District Court New South Wales Medium Neutral Citation: SafeWork NSW v Matthew Charles Colwell [2019] NSWDC 740 Hearing dates: 6 December 2019 Date of orders: 12 December 2019 Decision date: 12 December 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The offender is convicted. (2) The appropriate fine is $60,000 but that will be reduced to $20,000 by reason of capacity to pay and further reduced by 25% to reflect the plea of guilty. (3) Order the offender to pay a fine of $15,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order that each party is to pay its or his own costs. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty COSTS – prosecution costs OTHER – front end loader being used to lift heavy hydraulic cylinder – victim had unexpectedly placed himself under load and was adjusting slings – slings slipped off tines and cylinder fell Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW) Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 SafeWork NSW v Mehan [2018] NSWDC 391 Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Code of Practice: How to Manage Work Health and Safety Risks (December 2011) Code of Practice: Managing the risks of plant in the workplace code of practice (July 2014) SafeWork Australia: General Guide for Lifting Industrial Lift Trucks Information Sheet (July 2014) Category: Sentence Parties: SafeWork NSW (Prosecutor) Matthew Charles Colwell (Defendant) Representation: Counsel: D Jordan (Prosecutor) A Girle (solicitor) (Defendant) Solicitors: SafeWork NSW (Prosecutor) Australian Business Lawyers & Advisors Pty Limited (Defendant) File Number(s): 2018/277256 Judgment 1. Matthew Charles Colwell (the offender) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) he failed to comply with that duty and thereby exposed Scott William Bryant to a risk of death or serious injury contrary to s 32 of the Act. 2. The maximum penalty for the offence is a fine of $300,000. Background 1. The parties presented an Agreed Statement of Facts and this material is summarised below. 2. The offender was a person conducting a business or undertaking (PCBU) which carried out hydraulic repairs and fittings. He had a TAFE Certificate III in Engineering - Mechanical Trade. He had been a sole trader since about July 2011, and registered the business name MCC Hydraulics on 19 June 2015. 3. Mr Harrison Pearce Glover, 16 years old, was engaged by the offender as a casual worker to assist with general labouring duties. The events leading up to the incident 1. In January 2017 Mr Brennan, the manager of Buttabone Station near Warren in western New South Wales, contacted the offender concerning a hydraulic cylinder on an unregistered tri-axle alloy tipper trailer that was leaking hydraulic fluid and needed to be repaired. The hydraulic cylinder weighed approximately 300 kilograms. 2. The offender engaged Mr Scott Bryant to assist him. Mr Bryant, a certified crane operator and dogman, owned and operated a Vehicle Loading Crane (VLC) that would be used to lift the bucket of the tipper trailer to gain access to the hydraulic cylinder. System of work for removing the hydraulic cylinder 1. The system of work devised by the offender to remove the hydraulic cylinder from the tipper trailer involved: 1. unbolting the turntables of the tipper trailer to access the hydraulic cylinder; 2. tying 2 chains tied around the front of the tipper trailer for the VLC to lift the tub of the tipper trailer; 3. Mr Bryant using the VLC to lift the bucket of the tipper trailer to gain access to the hydraulic cylinder; 4. hitching lifting slings around the hydraulic cylinder and around the tines of the hay bale fork attachment of a front end loader; 5. the offender using the loader to lift and remove the hydraulic cylinder. 1. The offender did not document the system of work that was devised by him for the task of removing the hydraulic cylinder nor did he prepare any risk assessment. The Incident 1. At about 6.30 am on 14 January 2017, the offender and Mr Glover arrived at Buttabone Station. The offender explained to Mr Glover the system of work and the roles each person was to perform, as this was the first time that Mr Glover was to be involved in removing a hydraulic cylinder. Mr Glover's role was to assist in the process of removing the hydraulic cylinder from the tipper trailer. Mr Glover was a 16 year-old student who was working during school holidays. The offender told him several times not to get under the trailer. He followed this instruction. 2. The offender and Mr Glover: 1. wound down the tipper trailer landing legs; 2. removed the pins from the hydraulic cylinder/cylinder turntable; 3. unbolted the four bolts at the top of the hydraulic cylinder so it could be removed; 4. unbolted the two rear bolts that held the hydraulic cylinder to the trunnion/base and loosened the front two bolts at the base; 5. disconnected the truck from the trailer; and 6. collected the loader from another paddock. The loader was fitted with a 4-tine hay bale fork. 1. At about 7.30 am Mr Bryant arrived with his VLC. The offender explained to Mr Bryant the system of work and the roles each person was to perform. At some stage the offender attached two synthetic slings around the hydraulic cylinder. These came from Mr Bryant's VLC. 2. Mr Bryant positioned the VLC parallel to the tipper trailer on the left side, while the offender positioned the loader at the front of the tipper trailer. 