District Court New South Wales Medium Neutral Citation: SafeWork NSW v Camden Council [2021] NSWDC 709 Hearing dates: 6 December 2021 Date of orders: 21 December 2021 Decision date: 21 December 2021 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted. (2) The appropriate fine is $1,000,000.00 and that will be reduced by 25% to reflect the early plea. (3) Accordingly, I order the defendant pay a fine of $750,000.00. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor's costs as agreed or assessed. 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 – capacity to pay –appropriate sentence OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW) Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Local Government Act 1993 Work Health and Safety Act 2011 (NSW) Cases Cited: Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 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 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v Commercial and Industrial Construction Group Pty Ltd (2006) 14 VR 321 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Poletti Corporation [2019] NSWDC 491 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 Category: Sentence Parties: SafeWork NSW (Prosecutor) Camden Council (Defendant) Representation: Ms P McEniery of counsel (for the Prosecutor) Mr R Coffey of counsel (for the Defendant) Solicitors: Mr J O'Connell, Department of Customer Service (for the Prosecutor) Ms Carlie Holt, Sparke Helmore Lawyers (for the Defendant) File Number(s): 2020/00189661 JUDGMENT 1. On 13 September 2021, Camden Council ('the defendant') entered a plea of guilty in respect of an offence under s 32 of the Work Health and Safety Act 2011 (NSW) ('the Act') that it failed to comply with its health and safety duty under s 19(1) of the Act and thereby exposed Garry Todhunter ('Mr Todhunter') and Ronald Gunn ('Mr Gunn') to a risk of death or serious injury. 2. The maximum penalty for an offence under s 32 of the Act for a corporate entity is $1,500,000.00. 3. The prosecutor tendered a Prosecution Tender Bundle which became Exhibit A, a Victim Impact Statement of Mrs Gloria Todhunter dated 1 December 2021 which became Exhibit B and a Victim Impact Statement of Ms Christy Todhunter dated 1 December 2021 which became Exhibit C. 4. The defendant read an affidavit of Nicole Maree Magurren dated 3 December 2021 sworn 9 September 2021 which became Exhibit 1. BACKGROUND The Camden Bicentennial Equestrian Park 1. The defendant conducted a business or undertaking which involved the provision of services to meet community needs within the local Camden area, managing council natural environment and built assets, including maintenance and renewal of assets such as the Camden Bicentennial Equestrian Park ('BEP'). 2. The BEP is approximately 200 acres of park equestrian facilities with three pavilions. The site is used by walkers and cyclists and for family and commercial functions, including hosting major equestrian and community events. The BEP is used by a number of community groups including the Camden Men's Shed. 3. Pursuant to ss 377 and 355 of the Local Government Act 1993 ('LGA'), on 13 December 2016, the defendant delegated 'the responsibility of the facilitation and ongoing management of the Camden Bicentennial Equestrian Park' to a Community Management Committee ('CMC'), namely the Bicentennial Equestrian Park Committee ('the Committee'). 4. The Committee was governed by and required to comply with the Schedule of Delegation and the Procedural Manual for the Community Management Committees ('the Procedural Manual') and comprised of elected Councillors from the Council as well as volunteers, including members of the Men's Shed. 5. The Procedural Manual set out, inter alia: 1. At cl 3.2(d) Use of Volunteer Labour: Council has a policy and procedures relating to the recruitment and management of Council volunteers in general. From time to time, [the Committee] may wish to provide labour for particular projects or to recruit volunteer labour to assist them. In either of these cases certain procedures will apply. 2. At cl 7.2.3 Insurance, Volunteer Labour: For projects involving volunteer labour an estimate of numbers and details must be forwarded to Council as soon as possible to ensure the project is covered by and noted on the appropriate policy. 3. At cl 9.3.1 Volunteer Management: All tasks requiring volunteer labour must have job descriptions written by the Committee and approved by Manager of Community Services before commencing. 