District Court New South Wales Medium Neutral Citation: SafeWork New South Wales v Pickles Auctions Pty Limited [2016] NSWDC 111 Hearing dates: 8 June 2016 Date of orders: 08 June 2016 Decision date: 08 June 2016 Jurisdiction: Criminal Before: KEARNS DCJ Decision: The offender is convicted and fined the sum of $255,000. There is to be a moiety to the prosecution and the offender is to pay the prosecutor's costs as agreed or assessed. Catchwords: Sentencing; risk of death or serious injury; forklift; fatal injuries; foreseeability of the risk of injury; prior conviction; Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: SafeWork New South Wales, Prosecutor Pickles Auctions Pty Limited, Defendant Representation: Counsel: Mr M Moir, instructed by SafeWork New South Wales, appeared for the Prosecutor Mr P J Gow, instructed by Robertson Saxton Primrose Dunn, appeared for the Defendant File Number(s): 2014/77317 Judgment THE CHARGE AND THE PLEA 1. By amended summons, Pickles Auctions Pty Limited, is charged that on 20 March 2013 at 20‑21 Woorang Street, Milperra, being a person conducting a business or undertaking, who had a health and safety duty under s 19 of the Work Health and Safety Act 2011, to ensure so far as reasonably practicable, the health and safety of workers engaged by it, while they were at work in the business or undertaking, it failed to comply with that duty. The failure exposed Dean Jeffs and Jonathan Webster, to a risk of death or serious injury, contrary to s 32 of the Act. Pickles has pleaded guilty as charged in the amended summons. 2. Mr Gow, who appears for Pickles, has informed me that Mr Timothy Pickles, Mr Maclennan, I think it was, and Mr Avramis, officers in the management of Pickles, are present in court for the purpose of these proceedings. Mr Moir, who appears for SafeWork, has informed me that Ms Jeffs is present. THE INCIDENT 1. Pickles conducted a business valuing and auctioning goods, including motor vehicles. It had 22 sites in Australia and employed about 600 workers. Two of the sites were in New South Wales at Chipping Norton and Milperra. The Chipping Norton site was closed or in the process of closing, a few days before the incident. At the Chipping Norton site was a metal cabinet, about 1.8 metres high, 2.5 metres wide and 350 millimetres deep. It was locked. It contained tools and other items. With its contents, it weighed about 320 kilograms. The contents did not contribute much to that weight. Six days before the incident, the cabinet from moved from the Chipping Norton site to the Milperra site. To move the cabinet, it was placed on the dolly, then lifted on a hydraulic jack, into the body of a pantechnicon truck. The same process was used to unload the cabinet at Milperra. At Milperra, the cabinet was placed about 100 metres from the site of the incident. The cabinet was to be relocated to the wash bay area of the site. 2. Chris Chate was the truck and machinery manager of the site. The day before the incident, he instructed Scott Hamilton, an employee, to move the items that had come from Chipping Norton to the scrap area of the site. Scott Hamilton loaded items, including the cabinet, onto the bed of the truck. The cabinet was loaded using a five tonne forklift. Two timber chocks were placed between the bed of the truck and the cabinet, to allow for easy access by the forklift tynes. The cabinet was secured to the truck by a strap. The bed of the truck was about 850 millimetres above the ground. The truck was driven to the wash bay area and left there overnight. 3. On the day of the incident, 20 March 2013, Chris Chate instructed workers, including Jonathan Webster, to clean up the wash bay area and to move the cabinet into the wash bay area. 4. Despite the agreed statement of facts, there was some disagreement about what happened from this point. Jonathan Webster advised WorkCover that Chris Chate instructed him to get the cabinet off the truck by forklift. Chris Chate denies this and says he had a discussion with Shane Pagett about moving the cabinet from the truck and he expected that Shane Pagett would remove it. Shane Pagett was the yard manager, Chris Chate says he provided no instruction to anyone about the method of removal. 5. Mr Moir drew my attention to para 32 of the agreed statement of facts where it is noted that Chris Chate stated, he discussed with Shane Pagett, John Neeson, Jonathan Webster and Nheme Doy, the work that was to be undertaken in the wash bay area. It seems to me, however, that that concerns a different subject matter and not the subject matter of the removal of the cabinet from the truck. Shane Pagett disputes what Chris Chate says. Shane Pagett says that Chris Chate told him he had asked Jonathan Webster to unload the cabinet from the truck. Shane Pagett adds that he had no discussions with anyone about unloading the truck, as that discussion had already taken place between Chris Chate and Jonathan Webster. Also involved in discussion about the removal of the cabinet from the truck prior to the incident, was John Neeson who was a booking clerk. 