District Court New South Wales Medium Neutral Citation: SafeWork NSW v MON Natural Foods Pty Ltd [2023] NSWDC 55 Hearing dates: 8 March 2023 Date of orders: 15 March 2023 Decision date: 15 March 2023 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted. (2) The appropriate fine for the offence is $600,000.00, and that will be reduced by 25% to reflect the plea of guilty. (3) Accordingly, I order the defendant to pay a fine of $450,000.00. (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) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed. 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 – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition COSTS – prosecutor's costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2017 (NSW) Cases Cited: Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 Kirk v Industrial Commission of New South Wales [2010] HCA 1 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) NOM Natural Foods Pty Ltd (Defendant) Representation: Counsel: Mr A Mykkeltvedt (for the Prosecutor) Mr B Hodgkinson SC (for the Defendant) Solicitors: Ms K Vegar, Department of Customer Service (for the Prosecutor) Mr D King, Gillis Delaney Solicitors (for the Defendant) File Number(s): 2021/342789 Publication restriction: Nil Judgment 1. MON Natural Foods Pty Ltd ('the defendant') has pleaded guilty to an offence under s 32 of the Work Health and Safety Act 2011 (NSW) ('the WHS Act') in that on 20 December 2019 at 139 Hughes Road, Barooga it failed to comply with its primary duty to ensure the safety of workers pursuant to s 19(1) of the WHS Act so far as reasonably practicable and its failure exposed Bruce McIntosh ('Mr McIntosh') to a risk of serious injury or death. 2. The offence is recorded in the Summons filed on 2 December 2021. 3. At the time of the offence the maximum penalty was $1.5 million. 4. The prosecutor provided the Prosecutor's Sentence Tender Bundle ('PSTB'). The defendant read an affidavit of Arran Alexander Green ('Mr A Green') dated 6 March 2023 which became exhibit A. Background 1. The defendant is a company involved in the production of food products including sauces and condiments and owned and operated a processing facility in Barooga, a border town in the Riverina region of New South Wales ('the site'). 2. Mr Scott Childs ('Mr Childs') had been employed by the defendant as an apprentice electrician for approximately four months at the time of the incident. Mr Bruce McIntosh ('Mr McIntosh') was Mr Childs' supervisor. Mr Childs did not hold a high-risk work licence to operate a forklift. Mr McIntosh had been employed as a licensed electrician since 2 June 2019. 3. The defendant's premises included a loading dock covered by a rigid roof structure. The roof was sloping with the lowest point being approximately 4.5 to 5 metres high at the northern end of the loading dock, and this is where the incident occurred. 4. The incident involved the operation of a brand-new Linde E20PH counterbalanced industrial lift truck ('the forklift') to which a work box attachment ('work box') had been secured. The work box was 1.2m wide and 1m long. It had safety rails around the outside that were 0.9m high. The work box was designed to be used with a rear frame safety attachment ('rear frame') which extended vertically above one side of the work box. A safety warning was affixed to the right-hand side and the rear top rail of the work box which read 'upper frame must be bolted in position before using'. 5. The work box was manufactured with a 'back-guard' safety attachment, on the rear frame. 6. At the time of the incident, the rear frame was not attached to the work box. The Incident 1. On 20 December 2019, Mr McIntosh and Mr Childs arrived at the premises to start work at about 6:00am. The task that Mr McIntosh and Mr Childs were performing that day was the installation of new cabling high up on the walls of the loading dock so that two CCTV cameras could be fitted ('the task'). 2. Mr McIntosh affixed the work box to the forklift and asked Mr Childs to operate the forklift while he was standing in the work box. Mr McIntosh needed to be raised almost as high as the roof to perform the work, and asked Mr Childs to raise the forklift. Using the forklift, Mr Childs hoisted Mr McIntosh into the air. Throughout the morning, Mr McIntosh and Mr Childs installed about 5 metres of cabling. 3. After lunch, the pair returned to complete the remainder of the job. Mr McIntosh moved the forklift into position at the northern end of the loading dock. After climbing into the work box, Mr McIntosh instructed Mr Childs to raise the work box. Whilst in the work box at height, Mr McIntosh noticed that there was a cable on the ground near one of the forklift tyres. Mr McIntosh called out to Mr Childs to make him aware of the cable so that he didn't run over it with the forklift. 4. Mr Childs leant outside the forklift to inspect the cable on the ground. When doing so, he accidentally made contact with the joysticks that controlled the forklift. Mr Childs heard a buzzing sound. He looked up and realised that the cage had lifted. 5. When the work box lifted, Mr McIntosh's head was crushed between the rail of the work box and a section of the roof structure. Mr McIntosh was not wearing a helmet. 6. Mr Childs had not used a forklift to raise a person in a work box before. 7. Upon realising that Mr McIntosh had been injured, Mr Childs called out for help. When the work box was lowered to the ground, Mr McIntosh was not breathing and unresponsive. An ambulance was called at 12:32pm and arrived at 12:40pm. 8. Mr McIntosh suffered traumatic crushing injuries to his skull including deep open crush wounds. 