4. At cl 9.3.5 Work Health and Safety: Committees are required to comply with health and safety legislation and Camden Council's policies and procedures by taking reasonable care. 1. Clause 3.2(d), Use of Volunteer Labour, set out the recruitment procedures that were to be followed if the BEP Committee wished to utilise volunteers. Under the heading 'Recruitment Procedure' the following steps were outlined: 1. Council Volunteer Job Description Form to be completed in order to clarify details of the Project including supervisor, actual tasks, resources available, resources needed etc. 2. Completed Volunteer Job Description form to be sent to Council Manager Community Services for consideration and approval. 3. Any applications received will be forward to the nominated CMC project supervisor. The Men's Shed 1. The Men's Shed is a volunteer organisation which provided maintenance services to the BEP. They sit beneath and reported to the Committee. 2. The defendant had a general position description for Men's Shed volunteers which provided that training would be provided for this role in required skills and work health and safety matters. 3. Mr Todhunter and Mr Gunn were both Men's Shed volunteers. Mr Todhunter had no trade experience but had worked for Campbelltown Council as a greenskeeper and gardener. He joined the Men's Shed in late 2016. 4. Neither Mr Todhunter nor Mr Gunn received an induction at the time of commencing as a Men's Shed volunteer. The Incident 1. On 3 July 2018, members of the Men's Shed, including Mr Todhunter and Mr Gunn, attended the BEP for the purpose of laying pipe for water irrigation system works that were being completed by the defendant. 2. The pipe was approximately 100mm in internal diameter and approximately 120mm in external diameter. It was a total of 500m in length as it was essentially five pipes welded together. 3. No one but the Men's Shed was tasked with the laying of the pipe. There were no defendant's employees supervising the installation of the irrigation pipe. As part of the task, the Men's Shed volunteers had to guide the long pipe around bends in order to place it in the right position. 4. In order to move the pipe, a tractor was pulling the pipe from one end while another vehicle was used to pull the pipe at the other end. An excavator's bucket was also used to guide the pipe around a right-hand bend. 5. Two pairs of star pickets had been placed by volunteers into the ground to guide the pipe around the corners. Mr Todhunter and Mr Gunn were using crowbars to assist in moving the pipe around the bend as it was getting caught on the star pickets. As the pipe moved over the star picket, it struck Mr Todhunter in the back of the head, knocking him to the ground. Mr Gunn was standing on the inside of the pipe which was on top of him and dragging him towards the fence on the western side of the road. Mr Gunn was able to push the pipe off his back. He sustained grazes to his left hand and right elbow. 6. Mr Todhunter was transferred to Liverpool Hospital by air ambulance. He sustained serious head injuries, including a skull fracture. An emergency decompressive craniotomy was performed. Tragically, Mr Todhunter's condition did not improve and he died on 10 July 2018. The Defendant's Knowledge of the Risk Before the Incident The Camden Council Risk Assessment Report BEP 2016 1. Sometime in 2015, the defendant's senior Work Health and Safety Advisor commissioned Recovery Partners to conduct a risk assessment of the BEP and the Camden Town Farm (another CMC). As part of the risk assessment being conducted, the defendant, Recovery Partners and members of the Committee and the Men's Shed met to review and discuss risks identified by Recovery Partners. 2. In about March 2016, the defendant received Camden Council Risk Assessment Report BEP 2016 by Recovery Partners ('the BEP Report'). It identified that under cl 9.3.5 of the Procedural Manual, the Committee's obligations relating to work health and safety were not being met. The Risk Assessment identified a number of hazards across the BEP and noted the hazards presented a significant risk to Council and required immediate attention. The BEP Report contained as Appendix L, a Safe Work Procedure Register Men Sheds Priority of Needs. 3. The BEP Report contained a number of recommendations and it specifically suggested: at Recommendation 8, the need to develop and implement a competency based induction program and supplementary ongoing training for all High Risk Volunteers; and, at Recommendation 23, the need to develop and implement a procedure for the management of all plant and equipment, including risk assessment requirements and a process for dealing with donated plant and equipment. 4. The defendant had a Community Committees Support Officer ('CCSO') who at the time of the incident was Kieran Berryman ('Mr Berryman'). Mr Berryman reported to the Team Leader Recreation and Sustainability, who at the time of the incident was Bernadette Mackinnon ('Ms Mackinnon'). However, the CCSO was supposed to report to the Manager Recreation and Sustainability. Before the incident, Mr Berryman did not report to the Work Health and Safety ('WHS') Team. Mr Berryman was not the CCSO at the time Recovery Partners were conducting their risk assessment. 