District Court New South Wales Medium Neutral Citation: SafeWork NSW v Penrose Pine Products Pty Ltd [2021] NSWDC 45 Hearing dates: 9 February 2020 Date of orders: 5 March 2021 Decision date: 05 March 2021 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted. (2) The appropriate fine for the offence is $100,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) Accordingly, I order the defendant to pay a fine of $75,000.00. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) The defendant is to pay the prosecution's costs as agreed or assessed. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – previous convictions – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence 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 (Cth) Work Health and Safety Regulation 2017 (NSW) Cases Cited: Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Markarian v The Queen (2005) 228 CLR 357 R v Miria [2009] NSWCCA 68 SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 Texts Cited: Australian/New Zealand Standards 4024.36.10 Safety Machinery – Conveyors Safety System Management Booklet, August 2009 SafeWork Australia: Construction work – steel erection information sheet (January 2016) SafeWork NSW Code of Practice Managing the Risks of Plant in the Workplace Category: Sentence Parties: SafeWork NSW (Prosecutor) Penrose Pine Products Pty Limited (Defendant) Representation: Counsel: Mr C Magee for the Prosecutor Mr B Hodgkinson SC for the Defendant Solicitors: Department of Customer Service (for the prosecutor) Gillis Delaney Lawyers (for the defendant) File Number(s): 2019/00178105 Publication restriction: Nil Judgment 1. On 9 November 2020 Penrose Pine Products Pty Ltd ('the defendant'), being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) ('the Act') to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking. The defendant entered a plea of guilty for failing to comply with that duty that exposed workers to a risk of death or serious injury contrary to s 32 of the Act. 2. The offence is set out in the Amended Summons filed 9 November 2020. The circumstances in which the offences occurred are set out in the Agreed Statement of Facts ('ASOF') filed with the Amended Summons, as supplemented by the material in the Prosecution Tender Bundle ('TB'). The ASOF are summarised below. 3. The maximum penalty for the offence is $1,500,000. BACKGROUND 1. On 19 June 2017 ('the relevant time'), the defendant conducted a business or undertaking in the timber industry, including the operation of a timber sawmill. The defendant operated its business or undertaking from premises located at 1 Forestry Road, Penrose, New South Wales ('the site'). The site was a workplace for the purposes of s 8 of the Act. 2. In the course of conducting the business, the defendant operated plant and equipment for processing timber, including an area known as "the small waste conveyor" ('the Small Waste Conveyor'), at the site. 3. On 9 June 2017, workers for the purposes of s 7 of the Act were at the site, and were engaged or caused to be engaged by the defendant to carry out work in the defendant's business at the site. They employed approximately 35 workers. 4. The timber manufacturing plant at the site was divided into various areas of production including the "chipper area" which was connected with the Green Mill. The work done by the chipper primarily involved processing waste wood into wood chips and was identified as being vital to the work of the Green Mill. If the chipper stopped working, the Green Mill would also come to a stop. 5. The chipper area utilised two conveyors in its operation – the main conveyor was connected directly to the chipper (a wood chipping machine) and the Small Waste Conveyor, which was located beneath the main conveyor, and also directly under a set of stairs leading to a building which housed the chipper. 6. The Small Waste Conveyor was a flat belt conveyor, on an incline of approximately 30–40 degrees. It had a number of interrelated components, including a metal ramp which inclined from the ground to a hopper (or chute). The hopper was positioned above the actual conveyor belt and was the receptacle into which off cuts of wood could be deposited. 7. The Small Waste Conveyor was bolted onto a concrete slab by two large bolts. The sides of the conveyor were fitted with mesh guarding in two locations. In one area a hinged mesh guard was in place covering the tail drum roller, shaft and bearings. The hinged guard was not interlocked and could be opened while the plant was in operation. While it has space for bolts, it was not bolted shut. Permanently fixed guarding was also welded in place further along the side sections of the conveyor, on each side, covering the belt. 8. The defendant had prepared a Safety System Management Booklet ('Safety Booklet') dated August 2009, however, a number of items within that Safety Booklet were not implemented. SYSTEMS OF WORK AT THE RELEVANT TIME 1. There was no guarding in place to prevent access to the underside of the conveyor, including the return belt, the support for the belt, and the space between the build-up of pine chips and the belt. 2. At times, chips and saw dust would build up under the belt which was required to be removed from under the conveyor. Workers would utilise cuts of timber/sticks known as a 'joey' to remove these chips by sweeping the stick under the conveyor belt whilst it was still moving. The hinged guard was not interlocked. 3. Emergency stops on the conveyor were also not accessible by workers if they came into contact with moving parts of the conveyor when they reached through the hinged guard. 4. Whilst there was guarding in place on the sides of the conveyor, the underside of the conveyor was not adequately guarded to prevent access to the underside of the plant, including the return belt, the support for the belt and the space between the build-up of pine chips and the belt. 5. The side hinged guards (which covered the tail drum roller, shaft and bearings) were not interlocked or bolted securely and could be opened and propped open while the conveyor was in operation. 