Industrial Court of New South Wales CITATION: Inspector Ross Wolf v Colebrook & Sons Pty Ltd [2008] NSWIRComm 231 Prosecutor: PARTIES: Inspector Ross Wolf Defendant: Colebrook & Sons Pty Ltd FILE NUMBER(S): IRC113 of 2007 CORAM: Kavanagh J CATCHWORDS: OHS s8(1) - plea - failure to ensure system of work - distracted employee - particulars establish offence - fatality - mitigation - financial constraints - penalty Occupational Health and Safety Act 2000 s8(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s2 Fines Act 1996 s6 Alcatel v WorkCover Authority (1996) 70 IR 99 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Haynes v James Glass and Aluminium Pty Ltd (unreported decision of Industrial Court of NSW, Fisher CJ, 20 May 1994, Matter No 772 of 1991) Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156 Inspector Haynes v CI&D Manufacturing Pty and Anor (1994) 60 IR 149 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 CASES CITED: Markarian v R (2005) 215 ALR 213 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Winchester (1992) 58 A Crim R 345 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 Workcover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25 WorkCover Authority of NSW v McDonald's Australia Ltd and Anor (2000) 95 IR 383 Workover Authority of New South Wales (Inspector Ankucic) v The Crown in the Right of the State of New South Wales (National Parks and Wildlife Service) [2003] NSWIRComm 170 WorkCover Authority of New South Wales (Insp Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) 99 IR 163 HEARING DATES: 04/08/08 DATE OF JUDGMENT: 4 December 2008 Prosecutor: Mr B.G. Docking of counsel Solicitors: LEGAL REPRESENTATIVES: Ms B. Benson WorkCover Authority of NSW Defendant: Mr & Mrs Paul Colebrook of Colebrook & Sons Pty Ltd JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Thursday 4 December 2008 Matter No IRC 113 of 2007 INSPECTOR ROSS WOLF v COLEBROOK & SONS PTY LTD Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2008] NSWIRComm 231 1 By way of Amended Application for Order, a prosecution is brought by Inspector Ross Wolf of the WorkCover Authority of New South Wales against Colebrook & Sons Pty Ltd under s8(1) of the Occupational Health and Safety Act 2000 (the Act). 2 It is alleged the defendant company on 3 February 2005 at Compartment 207, Backhouse Road, Clyde State Forest No. 835, near Batemans Bay, NSW contravened s 8(1) of the Act in that it failed: to ensure the health, safety and welfare at work of all its employees, in particular, Adam Lindsay Colebrook and Brett James Heycox, in that the defendant failed to ensure that systems of work and the work environment were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000. In particular: 1. At all material times the defendant employed Paul Colebrook, Adam Lindsay Colebrook and Brett James Heycox. 2. At all material times there was an actual risk to employees being injured or killed as a result of being struck by falling dangerous trees that were standing rotten and/or or dead trees (also known as stags) in Compartment 207. 3. Aspects of the defendant's unsafe systems of work and work environment were any of the following: (a) The defendant failed to identify in the Site Safety Plan or by on-site supervision, or both, one to five dangerous trees that were standing rotten and/or dead trees. (b) The defendant failed to undertake an adequate risk assessment, in that it failed to: identify the risk from one to five dangerous trees that were standing rotten and/or dead trees; assess that risk by estimating the likelihood of an injury occurring and the likely severity of any injury that may occur; control that risk by developing and implementing risk prevention or reduction measures; and develop and document a written safe working procedure. (c) The defendant failed to prevent timber harvesting operations in the immediate area of a dangerous tree that was a standing rotten and/or dead tree. (d) The defendant failed to remove by mechanical means a dangerous tree that was a standing rotten and/or dead tree, prior to timber harvesting operations taking place in the immediate area of that tree. 3. (sic) A manifestation of the risk was that whilst carrying out timber harvesting operations a stag fell onto Brett James Heycox causing his instantaneous death due to massive blunt trauma to the thorax abdomen and cranium. 3 The defendant company pleads guilty to the charge. 4 Mr B.G. Docking, of Counsel, appeared for the prosecution. The prosecution tendered an Agreed Statement of Facts, Prior Conviction Report, Site Safety Plan, State Forests Code of Practice, Australian Standard - Chainsaws, Three Reports of Brian Beetles (expert witness), Eden Logging and Investigation Training Team, Photographs, three Records of Interview and SFO Notes dated 16 March 2004 to 24 June 2005. 5 The prosecution required Mr Paul Colebrook, Director of the defendant company for cross-examination. 