Citation: Workcover Authority of New South Wales v JML Tree Services Pty Ltd [2015] NSWDC 253
Court: District Court of New South Wales
Date: 12 May 2015
Judge(s): Judge AC Scotting
Background
A small arborist company pleaded guilty to failing to comply with its health and safety duty under the Work Health and Safety Act 2011, thereby exposing an employee to a risk of death or serious injury. The maximum penalty for the offence was a fine of $1.5 million.
The incident occurred on 12 June 2013 at a residential property in Moss Vale, where three employees attended to remove two eucalyptus trees. The company's sole director was supervising the felling of a trunk approximately 10 metres high. A senior groundsman was holding a guide rope attached to the trunk to pull it away from a nearby building, standing one to two metres from an operating wood chipper with his back to it.
When the groundsman threw the slack of the rope behind him, it became entangled in the chipper's feed wheels and was instantly drawn in. The rope struck the employee in the neck, causing a deep laceration. He died at the scene. The agreed facts identified several failures: no instruction was given to the employee to move away from the chipper or to deactivate it, the chipper was not repositioned, and the company had no written safe work method statement for the task.
Legal Issues
- What was the appropriate sentence for a company that pleaded guilty to a category 2 offence under section 32 of the Work Health and Safety Act 2011, resulting in an employee's death?
- How should the court assess the objective seriousness of the offending?
- What weight should be given to mitigating factors, including the early guilty plea, cooperation with investigators, demonstrated remorse, and limited capacity to pay?
- Whether the offender's financial circumstances warranted reducing or entirely displacing a monetary penalty under the Fines Act 1996?
- What costs order was appropriate?
Decision
The court assessed the objective seriousness of the offence as falling below the mid-range. The risk created was foreseeable and preventable. Several readily available measures could have eliminated or reduced the risk: repositioning the chipper, instructing the employee to move, deactivating the chipper during felling, or implementing an exclusion zone. The absence of a written safe work method statement for tree felling compounded those failures. However, the court acknowledged that the director had approximately 16 years of industry experience and had not previously been instructed about, or independently identified, the need for an exclusion zone around the chipper during felling.
The court identified a number of significant mitigating factors. The company entered an early guilty plea, attracting the maximum available discount. The director cooperated with the WorkCover investigation, expressed genuine remorse, and took concrete steps after the incident: he personally paid the deceased's widow $500 per week for approximately 20 weeks, reduced the business from five to two crews to improve supervision, implemented exclusion zones around the chipper, and obtained ISO 9001 certification. The director also contacted other businesses in the industry to alert them to the hazard. The court accepted that the director had suffered substantial ongoing psychological harm, including recurring nightmares and the need for antidepressant medication.
On capacity to pay, the court found that the company's financial position was genuinely limited. The business had not returned a profit since the incident, the director and his wife drew a combined income of approximately $1,700 per week to support themselves and a young child, and the company carried a $50,000 liability to the Australian Taxation Office. The court noted that any fine imposed on the corporate entity would directly affect the director and his family's financial position.
Taking all factors together, including the full guilty plea discount, the court concluded that the appropriate outcome was a conviction recorded without the imposition of any further penalty, pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999. The court also ordered the offender to pay agreed prosecution costs of $14,000.
Orders Made
- The offender was convicted under section 10A of the Crimes (Sentencing Procedure) Act 1999, with no additional penalty imposed.
- The offender was ordered to pay the prosecutor's costs in the sum of $14,000.
Key Takeaways
- A section 10A conviction, recording a finding of guilt without imposing further punishment, remains available in Work Health and Safety Act prosecutions where mitigating factors, including an early plea, genuine remorse, remediation, and limited financial capacity, cumulatively justify that outcome.
- The District Court treated the objective seriousness of the offence as below mid-range, noting that while the risk was foreseeable and preventable, the director had significant industry experience and had not previously identified the specific hazard of rope entanglement near an operating chipper during tree felling.
- Under section 6 of the Fines Act 1996, where an offender seeks a reduction in fine on grounds of limited means, the evidentiary onus rests on the offender to satisfy the court that a reduction is warranted. Here, the court accepted that onus had been discharged.
- Post-incident conduct carried material weight: voluntary financial support paid directly to the deceased's widow, industry-wide warnings to other arborists, operational restructuring, and independent safety certification all contributed to the sentencing outcome.
- Both general and specific deterrence remain relevant sentencing considerations in work health and safety matters, but neither is treated as a fixed override; the court balances them against the full range of offender-specific and offence-specific circumstances.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), sections 19(1) and 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 10A and 21A
- Fines Act 1996 (NSW), section 6
- Crimes Act 1900 (NSW)
Cases
- Veen v R (No 2) (1988) 164 CLR 465
- Baumer v R (1988) 166 CLR 51
- Capral Aluminium Limited v Workcover Authority of New South Wales (2000) 49 NSWLR 610
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Lo [2003] NSWCCA 313
- R v McNaughton (2006) 66 NSWLR 566
- R v Wilkinson (No 5) [2009] NSWSC 432
- R v Borkowski (2009) 195 A Crim R 1
- BW v R [2011] NSWCCA 176