3. Mr Bryant then attached two steel lifting chains to the front of the bucket of the tipper trailer and connected them to the VLC. Mr Bryant used the VLC to lift the bucket approximately one metre up to create the space needed to move the loader underneath the raised bucket. 4. With the bucket of the trailer raised by the VLC, the offender moved the loader forward and underneath the bucket. He lowered the tines to enable Mr Bryant and Mr Glover to attach the two synthetic slings to the hay bale fork attachment by looping them over two centre tines. The synthetic slings were not securely attached to the tines. 5. Mr Bryant then used the VLC to lift the bucket, raising the tipper trailer approximately 300mm. The offender then raised the tines of the loader approximately 200mm. 6. Mr Glover gave oral evidence which I accept that at that point the offender alighted from the loader and Mr Bryant alighted from the VLC. Both the offender and Mr Bryant moved the two synthetic slings higher up the hydraulic cylinder to enable the loader tines to be raised higher. They did not get under the trailer or the load to do so. 7. The offender returned to the loader and began to raise the tines of the loader to lift the hydraulic cylinder higher and remove it. 8. Mr Glover gave oral evidence, which I accept, that Mr Bryant alighted from the VLC and went under the trailer to adjust the two synthetic slings attached to the hydraulic cylinder. By adjusting the slings attached to the hydraulic cylinder, Mr Bryant removed the tension that held the slings which were looped onto the tines. The slings slipped off the tines. This caused the raised hydraulic cylinder to fall rapidly and strike Mr Bryant on the head. This occurred at approximately 8.30am. Injuries 1. Mr Bryant suffered fatal head injuries. Role of the offender 1. The offender was responsible for the general management of the business including work health and safety policies and procedures. 2. The offender failed to conduct an adequate risk assessment of the hazards and risks arising from the work of removing a hydraulic cylinder from a tipper trailer. 3. The offender failed to develop, implement and enforce an adequate safe work system for removing a hydraulic cylinder from a tipper trailer which specified: 1. the use of a suitable lifting attachment for the hydraulic cylinder that could be secured to the hydraulic cylinder and would not become loose or detached from the hydraulic cylinder during or after the lifting process; 2. the use of blocks or other supports under the base of the hydraulic cylinder to prevent movement or tilting when the hydraulic cylinder was unbolted and released. Legal Obligations and Guidance Material 1. The offender had a legal obligation under: 1. Clause 34 of the of the Work Health and Safety Regulation 2011 (NSW) (the Regulation) which requires that a duty holder must, in managing risks to health and safety, identify reasonably foreseeable hazards that could give rise to risks to health and safety; and 2. Clause 35 of the Regulation which requires that a duty holder must, in managing risks to health and safety, eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, minimise those risks so far as is reasonably practicable; and 3. Clause 219 of the Regulation that applies to plant that lifts or suspends loads, including persons or things. Clause 219(2) requires the person with management or control of the plant to ensure so far as is reasonably practicable, that the plant used is specifically designed to lift or suspend the load. There is no plant that is specifically designed to lift or suspend a hydraulic cylinder attached to a tri-axle tipper trailer. 1. Sub-clauses 219(3) – (5) of the Regulation relevantly provide: "3. If it is not reasonably practicable to use plant that is specifically designed to lift or suspend the load, the person must ensure that: (a) the plant does not cause a greater risk to health and safety than if specifically designed plant were used, and ... 4. The person must ensure that the lifting and suspending is carried out: (a) with lifting attachments that are suitable for the load being lifted or suspended, and (b) within the safe working limits of the plant. 5. The person must ensure, so far as is reasonably practicable, that no loads are suspended or travel over a person unless the plant is specifically designed for that purpose". 