5. The CCSO's duties included providing support to the Committee (as well as other CMCs) and interacting with the defendant's WHS teams to ensure risk mitigation and safe work practices were occurring at the BEP. Mr Berryman's position description also required him to, inter alia, provide information, training and support to the Committee with particular emphasis on work health and safety, risk management and reporting requirements. 6. After receiving the BEP Report, Ms Mackinnon and Sandra Kubecka ('Ms Kubecka'), the Director of Sport, Community and Recreation at the time, met with Mr Berryman to discuss the recommendations of the BEP Report. Mr Berryman was provided a Risk Register dated 26 February 2016 and an Action Log to ensure the high-risk items were dealt with. 7. The Action Log records that as at 8 February 2017 this had not been completed. Ms Kubecka had asked Mr Berryman to ensure that the high-risk items in the Risk Register were prioritised and that he would liaise with the WHS team to finalise the outstanding items. This direction was followed up by Ms Kubecka on a few occasions and on each occasion, Mr Berryman assured he was on target and working through the items. The Internal Audit Report, 1 July 2016 to 30 June 2017 1. The defendant commissioned its Internal Audit Team to: 1. Review and improve the operations of the BEP and Camden Town Farm facility, and 2. Consider whether the operations of these committees were in accordance with relevant Council policies and procedures, including the Procedural Manual. 1. On 13 November 2017, the Internal Audit Team met with Ms Mackinnon and Mr Berryman to discuss the findings of the Internal Audit Report, where they discussed: 1. The administration of volunteers participating in the upkeep of facilities was an area for improvement; 2. There was a lack of documentation regarding use of volunteers by the BEP Committee; 3. Council to monitor volunteer usage on a regular basis; and 4. The Men's Shed operations on the BEP to be reviewed to determine the breadth of the works completed and compared to those associated works being completed by independent contractors. 1. The Internal Audit Report considered the use of volunteers at s 3.2. It recommended an education for the CMCs on the proper process for the use of volunteers within the facilities and implementation of a process for monitoring the use of volunteers. It also recommended that volunteers should be provided with necessary training. The risk rating for this recommendation was classed as 'Significant', that is, it was a risk which required prompt action from management. 2. On about 14 December 2017, Mr Berryman sent the following Internal Audit Findings to members of the BEP Committee and to Ms Mackinnon: 1. Handbook outdated and needs updating. Separate handbooks for each Committee should be considered. 2. Process for use of volunteers to be more robust – in particular to ensure risk officer notified and WHS induction appropriate. Recommend a register maintained. 3. Uncertainty or lack of clarity around decisions that can be made – needs to be more clearly spelt out what decisions committee can make and can't, when someone from Council must be consulted. The Waterwise Specification and Irrigation Works 1. The defendant engaged Waterwise Consulting to issue a design plan for a number of different works to be undertaken at the BEP. On 10 April 2017, Waterwise Consulting provided 'a project specification for the supply and installation of an automatic irrigation system at Camden Equestrian Park' ('the Waterwise Specification'). 2. The Waterwise Specification envisaged an independent contractor would be engaged to perform the irrigation work at the BEP. It contained the following clauses: 1. Cl 1.5: The Contractor was to submit for approval a Project Management Plan that included a site-specific safety plan including safe work method statements and site staffing; 2. Cl 1.6: No work was to commence without various documents being submitted to the BEP representative, including the site-specific safety plan and SWMS; 3. Cl 1.7.2: SWMS – prepare and implement SWMS in accordance with WHS&R Management Systems Guidelines; 4. Cl 1.7.4: Contractors must adhere to Site Existing Safety Rules; Contractor must carry out induction of all staff; 5. Cl 1.13: Qualified Persons: All workers must be undertaken by dually (sic) qualified trade's people. Where it is required by law…that the works be undertaken by a licenced trade person only those persons holding a current licence are to undertake the works. 