District Court New South Wales Medium Neutral Citation: SafeWork NSW v Tyne ACFS Pty Ltd [2022] NSWDC 609 Hearing dates: 10 November 2022 Date of orders: 7 December 2022 Decision date: 07 December 2022 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted. (2) The appropriate fine for the offence is $400,000.00, and that will be reduced by 25% to reflect the plea of guilty. (3) Accordingly, I order the defendant to pay a fine of $300,000.00. (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, agreed in the sum of $53,000.00. 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 – discount of 25% for the utility of the plea – general deterrence – specific deterrence – remorse and contrition COSTS – prosecutor's costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2017 (NSW) Cases Cited: Bulga Underground Operations Pty Ltd 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 Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 Kirk v Industrial Commission of New South Wales [2010] HCA 1 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 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 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Inspector Egan & Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 Texts Cited: The SafeWork Australia General Guide for Workplace Traffic Management, July 2014 The Australian Standard 2359.2-2013 (Part 2) Powered Industrial Trucks The SafeWork Australia General Guide for Industrial Lift Trucks, July 2014 The SafeWork Australia Traffic Management: Guide for Warehousing, July 2014 The SafeWork Australia Working Safely with Containers, October 2009 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Tyne ACFS Pty Ltd (Defendant) Representation: Counsel: Mr N Read (for the Prosecutor) Mr J Phillips SC (for the Defendant) Solicitors: Ms I Houston, Department of Customer Service (for the Prosecutor) Mr J Makris, Kingston Reid Lawyers (for the Defendant) File Number(s): 2021/00272982 Judgment 1. Tyne ACFS Pty Ltd ('the defendant') has pleaded guilty to an offence under s32 of the Work Health and Safety Act 2011 (NSW) ('the Act'). By virtue of its plea, the defendant has admitted that it failed to comply with its primary duty to ensure the safety of workers pursuant to s 19(1) of the Act so far as reasonably practicable, and its failure exposed Jeffrey Kwok Chuen Ho ('Mr Ho') to a risk of serious injury or death. 2. The offence is recorded in the Amended Summons filed on 15 August 2022. 3. At the time of the offence the maximum penalty was $1.5 million. 4. The Prosecutor's Sentence Tender Bundle ('PTB') became Exhibit A. After the conviction had been entered, the prosecutor tendered a Victim Impact Statement from Mr Ho's widow, Mrs Ada Ho ('Mrs Ho'), and son, Mr Adrian Ho ('Adrian') signed 8 November 2022, and it became Exhibit B. 5. The defendant read an affidavit of Aaron Nicholas Powell ('Mr Powell'), director of the defendant, affirmed on 31 October 2022 which became Exhibit C. Background 1. The defendant conducted a business or undertaking of providing empty container handling, storage, repairs, upgrades, survey and associated transport services. The defendant has operated empty container depots, including in Matraville NSW ('the depot') since 2008. The defendant is a joint venture between Tyne Container Services Pty Ltd ('Tyne Container Services') and Australian Container Freight Services. 2. At all material times, the defendant employed nine workers at the depot, including Brett Jeffery ('Mr Jeffery') as depot manager, Mr Ho and Mau Quang Ngo ('Mr Ngo') as container surveyors, John Neil ('Mr Neil') as container control clerk, Dragi Janovski ('Mr Janovski') as a maintenance worker, and Izaha Te Amo ('Mr Te Amo'), Daniel Mackey ('Mr Mackey'), Leytan Tau ('Mr Tau') and Jason Clarke ('Mr Clarke') as forklift operators. 3. Various persons attended the depot to undertake work, including third party surveyors. Thiru Selvam ('Mr Selvam') was a surveyor who conducted container surveying. 4. The depot consisted of an access point, two buildings, an uncovered area, and the yard. It operated 24 hours a day. Before and at the time of the incident, there were two areas in the depot used for surveying, one of which was adjacent to the work bay. However, the areas were not required to be used at all times. 5. The defendant had management and control of three to four empty container handling lift trucks ('the forklifts'). The forklifts were equipped with telescopic lift spreader attachments to handle containers. On average, between 400 to 500 trucks access the depot every day to unload and pick up containers, and around 60 to 100 containers are inspected each day. At any given time, two to three forklifts operate in the yard. The Incident 1. On 25 September 2019, Mr Jeffery, Mr Ho, Mr Neil, Mr Janovski, Mr Te Amo, and Mr Mackey were working at the depot. Mr Selvam arrived at the depot to survey two containers, which were 40-foot containers weighing approximately 4.8 tonnes. Mr Ho accompanied Mr Selvam approximately 50m across the yard to the container stack on the depot's eastern border, which contained a line of 40-foot containers. 