1. Guidance materials provided advice regarding work involving plant. Such guidance materials included: 1. Code of Practice: How to Manage Work Health and Safety Risks (December 2011) (Code of Practice). The Code of Practice provides general practical guidance for persons who have duties under the Act and the Regulation on how to manage risks to health and safety including identifying and controlling hazards; 2. Code of Practice: Managing the risks of plant in the workplace code of practice (July 2014) (Risk of Plant Code of Practice). The Risk of Plant Code of Practice says that a PCBU has specific obligations in law to manage risks, such as uncontrolled or unexpected movement of equipment, and provides general practical guidance on assessing and controlling a range of risks including entanglement, falling objects and crush injuries; and 3. SafeWork Australia: General Guide for Lifting Industrial Lift Trucks Information Sheet (July 2014) provides information about managing health and safety risks for people who carry out activities involving industrial lift trucks. PCBUs must ensure that the industrial lift truck is equipped with lifting attachments that are suitable for the load to be lifted or moved by the truck. The attachment should be securely connected to the industrial lift truck prior to operation to prevent it separating from the lifting media. Many specialised attachments are available for industrial lift trucks including jibs. System of work following the Incident 1. SafeWork NSW issued notices to the offender regarding safe systems of work for the repair of the hydraulic cylinder. The Offender's Evidence 1. The defendant tendered affidavits in relation to his character, community involvement and family circumstances. Those affidavits were from Mr Quigley (the mayor of Warren), Mr Brennan, Mr Russ and Mr Tyrwhitt. The deponents of those affidavits have known the offender through contact with his business, through his involvement with the local rugby union club, and through the inevitable everyday contact in a country town. It is obvious from that evidence that the offender is a valued and highly esteemed member of the community in Warren. Those deponents also gave evidence of their observations of how deeply the offender has been affected by the death of Mr Bryant. 2. The offender also tendered an affidavit by his wife Courtney Colwell. She described her husband changing, after the accident, into a person suffering from severe depression and anxiety. Her husband often wakes in the night with terrors of the accident replaying in his mind. He remains wracked with guilt over his involvement in the accident. 3. Ms Colwell also deposed to the financial position of the couple. They are expecting their first child before the end of the year. They have already paid a lot of money in legal fees. When Ms Colwell goes on maternity leave, her income will greatly reduce, and she will have to return to work much earlier than she would have liked, in order to pay any fine imposed in these proceedings. 4. Both Ms Colwell and the other deponents gave evidence of the severe drought in the Warren district. The farming industry is struggling, and that means that there is less work and less money for businesses who service the agricultural sector. This includes the offender's business. 5. There was also evidence tendered concerning the offender's financial position. Mr Whealy is the offender's accountant. He described the offender as "a determined hard-working young man with strong family values" and as "honest, ethical and a contributor to the local community". 6. Mr Whealy annexed to his affidavit Notices of Assessment for financial years 2017 and 2018. After allowing for a one-off profit from the sale of a motor vehicle, the offender's business has a profit of about $52,000 a year. Mr Whealy is also well aware of the financial difficulties in the Warren area. He too points out that a business such as that of the offender has been and will be severely affected by the flow-on effects from the drought. 7. The offender also tendered a letter from his bank manager which showed that the offender's bank account had fluctuated over the last three months from about $2,000 in credit to about $6,000 in credit. The bank manager is of course well aware of the financial problems caused by the drought. In his letter dated 5 December 2019 he said: "The impact of the drought has seen minimal crops from irrigation over the last two years with currently Nil irrigation allocation for 2019/2020 due to Burrendong Dam (which services the Macquarie River) being at 3% capacity. There [were] minimal winter cereal and pulse crops harvested in 2018 and 2019 and livestock numbers in the area have been sold down due to lack of fodder and water availability. The lack of income generation from agricultural production has seen business in small regional towns, such as Warren, suffer a significant decrease in demand for their services and thus decreased turnover. Matthew Colwell's business is one which relies heavily on the agricultural clients and has suffered as a direct result of the drought." Consideration 1. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 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 The Queen (No. 2) [1988] HCA 14; (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] NSWCCA 242; (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] HCA 67; (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 relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively. 5. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment. 6. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. His Honour Justice Basten at par 34, under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors." 1. Further at par 42 his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs." 1. At par 53 his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken." 1. My findings about the offender's level of culpability are based upon the following: 1. The risk was not foreseen by the offender, but it should have been. The offender did not know that Mr Bryant would place himself in a position of extreme danger by getting under the tipper. 