District Court New South Wales Medium Neutral Citation: Workcover Authority of New South Wales v JML Tree Services Pty Ltd [2015] NSWDC 253 Hearing dates: 4 May 2015 Date of orders: 12 May 2015 Decision date: 12 May 2015 Jurisdiction: Criminal Before: Judge AC Scotting Decision: See paragraphs [67] and [68] Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty COSTS – prosecution costs Legislation Cited: Work Health and Safety Act 2011 Crimes Act 1900 Fines Act 1996 Cases Cited: Veen v R (No 2) (1988) 164 CLR 465 Baumer v R (1988) 166 CLR 51 Capral Aluminium Limted v Workcover Authority of New South Wales (2000) 49 NSWLR 610 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Lo [2003] NSWCCA 313 R v McNaughton (2006) 66 NSWLR 566 R v Wilkinson (No 5) [2009] NSWSC 432 R v Borkowski (2009) 195 A Crim R 1 BW v R [2011] NSWCCA 176 Category: Principal judgment Parties: Workcover Authority of New South Wales (Prosecutor) JML Tree Services Pty Ltd (Offender) Representation: Counsel: Mr M Scott (Prosecutor) Mr D Nagle (Offender) Solicitors: Workcover Authority of New South Wales (Prosecutor) File Number(s): 2014/231525 Judgment 1. JML Tree Services Pty Limited (the offender) has pleaded guilty to an offence that as a person conducting a business or undertaking who had a health and safety duty under section 19(1) Work Health and Safety Act 2011 (the Act), failed to comply with that duty and thereby exposed Nathan Bard, an employee of the offender, to a risk of death or serious injury contrary to section 32 of the Act. 2. The maximum penalty for the offence is a fine of $1.5 million. 3. On the sentence hearing, Mr Scott appeared for the prosecutor and Mr Nagle appeared for the offender. Facts 1. The parties presented an Agreed Statement of Facts, which can be summarised as follows. 2. The offender conducted a business as an arborist and offered services including tree pruning and removal from residential sites. 3. On 12 June 2013 the offender was engaged by the owners of residential property at 6605 Illawarra Highway Moss Vale (the premises) to remove 2 eucalyptus trees. 4. Three employees of the offender attended the premises to complete the work, being Jeremy Long, Mr Bard and Simon McEwan. Mr Long was the sole director of the offender and was responsible for the supervision of the work on the day of the incident. Mr Bard had been employed by the offender as a Senior Groundsman since 1 May 2013. Mr McEwan was new to the industry and was working with Mr Bard for the first time on 12 June 2013. 5. One of the eucalyptus trees to be removed was approximately 15 m high. The men removed all of the branches of the tree until only the trunk was left. At that time the tree was approximately 10 m high. 6. The branches of the tree that had been removed were being fed into a Bandit Wood Chipper model 1590 XPD (the wood chipper). The wood chipper had been towed to the premises on a trailer by an Isuzu truck and it was set up so that the woodchips would feed into utility tray of the truck. 7. The wood chipper had an in-feed chute, the base of which was a feed table. Branches were placed on the feed table and feed wheels inside the in-feed chute pulled them into the wood chipper. The wood chipper was designed so that the ends of longer pieces were placed onto the feed table. The feed wheels would draw the rest of the branch into the chute to be chipped. If there were shorter pieces or twigs, these were placed on top of the longer pieces so that they could be dragged into the machine. The feed wheels had a minimum gap of 15 mm between them. The feed wheels travelled at approximately 200 km/h when engaged. 8. In order to remove the trunk of the eucalypt, Mr Long tied a 15mm diameter guide rope around the trunk to be used to pull it away from a nearby building when the trunk was cut. Mr Bard was holding the guide rope and standing about 1 to 2m from the wood chipper with his back to it, in amongst branches waiting to be fed into the wood chipper. 9. Mr Long cut a scarf in the tree using a chainsaw. He saw where Mr Bard was standing as he was taking up the slack of the rope. Mr Long did not instruct Mr Bard to move from where he was standing. 10. Mr Bard threw the slack of the rope behind him. The rope became entangled in the branches and was pulled into the wood chipper. This caused the rope to become instantly taut. The rope struck Mr Bard in the neck and he was flung in the air for about 1 m and then fell the ground. Mr Bard suffered a deep laceration to the neck and died at the scene. 