On 21 September 2022, an agricultural worker was sentenced in the Roma Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (‘the Act’), having failed to comply with his health and safety duty pursuant to section 28 of the Act.
The defendant was employed as an assistant working manager at a property owned by an agricultural business. The business owned a telehandler, a piece of plant which can be used in a variety of agricultural settings. At the relevant time, the telehandler was fitted with a pair of tines, enabling it to be used as a forklift.
On 14 January 2021, the defendant was operating the telehandler and using it to transport a bin containing urea (a granulated fertiliser) in order to deposit the urea into a plane. The plane would then apply the fertiliser and return to the airstrip to be reloaded with urea.
On that date, the defendant’s grandson and the deceased worker were present and watching the process of loading the urea onto the plane.
While the plane was being reloaded the grandson and deceased worker were talking. The telehandler began backing away from the plane and the grandson told the deceased worker that he thought the telehandler was going to move towards them and they should move. The grandson warned the deceased worker about the telehandler twice more then moved towards the fence. The deceased worker was run over by the telehandler and sustained fatal injuries. An ambulance attended but the deceased worker was unable to be revived.
The defendant failed to take reasonable care that his actions did not affect the health and safety of the deceased worker as; he reversed the telehandler without ensuring that the path was clear and it was safe to do so, he knew or ought reasonably to have known, that if he could not see the path in which he was to reverse the telehandler, then it may not have been safe to reverse and he should not have reversed in that instance, he knew or ought reasonably to have known that if he could not see the path in which he was to reverse, then he should have stopped and obtained assistance or the reversing task, for example by requesting a spotter, and he knew or ought reasonably to have known that his acts or omissions could have adversely affected the health and safety of other persons.
In sentencing, Magistrate Elliott noted that deterrence was a significant aspect of sentencing, however indicated that specific deterrence didn’t loom as large in this matter, noting the defendant’s age, lack of criminal history, blameless life, good family and support. His Honour indicated the need for general deterrence to deter others, noting that people working with heavy machinery or working in any workplace need to ensure they follow procedures which help keep everyone safe.
Mitigating features referred to by his Honour included the defendant’s early plea of guilty and his cooperation with authorities and with the administration of justice. His Honour noted the defendant’s genuine remorse. His Honour considered the references placed before him which spoke highly of the defendant, as well as the letter of apology the defendant had written to the family.
His Honour referred to section 12 of the Penalties and Sentences Act 1992 when considering whether to record a conviction. His Honour considered the nature of the offence, accepting that the offending and consequence of the offending was serious. His Honour considered further the character and age of the defendant and the impact recording a conviction would have on the defendant, noting that the defendant had previously worked in the mining industry and wished to return to that industry, and recording a conviction would have an impact upon returning to that work.
Having regard to all matters, the sentencing comparatives placed before him, as well as the matters outlined in section 9(2) and (3) of the Penalties and Sentences Act 1992, his Honour fined the defendant $20,000 and exercised his discretion to not record a conviction.
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Sections 28(b), 32 of the Work Health and Safety Act 2011