6 Mr & Mrs Paul Colebrook appeared in person for the defendant company as its directors. They tendered a hand written letter with annexures. No witnesses were called. 7 The Prosecutor's Statement of Facts relevantly reads: The incident 5. On 3 February 2005, the logging crew commenced work in Compartment 207 Clyde State Forest near Batemans Bay, at approximately 6.45am. Paul Colebrook was manning the log dump. Adam Colebrook was operating the skidder and Brett Heycox was falling timber. The weather was clear and there was little wind. Mr Heycox spent the initial part of the morning with Adam Colebrook measuring logs. After a short while, Mr Heycox proceeded to the incident area where he commenced felling activities. 6. Rob Davis, the Supervisory Forestry Officer ("SFO") assigned to Compartment 207 arrived at the site at approximately 8.15am. 7. At approximately 8.45am Mr Heycox was cutting the top (also known as the crown) off one of the trees he had previously felled in preparation for it to be snigged. Whilst cutting the crown, a dead standing tree (also known as a stag) which was situated adjacent to where he was working fell onto him causing fatal injuries. 8. Adam Colebrook noticed smoke coming from the area where Mr Heycox was working whilst he was snigging. He stopped at the spot where Mr Heycox was and saw a chainsaw idling. He then saw Mr Heycox under a tree which had fallen on top of him. The tree had obvious fires scars, was dead and extremely brittle with a hollow truck. Adam Colebrook turned the chainsaw off and proceeded back up to the dump to alert Paul Colebrook to the incident. 9. Paul Colebrook and Adam Colebrook went back to the area where Mr Heycox was located. Adam Colebrook then checked Mr Heycox for a pulse. Rob Davis came down from the log dump and radioed Forests NSW, who in turn alerted the ambulance and police to the incident. 10. Several hours passed before emergency services arrived. Both the ambulance and police attended the scene. The ambulance officers examined Mr Heycox and he was pronounced dead. 11. A post mortem report dated 4 February 2005, identified the cause of death as massive blunt trauma to thorax abdomen and cranium. These injuries are consistent with Mr Heycox being struck by the falling stag. 12. An examination of the incident site performed by Eden Logging Investigation and Training Team (ELITT) on 3 February 2005 revealed the location of the stag to the felling area (drop zone and 2 tallest tree lengths) meant that the stag should have been removed before felling and snigging commenced on 3 February 2005. 13. A further examination of the incident site on 15 February 2005 by Mr Brian Beetles of the National Industrial Skills Training Centre observed that a simple visual assessment of the stag would have revealed the extent to which the tree was damaged and should have highlighted the need to remove the stag. 14. Prior to the incident Paul Colebrook conducted an inspection of the area however he did not identify any stags. Relationship with Forests NSW 15. Forestry Commission of NSW trading as Forests NSW is charged with the statutory responsibility for the management of timber and timber getting activities on Crown-timber lands, land owned by Forests NSW and land otherwise under its control or management, including Compartment 207 located within the Clyde State Forest by virtue of s11 Forestry Act 1916. 16. Forests NSW entered into timber supply agreements for the supply of timber from State Forests and timber-lands. Forests NSW issues licenses for the harvesting of timber pursuant to its timber supply agreements, to the operators who contract to harvest the timber and to the timber workers who undertake the harvesting activities. 17. Davis and Herbert Pty Ltd (BTU) held a timber licence no HS15010, issued by Forests NSW to retrieve hardwood logs from South Coast Region native hardwood forests until December 2005. 18. The licence to harvest timber issued to Davis and Herbert Pty Ltd (BTU) included an area of Clyde State Forest known as "Compartment 207". The defendant was retained to harvest timber in Compartment 207 pursuant to the license issued to Davis and Herbert Pty Ltd (BTU). 19. The defendant held a contractors license, issued by Forests NSW that entitled it to get timber in native forests located in the South Coast region including Clyde State Forest. 20. The defendant employed Mr Heycox, Adam Colebrook and Paul Colebrook to undertake its timber getting operations in Compartment 207. 21. Mr Heycox was licensed by Forests NSW as a chainsaw operator and was employed by the defendant as a tree faller. He had been employed by the defendant for approximately 2 years. Adam Colebrook was licensed by Forests NSW to operate skidders and Paul Colebrook held a forest operators license. 22. Forests NSW undertook planning for and supervision of timber getting or timber harvesting activities conducted within Compartment 207 by employees of the defendant, namely Mr Heycox, Adam Colebrook and Paul Colebrook, through the provision of a Harvesting Plan for Compartment 207. 