District Court New South Wales Medium Neutral Citation: SafeWork NSW v Powell [2018] NSWDC 104 Hearing dates: 12 February 2018 Date of orders: 12 February 2018 Decision date: 12 February 2018 Jurisdiction: Civil Before: KEARNS DCJ Decision: The defendant is convicted and fined the sum of $20,000 with a moiety, with that moiety to be paid to the prosecutor under s 122 of the Fines Act. The defendant is to pay the prosecutor's costs agreed in the sum of $17,500. Catchwords: CRIMINAL LAW – work health and safety – tree removal – labour hire - aggravating and mitigating factors – relief under Fines Act Legislation Cited: Work Health and Safety Act 2011; Fines Act 1996 Cases Cited: SafeWork NSW v Tolputt [2017] NSWDC 285 Texts Cited: Tree Code, the Code of Practice for the Amenity Tree Industry of August 1998; Falls Code, the Managing the Risk of Falls at Workplace Code of Practice, approved on 16 December 2011 Category: Sentence Parties: SafeWork NSW (prosecutor); Ashley Vernon Erroll Powell (defendant) Representation: Counsel: Mr B Docking appeared for the prosecutor. Mr Powell appeared in person File Number(s): 2016/335076 Judgment 1. The defendant is charged with an offence under s 32 of the Work Health & Safety Act. He was an officer of the person conducting the business or undertaking. It is alleged that as such he was required to exercise due diligence to ensure that the PCBU complied with its duty or obligation. It is alleged that it had a duty or obligation that it did not comply with and the defendant failed to exercise due diligence in ensuring that it did. 2. Section 27 sets out a number of steps that are included within the requirement of due diligence. There is no need to embark on those. The defendant frankly acknowledges his guilt. The maximum penalty available in this instance is $300,000. 3. The charge arises out of an incident that occurred on 1 June 2015 at 73 Cape Three Points Road, Avoca Beach. I dealt with a case involving another defendant in respect of that incident. That was a case involving Mr Tolputt and was dealt with on 1 December 2017. The actual background in respect of the Tolputt case and this case is similar. Nevertheless, there is a statement of facts in this case which is not in dispute. I shall attempt to encapsulate the facts briefly. 4. Bradshaw Tree Services Pty Limited was involved in the business of tree removal. It had contracted for the removal of a tree at the address earlier mentioned. Industries Managing Solutions Pty Limited was in the business of labour hire. It was the relevant PCBU in respect of which the defendant was obliged to exercise due diligence under s 27. The defendant was its sole director and shareholder. Mr Tolputt, whom I referred to earlier, was a self‑employed tree climbing contractor who performed tree and rope excess work. He was contracted by BTS to remove the tree. 5. The tree in question had partially fallen and a large section of it was across the roof of the house at the address mentioned. This was as a result of extreme weather conditions and storms in the Central Coast area. Considerable damage had been done across the area to a large number of properties. 6. Mr Bradshaw had inspected the site. Mr Bradshaw was the sole director of BTS. He prepared a Bradshaw Tree Services safety analysis. I need not get on into the detail of what that entailed. He arranged for a number of people to attend the site to remove the tree. They were 1. Mr Tolputt 2. Mr Jessie Powell. He was a BTS employee. 3. Mr Ashley Powell. He was to provide 5 ground workers from IMS. They were Benjamin Martin, James Amson, Michael Bell, Adam Hanscombe and Blake Currie. 1. Mr Bradshaw had some discussions with Mr Tolputt about the process. 2. On the morning of 1 June 2015, the defendant went to see Mr Bradshaw. He picked up ropes that were integral to the BTS Safety Analysis and a harness. Mr Bradshaw provided a copy of the BTS Safety Analysis to Mr Powell. Mr Powell commenced his journey to the site but was diverted to attend to another emergency. That was not at all surprising considering the mayhem caused by the weather conditions and no criticism can be levelled against Mr Powell for doing that. In the meantime, however, Jessie Powell turned up at the site. 3. When Mr Tolputt turned up Jessie Powell and Mr Tolputt looked at the situation. Mr Tolputt thought that what Mr Bradshaw had earlier told him would not work and then decided on his way of removing the tree. This was to climb on the roof and go up inside the tree, find the highest point and bring small pieces down on the roof. They were then to be chopped up, thrown off the roof into the yard and dragged out by hand. 4. Jessie Powell spoke with the defendant and was advised that the defendant would be late. There was no instruction however about what to do or what not to do or to wait until the defendant's arrival. There was not a copy of the BTS Safety Analysis at the site and accordingly nobody at the site had seen it. It was with the defendant. In the absence of the defendant, work commenced. Other workers arrived at the site. 5. When Mr Tolputt was in the tree, Jessie Powell and Mr Martin assisted him with lowering parts. Mr Amson, who was on the ground, was asked to bring up a saw. He did and all the other workers followed him onto the roof. Bits of the tree were brought down, cut up and thrown off the roof. 6. At one point, a section measuring about a metre by 30 to 40 centimetres in diameter was cut. It fell and swung at an angle towards the roof. Mr Amson and Mr Martin were told to move from its flight path. Both moved, thinking that was what they were doing. A section of it hit Mr Amson's left shoulder and then hit Mr Martin. Mr Martin was knocked off balance, stumbled and rolled towards the edge of the roof. Mr Amson brought the section down under control as quickly as possible, jumped towards Mr Martin and grabbed his ankle. Mr Martin's head was over the edge of the roof. Mr Amson could not hold on. Mr Martin grabbed the gutter at the roof's edge. The gutter came off the roof fascia. Mr Martin fell approximately 11 metres to the ground below. Fortuitously he fell into a mass of foliage and small branches that was about one and a half metres in depth and that cushioned his fall. 7. Nevertheless he sustained a fractured shoulder and required treatment. He has suffered minor flashbacks and has had difficulty sleeping. 