2. While surveying the containers, Mr Selvam and Mr Ho entered a narrow passageway that was approximately 50-60cm in width, between a container stack and the container to be surveyed. Mr Selvam entered and inspected the container and then exited via the passageway. As Mr Ho was exiting the passageway, Mr Mackey was operating a Hyster empty container handler model H22XM-12EC ('the forklift') to lift and move a container. While he was reversing the laden forklift, the container struck the inspected container, causing it to shift with force towards the stack of containers and close the passageway that Mr Ho was positioned in. 3. Mr Ho was pinned between the containers and crushed. When Mr Selvam was able to get Mr Mackey's attention, Mr Mackey repositioned the forklift and shifted the surveyed container to release Mr Ho. Emergency services were called and attended the site. Mr Ho was unable to be revived and declared life extinct at 11:05am. Relevant guidance materials & statutory obligations 1. Prior to the incident, the following industry guidance material had been published and was available to the defendant: * The SafeWork Australia General Guide for Workplace Traffic Management, July 2014, provides that the best way to protect pedestrians is to ensure that people and vehicles operate in separate areas and do not interact. If this is not practicable, temporary physical barriers may be used to separate pedestrians and mobile plant. * The SafeWork Australia General Guide for Industrial Lift Trucks, July 2014, provides that duty holders should separate industrial lift trucks and pedestrians. Control measures for traffic management include physical barriers. * The SafeWork Australia Working Safely with Containers, October 2009, provides guidance on handling containers and addressing risks. It summarises identified hazards and assessments of the risks associated with those practices. * The SafeWork Australia Traffic Management: Guide for Warehousing, July 2014, provides that designing the workplace layout to eliminate interaction between pedestrians and vehicles is the most effective way to protect pedestrians and eliminate traffic hazards. It also advises separating vehicles or forklifts from pedestrians and provides for the use of clear warning signs and physical barriers. * The Australian Standard 2359.2-2013 (Part 2) Powered Industrial Trucks provides that the objective of a traffic management plan ('TMP') is to separate trucks and mobile plant from people. It provides that consideration must be given to areas where trucks and people may interact, exclusion zone should be established, and where total separation is not possible, risk control measures should be identified. Systems of work prior to the incident 1. The defendant had a TMP that referred to the movement of trucks in the yard for the purposes of handling containers, but not surveyor or forklift movements. 2. Prior to the incident, Tyne Container Services had a documented safety management system. The documents included "Site Safety Rules", a "Surveying Procedure" and "Forklift Operating Procedures". 3. The Site Safety Rules document relevantly provided: "Entering or leaving a Tyne Depot … * If entering or leaving the depot on foot, be aware of forklift and truck operations and keep out of their way … Accessing the Depot * Before going out into the depot ensure that you are wearing a safety vest or safety shirt. * Whenever walking around the depot and particularly around container stacks, be aware of all traffic and keep a constant watch. Be aware at all times of forklifts operating in the vicinity and trucks entering or leaving the depot. … Visitors in the Depot * Ensure visitors sign the visitors' book on arrival. * Visitors are not to venture into the depot unless they have completed Induction Training and are accompanied by a Tyne employee. * Before taking visitors into the depot to inspect containers, accompanying personnel should advise forklift drivers by two-way of the fact and their intended destination. * Personnel accompanying visitors to inspect containers in stacks must always be aware of forklift operations nearby. If a forklift enters the stack being checked or one adjacent, move to a safe location until it completes its operation. … General Container Safety * Container movements throughout the depot – all contractors and staff need to be made aware of the traffic flow for heavy machinery that are moving containers. Employees should avoid these areas to reduce the risk of being injured…" 1. The Surveying Procedure provided: "1. Always wear safety vest or shirt whilst in the depot surveying. 2. Always were proper safety boots with non-slip soles and heels. 3. Whenever walking around the depot and particularly around the survey pad, be aware of all traffic and keep a constant watch. 4. Ensure forklift drives operating in the vicinity of your survey location are aware of your whereabouts. 5. Be aware at all times of forklift operations in the vicinity of your survey location. Avoid locations where forklifts are loading containers onto survey pad. 6. If a forklift enters the stack being checked or one adjacent, move to a safe location until it completes its operation. 7. Whenever possible, always have containers placed on stands in order to survey the understructure. 8. When surveying containers on stands always ensure the stands are in good condition and located on stable ground. Keep well clear whilst forklift places container on stands. 9. If a container underside must be surveyed whilst on a forklift do not under any circumstances walk under the container. Ensure the forklift driver remains at the controls and is aware of the surveyor's activities. 10. Always watch and take care where you are walking. 11. When using ladders ensure: - the ladder is in good condition - the ladder is of sufficient height to reach the roof plus 1m as prescribed by WorkCover. - the ladder is on level, stable ground. 