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District Court 25 May 2022

SafeWork NSW v Piergrosse

[2022] NSWDC 174

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Piergrosse [2022] NSWDC 174
Court: District Court of NSW
Date: 25 May 2022
Judge: Strathdee DCJ

Background

The defendant operated a regional tree removal business in Albury Wodonga, trading as Curtis Tree Lopping Specialists, in partnership with his wife. He held a Certificate III in Arboriculture and was the person responsible for managing the business and overseeing daily work. On 30 January 2019, the defendant and three workers attended a residential property in Albury to remove a pencil pine tree.

A trainee arborist employed by the business was directed to climb and dismantle the tree. The trainee had not completed units of competency in inspecting trees or dismantling trees, and had not finished the practical component of his climbing unit. Two labourers, each with fewer than a week's tenure, were also on site. The defendant intermittently supervised the work while operating a compact loader nearby.

While removing the final co-dominant stem of the tree, the trainee used a "butt tying" rigging technique that caused shock loading when cut sections fell onto slings rather than being lowered in a controlled manner. The stem sheared at a point of bark inclusion, the trainee was flung approximately eight metres to the ground, and two sections of the leader landed on his chest. He died from blunt force traumatic chest injuries. The defendant was charged with failing to comply with his duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), an offence under s 32 of that Act, and entered an early guilty plea.

  • The appropriate sentence for a person conducting a business or undertaking who pleaded guilty to a Category 2 offence under s 32 of the WHS Act, following a worker's death
  • The objective seriousness of the offence, having regard to the nature and foreseeability of the risk, the defendant's qualifications, and the systems of work in place
  • The weight to be given to mitigating factors, including the early guilty plea, remorse, rehabilitation, the defendant's mental health consequences, and capacity to pay
  • The application of the 25% discount for utilitarian value of an early plea, consistent with the principles in R v Thomson & Houlton
  • Whether the sentence achieved both general and specific deterrence

Decision

His Honour identified several features that bore on the objective seriousness of the offence. The defendant held qualifications that should have alerted him to the risk of bark inclusion in pencil pine trees and to the dangers of shock loading through the rigging method employed. Safer rigging techniques were known to him and were available, including the use of a pulley and lowering rope, cutting branches into smaller sections, or felling sections into an adjoining property. The Job Safety Analysis completed on the day recorded no risk assessment and identified no controls.

The defendant assigned dismantling work to a trainee who lacked the relevant competencies, without adequate supervision. The applicable guidance materials, including the SafeWork Australia Guide to Managing Risks of Tree Trimming and Removal Work and the WorkCover NSW Amenity Tree Industry Code of Practice, both required a competent person to assess the tree's structural integrity before work commenced and to maintain continuous risk assessment during the work. Those standards were not met.

On the subjective case, the court accepted significant mitigating factors. The defendant demonstrated genuine remorse and contrition through his affidavit and by attending every directions hearing. He had suffered serious mental health consequences following the death of a worker he also regarded as a friend, as documented by a forensic psychiatrist. The business had suffered reputational and financial harm. The defendant and his wife had sold their home and set aside funds to pay the fine, which the court treated as evidence of the seriousness with which he regarded his breach.

Taking into account the maximum penalty of $300,000, the objective seriousness of the offence, and the strong subjective case, the court assessed the appropriate fine at $80,000 before applying the 25% discount for the early guilty plea, resulting in a final fine of $60,000.

Orders Made

  • The defendant is convicted.
  • A fine of $80,000 was assessed as appropriate, reduced by 25% for the early guilty plea.
  • The defendant is ordered to pay a fine of $60,000.
  • 50% of the fine is to be paid to the prosecutor pursuant to s 133(2) of the Fines Act 1996 (NSW).
  • The defendant is to pay the prosecutor's costs as agreed or assessed.

Key Takeaways

  • A person conducting a business or undertaking with relevant qualifications is held to a higher standard of awareness: the District Court found that the defendant's arboriculture training meant he ought reasonably to have identified the risk of bark inclusion and selected a rigging method accordingly.
  • Assigning work beyond a trainee's completed competencies, without continuous supervision, was a central feature of the court's assessment of objective seriousness under s 19(1) of the WHS Act.
  • Under the sentencing framework, a strong subjective case, including genuine remorse, significant mental health consequences, and concrete financial steps to meet the penalty, can materially influence the final sentence even where a workplace fatality is involved.
  • The 25% discount for the utilitarian value of an early guilty plea, as established in R v Thomson & Houlton (2000) 49 NSWLR 383, was applied in full, reducing the fine from $80,000 to $60,000.
  • Selling the family home to set aside funds for the fine was treated by the court as a concrete indicator of the defendant's acceptance of responsibility, relevant to the balancing of deterrence against leniency.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 8, 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Fines Act 1996 (NSW), s 133(2)

Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Markarian v The Queen (2005) 228 CLR 357
- Veen v R (No. 2) (1988) 164 CLR 465
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464