WorkCover Authority of NSW v Sneddon [2014] NSWDC 372

District Court New South Wales

Medium Neutral Citation: WorkCover Authority of NSW v Sneddon [2014] NSWDC 372 Hearing dates: 04 November 2014 Date of orders: 04 November 2014 Decision date: 04 November 2014 Jurisdiction: Criminal Before: Curtis J Decision: The defendant is convicted and fined Catchwords: CRIMINAL LAW – prosecution – work health and safety

SENTENCE – specific deterrence - whether the imposition of a fine would threaten the continuing operations of the business

OTHER - inadequate Occupational Health and Safety policy - unguarded conveyor - sawmill operations

Legislation Cited: Work Health and Safety Act 2011 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor) Andrew Tressider Sneddon (Defendant) Representation: Counsel: P McEniery appeared for the Prosecutor S Gardiner appeared for the Defendant

Solicitor: WorkCover Legal Group for the Prosecutor PCR Law & Associates for the Defendant File Number(s): 2014/96672 Publication restriction: None

1. For 37 years Mr Andrew Tressider Sneddon has operated the sawmill, Tamworth Treated Timbers, at Kootingal. 2. On 20 June 2013 a 16 year old employee, Mr Stephen Caslic, suffered a broken leg and pelvis at the defendant's premises when his clothing was caught in an unguarded shaft of a chain conveyor. The risk was obvious and nothing had been done by the defendant to obviate or minimise that risk. 3. In consequence, the defendant pleads guilty to the charge that on 20 June 2013 he, being a person conducting a business and having an Occupational Health and Safety duty under section 19(1) of the Work Health and Safety Act 2011, failed to comply with this duty to protect Mr Caslic from injury. 4. The offence was grave, not so much in the injuries suffered to Mr Caslic, which fortunately were not severe, but that the danger was obvious and nothing had been done to prevent its occurrence. 5. Before the injury the employer had prepared a three page document entitled Occupational Health and Safety Policy directing employees to follow "All Health and Safety Policies and Procedures". 6. This pithy document addressed the dangers of "workplace bullying" and the need for "harmonious relations" between the business, the community, and amongst its workers. Unfortunately it did not describe any safety policies and procedures relating to the actual work. 7. I think it appalling, given the publicity given to the need to establish safe workplaces, that the defendant did not institute any formal assessment of the risks faced by the employees and devise systems to prevent those risks coming home. 8. After the injury the employer responded to a direction from the Inspector to take remedial action, and also created and documented policies relating to safe procedures to be followed at the mill. 9. The need for the application of the principle of deterrence cannot be overstated in the present case, as was said in a previous judgment of the IRC: "The presence of unguarded machinery constitutes one of the most pernicious and infamous dangers to health and safety of persons in the workplace. It is this very type of danger that prompted persistent and ongoing legislative attempts by governments to compel the correction of such obvious and serious faults in systems and plants." 1. I believe that the need for specific deterrence is not great because the employer has responded appropriately to the dangers revealed by this accident. 2. After some initial reservation, I think it relevant that the business operated by the defendant is currently not profitable, and that it is one of the few providers of employment in the area. It would not be in the public interest for a fine to be imposed of such proportion that it threatened the viability of the continued operations of the defendant. 3. I accept that the defendant is a person of good character and has no prior convictions. 4. In all the circumstances an appropriate penalty prima facie is $50,000. 5. The defendant is entitled to a reduction of 20% in recognition of his contrition and remorse and cooperation with authorities and his early plea of guilty. 6. The defendant is convicted and fined $40,000. 7. I order that WorkCover have a moiety of the fine and order the defendant pay the prosecutor's costs and disbursements agreed at $7,700.