WorkCover Authority of New South Wales (Inspector Johnston) v Minett Enterprises Pty Limited

Industrial Relations Commission (NSW)|2005-05-18|Before: Staunton J

CITATION: WorkCover Authority of New South Wales (Inspector Johnston) v Minett Enterprises Pty Limited [2005] NSWIRComm 436

PROSECUTOR: WorkCover Authority of New South Wales (Inspector Johnston) PARTIES: DEFENDANT: Minett Enterprises Pty Limited

CATCHWORDS: Occupational health and safety - plea of guilty - general principles - objective seriousness of the offence - foreseeability - general and specific deterrence - no prior convictions - subjective features taken into consideration - financial circumstances of the defendant considered - penalty imposed - orders as to penalty, moiety and costs.

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Fines Act 1996 Occupational Health and Safety Act 2000

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v The Queen [2005] HCA 25: 18 May 2005 R v Gallagher (1991) 23 NSWLR 220 CASES CITED: R v Thomson, R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 Thorneloe v Filipowski (2001) 52 NSWLR 60 WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New[2004] NSWIRComm 247

PROSECUTOR: Mr M Cahill of counsel SOLICITORS: Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT: Mr A Singh SOLICITORS: Everingham Solomons

1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staunton J DATE: 25/11/2005

Matter No IRC 1359 of 2005 WorkCover Authority of New South Wales (Inspector Johnston) v Minett Enterprises Pty Limited Prosecution arising under s10(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2005] NSWIRComm 436

1 The defendant, Minett Enterprises Pty Ltd (Minett Enterprises) has entered a plea of guilty to an offence arising under s 10(1) of the Occupational Health and Safety Act 2000. 2 In relation to that offence it was said that the defendant: Did fail to ensure that the premises were safe and without risk of to the health of persons, in particular, Mark Anthony Marchiori, contrary to s 10(1) of the Occupational Health and Safety Act 2000. 3 The particulars of that charge were that the defendant: (i) Failed to provide and maintain a system of work for persons engaged in logging operations at the premises that was safe and without risks to health; (ii) Failed to ensure that persons were not exposed to the risk of being struck by falling timber at the premises; (iii) Failed to provide and maintain adequate exclusion zones so as ensure safe working distances between persons and machine operations at the premises, in particular with regard to the operation of a Clark Ranger 666 Skidder; and (iv) Failed to ensure effective systems of communication between persons working at the premises.

