District Court New South Wales Medium Neutral Citation: Safe Work (NSW) v Matthew Albans t/as Matt & Bella's Meats [2016] NSWDC 125 Hearing dates: 5 July 2016 Date of orders: 08 July 2016 Decision date: 08 July 2016 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1 The offender is convicted. 2 The appropriate fine is one of $4,000 that will be discounted by 15% to take into account the plea of guilty. 3 I impose a fine of $3,400. 4 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5 I order that the offender pay the prosecutor's costs as agreed or assessed. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to employee – supervision – training – safety measures – use of mincing machine – crush point SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty COSTS – prosecution costs – awarding of costs against bankrupt offender – appropriate order Legislation Cited: Work Health and Safety Act 2011 ss. 21(2), 32 Work Health and Safety Regulation 2011 Cl 208(2), 211 Crimes (Sentencing Procedure) Act 1999 ss. 3, 3A, 21A(3)(e), 21A(3)(g), 21A(3)(i), 21A(3)(k), 22 Fines Act 1996 ss. 6, 122(2) Cases Cited: Veen v R (No 2) (1988) 164 CLR 465 R v McNaughton (2006) 66 NSWLR 566 Baumer v R (1988) 166 CLR 51 BW v R [2011] NSWCCA 176 R v Wilkinson (No 5) [2009] NSWSC 432 Capral Aluminium Limted v Workcover Authority of New South Wales (2000) 49 NSWLR 610 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Environmental Protection Agency v Barnes [2006] NSWCCA 246 Jahandideh v R [2014] NSWCCA 178 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Category: Sentence Parties: Safe Work (NSW) (Prosecutor) Mathew Albans (Offender) Representation: Counsel: Mr C Magee (Prosecutor) Solicitors: Safe Work (NSW) (Prosecutor) Navado Lawyers and Solicitors (Offender) File Number(s): 2015/00332871 Judgment 1. Matthew Albans (the offender) has pleaded guilty to an offence that as a person who had a health and safety duty under section 21(2) Work Health and Safety Act 2011 (the Act), he failed to comply with that duty and thereby exposed Trent Morton to a risk of death or serious injury contrary to section 32 of the Act. 2. The maximum penalty for the offence is a fine of $300,000. Facts 1. The parties presented an Agreed Statement of Facts that can be summarised as follows. 2. The offender was a sole trader trading as Matt & Bella's Meats. The offender conducted a business as a butcher in a retail outlet in Bradbury (the Premises) and was present daily at the Premises. At the date of the incident the offender had been a qualified butcher for around 8 or 9 years. 3. Trent Morton commenced employment with Matt & Bella's Meats as a second year butchery apprentice on 12 September 2013. He had not worked in the butchery industry prior to commencing this employment. Mr Morton was 17 years old at the time of the incident. He had used a mincer prior to the incident, but had not received training on how to use this particular type of mincer. 4. On Friday 19 September 2014 at approximately 2.30pm, Mr Morton was working at the Premises with another apprentice Bradley Holland on the mincing machine. Mr Morton noticed that a piece of meat was caught on a bar inside the mincing machine and opened the lid of the machine to push the meat down. As he did this, the other bar moved and trapped his right arm in the mincing machine. Mr Morton was unable to reach the emergency stop button. After Mr Morton yelled "stop" a few times Mr Holland was able to hit the emergency stop button. 5. Mr Morton sustained injuries including a broken right arm and right wrist, and torn muscles and tendons with severed nerves to the thumb and little finger of the right hand. He required three surgeries, as well as physiotherapy. 6. The mincing machine did not have an interlock to prevent the blades from moving when the lid was open. The only way to stop the mincing machine was to depress an emergency stop button located on the right side of the machine or to turn the power off at the wall. 7. At the time of the incident Matt and Bella's Meats did not have any documented risk assessment or safe work procedure related to the mincing machine. There were no documented site inductions containing work health and safety information. 8. On 24 September 2014, the mincing machine at the premises was replaced with a Thomson Mincer/Grinder loaned from the shop next door. The Thomson Mincer had a magnetic electrical interlock that prevented the machine from operating while the lid was open. Standards and Regulations 1. At the time of the incident there were relevant standards [1] that stipulated that risk assessments of machinery should be carried out and identified interlock systems as a control measure to protect against risks to workers where access to a hazardous zone cannot be totally prohibited. Further it is stipulated that there shall be an emergency stop device available, operational and readily accessible to machine operators. 2. Managing the Risks of Plant in the Workplace Code of Conduct (July, 2014) stipulated that risk assessments should be carried out to identify hazards and identified interlocks as a control measure. 3. The Work Health and Safety Regulation 2011 (the Regulation) required, pursuant to cl 208(2), that a person with management or control of plant must ensure that when access to an area of plant requiring guarding is necessary during operation that there be an interlocked physical barrier. 