6. Cl 1.13.1 Certified Irrigation Installers: it is preferred the Contractor and their stall be accredited by Irrigation Australia Ltd as Certified Irrigation Contractors and Installers. The Contractor is to submit with their tender a list of all staff qualifications. 7. Cl 3.18: All pipe and fittings are to be installed in accordance with the manufacturer's specifications. 1. Ultimately, in March 2018, the Men's Shed were approved by the BEP Committee to project manage the works set out in the Waterwise Specification (instead of an independent contractor), including the purchase of all materials, engaging a suitably qualified backhoe operator and installing the pipe and conduits themselves. 2. Mr Berryman had organised the Committee members' vote and Ms Kubecka and Ms Mackinnon were copied into the email exchanges. Some Committee members disagreed with the proposal, including an email from Mr Jason Sharpe on 20 March 2018 which stated: 'I thought the audit report pretty clearly pointed out and advised against the use of volunteer in such matters. (Section: Use of volunteers)'. 3. David Funnell, a Men's Shed volunteer, appointed himself as Project Manager. At no stage was his competency, skills or experience, or any other volunteers of the Men's Sheds', assessed by the Committee and/or the defendant's staff, including its WHS officers. 4. No one ensured the WHS requirements in the Procedural Manual or in the Waterwise Specification were complied with. Nor did anyone ensure a Risk Assessment of the work was performed. At the time of the incident, the defendant's WHS officers, Robyn King ('Ms King') and Angus Speedie ('Mr Speedie') were unaware of the resolutions passed by the Committee and the involvement of the Men's Shed and how they intended to perform the work. 5. Immediately following the incident, Mr Speedie undertook a Risk Assessment for the Relocation of waterpipe safely to reopen the road at the BEP using a pro forma WHS Risk Assessment form. A Take 5 – Work Crews form and Hazard Control Table was also completed. SYSTEMS OF WORK PRIOR TO THE INCIDENT 1. A number of the relevant recommendations made in the BEP Report dated March 2016 had not been adequately implemented by the defendant or the Committee, including Recommendation 8 and 23 as detailed above in paragraph 23. 2. Whilst the defendant had designated WHS Officers at the time of the incident, these officers: 1. Had limited or no involvement with the Men's Shed; 2. Had never been approached by the BEP Committee for WHS advice; 3. Had not been provide with the Waterwise Specification; 4. Were unaware what, if any Safe Operating Procedures were in place at the Men's Shed; and 5. Had never been provided with copies of any pro forma Risk Assessments by the Men's Shed for the works to be undertaken at BEP at 3 July 2018. 1. It was reasonably practicable for the defendant, including by the actions of the Committee, to have: 1. Ensured that an adequate risk assessment was conducted for the irrigation work performed by volunteers on 3 Jul 2018; 2. Ensured that Risk Assessment forms were being used and implemented by the Men's Shed in the twelve months prior to 3 July 2018; 3. Ensured that the recruitment procedures for volunteers contained within the Procedural Manual were complied with; 4. Ensured the activities of volunteer groups such as the Men's Shed were being monitored by its Work Health and Safety Officers; 5. Ensured that there were clear lines of responsibility for WHS issues as between the CCSO and Council's WHS Team; 6. Ensured that the CCSO was adequately interacting with the defendant's WHS team to ensure safe work practices were occurring at the BEP including by Men's Shed volunteers; 7. Ensured that suitably qualified workers were engaged to perform the irrigation work on 3 July 2017; 8. Provided adequate information, instruction and training to volunteers involved in the Men's Shed regarding the nature of the work that could be conducted by them; 9. Provided adequate supervision to volunteers engaged in the Men's Shed with respect to work conducted by them at the BEP; and 10. Ensured the work health and safety requirements in the Waterwise Specification were implemented by the Committee and/or the Men's Shed. SYSTEMS OF WORK FOLLOWING THE INCIDENT 1. Following the incident, SafeWork NSW issued five Improvement Notices directly related to the risk that gave rise to the incident. These notices were complied with as the work at BEP ceased. 