Citation: SafeWork NSW v Arkwood (Gloucester) Pty Limited (No. 2) [2022] NSWDC 201
Court: District Court of New South Wales
Date: 10 June 2022
Judge: Russell SC DCJ
Background
Arkwood (Gloucester) Pty Limited is a transport and biosolids management company operating primarily in Queensland and New South Wales. In October 2018, Arkwood engaged a crane contractor to load a dismantled centrifuge onto a flatbed truck at the Moss Vale Sewerage Treatment Plant. During the operation, the crane's boom came into contact with, or in close proximity to, live overhead power lines.
Two Arkwood employees, Mr Peter Voight and Mr Gregory Whitford, suffered electric shocks as a result. Mr Voight sustained serious injuries that prevented him from returning to work. Mr Whitford recovered and remained employed by Arkwood.
This judgment (No. 2) deals with sentencing, following a five-day trial at which Arkwood was found guilty in the primary judgment ([2022] NSWDC 89). The prosecution was brought under the Work Health and Safety Act 2011 (NSW) (the WHS Act).
Legal Issues
- What penalty was appropriate for Arkwood's breach of its primary duty as a person conducting a business or undertaking under s 19(1) of the WHS Act, having regard to objective seriousness and all relevant sentencing factors?
- What weight should be given to mitigating factors, including Arkwood's post-incident conduct toward injured workers, remediation steps, and prior safety initiatives?
- What costs order was appropriate?
Decision
The court convicted Arkwood and imposed a fine of $150,000, well below the statutory maximum of $1,500,000. The court assessed the offence as occupying the lower to middle range of objective seriousness, having regard to the multiple failures identified at trial: no site-specific risk assessment was conducted, no appropriate Safe Work Method Statement (SWMS) was in place, employees were not adequately instructed or trained, the crane operator was not observed or warned about the power lines, and Arkwood failed to insist on the use of a qualified dogman.
The court accepted a range of mitigating factors in Arkwood's favour. These included significant post-incident support provided to Mr Voight and his family, including ongoing wage payments beyond any legal obligation, practical assistance around the home, transportation, and sustained personal contact from management. Mr Voight himself provided a statement acknowledging the support he received and asking the court to take it into account in sentencing. The court also noted Arkwood's safety initiatives in the period preceding the incident, including completion of a Queensland workplace health and safety improvement program just weeks before the incident occurred.
General deterrence remained a relevant sentencing consideration, given the well-known and serious hazard that overhead power lines pose on worksites. The court also addressed specific deterrence, noting Arkwood's post-incident remediation and its otherwise cooperative conduct. A 50% portion of the fine was directed to the prosecutor under the Fines Act 1996 (NSW), consistent with the statutory scheme.
Orders Made
- Arkwood (Gloucester) Pty Limited convicted on 3 June 2022.
- Arkwood (Gloucester) Pty Limited ordered to pay a fine of $150,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor (SafeWork NSW).
- Arkwood (Gloucester) Pty Limited ordered to pay the prosecutor's costs in the agreed amount of $102,000.
Key Takeaways
- A Category 2 offence under s 32 of the WHS Act carries a maximum fine of $1,500,000 for a corporation; the fine actually imposed will reflect the objective seriousness of the conduct and all relevant mitigating and aggravating factors.
- Multiple concurrent failures, including the absence of a site-specific risk assessment, an inadequate SWMS, and failure to use a qualified dogman, collectively informed the court's assessment of the offending as falling in the lower to middle range of seriousness.
- Substantial post-incident support to injured workers, going beyond legal obligations, was treated as a meaningful mitigating factor in assessing the appropriate penalty.
- Under s 122(2) of the Fines Act 1996 (NSW), the court directed that half of the fine be paid to the prosecuting authority, SafeWork NSW, in accordance with the applicable statutory regime.
- Where parties agree on costs, the District Court will give effect to that agreement; here, a costs figure of $102,000 was accepted by consent.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 26, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- SafeWork NSW v Arkwood (Gloucester) Pty Limited [2022] NSWDC 89 (primary judgment)
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- BW v R [2011] NSWCCA 176
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- R v Wilkinson (No. 5) [2009] NSWSC 432