SafeWork NSW v A1 Arbor Tree Services Pty Ltd and Anor [2023] NSWDC 256

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v A1 Arbor Tree Services Pty Ltd and Anor [2023] NSWDC 256 Hearing dates: 19 May 2023 Date of orders: 14 July 2023 Decision date: 14 July 2023 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The corporate defendant, A1 Arbor Tree Services Pty Ltd, is convicted. (2) The appropriate fine for the offence is $3,000,000.00 and that will be reduced by 25% to reflect the plea of guilty, that is a fine of $2,250,000.00. (3) That fine will be reduced by 10% due to the application of s 6 of the Fines Act 1996 (NSW). (4) Accordingly, I order the corporate defendant, A1 Arbor Tree Services Pty Ltd, to pay a fine of $2,025,000.00. (5) The individual defendant, Tony Saunders, is convicted. (6) The appropriate fine for the offence is $150,000.00 and that will be reduced by 25% to reflect the plea of guilty, that is a fine of $112,500.00. (7) That fine will be reduced by 10% due to the application of s 6 of the Fines Act 1996 (NSW). (8) Accordingly, I order the individual defendant, Tony Saunders, to pay a fine of $101,250.00. (9) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fines imposed are to be paid to the prosecutor. (10) 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 $78,000.00 across both matters. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – recklessness – maximum penalty SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties – capacity to pay 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) Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Environmental Protection Authority v Barnes [2006] NSWCCA 246 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 Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100 Jahandideh v R [2014] NSWCCA 178 Latoudis v Casey (1990) 170 CLR 534 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117 Muldrock v The Queen (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 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 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 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: SafeWork Australia Guide to Managing Risks of Tree Trimming and Removal Work (July 2016) WorkCover – Amenity Tree Industry Code of Practice (1998) Category: Principal judgment Parties: SafeWork NSW (Prosecutor) A1 Arbor Tree Services Pty Ltd (Defendant)