9. Mr McIntosh did not survive his injuries. Relevant Guidance Materials 1. These are to be found at [47]–[65] of the Agreed Statement of Facts ('ASOF'). Systems of work prior to the incident Safe Plant 1. The defendant sourced the forklift and work box attachment from different manufacturers. It did not conduct a risk assessment as to the suitability of the forklift to be operated with the work box when performing the task. 2. Although the work box had been supplied with a rear frame, it had been removed at some time prior to the incident and likely had been removed at least two weeks prior to the incident. The manual supplied by the manufacturer of the work box provided: 1. an instruction that before using the work box, the rear frame must be in position; 2. a diagram of the work box properly assembled with the rear frame or back-guard attached; 3. instructions on how to properly affix the rear frame to the work box; 4. a recommendation that an appropriately qualified person inspect the work box before use to ensure that it has been correctly fitted in accordance with the manual before use. 1. Mr Childs had not seen the work box being used with the back-guard nor was he aware of its existence. 2. Paragraphs [47]–[51] and [54]–[55] of the ASOF sets out the relevant industry guidelines that if followed would have eliminated or minimised the risk of injury to a worker as a result of a failure to properly use elevated work box in conjunction with safety attachments such as a rear frame. 3. The Work Health and Safety Regulation 2017 (NSW) provides that the defendant, as a person with management or control of plant at a workplace was required: 1. to manage risks to health and safety associated with plant (cl 203); and 2. to take reasonable steps to ensure that all health and safety features and warning devices (including guarding, operational controls, emergency stops and warning devices) were used in accordance with the instructions and information provided by that person (cl 206(3)). 1. It is an agreed fact that a properly fitted rear frame would have provided a physical barrier to minimise the risk of persons on the work box (ASOF [56]): 1. being caught and/or crushed between the work box and rigid structures such as the roof of the loading dock at MON's processing facility; 2. suffering injury as a result of contact with the forklift during the lifting process. Risk assessment and safe work procedures 1. The defendant produced a Risk Management Procedure dated 11 March 2015 ('RMP'). That document described general risk assessment practises and procedures to which MON proposed to adhere, including how risks would be identified and documenting how any risks would be managed and appropriate control measures implemented. 2. The defendant's RMP was not implemented on the premises and employees were not trained on its operation. 3. The defendant neglected its own RMP by: 1. failing to conduct a risk assessment of the forklift when it arrived on the premises; 2. failing to conduct a risk assessment of the work box when it arrived on the premises; 3. failing to conduct a risk assessment of the attachment of the work box to the forklift; and 4. failing to prepare a safe work method statement about the attachment of the work box to the forklift. 1. Paragraphs [61]–[67] of the ASOF describe certain regulatory guidelines and legislative provisions that at all material times obliged MON to identify hazards, manage risks to health and safety and to conduct the relevant risk assessments. 2. It is an agreed fact that the defendant did not conduct the relevant risk assessments (ASOF [67]). Identification of unsafe plant 1. The defendant did not instruct Mr Childs that the work box should not be used without the rear frame, nor did it keep maintenance records for the work box. 2. The defendant produced a Plant Safety Procedure dated 24 February 2015 ('PSP'), which was not on company letterhead and not signed, which in summary provided that: 1. all plant needs to be listed on the plant register and that risk assessments were to be conducted by appropriately qualified personnel employed by MON; and 2. all plant must be used in a way that is consistent with its design intent and purpose, in accordance with the manufacturer's recommendations and not for any improvised purpose. 1. It is an agreed fact that the PSP was not implemented on the premises and was not observed by the workers (ASOF [73] and [74]). Working at height procedure 1. The defendant produced a Working at Heights Procedure dated 5 March 2015 ('WAHP'), which was not on company letterhead and not signed, which in summary provided that: 1. an appropriate manager or supervisor needs to be notified when personnel are working at heights; 2. if working at heights cannot be avoided, appropriate safety devices should be used to minimise risks associated with working at heights; and 3. plant risk assessments need to be conducted on the equipment that is to be used when working at heights. 1. It is an agreed fact that the defendant did not have regard to the WAHP in relation to the incident or at all, and the procedures in this policy were not followed in connection with this task (ASOF [86]). Induction 1. Although an induction was provided to both Mr McIntosh and Mr Childs, it did not refer to or describe the appropriate procedure to be followed for safe forklift or work box use. High risk work licenses 1. At all material times, Mr Childs did not hold a high-risk work license for forklifts. He had partly completed the relevant course at the time of the incident. 2. Although Mr McIntosh held a high-risk work license for forklifts, no other appropriately qualified person had been arranged to supervise Mr Childs operating the forklift at the time of the incident while Mr McIntosh was elevated on the work box. Forklift training 1. At the date of the incident, Mr Childs was a trainee forklift operator. Mr Childs had received basic training on how to use other forklifts on the site but not the particular forklift used to hoist Mr McIntosh into the air on the work box. Mr Childs reported that he was 'pretty comfortable' using forklifts and that he had about 100 hours of experience operating forklifts. Mr Childs' forklift training logbook indicated that he was being trained to use two different models of forklift, neither of which was the particular forklift used on this occasion. Mr Childs accepts that there were slight differences between the forklifts he was being trained to use and the one he was operating at the time of the incident. There are no notations in Mr Childs' forklift training logbook that would indicate that he had been trained or supervised in the correct procedure to follow when using a work box with any forklift. 