As a result of the said failures, Mark Marchiori was exposed to risk of serious injury. 4 The prosecution has tendered an agreed statement of facts. With respect to the charge brought against the defendant, the following facts are agreed: [1] The defendant is, and at all material times was: 1.1 duly incorporated with its registered office situated at Buckbitt & Gill, 105 Marius Street, Tamworth, New South Wales; 1.2 engaged in the business of harvesting, or logging, timber. [2] Prior to the incident the defendant had contracted with the owners of the premises to harvest and remove trees from wooded area located within the premises. [3] At all material times, pursuant to the said contract, the defendant had control of that part of the premises where logging was being undertaken. The defendant commenced logging in that area in December 2002. [4] In March 2003, the defendant contracted Marchiori, an independent contractor, to fell trees with a chainsaw at the premises. At all material times, Marchiori was an accredited tree-feller, who had been working as a tree feller for about 10 years prior to the incident. [5] Marchiori commenced working as a timber feller at the premises on 11 March 2003. Marchiori also worked at the premises as a timber feller on 12 March 2003 and on 17 March 2003 (day of the incident). It was also part of Marchiori's job, when not felling trees, to assist Minett to hook up logs to the skidder. [6] At all material times, John Glenn Minett (Minett), the sole director of the defendant, was operating a Clark Ranger 666 Skidder (serial No. C9046-818) (the skidder) at the premises. The skidder is a rubber tyred tractor fitted with a bulldozer blade that was used to clear tracks and to drag, or "snig", logs from the felling area. Incident [7] At approximately 4pm on the day of the incident, Marchiori sustained serious injury when a sapling, inadvertently pushed over by the skidder driven by Minett, struck him directly on the head. [8] As a result of the incident, Marchiori suffered a major head injury, which resulted in paraplegia and a certain degree of brain damage. As a consequence, Marchiori is confined to a wheel chair. [9] Prior to commencing work on 11 March 2003, Minett and Marchiori talked about the way in which they would co-ordinate their activities to maintain a 'safe working distance' between Marchiori and the skidder. The working area was divided into quadrants so that the tree feller and the skidder would be working in different areas. Also, Minett and Marchiori discussed an 'exclusion zone' around the skidder. [10] However, no specific distance was established, orally or in writing, as the minimum 'safe working distance'. [11] Also, no specific distance was established, either orally or in writing, for the 'exclusion zone' around the skidder. [12] The defendant provided no written site safety plan, no safe work method statements, nor any written instructions regarding the 'safe working distance' to be maintained in the felling area and/or the 'exclusion zone' around the skidder. When interviewed after the event, Minett stated that these are matters of common sense. [13] Communication between skidder operator and the tree feller was based on the skidder operator and the tree feller maintaining visual contact so that they could 'signal' each other. Any verbal communication required the skidder operator and the tree feller to be close enough to talk directly to each other. [14] On the day of the incident, Marchiori started work at the site prior to Minett. When Minett started work, at about midday, Marchiori was already felling trees. After Minett and Marchiori had lunch, Marchiori was again felling trees whilst Minett was operating the skidder. [15] Just prior to the incident, Minett saw Marchiori walking towards the area in which Minett was operating the skidder. When Minett first saw Marchiori walking towards the area in which he was operating the skidder, Marchiori was about 100 metres away. [16] At this time, Minett was both clearing the 'snig track' and 'snigging' logs. On his way to the area in which the logs were to be connected to the skidder, Minett used the blade to push obstacles out of the path of the skidder and to form up the snig track. Then, Minett hooked the logs to the skidder before dragging the logs out to the log dump. [17] As Minett drove the skidder down to collect more logs, Minett saw that Marchiori has approached to within about 12 to 15 metres of the area in which Minett was operating the skidder. Marchiori was standing at the stump of a tree that he had fallen earlier in the day. [18] Minett then decided to push two logs off the snig track whilst manoeuvring to have logs attached to the rear of the vehicle. Whilst doing so, the left side of the blade on the skidder came into contact with a root bowl near the snig track after which, Minett looked back in the direction of Marchiori. When Minett looked back to Marchiori, Marchiori was lying on the ground. Minett then stopped the skidder and provided assistance to Marchiori. Minett observed that Marchiori's helmet had been smashed and that he had a gash to the top of his head. [19] Subsequently, Minett left the scene to call for help. Minett went to the farmhouse located on the property and used the telephone. [20] Minett then returned to the site and remained with Marchiori until the emergency services arrived and Marchiori was extracted. Investigation of the Incident Site [21] On 18 March 2003, Inspector Brian Dell of the WorkCover Authority of New South Wales (WorkCover) visited the premises following receipt of a verbal accident notification from Tamworth Police radio. Inspector Dell made the following observations: 21.1 A yellow Clark Ranger 666 skidder (serial No: C9046-818) parked on track, which ran down a steep North West slope. The front of the skidder was facing directly down the slope (approximately 316° Magnetic) and its blade was lowered to ground level. 21.2 The face of the blade was covered with timber and dirt and on its left side was the butt end a fallen dead tree (tree one). This fallen tree was approximately 13.5m long and 180mm wide at its base. The top of the fallen tree was to the left of the skidder and pointed approximately 250° Magnetic. 21.3 Approximately 3.9m from the blade of the skidder the fallen tree had been jammed in a fork between saplings. The sapling at the topside of this fork was still standing and had been badly burnt at the base. The sapling on the bottom side had been knocked down. The fallen sapling was approximately 13m long and lying on the ground in a direction approximately 290° Magnetic. 21.4 Approximately 11.8m from the point where the fallen tree was jammed in the fork of between the two was the stump of what appeared to be a recently felled tree. Next to this stump and below the fallen section of tree two was a pile of empty plastic bags similar to those used by ambulance officers to store first aid materials and a pile of blue rag. This area was identified to the Inspector as being the site where Mark Marchiori was working at the time of the incident. 21.5 Marchiori has no recollection of events on the day of the incident. Notices [22] On 18 March 2003 Inspector Dell issued the following notices: 22.1 Prohibition Notice 117775, requiring the Defendant to maintain control measures to ensure the safety of all persons working in the vicinity of the Clark Ranger 666 rubber tyred skidder. Conclusions [23] Based on the Prosecutor's investigations at the site and the answers provided by Minett and Marchiori, it is apparent that: 23.1 Marchiori had been felling trees at the premises with the use of a chainsaw whilst Minett had been utilising the skidder to transport the felled trees up to a log dump on top of the hill at the premises. 23.2 There was to be an exclusion zone between the skidder and Marchiori whilst tree felling was in progress. This was achieved by dividing the logging area up into quadrants with the skidder working in one quadrant while the feller worked in a different quadrant. The premises were divided first along the line of the snig track that ran down the middle of the logging area, and then 'quartered' along the line of a fallen burnt log that was near the snig track. 23.3 The system of work in place on the incident date was that Marchiori would fell trees within a quadrant and then stop. Minett would then enter that quadrant to attach the fallen trees to the back of the skidder to be snigged up to the log dump. At this time Marchiori would no longer be felling trees in that quadrant. Marchiori would then proceed to fell tress in another quadrant, or he would assist Minett in attaching logs to the back of the skidder. 23.4 At the time of the incident, Minett had been travelling down the snig track from the log dump when he saw that Marchiori had ceased felling timber and that Marchiori was moving through the forest towards the snig track where Minett was operating the skidder. 23.5 Minett had a clear view of Marchiori at this time. 23.6 As Minett was driving down the snig track he decided to tidy up the track in order to make his next trip up the hill snigging logs easier. This involved pushing aside two logs that were obstructing the track. Minett sought to push the logs to one side of the track during the course of which, the bade of the skidder came into contact with a large root bowl which as to one side of the track. 23.7 Unbeknownst to Minett, the bowl was still attached to its trunk. That trunk extended to a point where it was wedged between two young saplings. One of the saplings had a deteriorated and rotted base covered by vegetation. and when the skidder pushed the bowl to one side, the trunk 'leaned' against that sapling until the trunk pushed the sapling over. That sapling was approximately 13m in length. 23.8 At this stage Marchiori was standing to one side of the tree stump some twelve metres from the skidder, apparently refuelling his chainsaw, when the sapling was pushed over. The sapling fell directly on top of him and struck him on the head, shattering his safety helmet. Safe systems of work 23.9 The defendant implemented safe systems of work for wearing helmets and hearing protection. 23.10 The defendant had also made provision for communicating with emergency services in the event of an accident. 23.11 The defendant did not prepare or document a safe work method statement for tasks associated with timber logging operations at the premises. 23.12 The defendant had devised the quadrant system of exclusion zones following an informal risk assessment. The quadrant system increased the likelihood of safe working distances between the tree feller and the skidder whilst tree felling and snigging was occurring simultaneously. However, provisions or systems had not been devised to address the circumstances in which Marchiori was injured. 23.13 The defendant was not aware of the WorkCover Code of Practice for Safety in Forestry Harvesting operations dated 2002. Chapter 8 of the Code sets out requirements in relation to snigging operations. Safe working distance 23.14 The defendant did not set a minimum safe working distance between persons and machine operations on the basis that the distance would vary depending upon the task being performed and the tree height. 23.15 The exclusion zones tended to result in a safe working distance between persons and machine operations when tree felling and snigging was in progress simultaneously. Persons could, however, be present in different quadrants and still be at an unsafe proximity to machine operations on the snig track separating the quadrants or another zone. The defendant should have ensured that a minimum safe working distance or exclusion zone of twice the height of the trees being felled be maintained from the active tree felling zone [i.e. where Marchiori was felling trees]. 23.16 The defendant should also have put in place an exclusion zone around the skidder so that when Marchiori approached within 'two tree lengths' of the skidder, the skidder ceased operations. Communications 23.17 Minett did not communicate to Marchiori his intention to operate the skidder to clear the bowl of the fallen tree at the time of the incident. Accordingly, Marchiori had no opportunity to take precautions to avoid the falling timber. 5 In addition to the agreed statement of facts, the prosecution tendered an indexed bundle of documents including a factual report of Inspector Brian Dell, dated 18 March 2003.

