Director of Public Prosecutions v Greenham Tasmania Pty Ltd
[2022] TASSC 69
•20 December 2022
[2022] TASSC 69
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Director of Public Prosecutions v Greenham Tasmania Pty Ltd [2022] TASSC 69 |
| PARTIES: | DIRECTOR OF PUBLIC PROSECUTIONS |
| v | |
| GREENHAM TASMANIA PTY LTD | |
| FILE NO: | LCA 577/2022 |
| DELIVERED ON: | 20 December 2022 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 11 November 2022 |
| JUDGMENT OF: | Blow CJ |
| CATCHWORDS: |
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Whether sentence manifestly inadequate – Failure to comply with workplace health and safety duty – Fine of $50,000 without conviction – Not manifestly inadequate.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: L King-Roberts Respondent: C J Gunson SC
Solicitors:
Applicant: Director of Public Prosecutions Respondent: Page Seager
| Judgment Number: | [2022] TASSC 69 |
| Number of paragraphs: | 17 |
Serial No 69/2022
File No LCA 577/2022
DIRECTOR OF PUBLIC PROSECUTIONS v GREENHAM TASMANIA PTY LTD
| REASONS FOR JUDGMENT | BLOW CJ 20 December 2022 |
1 This is a motion for the review of a sentencing order made by a magistrate, Ms L Topfer. Her Honour found the respondent, Greenham Pty Ltd, guilty of a charge of failing to comply with a health and safety duty contrary to s 32 of the Work Health and Safety Act 2012 ("the WHS Act"), and imposed a fine of $50,000 without recording a conviction. The Director of Public Prosecutions has applied for review of the order, contending that the sentence was manifestly inadequate and that a conviction should have been imposed.
2 The charge arose out of an accident at an abattoir operated by the respondent in Smithton. On 6 April 2016 a worker at the abattoir named Ricky Thompson stepped underneath a rise and fall platform ("the RFP"), it descended on him, and he was crushed. Last year I dealt with another motion to review arising out of the same proceedings, which concerned a finding that the charge was proven: Greenham Tasmania Pty Ltd v Director of Public Prosecutions [2021] TASSC 51.
3 Mr Thompson had worked for the respondent at the abattoir for 22 years in various roles. He had been a slaughterman, but about six months before the incident he suffered an injury and became unable to continue in that role. He worked as a stock worker in the abattoir yard after that injury. He had a son who worked for the respondent as a floor boy on the slaughter floor. It was his son's job to clean up the floor throughout the day and at the end of the day. Mr Thompson and his son travelled to and from work together. Mr Thompson finished his work in the yard before his son finished each day. He would go onto the slaughter floor and help his son clean up so that they could leave work sooner. He was doing that at the time of the accident.
4 The slaughter floor was where cattle were slaughtered and moved along a processing line. Various workers along that line performed various tasks on each carcass as it went past their work stations. There were three platforms where workers performed the flanking and legging of the beef carcasses. One of those platforms was an RFP which, unlike the other platforms, descended to floor level.
5 The accident occurred at the end of the working day. A slaughterman was on the RFP. He pressed a foot pedal to make it descend. At the time of its descent Mr Thompson was cleaning out some carcass trimmings under the RFP. It came down on top of him causing fractures to his pelvis, the tibia and fibula of one leg, some ribs, and the bony protrusions of the lower spine.
6 The charge alleged that the applicant "on or before 6 April 2016, being at all material times a person conducting a business or undertaking ('PCBU') for the purposes of the Work Health and Safety
Act … and being a PCBU that owed health and safety duties to workers engaged by it, and in particular to Ricky John Thompson … and being a PCBU with management and control of a workplace namely an abattoir and slaughter floor … failed to ensure insofar as was reasonably
practicable the provision of safe systems of work, safe plant and structures and the provision of a
work environment without risks to health and safety …".
7 The learned magistrate sentenced the respondent on the basis that the respondent had contravened s 32 in three respects:
By not marking a clearly identified exclusion zone below the RFP. 2 No 69/2022
By not creating "a written Standard Operating Procedure for the RFP that included a procedure for when workers were cleaning around and under the RFP, and to exclude workers from being under the RFP and outside the exclusion zone whilst the RFP was operating". By not installing signage warning of the crush risk, and the danger of being below the RFP. 8 Section 32 of the WHS Act, under which the applicant was charged, relevantly provides as
follows:
"32 Failure to comply with health and safety duty Category 2 A person commits a Category 2 offence if –
(a) the person has a health and safety duty; and (b) the person fails to comply with that duty; and (c) the failure exposes an individual to a risk of death or serious injury or illness. Penalty: In the case of –
(a) …; or (b) …; or (c) an offence committed by a body corporate, a fine not exceeding $1 500 000."
9 There were mitigating circumstances. Those circumstances, and my comments as to them, are
as follows:
The respondent company had operated its abattoir at Smithton for 20 years without any prior convictions for workplace health and safety offences. The learned magistrate took into account the fact that 240 people were employed at the abattoir, and that the respondent had an unblemished safety history in an inherently risky environment.
The respondent obtained a risk assessment in relation to the RFP from an appropriately qualified consultant in 2014. The consultant had recommended that cleaning up under an RFP was only to occur during breaks in shifts and after shifts were completed, that supervisors were to ensure that workers followed those instructions at all times, that warning sirens were to operate whenever an RFP was descending, that staff were to be advised and trained accordingly, and that supervisors were always to be alert to stop production immediately if a worker entered an area under an RFP during production. Those recommendations were implemented. The learned magistrate took into account the facts that the respondent company relied upon the expertise of the consultant, and that this was not a case of a failure to exercise a judgment, nor of a judgment being exercised in bad faith, nor of safety measures not being installed because they were seen as being too costly.