12. Do not climb on container roofs in wet weather. 13. Do not attempt to carry equipment whilst climbing a ladder. 14. When working alone in the 40' stack area always take a 2-way radio. 15. Before entering containers with "Hazardous" stickers attached check previous cargo or aerate the container. 16. Wear safety glasses when chipping rust. 17. Take care when examining containers structures to avoid laceration injuries. Avoid strain injuries by using proper techniques to open container doors. If a door is difficult to open, get assistance. When surveying flattracks do not attempt to or collapse end walls without both physical assistance and the assistance of a forklift." 1. While Mr Ngo was not aware of any documented procedures for container surveying, he was aware of the procedure, which was verbally explained to him. 2. The Forklift Operating Procedures was developed in 2004 and relevantly provided: "1. The forklifts operated on site are to be used exclusively for the loading, unloading and stacking of containers. 2. Forklift operators are to be suitably trained and licenced. 3. Only trained and authorised personnel to operate forklifts. 4. Forklift operator to keep alert for, and be aware of, personnel or other objects whilst travelling in depot. … 6. Forklifts are not to carry passengers. … 14. Forklift operator to understand the clearances necessary whilst operating in the depot. … 16. Forklift operators carrying 2 containers at a time must keep the mast and spreader as low as possible without hindering safe vision. 17. Forklift operators must exercise care whilst entering and leaving stacks…" 1. The controls in place for surveying in the yard included wearing high visibility clothing and maintaining an awareness of forklifts operating in the vicinity of the container being surveyed. Prior to the incident, the defendant relied on its workers to determine safe distances between forklifts and pedestrians, and to determine appropriate places for containers to be placed in the yard for surveying. The defendant did not require all containers to be surveyed on a designated and clearly marked survey pad. 2. Before the incident, containers were surveyed in the yard at or near its location in the stacks. Container surveying could take place if there was adequate clearance for the doors to be opened for access. Mr Selvam said that there was previously nothing in place to indicate the presence of surveyors, and that forklifts were moving around the yard while surveying was undertaken. The systems of work in place prior to the incident did not adequately separate operational forklifts and pedestrians in the yard. 3. Mr Clark said that the procedure for operating forklifts around pedestrians was to make eye contact and give hand signals. Mr Te Amo confirmed this, the use of two-way radios, and that pedestrians had to be aware of their surroundings. Neither were aware of any documented procedure for forklift operation. Systems of work after the incident 1. After the incident, the defendant painted markings on the road, including pedestrian walkways, a designated survey pad, and around the workshop. It prohibited surveying in the yard and required all surveying to be undertaken on the designated survey pad. 2. The defendant developed, implemented and instructed its workers in its revised Standard Operating Procedures ('SOPs') for Container Loading and Unloading ('SOP1') and Container Repairs ('SOP2'), Container Surveying ('SOP3') and Empty Container Handler Operations (forklift operations) ('SOP4'). 3. SOP3 identified the risks of being struck by mobile plant or moving objects and being crushed and struck when loads are moving. It provided that "Mobile plant such as container handlers may strike objects causing movement or fall of secondary objects". It required vehicle and pedestrian movements to be controlled, surveying to be undertaken on the designated survey pad, and the use of radio and temporary barriers. 4. SOP4 included multiple provisions, such as requiring containers to be surveyed on the designated pad and prohibiting mobile plant from operating in or near the pad. 5. SOP1 provided "Ensure that there are no persons in the area who are at risk of being struck by vehicles or mobile plant. If persons enter or are observed within 40m of operations, stop work immediately and communicate with them to move to a safe location." Risk 1. The risk is described in Annexure "A" to the Summons in the following terms: '[11] The risk was the risk of Mr Ho suffering serious injury or death as a result of being struck and/or crushed as the result of a container being moved by a forklift causing the movement of another container, whilst undertaking surveying work, or accompanying a person undertaking surveying work, in the yard." The Defendant's Duty 1. The defendant had a duty pursuant to s 19(1) of the Act to "ensure" the health and safety of its workers, so far as reasonably practicable. The duty requires the identification of risks in the workplace and the adoption of measures to eliminate or minimise them, so far as is reasonably practicable: Kirk v Industrial Commission of New South Wales [2010] HCA 1 at [34]. The duty is positive, nondelegable and requires duty holders to search for, detect and eliminate, so far as is reasonably practicable, risks to safety: WorkCover Authority (NSW) v Inspector Egan & Atco Controls Pty Ltd (1998) 82 IR 80 per Hill J at 85. 