District Court New South Wales Medium Neutral Citation: SafeWork NSW v Grant [2017] NSWDC 99 Hearing dates: 4 May 2017 Date of orders: 09 May 2017 Decision date: 09 May 2017 Before: Kearns DCJ Decision: The defendant is convicted and fined the sum of $80,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor's costs as agreed or assessed. Catchwords: CRIME – work health and safety – Category 2 offence – guilty plea – no prior conviction – arborist services – dead tree – tree felling – worker attached to falling tree; others working on the ground – serious injury including severe brain injury – foreseeability – aggravating factors – specific deterrence – general deterrence – mitigating factors – remorse - discount Legislation Cited: Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Category: Sentence Parties: SafeWork New South Wales (prosecutor); Alexander Gregory Bennet Grant Representation: Counsel: Mr M Cahill (prosecutor); Mr G Stanton (defendant). Solicitors: SafeWork NSW (prosecutor); AJL Legal (defendant) File Number(s): 2016/21118 After I heard submissions on sentence last Thursday, I stated that I would deliver my reasons on sentence at 11.00am today. The Court has been ready since shortly before 11.00am and I have been in a position since then to deliver my reasons. I have delayed coming into Court a short while as I was informed neither the defendant nor his solicitor were present. Attempts have been made to contact the solicitor in light of that absence, but those attempts have not been successful. I have come onto the Bench with a view to delivering my reasons and there is still no appearance for the defendant. The matter has been called outside the Court and there is still no appearance for the defendant. From today, I shall be unavailable for a period of about seven weeks. It is appropriate in the circumstances that I deliver my reasons and shall proceed to do so now. P.S. Very shortly after delivery of my reasons, I was attended in chambers by Counsel for both parties. They had learned of the absence of an appearance for the defendant and both then attended on me promptly. I had overlooked that on the prior occasion I had excused Counsel from attendance today. I may have created confusion by excusing everyone. I have made these remarks not because I consider there has been any discourtesy to the Court, but because in delivering reasons in the absence of an appearance for the defendant, I thought I should record the circumstances. Judgment The charge and the plea 1. Alexander Gregory Bennett Grant (defendant) is charged with a breach of s 32 of the Work Health and Safety Act 2011 (the Act) in that on 3 February 2014 at 18 Myoora Road, Terrey Hills (the premises), he failed to comply with a duty under s 19(1). The defendant has pleaded guilty. The evidence 1. The prosecutor tendered an agreed bundle of documents (Exhibit PX 1). The defendant relied on an affidavit of his sworn on 2 May 2016. He was present in court for the sentence hearing. I was also provided with a victim impact statement which was marked 1 for identification. The incident 1. The defendant conducted a business or undertaking within the meaning of the Act in that he was the sole proprietor of a business trading as "Northern Beaches Tree Service". The defendant's business provided arborist services including tree pruning, tree removal, stump grinding, arboriculture services and consultancy. On the occasion in question, work was being conducted at the premises, owned by Vardham Holdings Pty Ltd, a client of the defendant. 2. The defendant employed or otherwise engaged Christopher Harvey Hall, Liam Nasseri, Simon Watkins and Luke Davis to work in the business or undertaking. 3. On 3 February 2014, the defendant was retained to remove a dead tree at the premises. 4. The tree was a standing trunk about 20 metres high. It had been dead for at least five to seven years. It was affected by a fungus and an insect infestation. The roots had died back to the root plate and there were no structural roots providing support. The tree was not safe to be climbed. 5. On 31 January 2014, the defendant inspected the tree with Mr Astill, a tenant of the premises. Mr Astill showed the defendant the decaying root system. The root ball was not inspected. At one point, the defendant pushed the base of the tree and Mr Astill noticed the top of the tree move about one metre. 6. During the inspection, use of a crane was discussed for the removal of the tree. Mr Astill informed the defendant that the owner of the premises was willing to pay for the use of a crane. The defendant expressed the view that would not be necessary and that the tree could be safely climbed. In a later conversation with the owner of the premises, the defendant again indicated it would be okay to remove the tree without the use of a crane. 7. On the morning of the incident, the defendant and Mr Hall examined the tree. Following that, the defendant performed a verbal site assessment with Mr Hall, Mr Nasseri and Mr Watkins. During this assessment, the defendant identified a number of risks. The defendant said that there was not enough room to fell the tree in one go and the plan was for Mr Hall to climb the tree and fell it in sections. A pull rope was to be used to control the fall of the sections. 8. After the defendant completed the verbal site assessment, Mr Hall organised his climbing gear, his ropes and his tree spikes and a "pull rope" was attached to the tree, near the top of the tree, using a ball and "throw line". 9. Mr Hall started ascending the tree. He ascended using a pole or climbing belt and foot spikes or "gaffes". 