23. The Harvesting Plan was presented to the director of the defendant, Paul Colebrook, by Alan Davidson, Harvesting Forester. It was also read through with the timber getting crew employed by the defendant prior to the commencement of the harvesting activities in Compartment 207. Crews cannot start work in the compartment until the Harvesting Plan has been explained to the crew. 24. The timber getting crew employed by the defendant commenced operations in Compartment 207 on 15 March 2004 and continued to do so until 25 October 2005. Operations re-commenced on 25 January 2005. Mr Heycox in accordance with the Harvesting Plan had participated in training run by ELLIT and on the job training. 25. Forests NSW at all material times, assigned the day to day administration, management and supervision of all timber harvesting activities in Native Forests to employees designated as SFO's. SFO's are required to supervise timber-harvesting activities in accordance with the Harvesting Plan prepared by Forests NSW for the conduct of timber harvesting activities in each compartment and the "Forest Workplace Safety Standards (FWSS)". 26. The FWSS was designed to assist all forest workers develop and implement workplace safety management systems and procedures to ensure the safety of all persons working on Crown-timber lands. 27. Forests NSW position description for SFO's describes the purpose of the position as: " Direct day to day supervision of native forest harvesting operations to ensure compliance with codes of logging practice, pollution control license obligations, threatened species conservation protocols, forestry act (and regulations), license conditions, occupational health and safety and timber industry regulations and a variety of timber product segregation guidelines." 28. Harvesting Plans outline the requirements to be followed by contractors in the conduct of harvest operations in Native Forests. SFO's are required to conduct regular audits, in the form of a pro-forma Harvest Inspection Report, for the purpose of ensuring that contractors comply with the conditions of their licences and the obligations imposed by Harvesting Plans. 29. The Harvesting Plan for Compartment 207 was given final approval by Stephen Dodds, Forests NSW Regional Manager for the South Coast district on 27 October 2003. The Harvesting Plan provided for the retention of a minimum of ten stags per two hectares where it is safe to do so and to retain all stags if there were less than ten per two hectares. 30. Neither the Harvesting Plan nor any other manual provided guidelines for assessing the safety of stags for retention. 31. The Workplace Safety Management System 2002 ("WSMS") was the occupational health and safety system in place within Forests NSW. It provided detailed guidance to employees on responsibilities and action to be taken so as to minimise risk to health and safety. This document was to be used in conjunction with the FWSS. 32. The WSMS states specifically in the introduction that workplace managers have a responsibility to contractors on both direct and indirect contract arrangements to ensure that work is carried out in a safe manner. A "Workplace manager" is defined in the definitions as being SF Regional Manager; Workshop Manager; Nursery Manager; HO Branch Manager and Divisional Manager. 33. Further WSMS states that in relation to contractors working on Crown Timber lands, Forests NSW can be seen as "controller of the workplace". 34. Forests NSW also required a site safety plan to be completed by the harvesting and haulage contractor that documented the specific safety management system that was to be applied to an individual worksite. Hazards identified in the Harvesting Plan were to be copied into the site safety plan. To assist contractors with this task the Forests NSW developed the "Contractor Safety Pack" which included a pro forma site safety plan. 35. A site safety plan was prepared on 15 March 2004 by the defendant. It provided that where there were dangerous trees and hang-ups they were to be removed by machine as soon as possible. 36. The WSMS provided SFO's with an audit form entitled "contractor safety pack checklist" for the purpose of conducting periodic audits of the contractor's operations. It specifically requires the SFO to consider the presence of a current site safety plan which includes the identification of hazards and risks. From the investigation it does not appear that an audit of the defendant's site safety plan was completed by the SFO 37. One of the hazards identified by Forests NSW in the FWSS at 3.4.6 are dangerous trees in the workplace. A dangerous tree is defined as having the "potential to cause harm to persons working within a forest workplace". Examples include trees with obvious fire scars, very dry, brittle or hollow trunk and excessive lean in any one direction. 38. Further, the FWSS at 3.4.6 – 4B(i) Pre-harvesting planning states that when "obviously dangerous tress (sic) are identified eg standing rotten/dead trees, then those trees must be documented in the Harvesting Plan and transferred to the contractors site safety plan". 