2. The defendant produced a staff memo on 30 October 2019 titled 'Forklift Safety & Awareness' providing general guidance on safe usage of forklifts. It was not signed by Mr Childs. 3. It is an agreed fact that the defendant failed to provide Mr Childs with adequate instruction, training and supervision in relation to forklift use at the premises. Work box training 1. Mr Childs had not received any training from the defendant in relation to operating the forklift with work box attached. Mr Childs had used a work box on one occasion prior to the date of the incident. On that occasion, Mr Childs had been in the work box and Mr McIntosh was operating the forklift. In any event, Mr Childs had received no training or instruction on the correct use of the work box in accordance with the manufacturer's instructions. 2. It is an agreed fact that the defendant failed to provide Mr Childs with adequate instruction, training and supervision in relation to use of the work box at the premises. Systems of work after the incident 1. SafeWork NSW ('SafeWork') issued the defendant with two prohibition notices in relation to the incident on 20 December 2019 and 26 February 2020, directing the defendant to cease use of the work box and seek the manufacturer's instruction on its proper use, and the defendant to cease use of the work box until an inspector was satisfied that it was safe to use. On 9 March 2020, the defendant advised SafeWork that it would dispose of the work box and replace it with safer plant for conducting work at heights. 2. The defendant purchased a scissor lift on 27 April 2020 and conducted a risk assessment in relation to its use on 16 June 2020. 3. On 26 February 2020, SafeWork issued an improvement notice requiring the defendant to review workplace instruction and operating procedures for forklift use at its premises. On 15 April 2020, the defendant advised SafeWork that it had updated and revised a number of internal policies relating to forklift use at its premises. 4. On 26 February 2020, SafeWork issued an improvement notice requiring the defendant to conduct a risk assessment on the operation of forklifts at the site. On 24 April 2020 the defendant advised SafeWork that it had done so, appraised them of the outcomes of the risk assessment and provided an updated risk assessment form to SafeWork on 29 August 2020. 5. The defendant has also established a new permit system for high-risk work and introduced a new system for identifying damaged workplace equipment. Risk 1. The risk is described in Annexure 'A' to the Summons in the following terms: '[16] The risk was the risk of workers, in particular Mr McIntosh, suffering death or serious injury: a. by becoming caught and/or crushed between the work box and a rigid structure or structures; and/or b. as a result of contact between the worker and the forklift during the lifting process.' The Defendant's Duty 1. The defendant had a duty under s 19(1) of the WHS Act to 'ensure' the health and safety of its workers, so far as reasonably practicable. The duty requires the identification of risks in the workplace, so far as is reasonably practicable. The duty requires the identification of risks in the workplace and the adoption of measures to eliminate or minimise them, so far as is reasonably practicable (see Kirk v Industrial Commission of New South Wales [2010] HCA 1 at [34]). The duty is positive, non-delegable and requires duty holders to search for, detect and eliminate, so far as is reasonably practicable, risks to safety. 2. The reasonably practicable measures to control the risk are set out in paragraph 17 of the Amended Summons as follows: '[17] The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr McIntosh, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonable practicable, to eliminate or alternatively minimise, if it was not reasonably practicable to eliminate, the risk: (1) Conduct a risk assessment in relation to the task which: (a) assessed the risks associated with the task and consider whether it was appropriate and safe to use the FLT with a WP attachment to perform the task or whether the task could be performed on a solid structure like a scaffold or plant specifically designed to lift people like a scissor lift; (b) assessed the appropriate licensing, training and supervision arrangements for the operator of the FLT with a WP attachment; (c) assessed the risks associated with the work environment and the performance of the task, including the risks associated with the hazard of a rigid overhead structure; and (d) identified a control measure (or measures) that provided the appropriate protection against the identified risks. (2) Provide safe plant, including mobile plant designed to lift people, such as a scissor lift, to workers to use when performing the task; (3) Further or in the alternative to 17b above, provide and maintain a WP with all safety features and guarding in place, including the back safety guard and ensure that the safety features and guarding are correctly fitted prior to use; (4) Verify that the WP is used in accordance with the manufacturer's instructions, including by prohibiting any modification of the WP to remove the supplied safety guarding; (5) Further or in the alternative to paragraph 17d above, ensure that the WP was not used following any modification unless or until a competent person had conducted a risk assessment to determine whether the modified WP could be used safely; (6) Implement