10. Once Mr Hall had climbed up the tree to a point that was a little higher than about 13 metres above the ground, the tree was "wobbly"; and the defendant directed him to descend "a little bit" before starting to sectionally fell the tree. Mr Hall then descended about two metres and prepared to sectionally fell the tree. 11. Whilst Mr Hall was preparing to sectionally fell the tree, the defendant, Mr Nasseri, Mr Watkins and Mr Davis positioned themselves on the "pull rope" attached to the tree. The defendant was located near the rope closest to the tree followed by Mr Nasseri, then Mr Davis with Mr Watkins at the rear. 12. Mr Hall started his chainsaw and then cut a scarf, or front cut, into the tree. After Mr Hall completed the front cut, Mr Hall moved into position to commence to back cut the tree. 13. When Mr Hall commenced to back cut the tree, the defendant took hold of the rope, near Mr Nasseri, and the defendant told the workers to pull on the pull rope. 14. As the workers pulled on the pull rope, the tree began to move. The tree began to fall in the direction of the defendant and the work crew with Mr Hall attached to the tree by his pole or climbing belt and still holding the chainsaw which was wedged in the back cut. 15. As the tree was falling, the defendant called out to the workers on the rope that they should run. 16. Mr Watkins then grabbed Mr Davis and ran, at approximately 45 degrees to the line of fall. 17. As it was falling, the tree struck the awning to a caravan which was adjacent to the area into which the tree was to be sectionally felled. Mr Watkins and Mr Davis were under the awning, running away from the line of fall, when the tree struck the awning. 18. As Mr Watkins and Mr Davis cleared the awning, the tree fell through the awning. 19. Mr Nasseri heard the call to run, but he did not run. He saw the tree continuing to fall in his direction. He saw the tree hit the awning and as it continued falling, he realised that it was too late to run. Mr Nasseri then turned his back to the tree and lay on the ground. 20. As Mr Nasseri lay on the ground, the defendant and the tree landed on Mr Nasseri, so that both the defendant and the tree were on Mr Nasseri's back. 21. When the tree struck the ground, Mr Hall was still attached to the tree. 22. Mr Hall suffered serious injuries including severe brain injury. Analysis 1. The risk to which the defendant has pleaded guilty is described as follows: The risk was a risk of a death or serious injury to a worker as a result of the following: 1. falling from a height after climbing a dead tree due to the failure of the tree; and/or 2. falling from a height after climbing a dead tree due to the failure of roots of the tree; and/or 3. being struck by a dead tree whilst working in proximity to the tree due to failure of the tree and/or failure of the roots of the tree. 4. (Exhibit PX1, p104, [23]) It was a risk to all the workers. 1. I need to bear in mind several matters. I need to bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act 1999. I need to bear in mind the purposes of the work health and safety legislation, in particular ensuring the safety, health and welfare of workers and others on workplace premises. I need to bear in mind any relevant aggravating and mitigating factors, including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act so far as any of those may be relevant. 2. I start 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. 3. Foreseeability of risk of injury in this case was clear. In fact, it was foreseen. This is evident from the defendant's two discussions before the incident about the possible use of a crane, the physical examination on 31 January 2014 when the base of the tree was pushed and the top moved about one metre and the movement of the tree when Mr Hall climbed the tree. Add to that the height of the tree, the absence of any leaves or branches, the delamination of the bark, the visible evidence of borer and insect infestation and fungal infestation and the deterioration of the root system, it is clear that this tree was obviously dead. The defendant realised this describing it as a dead tree in his quote. Further, the Amenity Tree Industry Code of Practice 1998 disclosed the risks that were obvious in this case and measures to avoid the risks. 4. Prior to the incident, it was customary for the defendant to undertake a written risk assessment using a pro forma job site assessment (JSA) and checklist. This provided for the identification of hazards and control measures. Relevant to this job, it identified as hazards, the following: Tree: Unstable/splits/decay/nails, wear, spikes dead, diseased branches/vines/nests insect colonies (Exhibit PX 1, p1) 1. Control measures were identified as: Tree: thorough inspection performed appropriate access methods chosen trained & understand control measure fall path assessed On-site: exclusion zones (Exhibit PX 1, p1) 1. That JSA and checklist was not used on the verbal assessment on this occasion. It is quite evident that the tree falling in this case was a patent risk and obvious. 2. Also obvious were the consequences should the tree fall and plainly that involved risk of serious injury and risk of death. 3. Measures were readily available to have avoided the risks in this case. It is sufficient to note that the area was accessible to a number of mechanical devices which, if used, would have eliminated the risks in this case. Those devices included a mobile crane or elevated working platforms (EWP) such as a spider EWP, an Abby EWP, a Snorkel EWP or Snorkel boom lift and EWP. 4. Other measures available to the defendant that would have eliminated or reduced the risk included undertaking tests for the structural integrity of the tree and its roots and implementing and enforcing exclusion zones and safe escape routes. 