6. There was discussion about obtaining the five tonne forklift for the task. There is considerable confusion about precisely what discussion occurred and between whom, but four things are clear: (1) the five tonne forklift was the appropriate plant to be used; (2) that fact was never communicated to Jonathan Webster; (3) nor was it communicated to Jonathan Webster that the five tonne forklift was being obtained for the task; and (4) it was not communicated to Jonathan Webster that the cabinet could not be moved manually. 7. I am satisfied beyond reasonable doubt that Chris Chate did ask Jonathan Webster to remove the cabinet from the truck. This obtains support from Jonathan Webster and also from Shane Pagett. I am satisfied also beyond reasonable doubt that in doing so, he told him to remove it by forklift. 8. Everybody involved in the discussion about the removal of the cabinet from the truck, excepting Jonathan Webster, left the wash bay area. That left Jonathan Webster there unsupervised. He waited about ten minutes. He then approached Dean Jeffs for assistance. Dean Jeffs was using a seven tonne forklift. 9. Meanwhile, John Neeson went about obtaining the five tonne forklift. It was not immediately available. Jonathan Webster was not informed of these matters. The five tonne forklift was obtained, but too late. The seven tonne forklift was used. Its tynes were too large to position safely under the cabinet on the bed of the truck. Dean Jeffs then positioned the seven tonne forklift parallel to the truck. The tynes were positioned adjacent to the bed of the truck. The plan seems to have been to tilt the cabinet from the bed of the truck onto the tynes. Dean Jeffs stood between the tynes. Jonathan Webster rested one foot on a tine and one on the bed of the truck. Jonathan Webster removed the strap securing the cabinet. Both men then stood in front of the cabinet. 10. Jonathan Webster pulled the cabinet forward slightly, the cabinet slipped from the bottom and fell forward with the bottom sliding across the bed of the truck. It slid forward off the truck and came to rest between the tynes of the forklift. Dean Jeffs sustained fatal injuries. Jonathan Webster sustained injuries to his chest, shoulder, arm and knee. SENTENCE PURPOSES 1. I bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act. I bear in mind also the purposes of the Work Health and Safety Legislation, in particular ensuring the safety, health and welfare of workers and others on work place premises. GRAVITY OF THE OFFENCE 1. I commence my analysis with a consideration of the gravity of the offence. This is determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home, and the measures available to avoid the risk. 2. As to foreseeability, the risk posed in the removal of the cabinet was obviously foreseeable. The use of manual means was fraught with risk. The barest consideration by anybody in authority would have appreciated that the cabinet needed to be moved by mechanical means. In fact the supervisors realised that, and they realised the appropriate equipment was the five tonne forklift. 3. It was clearly foreseeable that if this task was left to a 19-year-old, with less than one month's employment with Pickles, as Jonathan Webster was, and with no instruction as to the manner of undertaking the task, that it could be undertaken without the use of proper equipment, and that this would expose those involved to the risk of injury. 4. Foreseeability of the consequences in the event of the risk coming home was also obvious. Plainly it could be foreseen that the consequences of moving the cabinet without proper equipment could cause death or serious injury. 5. Simple measures were available to avoid the risk. Measures that were available that are covered by the particulars in the amended summons include: 1. use of the five‑tonne forklift; 2. developing and enforcing a system for the use of the five‑tonne forklift; 3. directing Jonathan Webster not to manually handle the cabinet; 4. developing and enforcing an exclusion zone to keep workers away from a zone in which the cabinet might fall on being moved; 5. training and instruction of Jonathan Webster in the safe working procedures for the removal of the cabinet from the truck. 1. These matters put the gravity of this offence at a high level. Mr Gow has submitted that this was an isolated incident caused by lack of communication in a system that was otherwise a good system. He points to four factors: 1. the incident was a one-off event occurring not in the course of Pickles normal business but as a result of the movement of materials from Chipping Norton to Milperra; 2. there was a safe system in place but it was not followed in this case; 3. the incident was an isolated one; 4. the most proximate cause of the risk was a lack of direct supervision and communication. 