a formal and documented process for the pre-start inspection and/or routine inspection and/or maintenance of the WP; (7) Implement and enforce a "lock out" or "danger tag" or isolation system of work to identify items of plant that are unsafe and to ensure they are not operated until made safe and the "lock out" or "danger tag" is removed; (8) Direct workers required to work in a WP at heights to wear appropriate personal protective equipment, specifically a helmet; (9) Implement and enforce, including by way of adequate supervision, a safe system of work for the task that includes, but is not limited to those items provided at paragraphs 17 (b) - (h) above; (10) Provide adequate information, instruction and training to workers performing the task, including in relation to the matters listed at paragraphs 17 (b)-(h) above, and in addition, the following: (a) Training to operate the type of forklift used to perform the task, including relevant design and safety features including guarding, and operating conditions including clearance from overhead structures; and/or (b) Training on the type of forklift attachment used to perform the task, including training on lifting a person and on the hazards, risks and control measures required to do so safely.' 1. The control measures that ought to have been implemented are detailed above. 2. It seems to me there is no reason those measures could not have been implemented. I accept that there is nothing to suggest that the contemplated measures were unduly expensive or otherwise onerous. 3. Had any of the above measures been implemented, the risk would have been greatly reduced. 4. The deficiencies in the defendant's systems were many and varied. The consequences of those deficiencies were, ultimately, catastrophic. 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. I have had regard to the principle contained within the WHS Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the WHS Act. 2. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('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 SC DCJ in SafeWork NSW v HCM Building Pty Ltd [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.' Objective seriousness of the offence 1. The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks. 2. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474–5. 3. The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465. 4. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 ('Capral Aluminium') at [81]. 5. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117. 6. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31]. 7. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). Justice Basten at [34], under the heading 'Assessment of Risk' said: 'The sentencing judge commenced his consideration with the proposition that '[g]reater 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 upon an assessment of all those factors.' 1. His Honour further observed at [42]: '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 a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known.' 1. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272. 2. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]–[18] (Latham J). 3. The defendant's duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the WHS Act; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 4. The following matters are relevant to determining the culpability of the defendant: 1. The defendant's systems of work were afflicted by manifold failures with regard to the maintenance of safe plant, appropriate training and supervision, and the safe work procedures applicable at the site. 2. Whilst I accept that the mechanism by which Mr McIntosh came to be injured was somewhat unusual, the dangers inherent in the performance of work at height and in proximity to a rigid roof structure using a work box without a backguard in place was obvious. 3. The risks were exacerbated by multiple failures relating to work procedures, training and supervision; in particular, the risks associated with having a worker with very limited experience controlling the work box while supervised only by the worker in the work box were readily apparent. 4. The risk could have been eliminated by restoring the rear frame to the work box. This was a very simple and straightforward task, with nil expense, as the rear frame was on site at the time of the incident. 5. The control measures are set out at paragraph [17] and detailed in the Annexure to the Summons. I am of the view that had any of these measures been implemented, the risk would have been greatly reduced. 6. The use of elevated work boxes such as the work box in connection with a forklift is an inherently dangerous task. Despite the manner in which Mr McIntosh sustained his injuries being somewhat unusual, there was nevertheless a very real prospect that serious consequences would flow from the defendant's various failures. 7. There was an obvious risk to safety. Measures to reduce that risk were readily available but were not taken. 8. The defendant was originally a small family company when it was bought in 2012 and had one employee. It has grown rapidly to now employing 75 workers and significantly expanded its product range and is one of the largest employers in the Southern Riverina. 9. I accept that the organic growth of the company led to circumstances where in the beginning there was very regular conversations amongst the small number of staff about safety issues. Unfortunately, as the business grew, it failed to have systems in place to ensure that conversations continue at all times that work is being performed and failed to devise and implement a more appropriate and formal method of communicating safety matters to all workers. 10. The cage was immediately removed and never returned to service. 