Solicitors:
Safe Work (NSW) (Prosecutor)
Nelson Keane & Hemmingway (Offender)
File Number(s): 2015/000212616
[2]
Judgment
Gregory Paul Dunn (the offender) has pleaded guilty to an offence that as a person who had a health and safety duty under section 21(2) Work Health and Safety Act 2011 (the Act), he failed to comply with that duty and thereby exposed David Pierce to a risk of death or serious injury contrary to section 32 of the Act.
The maximum penalty for the offence is a fine of $300,000.
[3]
Facts
The parties presented an Agreed Statement of Facts that can be summarised as follows.
SafeWork (NSW) v Gregory Paul Dunn [2016] NSWDC 212 | Case summary | Zoe
The offender operated a business known as "That's Slashing and Tipper Hire". The offender was a sole trader and worked in the business. The business provided properly clearing and maintenance services, including lawn mowing and slashing.
At various times, the offender employed people on a part-time basis. In about mid-December 2012 the offender employed Mr Pierce as a casual worker on a trial basis to undertake general labouring work and machine operation. Mr Pierce and approximately 3 years' experience working in gardening and landscaping, and had previously worked for the offender on a casual basis over several years.
The offender owned a 2008 Kubota Tractor (the tractor) that was used by the business. The tractor was fitted with a fold down Roll- Over Protective Structure (ROPS) designed to protect the operator of the tractor from injury should the tractor rollover in any direction.
On 19 December 2012 the offender was contracted to slash overgrown grass and vegetation on a block of land at 5 Tweed Street, Bilambil Heights (the site). The offender had slashed the grass at the site 2 or 3 times per year for the last 2 to 3 years. The site was sloped towards Broadwater Esplanade, one of the streets that bordered it. The slope varied and the land was supported by a concrete block retaining wall of varying heights that ran parallel to Broadwater Esplanade. About 6 or 8 months prior to December 2012 the tractor rolled over at the site due to an error by the operator. The ROPS was deployed.
The offender met Mr Pierce at the site on the morning of 19 December 2012. The offender gave Mr Pierce verbal instructions as to the proposed sequence for slashing the grass, the presence of obstacles and instructed him not to slash near the retaining wall. The offender instructed Mr Pierce while seated in his car and Mr Pierce was sitting on the tractor. Mr Blood, a local resident, told SafeWork that the discussion took about 3 minutes. The offender then left the site and attended another worksite about 1 km away.
Mr Pierce commenced operating the tractor with a slasher attached to it. He was observed at the site to drive the tractor to the bottom of the slope and then reverse back up the slope. A short time later witnesses heard a loud noise and then silence.
At approximately 12:30pm Mr Pierce was found lying unconscious on Broadwater Esplanade by members of the public, adjacent to the right hand side of the tractor. The tractor was upright and located almost perpendicular to Broadwater Esplanade. It was apparent from damage to the retaining wall and gouge marks in the roadway that the tractor had rolled off the slope and over the retaining wall on to Broadwater Esplanade.
Mr Pierce died from his injuries at the scene.
At the time that Mr Pierce operated the tractor the ROPS was folded down (ie not deployed) and the buckle for the seat belt had been removed from the tractor. Mr Blood told SafeWork that he observed the ROPS to be folded down when Mr Pierce commenced work at the site.
Forensic investigation revealed that the ROPS was tied down with an elasticated octopus strap. The appearance of the knot in the octopus strap and the presence of corrosion in the nuts of the ROPS fittings suggested that the ROPS had not been deployed for a considerable time.
Directions for the safe operation of the tractor provided for the use of the ROPS and the seatbelt unless it was "absolutely necessary" to fold the ROPS down, for areas in which there were height constraints. Those directions were in the tractor's manual and the subject of stickers attached to the tractor. The manual also referred to the risk of roll-over presented by operating the tractor on sloping ground.
The offender told SafeWork that he had provided Mr Pierce with the verbal induction and about 30 to 40 hours of on-the-job training. He told SafeWork that he had instructed Mr Pierce to leave the ROPS up as much as he could unless he needed to go under anything low. He told SafeWork that this was the first time he had left Mr Pierce to operate the tractor without supervision. He did not provide Mr Pierce with the tractor's manual or instruct him to read it before operating the tractor. He did not provide Mr Pierce with any instruction as to the risks involved in operating the tractor on a slope. The offender told Safework that he had removed the seat belt buckle from the tractor because it was not operating properly about 1 week before the incident.