39. The Harvesting Plan for Compartment 207 identified that there were a large number of hang-ups and hazardous limbs due to windstorms. However, the five stags in the immediate area of the incident, including the one that fell onto Mr Heycox, were not identified in the Harvesting Plan at all, nor were they transferred into the defendant's site safety plan. 40. The Harvesting Plan was not a site-specific list and did not provide for every possible dangerous tree. 41. The SFO did not identify any potentially dangerous tree in Compartment 207. 42. The SFO did not stand at the top of the knob, where the accident occurred, with either Paul Colebrook or Brett Heycox to assess the trees to be felled. 43. No one from the defendant inspected the work area on 3 February 2005 where the incident occurred prior to Brett Heycox commencing work in the incident area that morning. No one from the defendant identified this stag as an obviously dangerous tree. 44. The defendant's method for dealing with an obviously dangerous tree was to mechanically push it out with its hydraulic excavator that was on site. 45. After the incident, on 3 February 2005 the Inspector witnessed another stag being removed in order to allow access to the fallen stag. The other stag was removed in a matter of less than a minute using the defendant's excavator. 46. The defendant's Paul Colebrook provided the following answers: "Q66 Is it possible that dead standing trees can fall without warning when harvesting is taking place in a native hardwood forest? A66. Yes. Q67. What causes such trees to fall? A67. They die and there is nothing holding the roots into the ground and they have dry rot, the vibrations, wind and being hit by another tree." 47. At the relevant time, various safety codes highlighted the hazards associated with the presence of stags in the vicinity of timber harvesting activities: a) WorkCover Code of Practice 2002- Safety in Forest Harvesting Operations Chapter 6 provides control measures for dealing with dangerous trees as: · the identification of dangerous tress at site prior to commencement of work and on an ongoing basis; · Assessment of whether the tree can be felled safely manually; · Use of felling method appropriate to the dangerous tree; and · Safe work procedures requiring the immediate removal of hung up trees. b) The SAA Chainsaws- Guide to Safe Working Practice [AS2727-1997] provided that the following should be considered when preparing a worksite and when assessing a tree for felling: "Worksite preparation" d) Removal of local hazards within the falling area- All hazards in the falling area should be removed. These hazards include dry stags, small saplings and fallen timber [section 4 safe chainsaw operation paragraph 4.5.3.4] and "Tree assessment" a) Location and condition of adjacent trees - Other trees should be examined for physical features which may create a hazard to the faller if the selected tree is felled" [section 4 Safe chainsaw operation paragraph 4.5.3.3.] 48. The defendant failed to identify, assess and remove dangerous trees in the Compartment in accordance with FWSS, the Australian Standards and WorkCover code of practice and prior to the commencement of felling activities. 49. As a result of the above mentioned Mr Heycox and Adam Colebrook were exposed to risks to their health and safety. Since the incident, the defendant has implemented a new safety management system and has been informed by Forests NSW of the revised 3.4.6 FWSS - Management of Dangerous Trees in the workplace through a toolbox talk conducted on 29 March 2005. Relevant Principles 8 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 9 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 10 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying: [57] The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 11 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace, is a relevant consideration. Of relevance particularly is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia: . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences), … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, … (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . . Consideration 12 In consideration of penalty, the Court must examine the objective seriousness of the offence or, as has been said "the nature and quality of the offence" (see Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474)). 13 The Agreed Statement of Facts reveal the defendant, Colebrook & Sons Pty Limited, was contracted to harvest timber by a company who held the relevant harvest licence from State Forest, Davis & Herbert Pty Ltd, for Compartment 207 in the Clyde State Forest. The defendant employed three people, Mr Colebrook Snr, who held a Forest Operator's Licence, Mr Colebrook Jnr, who held a Skidder's Licence and a licensed tree feller, Mr Brett Heycox. Also working in the Compartment in a supervisory capacity over the timber harvesting operation was an employee of State Forests, Mr Rob Davis, a Supervising Forestry Officer (SFO). 