2. The reasonably practicable measures to control the risk are set out in paragraph 12(a)–(g) of the Amended Summons. In summary, the measures relate to: 1. Conducting an adequate risk assessment of the task of container surveying which determined the most effective controls to manage the risk; 2. Providing means to separate the task of container surveying from the risk and operating forklifts in the yard by: 1. Requiring designated and clearly marked survey pads to be used at all times for surveying; 2. Prohibiting surveying from taking place in the yard; 3. Developing, implementing and maintaining safe operating procedures designed to ensure separation of the work activities, including the provision of visual cues of the placement of flags in the container grab points; 1. Providing information, training and instructions to workers in safe systems of work; and 2. Developing and implementing a Traffic Management Plan (TMP) that addresses the risk of collisions, provided for the planning and controlling of forklift movements, and provided measures to separate forklifts and pedestrians, as far as reasonably practicable. Victim Impact Statements 1. As referred to above, Mrs Ho and her son, Adrian, made a joint Victim Impact Statement which was tendered. This was a distressing description as to the suffering that Mrs Ho and Adrian continue to experience and will continue into the future. It was sad and moving, and I express my deepest condolences to Mrs Ho and Adrian. I also thank them for the bravery that they have shown in preparing the statement for the Court, and for Adrian being present during the sentence hearing. 2. Mr Ho was a much loved husband and father who created a wonderful life for his family through his hard work, and at the age of 68 he kept working to support the family as the primary household breadwinner. His tragic passing plunged the family into financial disarray and created enormous stress in addition to the psychological, emotional and social impacts associated with his untimely passing. 3. Adrian Ho has fallen into a state of severe depression such that he had a major breakdown and was tortured by the guilt that he felt for not being a better son and providing a life for his father and allowing his father to enjoy a retirement that he so richly deserved. These feelings remain with him today and he generally feels that his life is now incomplete without his father. 4. The sadness that the family feel is enormous, and Adrian finds it incredibly difficult to wake up each day into a life without his father in it. He is acutely aware of all the milestones in his life which he will no longer be able to share with his adored father. Mrs Ho is so distressed that she cannot begin to recall the events and the impact of losing her beloved husband, such is her grief. 5. The suffering of Mrs Ho and Adrian is enormous and unending. I hope that with the passage of time, their grief and pain might ease. 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. 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 following matters are relevant to determining the culpability of the defendant: 1. The prosecutor submits that the risk was obvious and was known, or ought to have been known to the defendant. The pre-incident Surveying Procedure sets out steps aimed at addressing the risk, e.g., "Be aware at all times of fork-lift operations in your vicinity … if a forklift enters the stack being checked or one adjacent, move to a safe location until it completes its operation"; 2. The defendant does not agree that the risk was known to it and disputes any suggestion that the defendant behaved recklessly or with knowing disregard of the pleaded risk. They further submit that an offence that is both foreseeable to, and foreseen by, a defendant ought be viewed as more objectively serious than one that is foreseeable but not foreseen; 3. I accept that the material before me does not establish that the defendant foresaw the specific risk of a surveyor being crushed between two shipping containers moved by a forklift and, being cognisant of that risk, thereafter failed to eliminate or minimise it as far as it was reasonably practicable to do so at the time the incident took place; 4. The defendant agrees that the pleaded risk was foreseeable but submits that its culpability ought not be assessed as being as objectively serious as offending that involves a defendant actually foreseeing a foreseeable risk and nonetheless failing to take steps to eliminate or minimise it in accordance with the Act; 5. I agree with that submission and accept that the defendant did not know of the precise risk of being crushed between the containers as occurred in this instance; 6. I accept that there were systems in place at the depot prior to the incident, however they were not adequate as they did not provide for separation of the empty container handlers and any pedestrians. I do not find that the defendant's conduct disclosed any disregard for public safety; 7. However, the gravity of the risk was extreme given the weight and size of the containers being handled by the forklifts. 