6. The defendant was aware of the minimum safety requirement of guarding to prevent workers accessing moving parts as 'guarding a moving part' is considered in the Safety Booklet. 7. Guarding is considered in cl 208(2) of the Work Health and Safety Regulation 2011. It is also considered in s 4.1 of the SafeWork NSW Code of Practice Managing the Risks of Plant in the Workplace ('the Code'). 8. There was no physical barrier to the Small Waste Conveyor, nor was there supervision while it operated, which was at all points during the day. The chipper and Small Waste Conveyor were started each morning and left unattended, but workers would come into the immediate vicinity of the Small Waste Conveyor on a regular basis. 9. Mr Wyatt was engaged as a cleaner by the defendant and would assess the chipper and Small Waste Conveyor throughout the day. He did this in the ordinary course of his daily cleaning duties while the conveyor was on but did not supervise the Small Waste Conveyor at all. 10. Physical barriers are considered in the Australian/New Zealand Standards 4024.36.10 Safety Machinery – Conveyors as well as s 2.3 of the Code. 11. The defendant did not adequately conduct a risk assessment on the Small Waste Conveyor. While Risk Management was considered in their Safety Booklet, the risk assessment checklist template was not carried out on the Small Waste Conveyor. 12. While a number of casual workers were engaged to clean the premises, including the Small Waste Conveyor, there was no documented system of work for cleaning wood chips and sawdust from under the Small Waste Conveyor. 13. One engaged worker, Mr Wyatt, would utilise a joey to clean up the build-up of saw dust and wood chips from the Small Waste Conveyor. He would not isolate power when he did this. 14. In practice, workers at the site other than the engaged cleaners, would routinely clean the Small Waste Conveyor on multiple occasions throughout the day to prevent build-up, as this would cause a break down which in turn would cause the entire plant to stop. 15. Workers would clean the conveyor a few times a day with either a stick, shovel or broom. There is evidence that one worker, Mr Welch, would use his hands to clean away build-up. This cleaning would take place as the conveyor was still running. 16. The Code commenced on 18 July 2014 and is an approved Code of Practice under s 274 of the Act. It was available prior to the relevant time. Section 4 of the Code describes a guard as a physical or other barrier that can perform several functions, including preventing contact with moving parts or controlling access to dangerous areas of plant. 17. While the defendant had a Safe Operating Procedure ('SOP') in place for the chipper, it did not address the Small Waste Conveyor. However, the SOP did address the risk of injury during cleaning and maintenance work. 18. The Small Waste Conveyor was an unattended item which was left to operate unsupervised and the area was not fenced off to prevent unauthorised access. 19. Workers on site often cleaned the Small Waste Conveyor without being instructed to do so and thus the tasks were performed unsupervised. While the Safety Booklet considers supervision of work safety, there was no system in place to assess the performance of workers, including in respect to the clearing of wood chips and sawdust from under the conveyors. 20. At the relevant time, workers were exposed to the risk of serious injury including severe burns, crush wounds, deep tissue lacerations, injury causing muscle loss and post traumatic injury if they came in to contact with moving parts of the Small Waste Conveyor which were not adequately guarded. 21. The plea by the defendant represents an acknowledgement of failures that gave rise at the relevant date to workers being exposed to the risk. 22. The full detail of the admitted admissions on the part of the defendant in failing to ensure that workers were not exposed to risks to their health and safety are contained in paragraphs 10(a)-(e) of the Amended Summons. The pleaded measures are admitted by the defendant to be reasonably practicable steps which it ought to have implemented, but failed to do so, that gave rise to workers on the relevant date being exposed to the risk to their health and safety. 23. The facts as agreed in the ASOF and the documents in the TB establish each of the particulars. SYSTEMS OF WORK AFTER THE RELEVANT TIME 1. On 21 June 2017, an inspection of the defendant's premises resulted in the issuing of one Improvement Notice, pursuant to s 191 of the Act. Improvement Notice Number 7-308500 dated 21 June 2017 required the defendant to install appropriate guarding on the Small Waste Conveyor by 23 June 2017. 2. On 7 July 2017, an inspection of the defendant's premise revealed the hinged guarding on the side of the Small Waste Conveyor could still be lifted, giving access to the moving parts. As a result, on 10 July 2017, Improvement Notice Number 7-309329 was issued which required the defendant to secure the hinged guarding by a physical barrier that can only be altered or removed by the use of tools. 3. Both notices were complied with and improvements were made to address the issues that arose surrounding guarding, the absence of a physical barrier and cleaning systems. These improvements were namely: 1. Hinged guarding was bolted and secured; 2. Additional mesh guarding was added to prevent access to the underside of the conveyor; 3. Access to the chipper area was restricted by the installation of a perimeter gate, signage and the operation of a buddy system which required 2 person to enter at a time; 4. Additional emergency stops were added; 5. A new procedure for cleaning the conveyor was instituted, involving the use of a pressurised air hose rather than a joey; and 6. A safe work method statement was also prepared and staff were trained in the new procedures. 