14 On the morning of 3 February 2005, Mr Colebrook Snr was manning the log dump, Mr Colebrook Jnr was on the skidder and Mr Heycox was felling trees. Whilst Mr Heycox was cutting the crown off one of the trees after felling it, a dead tree (stag) fell on to him. Mr Heycox suffered fatal wounds. There were no witnesses to the incident. 15 Mr Colebrook Snr asserted Mr Heycox was working in an area of Compartment 207 to which he had not been directed and in which there had been no identification of dangerous trees which would have led to their removal as was the practice. The defendant, as an employer, is responsible for the safety of even an inadvertent or disobedient employee (see WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 at [45]-[46]). Mr Colebrook Snr was unaware of Mr Heycox's exact place of work in the forest at the time of the incident. While Mr Colebrook Snr, the employer, was not aware where Mr Heycox was working, felling trees, there is, however, no evidence Mr Heycox was acting directly against Mr Colebrook's instructions. Further, a tree feller is accorded wide discretion in performing his work under the system in place at the time. 16 Mr Colebrook Snr was cross examined by the prosecutor. During the WorkCover investigation of the fatality, Mr Colebrook said he thought Mr Heycox was further down toward the crest of the ridge. Mr Colebrook's evidence explains that he thought "up the ridge" was a description of where Mr Heycox was found and when he said "up the ridge" to WorkCover in his statement he meant a few hundred metres further up the ridge from where he had expected him to be. At best, it appears Mr Colebrook had no idea, until after the fatality exactly where his employee was working. However, I accept Mr Heycox chose to fell trees in an area not inspected, identified nor cleared of "dangerous trees" as was required under the system in place before harvesting began. 17 I accept Mr Heycox was, in cutting the head from a felled tree, working within the drop zone of a dangerous tree. I do not have to make a determination as to the cause of the actual incident. Mr Heycox was in dire risk the moment he entered an uncleared area to perform tree felling in the immediate vicinity of a dead tree which could be a dangerous tree. It had to be assessed. The cause of such an incident is not the issue under examination, rather the court focuses upon the cause of the risk to safety. As was said in Inspector Haynes v CI&D Manufacturing Pty and Anor (1994) 60 IR 149 (at 158-159): The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer . The risk in this instance was posed by a dangerous dead tree (stag) which I am satisfied, was struck in the tree felling operation and where the felling operation was conducted without a risk assessment being conducted in the area which the system of work requires there be the identification of such dangerous trees and removal before tree harvesting began. 18 In the circumstance, where there had been no risk assessment performed in the area in which tree felling was conducted, it was reasonably foreseeable there could be an incident related to the existence of dangerous trees not identified. While I do not accept Mr Heycox was acting as a disobedient servant but perhaps a distracted servant, nonetheless, he was logging in an area where he and Mr Colebrook Snr had not inspected as anticipated under the system of work in place. The lack of supervision of this employee by Mr Colebrook, the contractor on site and his employer, in allowing an employee to fell trees in an area not yet cleared of identified dangerous trees indicates an element of foreseeability to the offence. As was said in Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71, the Full Bench held at [82]: The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. 19 State Forest policies define dangerous trees and require their removal prior to harvesting. The ever present danger of trees falling upon forest workers is abundantly clear. Further, the risk posed by dead dangerous trees (stags) in the immediate area where a tree feller is performing his task of felling trees, is greatly enhanced. To experienced and knowledgeable forest workers, the potential risk posed by a dangerous dead tree (stag) is an obvious and foreseeable risk. There was an obligation upon the defendant company to risk assess and remove any trees, dead or alive, which it deemed dangerous before tree felling commenced in a particular area. I find this to be a serious offence. 20 In this circumstance, the risk to safety became reality. The words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5), I find apposite: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant... (See also WorkCover Authority of New South Wales (Insp Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) 99 IR 163 (at 22)). 