6 Included in the tender bundle were a number of photographs, which have assisted me in understanding the nature and layout of the work site at which the accident occurred, as well as the type of machinery involved in the incident, and the circumstances in which the accident occurred. 7 The defendant's prior conviction record is also before me. That record discloses no prior convictions in relation to the defendant. 8 On behalf of the defendant, the following material was tendered: (i) Affidavit of John Glenn Minett, sworn 26 October 2005. Mr Minett is the sole Director of Minett Enterprises. Mr Minett, along with his partner, went into the business of logging contracting in approximately 1995. Minett Enterprises was registered as a company around 2000. In his affidavit, Mr Minett gives details of what occurred on the day of the accident involving Mr Marchiori. Mr Minett's affidavit also describes his background and experience working in the logging contracting industry. Also tendered as part of Mr Minett's affidavit was a video of the accident site taken by Mr Minett shortly after the accident involving Mr Marchiori. (ii) Affidavit of Steven Arthur Fordham, sworn 5 October 2005. From 1997 until 2002, Mr Fordham worked with Mr Minett as a logging contractor. Mr Fordham has extensive experience in the logging industry. Mr Fordham's affidavit outlines his experience and knowledge of Mr Minett's safety practices when undertaking logging work. (iii) Affidavit of James Bernard Rummery, sworn 16 September 2005. Mr Rummery is a logging contractor and the current owner of Taminda Timbers. Mr Rummery met Mr Minett approximately nine years ago when they were both log suppliers to Taminda Timbers. He has also worked with Mr Minett on a number of occasions. Mr Rummery's affidavit outlines his experiences working with Mr Minett and details procedures that are adopted when conducting logging work. 9 Mr Minett was required for cross-examination in these proceedings, predominantly going to the financial position of the defendant. Relevant principles 10 The overall approach to be followed in relation to the determination of penalty is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and in particular in relation to these proceedings, ss 3A Purposes of Sentencing, 21A Aggravating, mitigating and other factors in sentencing, 22 Guilty plea to be taken into account. 11 In R v Way [2004] NSWCCA 131 it was emphasised that the provisions of the CSPA referred to above are not to be construed as representing 'a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice'. As was said at [59]: ....it is clear that the legislative policy.......so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges...but rather were intended to provide 'further guidance and structure to judicial discretion.' 12 It is well settled that the starting point for considerations as to penalty is the objective seriousness of the offence charged: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474.