1. I also note that immediately following the relevant time, the plant was shut down and the guarding was examined, initially in relation to the conveyor area, and then ultimately the whole plant. I accept that the defendant took immediate and appropriate steps after the relevant date to address the issue of safety at the Mill. THE RISK 1. The risk was that workers were exposed to was the risk of serious injury including severe burns, crush wounds, deep tissue lacerations, injury causing muscle loss and post traumatic injury if they came into contact with the moving parts of the conveyor which was not adequately guarded. SENTENCING 1. The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, "ensuring the safety, health and welfare of workers and others on workplace premises": s 3 of the Act. 2. I have had regard to the objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the Sentencing Act') for the purpose of sentencing. The purposes for which a Court may impose a sentence on an offender are as follows: 1. to ensure that the offender is adequately punished for the offence; 2. to prevent crime by deterring the offender and other persons from committing similar offences; 3. to protect the community from the offender; 4. to promote the rehabilitation of the offender; 5. to make the offender accountable for his or her actions; and 6. to recognise the harm done to the victim of the crime and the community. 1. The penalties imposed must give effect to the intention of the Act, in particular, protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work: s 3 of the Act. 2. The court is to be guided by the provisions of the Sentencing Act which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered. 1. The Court is to approach a sentencing exercise on the basis of it being one of "instinctive synthesis": Markarian v The Queen (2005) 228 CLR 357. 2. The approach to sentencing has been identified by Russell DCJ in SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 at [109] in this way: '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 judgement without any attempt to state precisely how any given factor has influenced the judgement.' 1. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 610 at [89]. OBJECTIVE SERIOUSNESS OF THE OFFENCE 1. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns J). 2. The risks associated with the potential exposure of workers to suffering serious injury as a result of becoming entrapped or entangled in the moving parts of the Small Waste Conveyor whilst undertaking cleaning or maintenance work on the conveyor, was a foreseeable one, it was one that was known or identified, or reasonably able to be known or identified, on the date of the offence by the defendant. 3. The defendant was aware that guarding formed part of the minimal engineering controls that could be implemented to prevent workers from accessing moving parts of the Small Waste Conveyor. This was reflected in the Safety Manual dated 4 April 2007 that the defendant had at the relevant date. The manual also identified that the use of guards, not maintaining or cleaning of machinery while it was operating and not leaving equipment turned on while unattended as measures to address those identified risks. 4. The defendant was aware that the Small Waste Conveyor was not fenced off to prevent workers accessing it while it was running, and knew that the ordinary operation of the conveyor could lead to a build-up of sawdust which could cause the conveyor belt to break and this would impact on the operations of the Mill generally. 5. The defendant was, or ought to have been, aware that other workers would periodically clean up around the conveyor using their bare hands to clean chips away from the conveyor while it was still operating. 6. None of the admitted measures pleaded in paragraph 10 of the Amended Summons were particularly complex to implement. A simple measure that the defendant could have taken to prevent general access to it by workers, was to install a physical barrier. Whilst there was guarding in place on the sides of the conveyor, the underside of the plant, the return belt and its support belt, the space between the build-up of pine chips and the belt were unguarded. The side hinged guards which covered the tail drum roller, shaft and bearings, were not interlocked or bolted securely, and could be opened and propped open whilst the conveyor was in operation. 7. Had the defendant carried out inspections of the work processes of its workers, it would have noted that the hinged guard was capable of being propped open such that workers would on occasion use sticks and their hands to clean in behind the guards whilst the conveyor was working. 8. It is also apparent that had the defendant undertaken a risk assessment of the task of cleaning and maintenance of the conveyor implicit in the requirements of the provisions of cl 34 of the Work Health and Safety Regulation 2017 (NSW), it would have identified the hazards of entrapment or entanglement in the moving parts of the conveyor whilst workers cleaned in and around it with sticks or their hands. 9. The most obvious change after the relevant date was the introduction of a new procedure for cleaning the conveyor, the use of a pressurised air hose to clean the wood chips and sawdust that had accumulated under and around the conveyor, which thus obviated the need for the use of sticks, shovels, brooms and hands to undertake the task. 10. The measures to which the plea was entered were measures that were suitable and available, and were able to be implemented by the defendant prior to the relevant date, and had they been so, the risk would have been eliminated. 11. I accept that the risk of workers suffering serious injuries in the circumstances was a real and substantial one, and was not remote. 