21 Relevantly, in WorkCover Authority of New South Wales (Inspector Ankucic) v The Crown in the Right of the State of New South Wales (National Parks and Wildlife Service) [2003] NSWIRComm 170, Staunton J said at [20]: In this matter the defendant has entered a plea of guilty to the offence as particularised and, in doing so, concedes that those particulars, at the relevant time, constituted risks to the safety of its employees. and at [21]: The issue of causation goes directly to the guilt of the defendant to the offence to which it has entered its plea of guilty. By entering its plea, the defendant has embraced without demur its failures as pleaded and, in doing so, has accepted the causal link between them and risks to the health and safety of its employees that arise as a result of the failures particularised. As was stated by Walton J, V-P in WorkCover Authority (Inspector Farrell) v Ross Collin Morrison [2001] NSWIR Comm 325 at para [43]: It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident. Therefore the defendant has accepted it failed to identify, risk assess and prevent harvesting operations in its forestry harvesting operation before removing one to five dangerous trees. 22 A level of deterrence must be factored into the consideration as to penalty. Such principles were cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 [at 74] where it was said: . . . the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence 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 Limited (No. 2) [2000] NSWIRComm at 40 – 43) we would expect such cases to be very rare In the particular circumstance, I find both specific and general deterrence are to be factored into the assessment. The defendant company continues to work in the logging industry and is in the business of tree harvesting. It employs two to three people, depending upon the workload to be undertaken. As the defendant company continues to employ workers in a risky environment, specific deterrence must be a factor in the Court's consideration. Regarding general deterrence, it must be reiterated that in the performance of tasks within this dangerous industry, the highest degree of vigilance and rigor must be exercised in implementing well known risk minimisation procedures within a safe work system. As Hill J observed in WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 (at 85): This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. I am satisfied that the defendant approaches its duties under the Act on that basis. But it is always possible to achieve greater effectiveness and success as this case demonstrates. 23 In consideration of penalty, a number of subjective features to the offence have been placed before the Court. In Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Insp Ch'ng) (1999) 90 IR 464, the Full Bench said cited (at 474) with approval the passage in the judgment of Fisher CJ in Haynes v James Glass and Aluminium Pty Ltd (unreported decision of Industrial Court of NSW, Fisher CJ, 20 May 1994, Matter No 772 of 1991,where his Honour said: While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. 24 I accept the defendant company works in an inherently dangerous industry given the nature of the unpredictable and dynamic forest environment. The defendant company has a fine industrial safety record over the last 25 years and I give appropriate weight in my consideration as to sentence to the absence of prior convictions. 25 The early plea of guilty is another subjective factor in the defendant's favour which can mitigate the seriousness of the offence (see Alcatel v WorkCover Authority (1996) 70 IR 99 (at 106); in R v Winchester (1992) 58 A Crim R 345 (at 350)). I accept the defendant entered an early plea for which there was a situational value. There shall be a 25 percent discount for the utilitarian value of the plea. 26 I also acknowledge the expression of contrition for the breach. This contrition was reiterated by both Mr & Mrs Colebrook. I accept the incident has had a significant effect upon the directors of the defendant company and their family. Mr Colebrook Snr and Mr Colebrook Jnr were personally close to the victim. I accept the guilty plea is both an expression of contrition and the recognition by the defendant as to the seriousness of the offence. 27 Other subjective factors can mitigate the offence. The defendant company is a small family concern, which employs Mr Colebrook Snr, Mrs Colebrook, their son and, when necessary, a tree feller. Financial records provided to the court reveal the company had a total income of $448,946 in the 2005/06 financial year, $434,223 in the 2004/05 financial year and $620,592 in the 2003/04 financial year. A before tax profit of $29,646 was made in 2005/06, $14,379 in 2004/05 and $18,111 in 2003/04. However, after accumulated losses were accounted for, the company made a loss, each of those years being $2,111 in 2005/06, $16,758 in 2004/05 and $31,135 in 2003/04. The defendant is, therefore, not a large company and not one with significant annual turnover or profit. I take the small size, family ownership and relative profitability of the defendant into account as elements in a consideration of penalty but always acknowledging the seriousness of the offence. 