13 The principle of foreseeability as a factor in determining the objective seriousness of an offence was considered and affirmed in the Full Bench decision of Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646. 14 On the issue of foreseeability, the Full Bench in Capral also stated: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:

... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. 15 The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken on that issue has also been dealt with in some detail in Capral at 643-645. Without detailing all that the Full Bench had to say on those issues I believe the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644 as follows: ... both aspects of deterrence 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.

16 In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A (1) of the CSPA relevant to the defendant. As was said in R v Way at [56]:

... it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the 'relative seriousness' of the offence, they are expressly preserved by s 21A(1)(c). 17 Ultimately, all of the above factors must be considered as part of 'a complex of inter-related considerations' (See R v Gallagher (1991) 23 NSWLR 220). Having said that, as was said by Spigelman CJ in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, it still remains for the sentencing judge to ensure: ... that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. 18 In Markarian v The Queen [2005] HCA 25: 18 May 2005, the High Court, by majority (Kirby J dissenting) generally disavowed the sequential or two tiered approach to sentencing. In doing so, their Honours did not entirely reject the proposition that, in some circumstances, 'an arithmetical process' would be appropriate. As they said at [39]: Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, ... indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. ... The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends . ... (emphasis added) 19 On that point, McHugh J also acknowledged the need, where appropriate, for the awarding of a nominated discount for 'some factor'. As he said at [74]: ...The distinction between permissible and impermissible quantification of "discounts" on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice...

20 Overall, I observe nothing in Markarian that precludes me, properly in my view, from identifying a discount for the entry of an early plea of guilty. Additionally, to the extent that there are subjective and mitigating features relevant to the defendant, they are matters which also should be considered in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, in particular s 21A(1) earlier referred to.