8. There was a risk to the workers. The case pleaded is that Mr Martin, Jessie Powell, Michael Bell, James Amson, Adam Hanscombe and Blake Currie were all exposed to risk. The risk was being hit by parts of the tree that was being felled; it was also the risk of falling from the roof to the ground below. 9. The statement of facts helpfully sets out the failures on the part of the defendant that are alleged in this case. It is alleged that the defendant failed to ensure that IMS had a competent person employed by IMS with experience, skills and knowledge needed to identify hazards, assess risks, plan controls and instruct workers in the procedure. 10. There was in place at the time a Tree Code, the Code of Practice for the Amenity Tree Industry of August 1998. It provided that before work started a competent person should be nominated to plan and control the risk. 11. There was also the Falls Code, the Managing the Risk of Falls at Workplace Code of Practice, approved on 16 December 2011 with a number of iterations or amendments following that. It provided, amongst other things, that before work started the nominated competent person must ensure that all people doing the work were adequately trained and had been given specific instructions on how to do the work safely. 12. No competent person was present before the work commenced. These matters demonstrate that the first of the particulars relied on by the prosecutor is established. 13. The next matter relied on by the prosecutor is that the defendant failed to ensure that the PCBU had a supervisor who was a competent person present at the site during the undertaking of the work. The matters I have already mentioned in relation to the codes is sufficient to be satisfied that that particular has been established. 14. The next matter relied on by the prosecutor is that the defendant failed to ensure that the PCBU engaged a crew of labour hire workers who were competent and/or trained and skilled in tree work. 15. Ben Martin was aged 20 at the time. He had commenced with IMS two weeks prior to the incident. Before working for IMS, he had three years on and off in tree lopping. 16. James Amson was 34 at the time. He had worked for IMS about a month, mainly doing ground work consisting of dragging branches and occasionally operating chainsaw. 17. Adam Hanscombe was 17 at the time. He had worked for IMS for about two months. He had no experience in tree work before IMS. He took branches to the chipper and feed them through. 18. Blake Currie was 17. He worked for IMS for about two weeks before the incident. He had no prior tree work experience. 19. Jessie Powell was 19. He had worked for BTS for about three years at the time of the incident. 20. That summary of the workforce is sufficient to establish that this particular failure is proven. 21. The prosecutor then relies on a failure to ensure that the PCBU had processes in place to prohibit ground workers from working on the roof at the relevant time. What I have said earlier, particularly in relation to the lack of communication on the morning, is sufficient to establish that particular. There is another measure the prosecutor relies on in the alternative to the previous one. As the previous one is established, it is not necessary to embark on a consideration of that. 22. In some measure I have undertaken this exercise back to front by going to those matters of breach in the statement of facts before undertaking some other analysis that needs to be undertaken. I need say something about foreseeability, but no more than I said in Tolputt. That was that foreseeability was plain and needs no explanation. That is at two levels. First, risk of injury from swinging timber and fall from roof were clearly foreseeable. Secondly, the potential consequences of those risks coming home were clearly foreseeable and that included potential fatal injury. 23. What I have said about the breaches also needs to be considered against the background that tree work is hazardous. So much is stated in the Tree Code. It is stated as the reason for the creation of the Code. It is emphasised in the Code with these words, "TREE WORK IS HAZARDOUS". The Code adds that the industry is full of hazards ranging from the tree itself to the weather, the terrain and difficult sites in which tree work is carried out. Significantly, it adds each year many people in the tree industry are killed or injured. 24. Objectively, the offence in this case is a serious one. This is particularly by reason of the fact that work was being done in an industry known to be hazardous, the risks were foreseeable, the potential consequences of the risks coming home were foreseeable and measures were readily available to prevent it. 25. There are the same aggravating factors to be taken into account, as was the case in Tolputt. They are that the injuries to Mr Martin be described as substantial and the other is that the offence included a grave risk of death. 26. I repeat what I said in Tolputt about general deterrence. It needs to be factored in. Those operating in the industry must understand that safety is paramount and failure to comply with safety requirements will have consequences. As the Tree Code notes, tree work is hazardous and many people in the industry are killed or injured each year. 27. Specific deterrence I do not think can be ignored altogether. In considering it, however, I note that the defendant is no longer the sole director and shareholder of IMS. It has been deregistered. The defendant has not been in business in his own right since the incident. He has been out of work. He is currently in work. He is in work in the tree industry, but it is at ground level and he is in work in part-time employment. That is likely to become full‑time employment on 1 July this year. To a minor extent, specific deterrence needs to be taken into account. 