4. Cl 211 of the Regulation required that if a machine includes an emergency stop then the person with management or control of the plant must ensure that the stop control is prominent, clearly marked and immediately accessible to the operator. The Offender's Evidence 1. The Offender read an affidavit of Matthew Albans affirmed 20 June 2016 (the first affidavit), and an affidavit of Matthew Albans affirmed 5 July 2016 (the second affidavit). The offender was present in court but was not required for cross-examination. 2. In his first affidavit the offender gave evidence that he had worked in the butchery industry for 15 years. He established Matt & Bella's Meats in around 2012. In around 2014 he leased Foodworks Butchery which had contracts to supply meat to ten IGA stores. 3. The offender acknowledged responsibility and expressed remorse for the offence and injuries to Mr Morton. 4. The offender gave evidence that from around September 2014 he began to experience severe financial stress. In around November 2014 he leased a property in Canyonleigh in an attempt to salvage his business and expand it to include breeding his own cattle. 5. Matt & Bella's Meats became unable to maintain all existing meat contracts. The offender accumulated business and personal debts and closed Matt & Bella's Meats in February 2015. On 6 March 2015, the offender declared himself bankrupt. 6. The offender lives with his de factor partner Belinda and their 18 month old daughter at a farmstead in Taralga. He is the sole financial provider for the family and is currently working 5 days per week in Goulburn as a casual labourer. He has a net income of approximately $600 per week. He has no intention of working in the butchery industry in the future. 7. The offender deposed that he has a debt of approximately $13,085 with Origin Energy. He gave evidence that Belinda owns two cars; one worth $1000 that he uses and another that he does not use which is under a finance debt liability of approximately $35,000. 8. In the second affidavit, the offender gave evidence of his current assets and liabilities. 9. The offender currently has a taxation liability of approximately $12,070. 10. At 1 July 2016, the offender had an IMB Bank Account with a balance of $1.73 and a St George Bank Account with a balance of -$629.77. 11. The offender deposed that in the 2013 financial year Matt & Bella's Meats made a loss of $5,249. In the 2014 financial year Matt & Bella's Meats made a profit of $60,631. 12. The offender also tendered a report of Dr Chris Probets, Forensic Psychologist, dated 10 June 2016. 13. The offender reported to Dr Probets that he was sexually abused for a few years from the age of 9 or 10. Dr Probets administered psychometric tests and diagnosed the offender as suffering from Post-Traumatic Stress Disorder ("PTSD"). Dr Probets opined that it is highly likely that the PTSD commenced during the youth of the offender and been attributable to his sexual abuse. 14. His present mental condition is characterised by severe levels of depression, extremely severe levels of anxiety and severe levels of stress. Dr Probets describes the offender as being further traumatised by the incident and anxious and fearful of his prospects for the future. 15. Dr Probets opined that there was a causal connection between his PTSD and his failure to properly address the safety requirements of the legislation. Dr Probets opined that the offender's symptoms of PTSD could be significantly reduced with treatment, but will probably not be cured. Consideration 1. I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999. 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 R (No 2) (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) 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) 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 relevant to the gravity of the offence: Capral Aluminium Limited v Workcover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively. 5. The risk posed to workers when using machines with movable parts is an obvious one. The risk in this case could have been eliminated by modifying the mincer to isolate the power when the lid of the machine was lifted. The offender obtained such a machine on loan within a few days of the incident. 6. The risk could have been minimised by the provision of basic training on the operation of the mincer, or by instructing the employees to turn the power off at the wall socket prior to trying to clear blockages. 7. The risk should have been identified. The offender took over the operation at the Premises a few weeks before the incident and clearly failed to conduct any risk assessment of the machinery on site. A cursory examination of the mincing machine would have demonstrated the danger posed by it. 8. The workers were vulnerable. The offender had employed two apprentice butchers who had not been trained by the offender on how to use the mincer safely. 9. Mr Morton sustained injuries to his right arm, wrist and two fingers which required surgeries and physiotherapy. The risk was one of serious injury. The mincing machine was designed in such a way that the risk amputation of fingers or a hand was only a remote possibility. 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 Ltd v Nash [2016] NSWCCA 37 at [180]. 2. General deterrence may be attributed less weight in cases where the offender suffers from mental condition because such an offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. The authorities do not mandate an entire disregard of general or specific deterrence by the sentencing judge: The extent of the reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91. 