SafeWork NSW v Banana’s Truck & Tipper Hire Pty Ltd; SafeWork NSW v David Monk [2020] NSWDC 579

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Banana's Truck & Tipper Hire Pty Ltd; SafeWork NSW v David Monk [2020] NSWDC 579 Hearing dates: 30 September 2020 Date of orders: 2 October 2020 Decision date: 02 October 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: Penalty for Banana's Truck & Tipper Hire Pty Ltd (2019/27571): (1) The defendant Banana's Truck & Tipper Hire Pty Ltd was convicted on 30 September 2020. (2) The appropriate fine is $300,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the defendant Banana's Truck & Tipper Hire Pty Ltd to pay a fine of $225,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order the defendant Banana's Truck & Tipper Hire Pty Ltd to pay the prosecutor's costs. Penalty for David Monk (2019/27593): (1) The defendant David Monk was convicted on 30 September 2020. (2) The appropriate fine is $60,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the defendant David Monk to pay a fine of $45,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order pursuant to Section 241 of the Work Health and Safety Act 2011 (NSW) that the defendant David Monk: (a) Undertake a course in due diligence training for senior managers and company directors conducted by a provider that is a Registered Training Organisation, within six months of the date of these orders; (b) Provide evidence to the prosecutor of the satisfactory completion of such course. (6) Order the defendant David Monk to pay the prosecutor's costs agreed in the amount of $25,000. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty COSTS – prosecution costs OTHER – business provided arborist services – worker suffered significant fall in attempting to climb out of a log truck bin – minimal training on loading the truck – lack of instruction regarding climbing to access and exit the truck's bin – no safe method of access to or egress from the bin of the truck – safe work method statement not reviewed prior to the incident Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32, 241, 274 Work Health and Safety Regulation 2011 (NSW), cll 34, 35, 78 Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Safe Work Australia, Draft Code of Practice: Managing Risks in Tree Trimming and Arboricultural Work (undated) Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work (July 2016) SafeWork NSW, Code of Practice, Managing the Risk of Falls at Workplaces (April 2016) SafeWork NSW Safety Alert "Safety video targets potentially fatal falls from flatbed trucks" (March 2015), SafeWork NSW Code of Practice: Managing the risks of plant in the workplace (July 2014) WorkCover NSW, Code Of Practice: Amenity Tree Industry (August 1998) Category: Sentence Parties: SafeWork NSW (Prosecutor) Banana's Truck & Tipper Pty Ltd (Defendant) David Monk (Defendant) Representation: Counsel: N Read (Prosecutor) D Woodbury (Defendants)