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District Court 31 August 2018

SafeWork NSW v Daniel áBeckett Rose

[2018] NSWDC 240

Public order & justice offences
CRIME WORK HEALTH AND SAFETY NO PRIOR CONVICTION TREE REMOVAL AGGRAVATING AND MITIGATING FACTORS RELIEF UNDER FINES ACT

Citation: SafeWork NSW v Daniel áBeckett Rose [2018] NSWDC 240
Court: District Court of New South Wales
Date: 31 August 2018
Judge: Strathdee DCJ

Background

The defendant was a sole trader operating as North Shore Gardening and Landscapes. In November 2015, he was engaged to fell two large hardwood eucalyptus trees (tallowwood trees, approximately 20 and 25-30 metres tall respectively) in a residential cul-de-sac at East Gosford. He had limited experience in tree removal work in residential areas and had conducted no risk assessment or safe work method statement before commencing.

The defendant used a clear-felling method without proper controls. After felling the first tree without incident, he proceeded to fell the second. A local resident who was a qualified arborist warned him that his cuts were incorrect and that the tree was likely to fall the wrong way. The defendant borrowed ropes and wedges but failed to establish an exclusion zone. A gust of wind caused the second tree to fall in an uncontrolled manner onto a neighbouring house, causing substantial structural damage.

Three workers employed by the defendant and several residents and a visitor were present within what should have been a safe exclusion zone at the time of the incident. No one was injured, but the risk of death or serious injury was real. The defendant also failed to notify SafeWork NSW of the incident for approximately six weeks after it occurred.

  • Whether the defendant's guilty pleas to three offences under the Work Health and Safety Act 2011 (WHS Act) were appropriately established by the agreed facts.
  • What penalty was appropriate, having regard to the objective seriousness of the offences, the applicable maximum penalties, and the relevant aggravating and mitigating factors.
  • What weight should be given to the defendant's financial circumstances and to extra-curial punishment (that is, consequences suffered outside the formal criminal process) in determining the final penalty.
  • Whether relief under the Fines Act 1996 was applicable, including the allocation of a portion of the fine to the prosecutor.

Decision

The defendant pleaded guilty on 19 February 2018 to three offences. Two were charged under section 32 of the WHS Act: failing to ensure the health and safety of workers (section 19(1)) and failing to ensure that other persons were not put at risk by work carried out as part of the business (section 19(2)). Each carries a maximum penalty of $300,000 for an individual. The third offence, under section 38, was failing to notify SafeWork NSW of a notifiable incident immediately upon becoming aware of it, carrying a maximum of $10,000.

Strathdee DCJ identified a number of aggravating factors. The defendant's lack of competence and experience in residential tree removal was central. He failed to conduct any risk assessment, failed to establish an exclusion zone, failed to warn residents, and persisted with an inadequate felling method even after being directly warned by a qualified arborist on the day. The presence of workers and members of the public within the exclusion zone at the time of the incident heightened the gravity of the offences.

Significant mitigating factors were also taken into account. The defendant had no prior convictions, entered early guilty pleas (attracting a 25% discount), and had given an undertaking to SafeWork not to engage in high-risk tree work in the future. He had also cooperated with the investigation. The court accepted that the defendant had suffered substantial extra-curial punishment: he was forced to refinance his home to its maximum borrowing capacity to meet a $30,000 civil settlement with the property owners, his own legal costs in those civil proceedings, and the costs of the criminal proceedings. His overall financial position was one of significant stress.

Having assessed the objective seriousness of the offences and weighed these factors, the court imposed fines at levels well below the statutory maximum, further reduced by the early plea discount and with regard to totality. The court noted that but for the mitigating circumstances, financial hardship, and extra-curial punishment, a higher penalty would have been appropriate.

Orders Made

  • The defendant was convicted on all three charges.
  • A fine of $10,000 (reduced by 25% for the early guilty plea) was imposed on the first matter (2017/232911).
  • A fine of $10,000 (reduced by 25% for the early guilty plea) was imposed on the second matter (2017/232962).
  • A fine of $2,000 (reduced by 25% for the early guilty plea) was imposed on the third matter (2017/232894).
  • Total fine imposed: $16,500.
  • Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor.
  • The defendant was ordered to pay the prosecutor's costs as agreed or assessed.

Key Takeaways

  • Under the WHS Act, an individual conducting a business or undertaking faces a maximum penalty of $300,000 per offence for a Category 2 failure, reflecting the legislature's view of the seriousness of workplace safety duties even where no injury results.
  • The District Court confirmed that extra-curial punishment (here, forced refinancing of the family home, civil litigation costs, and a $30,000 compensation payment) is a recognised factor capable of reducing an otherwise appropriate penalty, distinct from but complementary to the defendant's financial means.
  • A defendant's financial impecuniosity does not eliminate the obligation to impose a fine reflecting the gravity of the offence; rather, the proper approach is to assess the appropriate fine first, then reduce it to account for limited means.
  • Early guilty pleas attracted a 25% discount across all three charges, illustrating the practical significance of the timing of a plea in WHS prosecutions.
  • Lack of experience and competence in a specialised task, combined with failure to heed direct warnings from a qualified person on site, were treated as significant factors in assessing the objective seriousness of safety breaches, even where no physical injury eventuated.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 19(2), 32, 38
- Fines Act 1996 (NSW), s 122(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Occupational Health and Safety Act 1983 (NSW)

Cases
- 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
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
- EPA v Barnes [2006] NSWCCA 246
- R v McNaughton (2006) 66 NSWLR 566
- Postiglione v R (1997) 189 CLR 295
- Veen v R (No. 2) (1988) 164 CLR 465
- Baumer v R (1998) 166 CLR 51
- R v Daetz; R v Wilson (2003) 139 A Crim R 398
- Jahandideh v R [2014] NSWCCA 178
- BW v R [2011] NSWCCA 176
- Silvano v R [2008] NSWCCA 118
- Gotico Industries Pty Ltd v Benbow (2001) 103 IR 78
- McColl v John Watson Building Services Pty Ltd [2004] NSWIR Comm 353; 137 IR 310
- Inspector Lai v Rexma Pty Ltd and Anor [2008] NSWIRC Comm 78
- Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIR Comm 100