2. The defendant also addressed and rectified the recommendations outstanding in the BEP Report by: 1. Issuing an interim direction that no maintenance work be undertaken at the site pending a full investigation; 2. Undertaking a risk assessment and directing that the pipe be cut into small pieces and removed and the excavated trench was filled in and covered; 3. Suspending the activities to be conducted by the Men's Shed at BEP; 4. Engaging a third party, Synergy Risk, who assisted the defendant in assessing and mitigating risks, including those associated with the use of volunteers; 5. Ensuring that the activities of volunteer groups such as the Men's Shed were being adequately monitored by its WHS officers; 6. Arranging for its WHS Officers to induct volunteers; 7. Reviewing and updating the WHS responsibilities of the CCSO; 8. Implementing the finding identified in the Internal Audit Report regarding the use of volunteers; 9. Revising the Procedural Manual for Committees to clearly identify the work that should be undertaken by the Committees and the work that should be undertaken by the defendant; 10. Updating its Volunteer Safety and Induction Handbook with information relating to: 1. Obligations imposed on volunteers by the WHS Act. 2. Risk assessments and control measures to manage those risks. 3. Induction checklists, which require sign off before a volunteer performs Council activities. 4. WHS training. 5. SWMSs in relation to plant and equipment. 1. Implementing a medical clearance form so that each member of the Men's Shed must gain pre-approval from their doctor before performing Council works. SENTENCING 1. The penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the Act. 2. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered. 1. The Court is to approach a sentencing exercise on the basis of it being one of 'instinctive synthesis': Markarian v The Queen (2005) 228 CLR 357. 2. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way: 'The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.' OBJECTIVE SERIOUSNESS OF THE OFFENCE 1. The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks. 2. The primary factor to be assessed is the objective seriousness of the offence, but subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474–5. 3. The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465. 4. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 ('Capral Aluminium') at [81]. 5. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117. 6. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31]. 7. The Court of Criminal Appeal examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). Justice Basten at [34], under the heading 'Assessment of Risk' said: 'The sentencing judge commenced his consideration with the proposition that '[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.' However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.' 1. His Honour further observed at [42]: 'The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known.' 1. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272. 2. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]–[18] (Latham J). 3. The defendant's duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the Act: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 4. The risk of a person being injured when assisting with the installation of a 500m length of PVC irrigation pipe being towed by a tractor is foreseeable and obvious. It is made worse by the fact that both Mr Todhunter and Mr Gunn were volunteers to the defendant and had received no training in the task that was allocated to them. 5. By its plea of guilty, the defendant has admitted that it failed to take the reasonably practicable measures identified in paragraph 16 of the Amended Summons. Those failures were extensive and included an ongoing failure on the part of the defendant in the 12 months leading up to the incident to ensure that risk assessment forms, a simple and effective measure that would have allowed the defendant's WHS officers to monitor activities undertaken by Men's Shed volunteers, were being used and implemented by those volunteers. 6. Employers must take steps to protect workers against risks created by inadvertent conduct of workers in the course of their work, if it is reasonably practicable to do so: SafeWork NSW v Poletti Corporation [2019] NSWDC 491 at [88]. 7. In this instance, no risk assessment form or any other project specific safety documentation was prepared for the irrigation project conducted by the Men's Shed volunteers which resulted in the tragic death of Mr Todhunter. 8. Whilst the defendant had in place policies and procedures in relation to the oversight of the BEP Committee and the use of volunteers, when it came to the activities of the Men's Shed volunteers its failure to enforce these was systemic. Significantly, it failed to, as admitted by it: 1. Ensure the WHS requirements in the Procedural manual were enforced; 2. Ensure the WHS requirements in the Waterwise Specification were complied with; 3. Assess the competency, skills and experience of Mr Funnell to manage the project; and 4. Verify that suitably qualified workers were engaged to perform the irrigation work. 1. The failure on the part of the defendant to adequately monitor the activities of the Men's Shed volunteers was ongoing. No comprehensive safety system was developed for Men's Shed volunteers. 