20-foot containers weighed 2.05 tonnes and 40-foot containers weighed 4.8 tonnes; 8. The likelihood of the risk materialising was reasonably high given: 1. The large number of container movements in the yard each day, on average 400-500 trucks entered the yard to pick up and collect containers; 2. The number of containers surveyed each day (60-100); and 3. That containers were typically surveyed in the yard at, or in close proximity to, the location they were in the stacks, and not on survey pads; 1. The defendant's pre-incident systems of work were inadequate to manage the risk: 1. The controls were limited to pedestrians wearing high visibility clothing and for surveyors on foot to remain aware of forklift operations in the vicinity of the container being surveyed and move away when forklifts entered working areas; 2. The pre-incident documented procedures were dated and did not set out adequate means for separating pedestrians from the risk or collisions between pedestrians and forklifts generally. Two of the forklift operators, Mr Clarke and Mr Te Amo, were not aware of any documented procedures in relation to the forklift operation; 1. There were simple, straightforward steps which could and should have been taken to avoid the risk. The concept of separating pedestrian work activities from areas in which forklifts are operating is not new, and was addressed by relevant pre-incident industry guidance material; and 2. Mr Ho suffered fatal injuries. 1. 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. 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 objective seriousness of an offence under s 32 of the Act is considered in the context of the gradation 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 s32 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 [34]; * Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] and [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. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was extreme, and the steps available to avoid the risk were straightforward and inexpensive. 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 work health and safety 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 Pty Ltd 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 working in and managing workplaces where powered mobile plant is used, in areas where pedestrians may also be present. 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. 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. 4. The systems of work in place prior to the incident did not provide for adequate separation between operational forklifts in the yard and pedestrians undertaking surveying work. The depot operates 24 hours per day, with 400–500 trucks entering per day. 5. After the incident the defendant took a number of steps to strengthen its safety management system including its procedures for surveying containers. These steps are described at paragraphs [10]–[16] of Exhibit C. Importantly, the defendant engaged the services of two safety professionals who provided advice, which has been followed, so as to ensure increased training — particularly with regard to tool-box talks touching on aspects of the procedure including surveyors, exclusion zones, flags for containers, surveyors using the forklift provided and following control measures. The defendant also required that containers to be surveyed were to be surveyed on a designated survey pad that was clearly marked and physically separated from the operating forklifts. 6. I accept that the prospects of rehabilitation of the defendant are good, but the need for an element of specific deterrence is still necessary in these circumstances. Aggravating Factors 1. 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). It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. Mr Ho's death is an aggravating factor. The injury and emotional harm caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. Mitigating Factors 1. The defendant has been carrying out its business at this depot since 19 September 2008 and has no previous convictions: s 21A(3)(e) of the Sentencing Act. As previously stated, there were some 400-500 truck movements through the depot in a 24 hour period. The nature of the business and the extent of its operations are relevant to the previous record of the defendant. In Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench Held the following: "We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of a very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question." 1. I have taken into account the company's industrial record, which in the circumstances is very good and the prompt remedial action that the defendant took after the incident, including putting in place methods of safety assessment and implementation designed to diminish the risk of being crushed between two containers in the depot. 2. I accept that the defendant has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act. 3. Mr Powell's affidavit (Exhibit C) demonstrates the acceptance of responsibility for the defendant's failures, and its remorse and contrition: s 21A(3)(i) of the Sentencing Act. I further note that counselling was made available to all employees present on the day of the incident and financial and moral assistance was provided to Mr Ho's family by the defendant. 4. The defendant entered a plea of guilty early, which of itself demonstrates remorse, 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. 5. The defendant co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act. 6. Having taken all of those matters into consideration, the appropriate fine for the defendant is $400,000.00. The defendant is entitled to a discount of 25% for the utility of the early plea. Penalty 1. I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the offence is $400,000.00, and that will be reduced by 25% to reflect the plea of guilty. 3. Accordingly, I order the defendant to pay a fine of $300,000.00. 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, agreed in the sum of $53,000.00. ********** 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: 07 December 2022