11. The wood chipper's Operating and Parts Manual contained the following relevant warnings: 1. that an operator should always stand to the side of the in-feed chute and remain within easy reach of the control devices; 2. that an operator should take care to avoid becoming entangled in the vines or branches being fed into the wood chipper; 3. that vegetation such as vines should be cut into 4 to 5 foot lengths away from the wood chipper and that the feeder system should not be used when feeding cut vines into the wood chipper; and 4. care should be taken to prevent loose clothing, long hair, short sleeves or shirt tails from coming into contact with the feeder system. 1. Mr Long informed WorkCover that as part of the wood chipper induction and work practices Mr Bard had been warned to ensure that the rope did not become entangled in the feeder system of the wood chipper. Mr Long did not provide general safety instructions to employees each day as to how to undertake their regular duties. 2. On 12 June 2013: 1. Mr Bard was not warned that he should ensure the rope did not become entangled in the chipper and was not told how to place the rope to avoid that occurring; 2. Mr Long did not require the wood chipper to be moved into a position so that the rope could not become entangled; 3. Mr Long saw the location in which Mr Bard was standing and did not instruct him: 1. to move; or 2. to move the wood chipper; or 3. to deactivate the wood chipper while they were felling the tree; 1. the offender had no written safe work method statement (SWMS) for the task being undertaken. 1. After the incident the offender reviewed its SWMS and other documented systems as well as imposing an exclusion zone around the in-feed chute of the wood chipper when it was operating and implementing a new risk assessment procedure. The offender's evidence 1. The offender relied on an Affidavit of Jeremy Long sworn 1 May 2015 and an Affidavit of Graham Meredith sworn 1 May 2015. 2. Mr Long is the sole director of the offender, which he established on 20 January 2010. Prior to that Mr Long worked for Active Tree Services for a period of about 11 years. Mr Long annexed various certificates of competency and qualifications that he holds relating to his work. 3. The offender is a small family-owned company in which Mr Long and his wife work. Mr Meredith is Mr Long's uncle and he undertakes the bookkeeping and accounting tasks related to the business. 4. Prior to the incident the offender employed up to 15 employees on a daily basis, including some subcontractors. At the date of the sentence hearing the offender had 5 full-time employees, including Mr Long and his wife, 1 part-time employee and 3 casual employees. 5. Mr Long deposed that he had deliberately reduced the undertaking of the business after the incident from 5 crews to 2 crews working on any day, to allow him to better supervise the work. The second crew does not undertake tree felling work but is subcontracted to Active Tree Services to assist with cleaning up sites after felling occurs. 6. Prior to the incident the offender had in place a number of safety systems and Mr Long recognised that safety was "the paramount concern on all sites". The offender had engaged QAS Systems in March 2013 to review the offender's safety systems and to make any changes deemed necessary. 7. After the incident Mr Long spoke to a number of people from other similar businesses to inform them of how the incident involving Mr Bard had occurred and advising them to update their SWMS to provide for an exclusion zone around the wood chipper whilst they were engaged in tree felling. Mr Long obviously had approximately 16 years of experience in the work undertaken and it is pertinent that he had not been instructed as an employee, nor foreseen as an employer, the need for the exclusion zone around the wood chipper. 8. The offender also achieved ISO 9001 certification on 19 August 2014. 9. Mr Long worked with Mr Bard at Active Tree Services from about early 2006. They had undergone training and completed a number of courses together. Mr Long considered Mr Bard to be a friend. Mr Long annexed documentation relating to Mr Bard's training and the qualifications that he had attained. 10. After the incident Mr Long personally paid Mr Bard's widow the sum of $500 per week for approximately 20 weeks until she received payments in respect of Mr Bard's life insurance and worker's compensation death benefit. 11. Mr Long expressed sorrow and remorse in relation to Mr Bard's death. He acknowledged the cause of the accident and accepted responsibility for it. He deposed that the incident has reinforced his commitment "to be vigilant and proactive in all aspects of safety in the workplace". 12. Mr Long accepted that he failed to properly supervise Mr Bard in that he failed to instruct him to move away from the wood chipper when he was holding the guide rope. Mr Long deposed that at the relevant time he was in part concentrating on the use of a chainsaw to make the necessary cuts to fell the tree. 13. When Mr Long saw that Mr Bard had been injured he tried to assist him by holding the wound on his neck together until the ambulance arrived, during which time Mr Bard was bleeding profusely. 