2. Moreover, the defendant disregarded the known dangers arising from the use of Men's Shed volunteers at the BEP to a significant degree. The defendant failed to, in the context of the Men's Shed, establish adequate safety systems and procedures for its activities including ensuring that the BEP Management Committee be included in the Work Health and Safety Management System implementation plan. 3. To use the words of Maxwell P, Buchanan and Redlich JJA in R v Commercial and Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [31] as regards Men's Shed Volunteers there was a failure by management to establish adequate safety systems and procedures in the first place. By way of example, the defendant failed to ensure Men's Shed volunteers were required to complete simple risk assessment forms and submit these to its WHS officers. 4. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of, it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: 'It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.' 1. The objective seriousness of an offence under s 32 of the Act is considered in the context of the graduation of offences contained in ss 31–32 of the Act: Nash v Silver City at [54]–[56]. The matters relevant to objective seriousness for a s 32 offence include: * The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Ibid [34]; * The availability of steps to eliminate or minimise the risk: Ibid [53]; * Whether those steps are complex, burdensome or mildly inconvenient if mitigating steps could easily have been taken, the offending will be more serious: Ibid [53]; * Whether the risk was known or ought reasonably have been known to or identified by the offender; * Whether the risk was an obvious or clear one; and * The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ). 1. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ). 2. The risk in this case was obvious, glaringly so. The pipe, which had been soldered together, was 500m in length and was being towed by heavy plant, a tractor, at the time that the incident occurred. 3. Given the nature of the project, the risk arising from inadequately trained volunteers using heavy machinery to conduct an irrigation task using a 500m length of pipe for which they were not qualified in the absence of any risk assessment or other project safety documentation and without adequate supervision was obvious and foreseeable. 4. It is an agreed fact [53] that the defendant knew that the irrigation project was being undertaken by the Men's Shed, yet no job description was completed for the work. Between 20 March 2018 and 3 July 2018 there was absolutely no involvement from anyone at the Council. There were no risk assessments done with regard to the works, no involvement of any WHS officers employed by the defendant and it is clear that no one turned their mind as to whether the Men's Shed volunteers were qualified to do the work. 5. Furthermore, the risk was known to the defendant. From as early as March 2016, as a result of the receipt of the BEP Report, the defendant was aware that the activities of the Men's Shed volunteer group that conducted ongoing maintenance service at the BEP raised significant WHS issues and required close monitoring by the Council. Whilst the defendant took a number of steps to partly implement some of the recommendations of the BEP Report, the defendant failed to adequately implement several significant recommendations at all, such as an induction programme and training for all high-risk volunteers. 6. The actions that the defendant did take were inadequate, piecemeal and lacked urgency. Whilst a number of SWMS were developed, numerous SWMS, including a Safe Operating Procedure, for the tractor involved in the incident were not undertaken. At the time of the incident the Risk Register provided to the defendant two years previously by Recovery Partners had not been closed out. 7. The risks arising from the activities of the Men's Shed volunteers was also highlighted by the Internal Audit Report, circulated in draft in November 2017 amongst the defendant's staff. This report re-emphasised the need for the defendant to monitor volunteer usage, classed as a significant risk and identified that Council management should be involved in the assessment of the use of volunteers on a case-by-case basis. 8. Against the background of these two critical reports the concerns arising from the irrigation project being conducted by Men's Shed volunteers was specifically identified by an email from a BEP Committee member on 20 March 2018 sent to the CCSO. The CCSO failed to act on that objection. 