21 As the defendant has no prior convictions the maximum penalty which can be imposed on the defendant as a corporation is $550,000. 22 There was a clear obligation on the part of the defendant to ensure that the system of work in place for the task of felling trees and snigging logs did not pose a risk to the health and safety of Mr Marchiori. Given the type of work being undertaken, the foreseeability of a serious injury occurring, if identifiable risks to safety were not addressed, was obvious. 23 As was said by the Full Bench in Capral at 650, 'a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences'. In isolation, the potential for 'serious consequences' is not conclusive of the nature and quality of the offence, but it is clear that such a factor is a relevant consideration when assessing the ultimate culpability of a defendant. 24 Further, as was stated in Capral, the presence of foreseeability 'will necessarily result in the offence being more serious in nature'. As such, the starting point for the determination of the objective seriousness of an offence is whether there was 'an obvious or foreseeable risk to safety against which appropriate measures were not taken'. (Lawrenson Diecasting at 476). 25 As set out in the facts, Minett Enterprises was engaged in the business of logging timber. In March 2003, Minett contracted Mark Marchiori to work as a tree feller. The work was set up so Mr Marchiori would fell trees with a chainsaw and Mr Minett would transport the felled logs to a log dump at the top of a hill by operating a skidder. A skidder is a rubber tyred tractor fitted with a bulldozer blade that clears tracks and drag logs from the felling area. The task of dragging logs to the log dump area is also known as snigging. 26 In order to carry out the work, Mr Minett devised a system whereby an exclusion zone would be in place between the skidder and Mr Marchiori while tree felling was underway. That is, it was always intended by Minett that when tree felling was taking place in an identified quadrant snigging operations were excluded in that quadrant. Likewise, when snigging operations were taking place in an identified quadrant, tree felling was excluded. The logging area where the work took place was divided into quadrants, divided by the snigging track, which ran through the middle of the area, and by the line of a burnt log that lay near the snigging track. The system contemplated that a feller would fell trees in one area and then stop. Mr Minett would then proceed to enter that quadrant with the skidder and transport the fallen trees to the log dump. Mr Marchiori would then start to fell trees in another area.

27 On the day of the incident, Mr Minett was driving down the snigging track in a particular quadrant. Mr Marchiori was not tree felling in that area. Mr Minett decided to tidy the track in order to make the trip easier when snigging logs. As he started to do that, he saw Mr Marchiori walking towards the area in which he was clearing the snigging track and snigging. Mr Marchiori was some 100 metres away but eventually Mr Marchiori was only about 12 to 15 metres away from the snigger, standing near a tree stump refuelling his chainsaw. Mr Minett continued to operate the snigger. With the blade of the snigger, he pushed two logs to one side of the track, which hit a large tree root bowl on one side of the track. The bowl was still attached to the trunk of the tree and as a result of being struck, the trunk leaned against a nearby sapling. The sapling, which was some 13 metres in length and rotted at its base, fell over and struck Mr Marchiori directly on the head. 28 The exclusion zone system that was in place to carry out the work primarily sought to ensure that the work of snigging and tree felling did not occur simultaneously in the same quadrant. However, the very presence of Mr Marchiori within the exclusion zone while Mr Minett continued to operate the snigger, of and by itself, represented a risk to safety. 29 The failure to consider the risk to safety that such a situation represented was further compounded by the fact that the defendant did not have a written site safety plan nor provide any written directions as to how far apart the feller and skidder should be to constitute a safe working distance between them while both were present in the same quadrant. I say that because as the evidence discloses, there were occasions when Mr Marchiori did physically enter an exclusion zone, not in his capacity as a tree feller but in order to assist securing the logs to the snigger. If that was the case, then provision should have been made to ensure the snigger was not operating when Mr Marchiori was within a designated distance of the snigger. Further, the system of work in place should not have permitted Mr Marchiori to be in such close proximity to the snigging operations notwithstanding he was refuelling his chainsaw rather than felling trees. The type of work being undertaken by Mr Minett in operating the snigger created a risk to safety to any person in close proximity to it at the time. 30 Given the inherent danger that the snigging activities represented as well as the physical presence of Mr Marchiori to be taken into account, a clear direction as to a safe working distance between a person such as Mr Marchiori and the snigger was imperative while both were present in the same work area and the snigger was operating.