2. The likelihood of the risk occurring was very low. The person on site who would have had the best appreciation of the danger of getting under the tipper and the load was Mr Bryant himself. He was a qualified crane operator and dogman. Mr Glover who was then a 16 year-old schoolboy said that he was a careful person and he knew not to get under the load. 3. The potential consequences of the risk were catastrophic. The risk of being struck by the falling cylinder was the risk of death, as did occur. 4. In an ideal world there was better equipment which could have been used to minimise the risk. As was put in submissions, mechanical work in remote Australia is often done with improvised equipment, as occurred here. That is not to excuse the offence, but the difficulty of removing this cylinder in this rural location must be taken into account. 5. The burden or inconvenience of the steps which should have been implemented was significant. Appropriate heavy equipment would have to be brought from afar. 6. The death of Mr Bryant resulted from the commission of the offence. 7. The maximum penalty for the offence is a fine of $300,000, which reflects the legislature's view of the seriousness of the offence. 8. This was not an offence arising out of a prolonged course of unsafe conduct. It was a one off operation. 1. I find that the offender's level of culpability is in the low range. Deterrence 1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180]. 2. The penalty must reflect the need for specific deterrence. The offender is still conducting a business. His operations involve mechanical work and the use of industrial equipment. Aggravating factors 1. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. Mitigating factors 1. The offender has no previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. 2. The offender is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. There was ample material in the affidavits to show that the offender is highly thought of in the Warren community. Two of the deponents of the affidavits came to the sentencing hearing, not to give evidence, but to offer moral support. The offender participates in community activities, by giving both time and expertise. He is a small businessman with a very modest income. He is a young married man who is obviously devoted to his family. 3. The offender is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. 4. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. 5. The offender has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has provided evidence that he has accepted responsibility for his actions and has acknowledged that the death of Mr Bryant was contributed to by his actions. In so many cases of this type, the offender puts one paragraph in an affidavit reciting the standard words of contrition and remorse taken from the legislation. This case is different. In spite of the local community being supportive, and not blaming the offender for Mr Bryant's death, he is haunted by the belief that he could and should have done more. It is to be hoped that the offender's mental state can improve once this case is over. 6. The offender entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give the offender a 25% discount for an early plea. 7. The offender gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The offender co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion. 8. All of these mitigating factors were very properly conceded by the prosecutor. Capacity to pay a fine 1. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. 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. The offender's capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence. 2. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996." 1. The prosecutor accepted that there was a limited capacity to pay a fine. That concession was appropriate given the evidence. Even without that concession I would have found to that effect. 2. I propose to moderate the fine significantly. There is no social utility in imposing a crippling fine and by doing so sentencing the offender and his wife to bankruptcy or penury. Costs 1. The prosecutor sought an order that the offender is to pay the prosecutor's costs as agreed or assessed. The offender submitted that no order for costs should be made in favour of the prosecutor. 2. Where there is a real issue in relation to capacity of a defendant to pay both costs and a fine, then the costs should be reduced, if appropriate to zero, so as to ensure that the fine to be imposed reflects the objective seriousness of the offence. This was the course I took in SafeWork NSW v Mehan [2018] NSWDC 391. I think that this is another case where that very rare course should be taken. Penalty 1. My orders are: 1. The offender is convicted. 2. The appropriate fine is $60,000 but that will be reduced to $20,000 by reason of capacity to pay and further reduced by 25% to reflect the plea of guilty. 3. Order the offender to pay a fine of $15,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5. Order that each party is to pay its or his own costs. ********** 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: 13 December 2019