9. Further, senior staff were aware that the irrigation project was being undertaken but failed to ensure a job description was completed for the irrigation work, as required by the Procedural Manual. This failure to act in light of the recommendations of the two reports already known to the defendant and having regard to the requirements of the Procedural Manual was serious and was an ongoing course of conduct that continued on for over fourteen weeks whilst the preparation for the irrigation project was undertaken. During that period, no staff of the defendant intervened to assess whether volunteers should be used for the project and the WHS implications of them doing so and whether any basic safety documentation had been prepared. 10. The risk of serious injuries being sustained as the result of a 500m long pipe being towed by a tractor around blind corners was clearly obvious. As the incident demonstrated, the risk of workers being struck by the pipe was capable of resulting in serious fatal head injuries to Mr Todhunter, and potentially Mr Gunn. 11. There were simple, inexpensive and readily available steps that could have been put in place by the defendant to eliminate the risk. These are particularised at [16] of the Amended Summons and detailed at [3] of the Agreed Statement of Facts, that the offender has accepted were reasonably practicable steps that it could have taken, by its plea. 12. Mr Todhunter and Mr Gunn had no training in the task that was allocated to them by the defendant, and the defendant knew that to be the case. Mr Todhunter was 69 years of age as at the date of the incident, and was a volunteer. I accept that he was a vulnerable worker. The defendant had little, if any, regard for the volunteers through the Men's Shed. The task that was to be performed was way beyond the experience, training and capacity of Mr Todhunter, and the defendant should have been aware of that. 13. The defendant allocated tasks to the volunteers with no assessment to which the volunteers were being exposed, with almost flagrant disregard to the significant risks to which the volunteers were exposed. This causes me great concern, particularly since the defendant engages more than 200 volunteers to complete work over a number of facilities, such as Bushcare, Libraries, Cultural and Heritage, Men's Shed and Advisory Committees. 14. Having regard to the seriousness of the risk and the straightforward steps that could have been taken to overcome that risk, as detailed in the Amended Summons, I am of the view that this offence objectively falls within the mid range of seriousness. 15. In these circumstances, there was a substantial chance of the risk manifesting. DETERRENCE 1. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act. 2. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to WHS issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J). 3. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. 4. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 at [177]–[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]–[75] which said: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … '[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.' 1. General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with irrigation work. 2. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors. 3. There was guidance material readily available to the defendant. This risk of unqualified and unsupervised volunteers doing irrigation work was more than likely to the defendant. 4. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend. It must ensure that the defendant continues to focus upon the need to develop appropriate safety procedures and put in place systematic, documented and appropriate training of relevant workers. 5. Since the incident, the defendant has undertaken significant steps to address the fact that although it had some systems in place at the time of the incident, they were clearly inadequate. On the day of the incident there were onsite meetings with the defendant's staff and counselling was arranged. A direction was made to the BEP committee that all work at the BEP was to cease until further direction. 6. The defendant subsequently engaged a WHS consultant to review its systems and identify improvements, which the defendant then implemented. I accept that the defendant allocated resources to establish and maintain safe systems of work and be responsible for the safety of volunteers. They have created a new role as Manager of Safety and Risk, and created guidelines for the safety of volunteers. The defendant indicates that they have invested $650,012.16 since the incident on rectification costs and safety initiatives. 