31 It is apparent that any discussion as to safety and risk assessment for the work at hand was done very much on an informal basis. Mr Minett deposed that he encouraged Mr Marchiori to bring to his attention anything he perceived to be 'unsafe' before the work was undertaken. The absence of formal safety procedures and risk assessment as well as placing the burden of identifying anything 'unsafe' on Mr Marchiori displays on Mr Minett's behalf a lack of understanding as to the defendant's non-delegable responsibilities in relation to workplace health and safety. 32 In some respects, that lack of understanding may be reflective of the way in which Mr Minett has undertaken felling and snigging work over many years. Mr Minett's affidavit as well as those of Mr Fordham and Mr Rummery attest to Mr Minett as a man who has essentially developed his tree felling and snigging skills through many years experience, commencing with Mr Minett initially doing such work with his father when he left school. As he deposed: [13] My father, Glenn Earl Minett was in the logging business for approximately forty years. During that time the type of work that he undertook was the kind of work that Minett's Logging Contractors now undertakes. [14] I first started working with my father when I was approximately nine or ten years old and I was still in primary school. During that time, I started assisting on weekends and school holidays and had been driving a bull dozer on these occasions with my father. I also operated chain saws and logging trucks (not on public roads), from approximately that age onwards. [15] During year ten I did two weeks work experience with a different logging contractor during which time I drove log skidders. At that time I was approximately sixteen years of age. [16] I left school at the end of year ten. [17] After I left school I immediately went to work for my father until I was approximately eighteen years of age when I obtained an apprenticeship as a Mechanic at Cross Country Ford in Muswellbrook. I worked there as an apprentice for four years until I obtained my trades certificate as a mechanic and then continued to work for another three years at Cross Country Ford in Muswellbrook. During this entire time, I also worked with my father on weekends in the logging business. The bulk of my work in the logging business over this period of seven years involved snigging logs (attaching the winch cable to a log and dragging it back to the log dump). 33 As to Mr Minett's safe and responsible approach to work, Mr Fordham deposed: [10] I felt that John had a good understanding of the risks associated with the logging industry and, from my observation of working with him, John exercised every reasonable precaution to avoid accidents. [11] I have also noticed that when John was driving the log snigger and I am felling trees, John will always stay a long distance away from me, by at least 100 to 200 metres where possible. There have been times where I have not been aware as to where John is whilst I have been felling a tree and looked around and found that he has been waiting quite some distance off and has not moved his machine until he was certain that I had seen and acknowledged his whereabouts. 34 Mr Fordham was undoubtedly referring to combined tree felling and snigging operations but Mr Marchiori's physical presence so close to Mr Minett's snigging operations should have alerted him to his prior safe practices in relation to distance. It is, after all, the person that such distance provisions are meant to protect, not the trees.

35 Likewise, Mr Rummery confirms that Mr Minett's overall responsible approach to safety as follows: [1] When I worked with John, I did the felling and he drove the log snigger. It was apparent to me straight away that John had significant experience in driving a log snigger and I deemed him to be very competent person to work with. [2] The relationship between the person on foot felling trees and the driver of the log snigger is a very close one as what one does in the log snigger may affect the person on foot. Accordingly, you would generally try to keep a good distance between each other in order to avoid any accidents.

36 Given the above, Mr Minett appears to have either forgotten or ignored his purported work practice while undertaking snigging operations with Mr Marchiori in such close physical proximity.

37 It is clear that what Mr Minett could have and should have done was to observe the very system Mr Fordham deposed to. That is when he saw Mr Marchiori so close to the snigger, he should have stopped the machine, told Mr Marchiori what he was intending to do and ensure he moved well away from the vicinity of his operations.

38 Mr Minett was also unaware of the WorkCover Code of Practice for Safety in Forestry Harvesting, which sets out safety management strategies for tasks such as manual felling and snigging. Some of the measures detailed in the WorkCover Code of Practice include ensuring that exclusions zones with safe working distances are established and understood by workers. The Australian Standard (AS 3574 - 1988) SAA Forest Safety Code, in particular section 7.10.3 (Safety in snigging and skidding), also reinforces the importance of having such an arrangement by stating: Safe techniques for extracting tree lengths or logs by means of snigging or skidding should include the following safety provisions: (a) Travelling machinery ... (iii) maintaining safe working distances from felling operations (a minimum of two tree lengths). 39 Those types of measures would have also been instructive in avoiding the type of injuries which befell Mr Marchiori. 40 In my view, Mr Minett demonstrated a clear lack of judgment in doing what he did but I am satisfied it was a lapse in judgment rather than being symptomatic of an irresponsible approach to safety. While I also accept there were unusual features in the mechanics of the tree falling in the way that it did, simple safety measures such as ensuring Mr Marchiori was kept well away from Mr Minett and his snigging operations would have ensured Mr Marchiori would not have been exposed to a risk to his safety that his injuries so clearly evidence.

41 Considering all of the above, the clear and foreseeable risk to Mr Marchiori's safety posed by the system of work and the absence of proper safety procedures, I assess the offence as being in the mid-range of objective seriousness.