28 The issue of the contribution of third parties to the breach of the Act is also relevant to the consideration of the objective seriousness of the offence (see WorkCover Authority of NSW v McDonald's Australia Ltd and Anor (2000) 95 IR 383 per Walton J, Vice President (at 434 and 437) and Workcover Authority of New South Wales (Inspector Farrell) v David Carl Schrader [2002] NSWIRComm 25 per Walton J, Vice President at [61].) The defendant has been charged under the Act for a breach which emanated from the same factual scenario for which another defendant has been charged: A Prosecution was brought relevantly against the controller of the worksite, the Department of Forestry t/as Forestry NSW, under s 10 and s 8(2) of the Occupational Health and Safety Act 2000. However, it has not been found that NSW Forests breached the Act as pleaded. Nonetheless, it designed the system of work on site and the facts reveal the SFO had supervisory control over the contractor which required he ensured a rigorous application of the system of work to ensure safe working procedures were followed. State Forest supervisors had to ensure safe work practices were followed. It was not charged with a failure to supervise. However, I accept by its failure to supervise there was a contribution to the risk. The defendant, however, as the employer failed in its duty to ensure its tree feller was working within the safe work system. There was a failure to ensure a safe work system was implemented. 29 An application of s6 of the Fines Act 1996 was made by the defendant. The Full Bench stated in Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156 at [21]: Her Honour also appeared to take into account the respondents' capacities to pay fines, notwithstanding that there was no evidence placed before her to enable any assessment of their respective financial means. Section 6 of the Fines Act 1996 NSW requires a court, in the exercise of its discretion to fix the amount of any fine, to give consideration to the defendant's means to pay the fine. In doing so, the section requires the court to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. Plainly, s 6 provides the court with an obligation to consider the defendant's means in a practical and commonsense way. Nevertheless, the consideration must not be, in proceedings under the Occupational Health and Safety Act, ritualistic or token, so that where a defendant relies on the provisions of s 6 of the Fines Act in such proceedings to temper the amount of any fine to be imposed, the defendant bears the onus of placing appropriate evidence before the court to enable it to give proper consideration to the exercise of its sentencing discretion. The prosecutor submits the approach to be adopted by the Court is to impose a penalty that reflects the objective seriousness of the offence but should also take into consideration the financial status of the company. The defendant submitted a fine which is less than that which would have otherwise been imposed as appropriate in all the circumstances. 30 In view of the seriousness of the offence, I cannot accept this is an appropriate matter for the application of s6 of the Fines Act. I find a fine must be imposed on the defendant. However, the Court, in the use of its discretion, may consider a defendant's capacity to pay (Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 at [82]-[83]). 31 I take into account the subjective features of the offence but give weight to the objective seriousness of the offence. I find the defendant company guilty of a breach of s8(1) of the Occupational Health and Safety Act 2000. I give consideration to the financial status of the company but also note it has a regular income. I accept that a large fine would "exacerbate the company's efforts to achieve a sustainable financial position and could have a negative impact on the overall viability of the company" (Ferguson v Nelmac Pty Limited (1999) 92 IR 188 (at 209-210)). 32 The maximum penalty for a charge brought against the defendant corporation is $550,000. 33 I find the defendant guilty. 34 The defendant is to be fined in the sum of $35,000. 35 The defendant shall pay the prosecutor's costs as agreed or assessed with leave to approach. Orders 36 The Court makes the following orders: 1. In Matter No IRC113 of 2007, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $35,000 with a moiety to WorkCover Authority of New South Wales. 3. The defendant shall pay the prosecution's costs. The prosecution has presented a Bill of Costs in the sum of $2,211,25. The defendant has the opportunity to have the Bill of Costs assessed. Leave to re-list at short notice if no agreement can be reached. 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.