1. To some extent there is overlap in these matters. 2. Evidence as to systems Pickles had in place at the time of the incident was contained partly in an affidavit of Mr Avramis, sworn on 6 June 2016. He deposes that Pickles had in place work health and safety procedures, including a company forklift policy, and a number of other matters. In this regard it might be noted that the seven‑tonne forklift was generally used for the movement of vehicles, and the five‑tonne forklift was used to move general loads, however there was no documented procedure for the movement of general loads from trucks. 3. I do not think Mr Gow's submissions meet all the causes of the risk in this case. It was clear that the five‑tonne forklift should have been used, and the supervisors knew that. There was no documented system that dealt with that. There was no communication about that to Mr Jeffs or Mr Webster. That was because there was no system for communicating it to them. No one took responsibility for that because there was no system for anyone to do so. Further there was no system to apply, let alone enforce an exclusion zone. OTHER CONSIDERATIONS 1. There are aggravating factors to take into account. 2. Pickles has a prior conviction. It was on 15 August 2007. It involved the use of a forklift where the circumstances were different. On this point Mr Gow argued that Pickles prior record was a mitigating factor. This was because it was put there was no significant record of conviction. 3. What is significant may vary according to the circumstances. A matter may be significant because there are numerous prior convictions. It may be significant even if there is only one prior conviction if it involved a serious offence. It may be significant if an incident occurred on the second day of the operation of a business and another incident occurred the following day. It depends on the circumstances, whether there is a significant or lack of significant record of conviction. 4. What is required for a mitigating factor is that the offender does not have any record of previous convictions or "any significant record of previous convictions". It seems to me to establish a mitigating factor the onus would be on the offender and I do not think that that onus would be satisfied in this case. In any event I think the bare facts establish that the prior conviction was a significant one. It is significant in the context of this case because it was an incident involving a forklift. 5. I consider the prior conviction to be an aggravating factor. The extent to which it is an aggravating factor is in my view limited. It is limited by virtue of the fact that it is the only conviction in a business that has been operating since 1973. The fact that there is a prior conviction has another consequence and that is that the maximum penalty that may be imposed in this case is $1.5 million. Plainly that can be imposed only in the most extreme of cases. 6. The other aggravating factor that needs to be taken into account in this case is that the harm caused was substantial. That is unquestionably the fact, quite unrelated to whatever injuries Mr Webster suffered. 7. There are mitigating factors to take into account. To some extent the matters set out in the Crimes (Sentencing Procedure) Act are not readily applicable to workplace prosecutions. That is obvious from the first of the mitigating factors which I mention and that is that the offence was no part of a planned or organised criminal activity. The next mitigating factor is that Pickles may be considered, and I find it is, a company of good corporate standing and character. Matters relating to that are set out in some detail in the affidavit of Mr Avramis in paras 19 to 29. I do not propose to set that out in detail. It is sufficient to note that the company is involved in an amount of charitable work. It undertakes that involving its employees in the process as well. It undertakes programs with community involvement. These are all matters that need to be taken into account in mitigation. 8. The next matter is the prospect of reoffending. Plainly there can be no guarantee. I do not think it can even be said that the prospects of reoffending are insignificant. In terms of the mitigation provision it can be said that Pickles is unlikely to reoffend. Support for that can again be found in the affidavit of Mr Avramis, particularly in the first instance from paras 8 to 12 of that affidavit. Again I do not propose to set out the detail. It is sufficient to note that soon after the event Pickles instructed an external consultant to complete a risk assessment, and that was done very promptly after the event. Refresher training courses in forklift operations have been conducted since. A number of matters has been undertaken to remember and commemorate Mr Jeffs. 