Citation: SafeWork (NSW) v Gregory Paul Dunn [2016] NSWDC 212
Court: NSW District Court
Date: 12 September 2016
Judge: Judge AC Scotting
Background
The defendant was a sole trader operating a property clearing and maintenance business. He employed a casual worker, who had several years of relevant experience, to slash overgrown grass on a sloped block of land in December 2012. The defendant gave brief verbal instructions at the site, then left to attend another worksite nearby.
The defendant's tractor was fitted with a Roll-Over Protective Structure (ROPS), a fold-down frame designed to protect the operator in a rollover. On the day of the incident, the ROPS was folded down and secured with an elasticated strap. Corrosion on the fittings indicated it had not been deployed for a considerable time. The seat belt buckle had also been removed by the defendant approximately one week earlier because it was not functioning properly.
The worker was observed driving the tractor on the slope. Shortly afterwards, witnesses heard a loud noise. The tractor had rolled over the retaining wall and onto the adjacent road. The worker was found unconscious and died from his injuries at the scene. The defendant subsequently ceased operating the business. He pleaded guilty to failing to comply with his health and safety duty under the Work Health and Safety Act 2011, thereby exposing the worker to a risk of death or serious injury.
Legal Issues
- What was the objective seriousness of the offence under s 32 of the Work Health and Safety Act 2011?
- What weight should be given to general and specific deterrence in sentencing?
- What mitigating and aggravating factors applied?
- Did the defendant have the capacity to pay a substantial fine, and if not, should that reduce the penalty?
- What discount applied for the guilty plea, and what was the appropriate final fine?
Decision
Objective seriousness: Judge Scotting assessed the offence as falling in the high range of objective seriousness. The risks of operating the tractor without a functioning ROPS and seatbelt on a sloped site were obvious, flagged by stickers on the tractor and in the manual. The defendant had personal knowledge of the risk: the tractor had previously rolled over at the same site, with the ROPS deployed at that time preventing injury. The measures needed to operate safely were simple, available, and inexpensive. His Honour found the defendant should never have directed the worker to operate the tractor at the site that day, describing the approach as reflecting "a cavalier attitude to safety."
Deterrence: General deterrence was given significant weight, consistent with the Court of Criminal Appeal's reasoning in Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37. His Honour noted that the community is entitled to expect compliance with safety obligations from employers of all sizes. Specific deterrence was not discounted entirely, even though the defendant had ceased operating the business, because the evidence was insufficient to conclude that no future risk existed.
Mitigating factors: The defendant had no prior convictions, was of good character, and entered a guilty plea. His Honour applied a 20% discount to the fine to reflect the guilty plea. There was insufficient evidence to establish the nature or extent of any psychological illness, so that matter was given limited weight.
Capacity to pay: The defendant bore the evidentiary onus of establishing limited capacity to pay, and his Honour found he had not discharged it. Even accepting some financial hardship, the objective seriousness of the offence and the need for general deterrence warranted a substantial fine regardless. Victim impact statements from the deceased's family were taken into account as evidence of harm to the community.
Orders Made
- The defendant was convicted of the offence.
- A fine of $160,000 was imposed (being $200,000 discounted by 20% for the guilty plea).
- 50% of the fine was ordered to be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996.
- The defendant was ordered to pay the prosecutor's costs in the agreed sum of $26,500.
Key Takeaways
- The District Court confirmed that a previous near-miss involving the same equipment at the same site is a significant factor elevating objective seriousness, because it demonstrates the defendant's personal awareness of the risk.
- Where safety measures are simple, cheap, and readily available, a failure to implement them will weigh heavily in sentencing under the Work Health and Safety Act 2011.
- An offender seeking a reduction in fine on the grounds of limited capacity to pay bears the evidentiary onus of establishing that capacity before the court; unsubstantiated submissions about receiving welfare payments were insufficient to discharge that onus.
- General deterrence carries substantial weight in work health and safety prosecutions, and a significant financial penalty may be warranted even against a sole trader who has ceased operating the relevant business.
- Under s 122(2) of the Fines Act 1996, the court may direct that a proportion of any fine imposed be paid directly to the prosecuting regulator, as occurred here with 50% of the $160,000 fine directed to SafeWork NSW.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 21(2), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(f), 21A(3)(k), 21A(3)(m), 28(4)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases:
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Jahandideh v R [2014] NSWCCA 178
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37