3. This is an appropriate case for some slight reduction in the weight to be afforded to general deterrence. There was a causal connection between the offender's PTSD and his failure to address the legislation. On the other hand, the offender knew or ought to have known the gravity of his actions (or in this case omissions) and the legislation is designed to protect a class of the community from harm. 4. This is an exceptional case where the need for specific deterrence is eliminated. The offender is no longer operating a business in the butchery industry and has expressed that he has no intention to return to the industry in any capacity. The fact that he is bankrupt will affect his ability to operate another business in the future. This incident has had a significant effect upon the offender including an exacerbation of the symptoms of PTSD. Aggravating factors 1. There are no relevant aggravating factors. Mitigating factors 1. The offender does not have any record of previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender is 32 years of age. 2. The offender is unlikely to re-offend: section 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. The offender took immediate steps to acquire a different mincing machine that had an interlock system following the incident. The offender has since ceased to operate any business in the butcher industry and is currently working as a labourer. I am satisfied on the balance of probabilities that the offender is unlikely to re-offend. 3. The offender has expressed remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has accepted responsibility for the failures that resulted in the injuries to Mr Morton. The offender has expressed in his first affidavit and to Dr Probets his deep remorse for this offence. I am satisfied on the balance of probabilities that the offender has demonstrated genuine contrition and remorse. 4. The offender entered a plea of guilty: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of that discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range a particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. This matter was set down for a defended hearing and a plea of guilty was entered around two and a half weeks prior to the commencement of that hearing. The offender pleaded not guilty on the advice of counsel, who is no longer retained. The appropriate discount is 15%. Capacity to Pay a Fine 1. Section 6 Fines Act 1996 provides: In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount 1. The Court is required to have regard to this provision 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: Jahandideh v R [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. The offender is currently bankrupt and has no assets. He has a current liability to the Australian Taxation Office of approximately $12,070 that will not be expunged by his bankruptcy. 3. Similarly any fine or costs imposed in theses sentence proceedings are not provable debts in bankruptcy. That means that when he is discharged from bankruptcy that he will still have debts to pay, including the taxation debt. The offender's family have paid his legal costs of these proceedings. 4. The offender's ability to earn an income has been adversely affected by the exacerbation of his PTSD symptoms caused by the incident and the failure of the business. He is presently employed as a labourer and his finances are the subject of administration by his trustee in bankruptcy. 5. The offender is the sole financial provider for his young family and the imposition of a substantial fine will have a significant impact on the offender's family. 6. The offender has agreed to pay the prosecutor's costs as agreed or assessed. I would anticipate those costs to be more than $20,000, based on previous experience. I have taken that amount into account in deciding the amount of the fine to be imposed: Environmental Protection Agency v Barnes [2006] NSWCA at [78]. Penalty 1. Taking into account all of those matters the offence is one of some objective gravity. The appropriate starting point in the absence of the subjective features, the offender's capacity to pay and the discount for the plea of guilty would have been a fine of $50,000. However, considering the particular suffering that the incident has caused by way of the exacerbation of the offender's PTSD, the effect that it has had and will have on his future economic capacity and his status as an undischarged bankrupt, the fine imposed must be significantly less. 2. The offender is convicted. 3. The appropriate fine is one of $4,000 that will be discounted by 15% to take into account the plea of guilty. 4. I impose a fine of $3,400. 5. I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 6. I order that the offender pay the prosecutor's costs as agreed or assessed. ********** Endnote 1. AS/NZS 4024.1601:2014 – Safety of machinery – Design controls – interlocks and guarding – Guards – General requirements for the design and construction of fixed and movable guards AS/NZS 4024.1602:2014 – Safety of machinery – Interlocking Devices Associated with Guards – Principles for Design and Selection AS/NZS 4024.1604:2014 – Safety of machinery – Design of controls, interlocks and guarding – Emergency stop – Principles for design 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: 08 July 2016