9. Further, that affidavit from paras 14 to 18 set out steps that have been put in place since the incident. Again I do not propose to set them out in detail. Again it is sufficient to note some matters briefly being that Pickles has improved its system by taking steps to be audited and certified in accordance with the Australian Standard. It is a best practice standard. It established an onsite work, health and safety committee at Milperra. This involves not just management but staff as well. Later in 2013 it employed a centralised WHS manager to manage WHS issues across the company. In March 2015 it commenced a trial of a WHS management system called Sky Trust. After that trial the system was launched at Milperra. It is a system that enables live time notification and reporting in respect of any matter that needs attention. Also since the incident manual handling training has been conducted through an external provider. 10. Next, in mitigation, Pickles has demonstrated remorse. This appears particularly in the affidavit of Timothy Pickles sworn on 6 January 2016, particularly from paras 5 to 8 and also the affidavit of Mr Avramis in paras 6 and 7. Again I do not detail all of this, but I note in brief that Mr Maclennan and Mr Pickles visited Mr Jeffs at the hospital immediately after the event. They attended on his wife. They offered support. It included financial support. That included payment of wages until Workers Compensation benefits were finalised or crystallised in January 2014. It also included an ex gratia payment. The incident has deeply affected Mr Pickles, but he frankly acknowledges that Mr Jeffs' widow and family must be far more deeply affected than he is. 11. The next matter in mitigation is that Pickles has assisted WorkCover in the course of its investigations. The final matter in mitigation is that Pickles has pleaded guilty. The plea was, frankly, not entered at the earliest available moment. It was some time before the plea was entered. There are explanations as to why that was so. Those explanations do not cover matters that made it inconsistent, impossible or even impractical to have entered a plea at an earlier time. 12. The discount for a plea really must reflect the utilitarian value of the plea and for this reason, although Pickles is entitled to a discount in respect of the fine that would otherwise be imposed, it is not entitled to a discount to the full extent of 25% which is the normal full discount. I consider an appropriate discount in the circumstances of this case to be 15%. 13. General deterrence needs to be taken into account. Accidents involving forklifts are far too prevalent in the workplace. Fatality is not a rare occurrence where there are forklift accidents. Those operating forklifts must understand that the strictest of safety measures should be implemented and that there will be consequences if they are not. 14. Specific deterrence also needs to be taken into account. Pickles continues to operate and it continues to operate forklifts. It is not without relevance here that it has been convicted in respect of an earlier forklift incident. 15. The need for specific deterrence is however ameliorated to some extent by the fact that the prior conviction was in respect of an incident about ten years ago and also by the steps that Pickles has taken since this incident to ensure safety generally and to ensure that an incident of this type cannot happen again. 16. I have been provided with a victim impact statement from Mrs Jeffs. There is no real dispute about the purpose for which that may be used and it may be used to demonstrate the impact that this event has had upon the family. She is correct in understanding that workplace accidents will happen and that they can only be minimised to the best of our ability. She is right also in saying that the accident that occurred to Dean should not have happened and the profound effect that it has had upon her and the family are noted. 17. I have been provided with some sentencing statistics and also some "comparable" case law. I find these matters of very limited assistance in this case. Each case must depend on its own facts. The comparable cases are limited by reason that no two cases are alike. The statistics are limited by the fact that they only go to September 2015 and apart from one instance the highest fine they reveal is a figure of $250,000. I am aware that there have since then been cases of higher fines. 18. I cannot avoid the objective gravity of the offence in this case but I do take into account the mitigating factors I have enunciated and doing the best I can in all the circumstances I think an appropriate fine undiscounted is the sum of $300,000. Deducting 15% the resultant figure is $255,000. RESULT 1. The offender is convicted and fined the sum of $255,000. There is to be a moiety to the prosecution and the offender is to pay the prosecutor's costs as agreed or assessed. ********** 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: 27 June 2016