Citation: SafeWork NSW v A1 Arbor Tree Services Pty Ltd and Anor [2023] NSWDC 256
Court: District Court of New South Wales
Date: 14 July 2023
Judge: Strathdee DCJ
Background
A1 Arbor Tree Services Pty Ltd is a small tree pruning and removal company. Its sole director was Ms Tracey Aryan, but its day-to-day operations were entirely managed by her husband, Tony Saunders, an experienced arborist with 30 to 40 years in the industry. Mr Saunders was employed by A1 as a Level 3 Arborist and was responsible for all operational decisions, including work health and safety.
On 7 September 2019, A1 attended Cromehurst School in Lindfield to remove trees along the school boundary. The crew included Mr Samuela Cirivakayawa, a Fijian national who had been in Australia since 2018 and had worked for A1 for between five and seven days in total. He had been employed as a trainee groundsman on a trial basis. The team was using a large woodchipper that, as at the date of the incident, was not fitted with a feed wheel control bar, meaning workers had to reach over the infeed tray to operate the forward/reverse mechanism.
During the job, Mr Saunders directed Mr Wangmann to ask a nearby pedestrian to move a parked vehicle. This left Mr Cirivakayawa alone near the operating woodchipper. Mr Cirivakayawa was subsequently drawn into the machine and killed. His body was discovered when a crew member noticed blood on the back of the truck.
Legal Issues
- Whether A1 Arbor Tree Services Pty Ltd was guilty of a Category 1 offence under s 31 of the Work Health and Safety Act 2011 (NSW) ("WHS Act"), specifically recklessly failing to comply with its duty under s 19(1) to ensure the health and safety of workers, thereby exposing Mr Cirivakayawa and Mr Wangmann to a risk of death or serious injury.
- Whether Mr Saunders was guilty of a Category 2 offence under s 32 of the WHS Act by failing to take reasonable care that his acts or omissions did not adversely affect the health and safety of others.
- The appropriate sentence for each defendant, including the weight to be given to: the objective seriousness of the offences; mitigating factors such as the guilty plea, remorse, and financial capacity; aggravating factors; and the need for general and specific deterrence.
- Whether prosecutor's costs should be ordered, and in what amount.
Decision
Both defendants pleaded guilty. A1 pleaded guilty to the more serious Category 1 offence (recklessness), with the alternative Category 2 charge not pursued. Mr Saunders pleaded guilty to a Category 2 offence. The sentencing hearing proceeded on the basis of agreed facts.
Her Honour assessed the objective seriousness of A1's offending as sitting at the higher end of the range. The woodchipper had been used without a feed wheel control bar, no daily start-up safety check was conducted, Mr Cirivakayawa was a very inexperienced worker with only a handful of days on the job, and he was left alone operating a dangerous industrial machine without adequate supervision or training. The Court found that A1 had recklessly disregarded the safety of its workers in circumstances where the risk of death or serious injury was foreseeable and preventable.
The starting point for A1's fine was the maximum penalty of $3,000,000. The Court reduced this by 25 per cent to reflect the utilitarian value of the guilty plea, giving a figure of $2,250,000. A further 10 per cent reduction applied under s 6 of the Fines Act 1996 (NSW). The Court acknowledged A1's limited financial capacity but declined to reduce the fine more substantially, reasoning that general and specific deterrence required a meaningful penalty. For Mr Saunders, his fine was similarly calculated from the maximum of $150,000, reduced by 25 per cent for the guilty plea and a further 10 per cent under the Fines Act. The Court noted that his psychiatric condition and personal circumstances were given some weight in mitigation, but they did not substantially diminish the seriousness of the offending.
Prosecutor's costs were agreed at $78,000 across both matters. The Court confirmed the established principle that costs orders in these proceedings are compensatory rather than punitive, and that the fact of a costs liability is a relevant consideration when setting the monetary penalty.
Orders Made
- A1 Arbor Tree Services Pty Ltd convicted and fined $2,025,000 (maximum penalty of $3,000,000, reduced by 25% for guilty plea, then reduced by 10% under s 6 of the Fines Act 1996).
- Tony Saunders convicted and fined $101,250 (maximum penalty of $150,000, reduced by 25% for guilty plea, then reduced by 10% under s 6 of the Fines Act 1996).
- Pursuant to s 122(2) of the Fines Act 1996, 50% of the fines imposed are to be paid to the prosecutor.
- The defendants are to pay the prosecutor's costs agreed in the sum of $78,000 across both matters, pursuant to s 257B of the Criminal Procedure Act 1986.
Key Takeaways
- A Category 1 offence under the WHS Act carries a maximum corporate penalty of $3,000,000; the District Court imposed that maximum as the starting point where the offending involved reckless disregard for the safety of an inexperienced worker operating dangerous industrial equipment without supervision or adequate safety measures.
- A guilty plea attracted a 25 per cent discount, consistent with the utilitarian value of the plea and the approach in R v Thomson & Houlton (2000) 49 NSWLR 383, while the further 10 per cent reduction under s 6 of the Fines Act 1996 applied as a matter of statute.
- Limited financial capacity did not justify a substantial reduction in the fine where the need for general and specific deterrence remained prominent considerations, particularly given the fatal outcome.
- Costs orders against defendants in WHS prosecutions are compensatory rather than punitive, and the existence of an agreed costs liability is a factor a sentencing court takes into account when calibrating the monetary penalty.
- The absence of basic safety controls (no feed wheel control bar, no daily start-up check) and the deployment of an inexperienced worker on dangerous machinery without adequate training or supervision were treated as significant objective factors elevating the seriousness of the offending.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 31, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- Latoudis v Casey (1990) 170 CLR 534
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Muldrock v The Queen (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- R v Thomson & Houlton (2000) 49 NSWLR 383