7. However, I note that at [57] of Exhibit 1, Ms Magurren deposes as follows: 'Council is in the process of employing a dedicated supervisor for the Men's Shed to supervise their works during operational hours and provide instruction, guidance and supervision.' 1. This tragic incident occurred in July 2018, and it concerns me that in December 2021 the defendant has not yet filled this important role. 2. However, I accept that the prospects of rehabilitation of the defendant are reaspmable, but the need for an element of specific deterrence is still necessary in these circumstances. VICTIM IMPACT STATEMENTS 1. Gloria Todhunter, Mr Todhunter's widow, and Christy Todhunter, Mr Todhunter's daughter, made a Victims Impact Statement which they read to the Court via AVL. 2. One could not help but be moved by the beautiful words that were said about Mr Todhunter. He was clearly an exceptional man, who loved his family and was loved and adored by them. Mr Todhunter was a volunteer, not just at the Men's Shed, but at the plant bank, the Thirlmere Train Museum, and had been Santa for many, many years in the local area. 3. The pain that has been inflicted on his family is immense and unending. A loving husband, father, father-in-law and Poppy has been so cruelly ripped out of the lives of so many, not just family, but the wider community that benefitted from all that Mr Todhunter did and was. 4. The damage to Gloria and Christy is severe, and they are respectively challenged every day, and are now not the people that they were before Mr Todhunter passed. They now fear certain events and places, and have had their dreams shattered so suddenly and shockingly. 5. I again extend my deepest condolences to Mr Todhunter's family and friends. This is a very difficult time of year for those that have lost special, loved people. I thank Gloria and Christy for their bravery and strength to allow the Court to have the privilege to hear their statements. AGGRAVATING FACTORS 1. I accept that Mr Todhunter was a vulnerable worker under s 21A(2)(l) of the Sentencing Act. Mr Todhunter was provided with no training or supervision. Mr Funnell, the purported supervisor for the project, had no qualifications in irrigation work, nor the use of heavy plant. 2. The injury, harm and loss caused by this offence was substantial: s 21A(2)(g) of the Sentencing Act. For an aggravating factor to be established, I must be satisfied beyond a reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing), and I am so satisfied. It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. However, tragically in this circumstance, Mr Todhunter lost his life. MITIGATING FACTORS 1. The defendant co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act. 2. The defendant has no previous convictions: s 21A(2)(d) of the Sentencing Act. 3. The defendant entered a plea of guilty on 13 September 2021, and as such this early plea is a mitigating factor: s 21A(3)(k) of the Sentencing Act. 4. I accept that the defendant has a strong sense of social responsibility for Camden and the broader community. I also accept that the defendant has accepted responsibility for the failings that led to the creation of the risk, and that they are forward focused and have made changes to create a safer work environment: s 21A(3)(h) of the Sentencing Act. 5. Section 21A(3)(i) of the Sentencing Act provides that remorse may be taken into account as a mitigating factor in recognition of the remorse shown by the defendant, and this has been demonstrated by Ms Magurren's affidavit (Exhibit 1). and Mr Johnson's affidavit (Exhibit C). I am concerned that when Christy Todhunter read her statement, she indicated that she had yet to receive a formal apology from the defendant. However, I accept that the defendant has shown some remorse and contrition even at a very late stage, and as such is entitled to leniency on that basis. I also accept that the defendant has supported Mr Todhunter's family subsequent to the incident, and is entitled to some leniency on that basis. 6. The defendant entered a plea of guilty early, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis, thus I will allow the deduction of 25% for the utilitarian value of the pleas in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s 21A(3)(k) of the Sentencing Act. 7. The appropriate fine for the defendant is $1,000,000.00. The defendant is entitled to a discount of 25% for the early plea. PENALTY 1. I make the following orders: 2. (1) The defendant is convicted. 3. (2) The appropriate fine is $1,000,000 and that will be reduced by 25% to reflect the early plea. 4. (3) Accordingly, I order the defendant pay a fine of $750,000.00. 5. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 6. (5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor's costs as agreed or assessed. *** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2021