5. These factors reveal that the breach in this case is of a serious nature. The parties were in agreement that it did not fall in the low-range of seriousness. Whether it may be described as in the high-range or mid-range, I do not think is important. What is important is to recognise that this is an offence of considerable seriousness. 6. There are aggravating factors. The actual injury to Mr Hall was substantial – s 21A(2)(g) Crimes (Sentencing Procedure) Act. The offence was committed without regard to public safety – s 21A(2)(i) of that Act. 7. Deterrence needs to be factored in. 8. General deterrence is a significant factor. The Court of Appeal has spoken recently about this in Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37. General deterrence plays an important part in sentencing, particularly for offences in the work safety field. It is important that persons operating in the industry understand the serious and onerous duty upon them to ensure, so far as practicable, compliance with safety and they need to understand that failure to do so will result, at least, in financial consequences. 9. Specific deterrence is also a factor that needs to be taken into account in this case. This is especially so, despite the examination of the tree before the commencement of work in this case and despite the defendant improving his safety system after the incident. The defendant failed to follow his own JSA on this occasion. Also the implementation of the tree felling in this instance was riddled with quite a number of unsafe features, the elimination of which would have either eliminated the risk altogether, or reduced significantly the likelihood of its occurrence. The defendant continues to operate in the business although, I was informed, he no longer fells dead trees. I am prepared to accept that, though there was no evidence about it, nor was there any evidence about his future intentions in that regard. Specific deterrence must be factored in. 10. There are mitigating factors. 11. The first matter in mitigation is the defendant has pleaded guilty. The prosecutor's submissions noted that the Summons was filed on 21 January 2016. The first mention of the matter in Court was on 7 March 2016. There were then seven further mentions of the matter before the plea of guilty was entered. This submission was not the subject of any comment by Mr Stanton, who appeared for the defendant. Despite that delay, there is still a significant utilitarian value in the defendant's plea in this instance. I think it is appropriate that the defendant should be allowed a substantial discount for the plea, but not the full 25% that is the normal maximum for an early plea. 12. Mr Stanton submitted that the defendant has exhibited remorse. In this regard, he relies on the guilty plea. A plea of guilty may be, but is not necessarily, some evidence of remorse. He relies also on an improved safety system that the defendant has adopted since this incident. I accept that the defendant has changed and improved his systems since this incident. He relies also on the fact that he does not continue to fell dead trees. There was no evidence from the defendant about that. In fact, there was no evidence from the defendant at all, except as to his financial position. In the circumstances, I am not prepared to accept that his not felling dead trees is evidence of remorse. It was submitted that remorse may be better determined from actions rather than lip service. I accept that is so, but there is nothing in the evidence as to actions by the defendant that satisfy me that the defendant has manifested remorse. 13. The defendant has co-operated with the prosecutor in the course of investigation and the prosecution. 14. The defendant has no prior conviction and has been operating since 2010. 15. The defendant's affidavit of 2 May 2016 dealt with his financial situation only. It was not relied on for the purpose of seeking relief under the Fines Act 1996. It was relied on as evidence of hardship. It can be expected that a fine may cause hardship. The Legislature was plainly alert to this in making provision for relief under the Fines Act. Evidence of hardship that does not qualify for that relief must be of limited utility. 16. The maximum penalty available in this case is $300,000. 17. I think an appropriate fine in all the circumstances, including the discount for the plea of guilty is $80,000. ORDERS 1. The defendant is convicted and fined the sum of $80,000 with a moiety to the prosecutor. 2. The defendant is to pay the prosecutor's costs as agreed or assessed. Victim impact statement 1. I have been provided with a victim impact statement of Mr Hall. It was marked 1 for identification. It has not been taken into account by me in the sentencing process. 2. Mr Hall at the time was a young man in his mid-20s who had left the UK only about six months or so before the incident. His life has been dramatically affected by the incident. His significant brain damage has resulted in considerable treatment. He has been transferred back to the UK and continues rehabilitation. His parents are now his guardians. He is completely reliant on others for help. He has a loss of independence. The physical and emotional consequences of the incident have been profound. He considers himself unlikely to ever work again and that is probably a realistic assessment. He is able to do a number of things, but for many of the regular aspects of daily life, and I shall not enumerate them, he requires assistance. 3. The Court notes the devastating effect that this incident has had upon him and can but express its sorrow and sympathy for him in these circumstances. He should never have been put at risk in the way he was. ********** 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: 09 May 2017