11. The business was involved in food operations, which brings with it a regulatory scheme with which there must be compliance. I accept that the defendant has utilised its own skills and external skills to ensure compliance. The defendant has subsequently retained experts in safety compliance and used that assistance to develop and implement new systems to ensure compliance with the WHS Act. 12. I accept that the defendant has sought holistic assistance and is continuing to utilise such services and continues to investigate manners in which they can ensure the safety and health of its employees. 13. To my mind, this incident has been a wake-up call for the defendant, and it has triggered an appropriately significant response as regards questions of workplace safety. 14. Nonetheless, the deficiencies in the defendant's system were many and varied. The consequences of those deficiencies were ultimately catastrophic. 1. However, I note that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the WHS 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 failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.' 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 (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ). 2. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31–32 of the WHS Act: Nash v Silver City at [54]–[56]. The matters relevant to objective seriousness for a s 32 offence include: * The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Ibid [34]; * The availability of steps to eliminate or minimise the risk: Ibid [34]; * Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] and [53]; * Whether the risk was known or ought reasonably have been known to or identified by the offender; * Whether the risk was an obvious or clear one; and * The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ). 1. Having regard to the readily availability of appropriate control measures, the serious risk of the foreseeable harm to workers associated with the defendant's varied failures, and the consequences that flowed, I find that the offence was a serious one and falls within the mid-range of objective seriousness. 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 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. 4. The Court of Criminal Appeal in Bulga Underground Operations v Nash (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 at [74]–[75] which said: '[74] … 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. … [75] … 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. It can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with working in and managing workplaces where powered mobile plant is used. 2. 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 WHS 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. 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 systems of work in place prior to the incident were clearly deficient and the defendant has acknowledged that and accepted full responsibility. 5. After the incident the defendant took significant, meaningful and expensive steps to strengthen its safety management system including its use of forklifts and cages. Furthermore, the defendant engaged the services of safety professionals who provided advice, which has been followed. 6. I accept that the prospects of rehabilitation of the defendant are very good, but the need for an element of specific deterrence is still necessary in these circumstances. Aggravating Factors 1. For an aggravating factor to be established, I must be satisfied beyond a reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing). It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. Mr McIntosh's death is an aggravating factor. The injury and emotional harm caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. Mitigating Factors 1. The defendant has been carrying out its business since acquiring it in 2012 and has no previous convictions: s 21A(3)(e) of the Sentencing Act. The business has expanded significantly to date. In Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench Held the following: 'We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record. Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.' 1. I have taken into account the company's industrial record, the prompt remedial action that the defendant took after the incident, in putting in place methods of safety assessment and implementation designed to diminish the risk of any workers being injured. The cage was disposed of, and external experts have been engaged to assist the defendant to ensure that it continued to guard against any harm to the workers moving forward, and to comply with its WHS duties. 2. I accept that the defendant has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act. 3. The defendant co-operated with SafeWork during the investigations: s 21A(3)(m) of the Sentencing Act. 4. Mr Green's affidavit (exhibit A) demonstrates the acceptance of responsibility for the defendant's failures and has demonstrated remorse and contrition; s 21A(3)(i) of the Sentencing Act. I further note that counselling was made available to all employees present on the day of the incident and some financial and moral assistance was provided to Mr McIntosh's family. 5. The defendant entered a plea of guilty early, which of itself demonstrates remorse, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis. Thus, I will allow the deduction of 25% for the utilitarian value of the pleas in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s 21A(3)(k) of the Sentencing Act. 6. Having taken all of those matters into consideration, the appropriate fine for the defendant is $600,000.00. The defendant is entitled to a discount of 25% for the utility of the early plea. Penalty 1. I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the offence is $600,000.00, and that will be reduced by 25% to reflect the plea of guilty. 3. Accordingly, I order the defendant to pay a fine of $450,000.00. 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. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor'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: 15 March 2023