A siren operated whenever the RFP was descending. The siren sounded when Mr Thompson
was under the platform, but he did not get out from underneath it.
Mr Thompson had worked as a floor boy and as a slaughterman at the abattoir for 22 years, and was therefore well aware of the danger to anyone who stepped under the RFP. He got crushed as a result of his own inadvertence.
If warning signage had been installed, and an exclusion zone marked on the floor, and a written standard operating procedure provided to workers, one or more of those precautions could conceivably have overcome Mr Thompson's inadvertence on the day. However it cannot be said that any or all of those precautions would have made a difference on the day. There was probably only a very small chance that those precautions would have resulted in a
3 No 69/2022
different outcome. The learned magistrate took into account the fact that the risk of injury could not be eliminated, and the fact that the measures that should have been taken would still have left a risk of injury due to "human accident, ignorance or indifference". However she acknowledged that the measures not undertaken were further steps that might have served as a further sufficient reminder to Mr Thompson not to go under the RFP.
The learned magistrate accepted that there was remorse on the part of the management of the respondent company. Staff members provided assistance to Mr Thompson immediately after the incident. An ambulance was immediately called. When Mr Thompson was in the Royal Hobart Hospital the company provided support to his family by paying for their accommodation in Hobart, providing his partner with a fully maintained company vehicle, and providing money towards the family's living expenses whilst in Hobart. Her Honour accepted that the accident caused a great deal of shock and sadness among staff and management. The company cooperated with a departmental investigation. The company implemented the required safety improvements after the accident. It also obtained and installed a bespoke pressure-sensitive mat so that the RFP would automatically be switched off when someone was under it. The learned magistrate subsequently made a finding that the company had no duty to go to that length since no such item was known to have been installed in any other abattoir and none was available for purchase. 10 The learned magistrate sentenced on the basis that, whilst the injuries sustained by Mr Thompson were serious, the company's breaches of duty were "at the lower end of the seriousness of offending". She also took into account the fact that the precautions that the respondent failed to take, namely marking an exclusion zone, publishing a written standard operating procedure for the RFP, and installing warning signage, were simple and inexpensive precautions.
11 Section 7(e) of the Sentencing Act 1997 empowers a court to order an offender to pay a fine with or without recording a conviction. Prior to an amendment in 2017, Tasmanian courts could not impose fines without recording convictions, but they are now able to do so. The discretion to record or not record a conviction is governed by s 9 of the Sentencing Act, which reads as follows:
"9 Conviction or non-conviction
In exercising its discretion whether or not to record a conviction, a court must have
regard to all the circumstances of the case including –
(a) the nature and circumstances of the offence; and
(b) the offender's antecedents and character; and
(c) the impact that a conviction would have on the offender's economic or social
wellbeing or employment prospects."
12 The amendment to s 7(e) was made after the publication by the Sentencing Advisory Council of a report entitled Non-Conviction Sentences in August 2014. The focus of that report was on the consequences of convictions for individuals rather than companies. The consequences of convictions for individuals can relate to the holding of officer, the obtaining of licences, restrictions on employment, and restrictions on international travel. However a conviction imposed on a corporation can potentially have an impact on its "economic or social wellbeing", and any such impact must be considered pursuant to s 9(c).
4 No 69/2022
13 In the sentencing proceedings before the learned magistrate, counsel for the respondent made a submission as to its reputation in the following terms:
"Greenham's is the largest single employer in the Smithton, Circular Head region, and a substantial employer in north-west Tasmania. Second, it's also a substantial purchaser of beef in north-west Tasmania and is a large and significant customer of farmers in the region. Third, they own several iconic Tasmanian beef brands including Cape Grim Beef, Bass Strait Beef, and Robbins Island Wagyu. Fourth, Greenham's has a strong commitment to, and is a member of, many organisations with initiatives dedicated to improving industry standards and quality assurance, environmental standards, animal welfare in the industry, and employee health and safety. Fifth, it prides itself on its commitment to the highest animal welfare and environmental standards. Sixth, it only buys livestock from buyers with accredited animal welfare standards. They work proactively with the Department of State Growth and jointly sponsor initiatives that raise awareness of Tasmanian agricultural brands across Australia and in overseas markets."
14 A conviction for a workplace health and safety offence could also potentially result in a significant increase to a company's premiums for workers compensation insurance.
15 The learned magistrate's decision not to impose a conviction and her decision to impose a fine of $50,000 were discretionary decisions. No specific error in her reasoning processes has been asserted by the DPP. In order for this motion to succeed, I would therefore need to be satisfied that the imposition of the $50,000 fine without a conviction was "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505.
16 Despite the capacity of the RFP to cause death or serious injury, despite the seriousness of Mr Thompson's injuries, and despite the cheapness and simplicity of the steps that the respondent should have taken but failed to take, the mitigating circumstances listed above are so powerful that I am not persuaded that a fine of $50,000 without a conviction was such a lenient penalty as to be manifestly inadequate. Neither the amount of the fine nor the absence of a conviction nor the combination of the two was unreasonable or plainly unjust.
17 For these reasons, the motion to review is dismissed.
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