42 The decision of the Full Bench in Capral clearly indicates that general and specific deterrence are factors that should be given weight in all but exceptional circumstances. The Full Bench said at 643-644 that: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that those aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process.

43 In respect of specific deterrence, the Full Bench held in Capral at 644-645: In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in cases of offences under the Act. 44 The defendant operates in an industry where safeguarding workers from harm is paramount, as the work is fraught with the threat of serious injury, particularly where trees are being hand felled. General deterrence is clearly relevant in this instance. In relation to specific deterrence, Mr Minett has said that since the accident, he has not hired any other contractors to undertake tree felling work. He has performed all logging work himself. He also stated that the company will be terminating operations as a logging company in the near future. In all the circumstances, I consider specific deterrence overall to be of limited weight in my considerations.

45 Mr Minett, during the course of giving evidence, explained that his logging business was structured around two entities. As he explained: Minett's Logging does the actual operations in the bush and the - Minett Enterprises hires Minett's Logging to do that business. 46 The defendant has tendered balance sheets and profit and loss statements for both of these entities for the 2004 financial year. The documents reveal that the total income earned by Minett Enterprises for that year was $141,072 balanced again expenses of $137,507. The net profit for the financial year came to the modest sum of $3,565. Minett's Logging earned a total income of $19,814 balanced against expenses of $13,428, yielding a total profit of $6,386. Mr Minett confirmed in cross examination that those figures were the total earnings of both entities for the 2004 financial year. 47 While no documents were tendered as to the current financial position of either company, Mr Minett gave evidence during cross-examination that: The financial situation of the company at the moment is getting to be in very dire straits ... We owe a fair bit of money to account customers. Doing our best to pay them but at this stage, yes, it's in very poor state of affairs, income wise. 48 Mr Minett also gave evidence that both he and his partner derived a small income from Minett's Logging in 2004, which came to a total of $14,860, or $7,430 each. Mr Minett stated that this was his only source of income. Due to the decision to discontinue the business because it was no longer viable, he stated he would not be earning any future income from the business. A reliance exists between the two companies in that without Minett's Logging actually undertaking logging work, Minett Enterprises ceases to exist in terms of generating work. 49 All of the factors as detailed above have an impact on Mr Minett's capacity to pay the fine. That is a consideration which may be taken into account and is premised on s 6 of the Fines Act 1996 which states as follows: 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.

50 In relation to a defendant's ability to pay, I note the observation of the Full Bench in WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited trading as Old But New[2004] NSWIRComm 247 at [51] as follows: ... where a defendant desires to plead incapacity to pay as a determinative issue in the imposition of penalty, it behoves the defendant to discharge the onus that such a submission invokes by placing before the Court all of the information it relies upon in support of that submission in order for the Court to give that information proper consideration in the exercise of its sentencing discretion.

51 In the circumstances, the evidence relied upon by the defendant, going to its limited means, is somewhat scant. Nevertheless, the defendant is essentially a one man company and any penalty imposed will fall squarely upon Mr Minett. The defendant may not be strictly impecunious but it would appear to have very limited financial means. Mr Minett gave evidence to that effect, which I accept. There is no evidence to the contrary. Mr Minett would not appear to have any other significant assets. He resides with his de facto partner in her home. 52 Overall, the approach I propose to adopt is that I accept that the imposition of a heavy fine would be a burden on the defendant and the financial resources of Mr Minett who, ultimately, will bear the burden of paying it. Accordingly, that consideration should be given appropriate weight on the question of penalty. Ultimately, to the extent appropriate within the context of that consideration, the penalty should reflect the objective seriousness of the offence.

53 In assessing the impact of the plea, the Court is guided by the decision of R v Thomson; R v Houlton (2000) 49 NSWLR 383, the principles of which are well settled and need no elaboration, reinforced as they are by s 22 of the Crimes (Sentencing Procedure) Act 1999. I assess that discount at twenty five percent. 54 The prosecution have conceded matters that are mitigating factors for the defendant. The defendant fully cooperated with WorkCover. Mr Minett has also been in contact with Mr Marchiori since the incident and has provided assistance where possible.

55 Taking into account all the matters I have referred to, I determine a penalty in this matter of $30,000.

56 I make the following orders: (1) I impose a penalty in this matter of $30,000. (2) I allocate a moiety to the prosecution on the usual terms. (3) I order the defendant pay the costs of the prosecutor as agreed. Failing agreement, the matter may be referred to the Registrar for assessment. - 1 -

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