14. After the incident Mr Long has suffered considerable mental distress. Mr Long has had recurring nightmares that centre on the images of the blood that he observed on the day of the incident. Mr Long has been prescribed antidepressant medication by his general practitioner. He has consulted a counsellor, Emma Taylor. Mr Long annexed a report of Ms Taylor dated 5 February 2015. The incident has caused Mr Long difficulty in attending to the needs of the business. He has been unable to close the business down as a result of his financial commitments and loyalty to his employees. 15. Mr Long provided an inclusive list of pro bono work undertaken and charitable donations made by the offender at his direction. Mr Long deposed that the offender has incurred legal costs in relation to these proceedings in the sum of $25,000. 16. Mr Meredith is a qualified Chartered Accountant. He annexed the offender's profit and loss statement for the period 1 July 2012 to 31 March 2015. The offender has not made a profit since the incident. 17. Mr Long draws a wage of $1,200 per week and Mrs Long draws a wage of $500 per week. Mr Meredith estimated that the annualised sales for the current financial year would be reduced by approximately $138,000 as a result of Mr Long's intention to reduce the size of the business undertaking and his mental stress and anguish following the death of Mr Bard. 18. Mr Meredith pointed out the significant increase in the offender's workers compensation premiums following the incident. Mr Meredith deposed that the offender has paid QAS Systems a sum of $23,584 since the incident to upgrade its safety systems. 19. Mr Meredith deposed that the offender has a current tax liability to the Australian Taxation Office of approximately $50,000. 20. Mr Long and Mr Meredith were not required for cross-examination. I would pause to note at this point that I observed the demeanour of both men in Court during the sentence hearing. At times Mr Long was visibly upset and was comforted by Mr Meredith. Mrs Long was also present in Court to support her husband at a difficult time. Consideration 1. Both the prosecution and the offender reminded me of the general principles to be applied in the sentencing process and I have had regard to those matters, which were helpfully set out in the written submissions of the parties. Objective seriousness of the offence 1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No 2) (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15]. 2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70]. 3. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61]. 4. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relevant to the gravity of the offence: Capral Aluminium Limted v Workcover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of forseeability of the risk is to be determined objectively. 5. The risk particularised in the Amended Summons was as follows: There was a risk that a rope being used as part of a tree felling process may become caught or entangled in the feed-in mechanisms of a wood chipper during such tree felling causing such rope to snap taut at high velocity and strike a worker, resulting in serious injury or death. 1. That risk was remote. The precise mechanism of the injury that led to Mr Bard's death was not reasonably foreseeable. Whilst such foresight is not required to attract criminal liability, it is a circumstance of mitigation in this case. 2. There were very simple measures available to eliminate the risk including, the enforcement of an exclusion zone around the wood chipper, the deactivation of the wood chipper whilst the tree felling involving the use of the guide rope was in progress and the proper supervision of Mr Bard by requiring him to move away from the branches being fed into the wood chipper. 3. The death of Mr Bard is a matter relevant to the gravity of the offence. 4. At the time of the incident, Mr Long was operating a chainsaw and was required to exercise some care for his own safety. In my view this is also a circumstance of mitigation as it provides some explanation of his failure to properly supervise Mr Bard at the critical moment. 5. This is a case involving a freak but preventable accident that resulted in the tragic death of a valued employee. Deterrence 1. There is a requirement for the penalty imposed in relation to this offence to provide for general deterrence. The penalty should draw attention to persons operating similar businesses which are inherently dangerous to employees that it is necessary to ensure that they operate without avoidable risk to the health and safety of their employees. 2. The requirement for the penalty imposed to provide for specific deterrence is significantly reduced for the following reasons. 