Safework NSW v ABC Tissue Products Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

Safework NSW v ABC Tissue Products Pty Ltd [2020] NSWDC 640

Hearing dates:

22 October 2020

Date of orders:

23 October 2020

Decision date:

23 October 2020

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   ABC Tissue Products Pty Ltd is convicted.

2   I impose a fine of $300,000.

3   The offender is to pay the prosecutor’s costs agreed in the sum of $40,000.

4 I order that pursuant to section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – worker injured

SENTENCING – objective seriousness – deterrence aggravating factors – mitigating factors – good prospects of rehabilitation – plea of guilty – remorse - totality

Legislation Cited:

Work Health and Safety Act 2011

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

R v Borkowski (2009) 195 A Crim R 1

R v McNaughton (2006) 66 NSWLR 566

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Texts Cited:

Managing the Risks of Plant in the Workplace

SafeWork Australia Traffic Management Guide

Australian Standard AS2359.2 – 2013 Powered Industrial Trucks Part 2: Operations

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
ABC Tissue Products Pty Ltd (Defendant)

Representation:

Counsel: M Scott (Prosecutor)
C Magee (Defendant)

Solicitors: Department of Customer Service (Prosecutor)
Holman Webb Lawyers (Defendant)

File Number(s):

2019/47410

Publication restriction:

None

Judgment

Introduction

1. ABC Tissue Products Pty Ltd (the offender) has pleaded guilty to a charge that as a person who had a health and safety duty under section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Simara Put 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 $1.5 million.

Facts

3. The parties tendered an Agreed Statement of Facts that can be summarised as follows.

4. The offender conducted a business manufacturing and supplying tissue paper products from premises at Wetherill Park (the site). Ms Put was employed by the offender as a process worker, having commenced employment in February 2000. Mr Minh Luu was employed by the offender as a forklift driver since June 2010.

5. Building 126 at the site was also known as the production area building. Ms Put worked in the production area on an automated packing machine. Approximately 14 workers worked in the production area during the day shift and approximately 11 workers during the night shift. There was one set of female and male toilets available to workers in the production area. The toilets were located at the back of the building near a lunch room.

6. The production area building had a roller door entry approximately 4.8 metres wide. Opaque plastic strip curtains were positioned across the roller…