decline of SMAC. He said that the offender had changed from a positive person, to one filled with regret and anxiety. He asked the court to take into account the mental anguish suffered by the offender, as a result of the injury he caused to Mr Stuart.

Consideration

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

Objective seriousness of the offence

1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No. 2) (1998) 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].
2. 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 limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
3. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
4. 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.
5. 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 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 on assessment of all those factors."
6. 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 an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
7. My findings about the offender's level of culpability are based upon the following: 1. The risk was obvious. Manhandling a 525 kilogram unit down a steep staircase was an accident waiting to happen; 2. The offender failed to conduct an adequate risk assessment in order to identify reasonably foreseeable risks associated with workers manually lifting the unit down a set of stairs; 3. The offender failed to use any mechanical device, plant or equipment to reduce or eliminate the risks associated with manually handling the unit down the staircase; 4. The offender failed to adopt the practice of "team lifting" or "team handling" set out in the Code; 5. The offender failed to provide adequate instructions and training to its apprentice workers in relation to the task at hand; 6. The offender failed to provide a detailed SWMS which addressed the risks associated with the manual handling of the unit and the risks associated with manually delivering the unit to the basement via the staircase.
8. I find that the offender's level of culpability is in the low range.

Deterrence

1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37 at [180].
2. The penalty must reflect the need for specific deterrence. SMAC has since gone into liquidation. However the offender proposes to resume employment in the air conditioning industry.

Aggravating factors

1. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

1. The offender has no previous convictions: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.
2. The offender was otherwise of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. The steps which the offender took after the incident demonstrate this.
3. The offender is unlikely to re-offend: s 21A(3(g) of the Crimes (Sentencing Procedure) Act 1999.
4. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken positive steps to guard against the risk of an incident such as this ever happening again. SMAC through the offender, brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.
5. The offender has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has provided evidence that he accepts responsibility for his actions and has acknowledged that the injury to Mr Stuart was caused by his actions.
6. The offender entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give the offender a 25% discount for an early plea.
7. The offender gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The offender co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to pay a fine

1. I am required to have regard to s 6 of the Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
2. I am satisfied that the offender has provided evidence which has put his capacity to pay a fine in issue. The proper course is to assess the appropriate amount of a 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 - R v Rahme (1989) 43 A Crim R 81 at 86.
3. The evidence shows that the offender has been out of work for some time. His business has failed and his company has gone into liquidation. Because the offender represented himself, I gave him some latitude in putting material before the court. I formed the view that the offender was genuinely trying to assist the court and did not hold anything back. He told the court that he had not worked for the last 18 months and had been living off his own savings. He only had less than $4,000 left. He had been applying for work and hoped to start in three weeks time as an employee doing air conditioning, and earning $1,000 nett per week.
4. The offender submitted that any significant fine would mean that he would go into bankruptcy. That would be devastating for the offender who is trying to get back on his feet financially, and it would result in the prosecutor not being paid any fine or costs imposed by the judgment.
5. The prosecutor submitted that the appropriate course was first to reduce any proposed order for costs to take account of the impecuniosity of the defendant, and only after costs had been reduced, to reduce the fine to be imposed. The prosecutor submitted that where there is a real issue in relation to capacity of a defendant to pay combined costs and a fine, then the costs should be reduced, if appropriate to zero, so as to ensure that the fine to be imposed reflects the objective seriousness of the offence.
6. I propose to proceed in accordance with those submissions.
7. To reflect the objective seriousness of the offence, the appropriate fine would be $30,000. However, I take into account the extremely limited capacity of the offender to pay any fine and costs, and I take into account that the orders imposed should not be crushing, so as to prevent the offender getting back on his feet financially. The evidence referred to above shows that the offender is a genuine, worthwhile person who can hopefully put this event behind him and get on with the rest of his life.
8. I therefore propose to order that each party pay its or his own costs. While the appropriate fine to reflect the objective seriousness of the offence is $30,000, I propose to reduce this to $10,000. That amount will be further reduced by a 25% discount for the early guilty plea, so in the end result the penalty will be a fine of $7,500, with each party to pay its or his own costs.

Penalty

1. I make the following orders: 1. The offender is convicted. 2. The appropriate fine is $30,000 but that will be reduced to $10,000 by reason of incapacity to pay and further by 25% to reflect the plea of guilty. 3. Order the offender to pay a fine of $7,500. 4. Order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5. Order that each party is to pay its or his own costs.

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: 13 December 2018