Following the incident, the offender no longer operates the business.
[4]
The Offender's Case on Sentence
The offender tendered 2 pages of the record of interview between SafeWork and the offender, being pages 6-7. That portion of the record of interview recorded that the offender was on a number of medications ordinarily prescribed for the treatment of psychological symptoms.
It was submitted on behalf of the offender that he has been unwell. These proceedings have been adjourned on a few occasions for that reason. Unfortunately, there is no evidence on which I could be satisfied even on the balance of probabilities as to the nature and extent of any illness or condition suffered by the offender or how it has arisen. I can infer that the offender is being treated for psychological symptoms on the basis of the medications that he says he has been prescribed. But I am unaware as to the causal connection between those symptoms and the incident.
[5]
Consideration
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.
[6]
Objective Seriousness of the Offence
The risk posed by the operation of the tractor without the ROPS deployed and the seat belt buckle fitted was obvious. The safety warnings about that risk were set out on a sticker attached to the tractor and in the manual. The offender had survived a "near miss" in the past when the tractor rolled-over at the site. The ROPS was deployed at that time and presumably avoided any injury being sustained by the operator. I do not accept that the ROPS was being used regularly at the time of the incident because the physical evidence proves otherwise. No amount of further verbal instruction or precautions would have allowed the tractor to be operated safely on the day of the incident. Even the deployment of the ROPS would not have provided any protection in the absence of the ability to fasten the seat belt. In short, the offender should not have required Mr Pierce to operate the tractor at the site on the day because it was obviously and plainly unsafe to do so.
The gravity of the risk was very, very serious. The risk was one of death and or serious injury.
The measures required to safely operate the tractor were simple, available and not costly.
The incident represented a failure to devise and put in place a safe system of work. The incident reflected a cavalier attitude to safety. The offender was personally aware of the risk and decided to take it, irrespective of the outcome. The death of Mr pierce is relevant to the objective seriousness of the offence.
The offence is in the high range of objective seriousness.
[7]
Deterrence
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 Ltd v Nash [2016] NSWCCA 37 at [180].
There is a need for specific deterrence. The offender no longer operates the business. It is unclear what he will do in the future. It was submitted that his focus was on getting well and that he will then look for work. The evidence is insufficient to allow me to conclude that no weight should be afforded to specific deterrence.
[8]
Aggravating factors
The injury, emotional harm, loss and damage caused by the offence is substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. The incident resulted in the tragic and premature death of Mr Pierce and it has had a substantial and irreparable impact upon his family.
[9]
Mitigating factors
The offender does not have any record of previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender is 40 years of age.
The offender was a person of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999.
The offender entered a plea of guilty: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of that discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range a particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The proceedings were adjourned on a number of occasions because the offender did not have legal representation or because he was in hospital. The appropriate discount is 20%.
The offender has co-operated with the investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
[10]
Capacity to Pay a Fine
Section 6 Fines Act 1996 provides:
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 to the fixing of that amount
The Court is required to have regard to this provision before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, they bear 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.
I am told that the offender is in receipt of Centrelink benefits and that he is too unwell to work. I have no evidence to support those submissions. The offender has not discharged his onus on this issue. In any event the objective seriousness of the offence and the need for general deterrence warrant the imposition of a substantial fine.
[11]
Penalty
The offender is convicted.
The Court has received Victim Impact Statements from Mr Pierce's mother and one on behalf of his partner and children. Each statement was thoughtfully prepared and conveyed the love and respect held for the deceased as well as the pain and loss suffered by each the family members. The experience was made very personal by the family's attention to detail including bringing photographs of the deceased into Court. The prosecutor has applied to have the content of the statements considered in determining the appropriate punishment for the offence on the basis that the harm caused to the family is an aspect of harm done to the community: section 28(4) Crimes (Sentencing Procedure) Act 1999. I find that it is appropriate to do so.
The appropriate fine is one of $200,000 that will be discounted by 20% to take into account the plea of guilty.
I impose a fine of $160,000.
I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
I order that the offender pay the prosecutor's costs as agreed in the sum of $26,500.
[12]
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Decision last updated: 13 September 2016