28. There are mitigating factors that need to be taken into account. The defendant has no prior conviction related to health and safety matters. The offence was not part of a planned or organised criminal activity. The defendant is apparently a person of good character. I think he is a person who is unlikely to re-offend. Accordingly, the prospects of rehabilitation are good. He has accepted responsibility for his actions or inactions. He has given evidence here this morning. He has impressed me as a most genuine person both in the giving of his evidence and in the submission he has made, he being self-represented. 29. There have been along the way a number of communications between the defendant and the prosecuting authority and I would understand from that he has co‑operated at all times. The defendant has pleaded guilty. That was on 23 October 2017. At all times he has been self-represented as he has been in no financial position to obtain any representation. Being self-represented he was no doubt not aware of the provisions of the legislation relating to sentencing, but in particular the effect and impact of a plea of guilty. There does not however at any stage appear to have been any sense that these proceedings would be contested and the prosecutor does not resist a suggestion that a discount of 25% may be appropriate in the circumstances. I intend to apply that. 30. The defendant has put before the Court a number of papers relating to a claim for relief under the Fines Act. Again not being represented he is no position to know precisely what should be done. He has however produced two letters from Centrelink, a letter from his current employer, and a bank statement covering the period November 2017 to 12 February 2018. 31. As I understand it he did have some advice from the prosecuting authority that he would need to bring financial information to court if he sought to rely on relief under the Fines Act. In the circumstances not being represented what he has brought to court is a fairly reasonable attempt to put before the Court his financial situation to the best of his ability. He supplemented that with evidence. 32. It is quite apparent, to put it in a word, that he has nothing. He has no assets. He has no credit cards. To the extent that he has a car, it is not his. It is his employer's and he gets to use it. He has 19 cents left in the bank. He has part-time employment which he estimates returned him about $3,800, I think the figure was in the last month. The letter from his employer indicates that he will commence full time employment presumably on 1 July 2018 at an annual salary of $55,000 gross, plus car, plus phone. It is not much more than he is currently receiving. When that was pointed out to him in the witness box he responded with a very compelling, honest and reliable answer, that it will give him some stability. 33. He has lost a lot. In submissions to me he said he had a comfortable life before this and he has now lost everything. Certainly in the light of his financial evidence what he had before financially he has lost. He says he has lost his reputation. 34. He was plainly, and in my view genuinely, emotional in making some of these submissions. He did not seek in any way to avoid his guilt, or diminish it at all. Nevertheless he did point out that the circumstances on the day of the incident were unusual and extraordinary. Indeed they were. He was, in effect, the owner of the labour hire company and had a number of jobs, and in the circumstances they were all urgent. He could not be at all of them at the same time. Undoubtedly the pressure was enormous. This, I think, probably explains what happened on the day and how the incident came about. 35. I am satisfied that in terms of relief under the Fines Act the defendant has certainly established a case 36. I might add that one other way in which this incident has affected him is that he is a person with three children, I think he said it was. They live with their mother. He lives in rented accommodation, paying $150 a week. He needs to spend to exist, and again, he was, I thought, quite genuinely emotional when he said he provides for his children to the extent that he can. 37. It is an extremely difficult task balancing the objective seriousness of the offence with the genuine mitigating factors that arise in this particular case and the extremely difficult financial position in which the defendant has finished up as a consequence of this incident. 38. There are similarities between this case and that of Mr Tolputt, and I note also that Mr Tolputt was a case where he had satisfied the evidentiary onus for relief under the Fines Act. The cases have a number of similarities. It could be argued either way that the offence in one is more serious than the other. In the case of the defendant, he was the one who was the supervisor and in charge of the job. In the case of Mr Tolputt, he was the one who ignored the BTS Safety Analysis and took it upon himself to do the work. There are differences, but as between those two matters, I do not think there is much in it. 39. There is a difference in terms of the maximum penalty. In the case of Mr Tolputt, the maximum penalty was $150,000. In the case of the defendant, the maximum penalty is $300,000. It does not follow, that all other things being equal, that the fine for the defendant must necessarily be double that of Mr Tolputt. It is a factor that may be considered. In considering the Fines Act, it is also to be noted that there is an agreed figure for costs in these proceedings and that is the sum of $17,500. 40. But for the mitigating factors and but for the financial position of the defendant brought about by this incident, a higher penalty than that which I propose to impose, will be appropriate. In all the circumstances, taking into account the discount for the plea of guilty as well, I think the appropriate penalty is the sum of $20,000. The orders I make are as follows. 41. The defendant is convicted and fined the sum of $20,000 with a moiety, with that moiety to be paid to the prosecutor under s 122 of the Fines Act. The defendant is to pay the prosecutor's costs agreed in the sum of $17,500. ********** 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: 24 April 2018