3. First, the offender has taken steps to significantly upgrade its safety systems. 4. Second, the offender by its prior conduct, in the engagement of QAS Systems and other measures had demonstrated a significant commitment to workplace safety. 5. Third, the offender has through Mr Long has accepted responsibility for its failings that led to the incident and expressed an apology, remorse and contrition. 6. Fourth, Mr Long the sole director of the offender, has provided financial support in the sum of approximately $10,000 to Mr Bard's widow prior to the payment of benefits to which she became entitled following Mr Bard's death. 7. Finally, Mr Long has suffered significant mental distress and anguish as a result of Mr Bard's death. This is to be taken into account as both a form of extra curial punishment of the sole director of the offender and as affecting the financial viability of the offender arising from his impairment. 8. Aggravating factors 9. The injury, emotional harm, loss or damage caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. The purposes of sentencing often overlap and the court must have regard to the death of Mr Bard as an aggravating feature of the offence, notwithstanding that it has also been taken into account in assessing the objective seriousness of the offence. Mitigating factors. 1. The offender does not have any prior convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. This factor should be assessed by reference to the fact that the offender has operated the business since January 2010 and has employed a varying number of employees and contractors in that period. 2. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Long has expressed sincere regret and remorse over the death of Mr Bard and the failings of the offender that led to the incident. Mr Long has accepted responsibility on behalf of the offender for the acts and/or omissions that were the cause of the incident. Mr Long considered Mr Bard to be a friend and I am satisfied that his evidence reflects genuine remorse and contrition. My conclusion in this regard coincides with my observations of him, Mrs Long and Mr Meredith when they were before the Court. 3. The offender was a person of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The evidence demonstrates that the offender was aware of the need to be conscious of workplace safety and to implement systems to achieve it. The offender undertakes pro bono work in the course of its business and makes charitable donations. 4. The offender entered a plea of guilty to the Amended Summons at the earliest possible opportunity: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range a particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The prosecutor accepted that the offender's plea was an early one. The discount can also result in a different type of sentence: R v Lo [2003] NSWCCA 313. It is appropriate to allow the maximum discount available for the plea of guilty in this case. 5. The offender co-operated with the investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. Capacity to pay a fine 1. Section 6 Fines Act 1996 provides: 2. In the exercise by a court of a discretion to fix the amount of any fine, the court is required 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. 1. The Court is required to have regard to this provision. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. 2. The offender's evidence reflected a limited capacity to pay a fine. The offender has not returned a profit since the incident occurred in June 2013. The offender is a small family company. The earning capacity of Mr Long and his wife is exercised through the corporate vehicle. They draw a combined range of $1,700 per week from which they support themselves and a young daughter. The revenue of the business has decreased. The offender has a liability to the ATO in the sum of $50,000. 3. Mr Long's ability to operate the business and to maximise its financial return has been adversely affected by the mental anguish and distress that he suffered as a result of the death of Mr Bard. 4. I have also taken into account that Mr Long has paid $10,000 of his own money to Mr Bard's widow to financially support her. I am cognisant of the fact that any monetary penalty imposed on the offender will have a direct impact on the financial position of Mr Long and his family. Penalty 1. Taking all of those matters into account and giving full effect to the discount for the plea of guilty, the appropriate order is that the offender is convicted without imposing any other penalty pursuant to section 10A Crimes (Sentencing Procedure) Act 1999. Costs 1. To give effect to the agreement of the parties, I order that the offender pay the prosecutor's costs in the sum of $14,000. ********** 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: 05 November 2015