12. However, I also accept that the Mill area generally was compliant with its obligations under the WHS legislation. The Mill had been in operation for many years, and the defendant was operating in an inherently dangerous industry. There were SWMS in existence and appropriate warning with regard to isolation of moving parts and the utilisation of lock-out keys for the other machinery in the Mill. From the information provided, I accept that the defendant was a company actively engaged in protecting the work, health and safety of its workers, and this offence must be seen as having occurred in the context of the defendant being a company that was actively involved in work health and safety. 13. The affidavit of Mr Cush discloses that he and his brother would regularly engage with workers in the Mill and engage in discussions about safety with the workers and supervisors. Whilst these discussions were informal, I accept that it demonstrates that the defendant was alive to issues of safety in the Mill. I also infer that had the issue of the conveyor been raised with the directors of the Mill, it would more than likely have been addressed appropriately. 14. The nature of the offence is the risk to the workers, but qualified by the circumstance where the remainder of the Mill for all intents and purposes was a safe workplace. It is not alleged that there was a failure to supervise the workers, and I accept the submission of Senior Counsel for the defendant that this incident was something that "slipped through the net" in a workplace that was otherwise protective of workers. 15. It is also important to examine the nature and quality of the offence. Paragraph 10 of the Amended Summons contains the allegation to which the defendant has entered a guilty plea. However, the allegations do all address substantially the same issue – that being that there was inadequate guarding of the conveyor and the guarding that was in place was able to be lifted up to allow cleaning of the wood chips, so as the conveyor could continue to operate. I also note that the offence only relates to one particular piece of machinery in the context of a large Mill. 16. The task of cleaning the wood chips from under the conveyor was a specific task performed in a confined area, and to do such task a worker would have to make a conscious decision to do so. The task that created the risk was not something that a worker could stumble onto inadvertently. DETERRENCE 1. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act. 2. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court is to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J). 3. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence. 4. The Court of Criminal Appeal in Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [177]–[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 which said at [74]—[75]: 'It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.' 1. General deterrence must be a significant feature of the sentence imposed upon the defendant and approached in the context of the industry in which the defendant is engaged. The types of activities, as well as the broader hazards and risks associated with the use of conveyor systems, may reasonably be expected to be common throughout the sawmilling industries, particularly when undertaken by small to medium companies. 2. The penalty imposed upon the defendant must communicate a message to the industry, and those using conveyors and similar plant in their operations, that they must ensure measures are implemented to address the risk of workers being exposed to crush hazards, in particular, from becoming entrapped or entangled during maintenance and cleaning activities. 3. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend. 4. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors. 5. Immediately after the relevant time the whole plant was shut down and the guarding at the conveyor was examined. Two days later the defendant arranged for compressed air to be used to perform the cleaning under the conveyor. This was a step that to my mind all but eliminated the risk. The defendant also took further steps to examine the safety of the whole Mill. 6. Having regard to the many steps and measures taken by the defendant after the relevant date, I am of the view that specific deterrence is not of great importance in this instance, and I accept that the likelihood of the defendant re-offending is minimal. AGGRAVATING FACTORS 1. The risk of significant injury to workers was reasonably high and any penalty imposed must reflect the level of seriousness of the breach. MITIGATING FACTORS 1. The defendant co-operated with SafeWork during the investigation of the incident. 2. The defendant does have a record of previous convictions: s 21A(3)(e) of the Sentencing Act. However, very fairly, the prosecutor does not press these matters as aggravating factors, and submits that the defendant simply would not be afforded the leniency that may be afforded to a defendant with no prior offences. From the affidavit, I also accept that the defendant as at the relevant date was of good character, and very involved in the local community, and is a long standing employer in the local area. 3. In his affidavit (Exhibit 1) Mr Peter Cush, director of the defendant, expresses his remorse and contrition which I accept as genuine, and this will afford the company some leniency: s 21A(3)(i) of the Sentencing Act. 4. The defendant entered a plea of guilty immediately after the Amended Summons was filed. I will allow the deduction of 25% for the utilitarian value of the pleas: s 22 A (3)(k)of the Sentencing Act. PENALTY 1. I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the offence is $100,000.00 and that will be reduced by 25% to reflect a plea of guilty. 3. Accordingly, I order the defendant to pay a fine of $75,000.00. 4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 5. The defendant is to pay the prosecution'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: 05 March 2021