SafeWork NSW v Bullock Mfg Pty Limited

[2020] NSWDC 457

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Bullock MFG Pty Limited [2020] NSWDC 457

Hearing dates:

12 August 2020

Date of orders:

19 August 2020

Decision date:

19 August 2020

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Bullock MFG Pty Limited is convicted.

(2)   I take into account the Victim Impact Statement of Mr Daniel William.

(3)   The appropriate fine is $220,000 but that will be reduced by 25% to reflect the plea of guilty.

(4)   Order Bullock MFG Pty Limited to pay a fine of $165,000.

(5) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

(6)   Order Bullock MFG Pty Limited to pay the prosecutor’s costs agreed in the amount of $36,106.

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 – general deterrence – specific deterrence – capacity to pay –appropriate penalty

COSTS – prosecution costs

OTHER – lack of adequate training in the operation of a die press machine provided to inexperienced worker — no formal induction — worker had not operated the press before the day of the incident — limited supervision — press guard not functioning correctly — worker’s hand became caught in moving parts of the press causing serious crush injuries and partial amputations – incident would have been prevented if finger guards had been appropriately adjusted

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27(2), 30A, 30B, 30D, 30E

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 155, 274

Work Health and Safety Regulation 2011, cll 203, 208(2)

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51

Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

BW v R [2011] NSWCCA 176

Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96

R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566

R v Wilkinson (No. 5) [2009] NSWSC 432

SafeWork NSW v Morris, McMahon & Co Pty Limited [2017] NSWDC 349

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

SafeWork NSW, Code of Practice, Managing the Risks of Plant in the Workplace (July 2014)

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Bullock MFG Pty Limited (Defendant)

Representation:

Counsel:
M Scott (Prosecutor)
M Shume (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
Kingston Reid (Defendant)

File Number(s):

2019/260139

Judgment

1. On 31 August 2017 Mr Daniel William, an inexperienced worker, suffered the partial amputation of three fingers because his right hand became caught in a die press machine.

2. Bullock MFG Pty Limited (Bullock) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Daniel William to a risk of death or serious injury contrary to s 32 of the Act.

3. The maximum penalty for the offence is a fine of $1,500,000.

Background

4. The parties presented an Agreed Statement of Facts and this material is summarised below.

5. Bullock was a person conducting a business or undertaking (PCBU) which involved the manufacture of sheet metal products for the air-conditioning industry.

6. Assign Blue Pty Ltd (Assign Blue) was a PCBU which since December 2010 had hired labour to Bullock. By 31 August 2017, six Assign Blue employees were working at Bullock’s factory at Rydalmere (the premises).

7. Mr Daniel William was employed by Assign Blue and was hired to Bullock to perform general duties including process work, driving and machine operation. He had previous experience in security, customer service and car detailing. He commenced work at the premises on 5 July 2017.

The Press

8. Bullock owned and operated 37 machines at the premises including presses, drills, guillotines, welders, riveters and punches.

9. At all material times, Bullock had management and control of a Wallbank Power Press ID No. 228 (the Press). The Press had been in operation at the premises for more than 23 years.

10. The function of the Press was to cut strips of metal. The operator was required to pull the front guard down and then feed a strip of metal through the right hand side of the machine until it reached the die plate. The die was activated by a foot pedal. When the pedal was pushed down an iron rod containing the die would plunge down and cut the strip of metal. Once the metal had been cut, the operator would lift up the guard and take out the piece of cut metal.

11. The guard on the front of the Press was a finger guard designed to prevent the worker’s hands from accessing the die area while the machine was in operation.

12. Aside from the front guard, the Press also had a series of other guards including finger guards to the right hand side of the Press, where the metal strips were fed through, and a metal guard over the flywheel which was also on the right hand side of the machine.

13. The Press was operated by various workers but was only set up by two workers, being leading hand Glen Southwood and process worker Joey Grech.

Background to the Incident

14. Mr William was not provided with adequate training, instruction or information in relation to the Press. He was not informed of the risks associated with the Press or the control measures required to be in place to ensure his safety when operating the Press.

15. Mr William commenced work at Bullock on 5 July 2017. Upon arriving at the site Mr William met with Mr Southwood, who became his supervisor. Mr Southwood was responsible for training new workers and overseeing production in the factory.

16. On his first day, Mr Southwood showed Mr William how to operate different machines within the factory. Mr William was shown how to use a particular machine, after which Mr Southwood watched Mr William operate the machine himself and then left him to operate the machine on his own. Mr William was sometimes on the same machine for the entire day. On other days, he operated several machines on the same day.

17. A few weeks prior to the incident, a manager Mr Christopher Mason approached Mr William and asked him if he would be interested in working in a different position, as a store-person in the warehouse (a building next door to the factory). Mr William agreed and worked in this position on a full-time basis until 31 August 2017, when he returned to the factory.

The Incident

18. On 31 August 2017 Mr William commenced work in the factory at 7.00am. Just before his 9.00am break Mr Southwood asked Mr William to operate the Press. Mr Southwood demonstrated the operation of the Press a few times, provided verbal instructions, and then watched Mr William operate the machine. He then said to Mr William: “You know what to do.”

19. Mr Southwood did not provide Mr William with instructions on how to set up the machine. He was not shown any written operating procedure or told that such a document existed. Mr William says he had never operated the Press before this day.

20. Mr William then started operating the Press. After some time, Mr William noticed that there were loose screws around the die area. He reported this to Mr Southwood, who tightened the screws. Mr Southwood then left a spanner next to the Press and said to Mr William: “If it happens again, just tighten the screw back up”.

21. Mr William was operating the Press when his right hand was caught in the moving parts of the Press, causing serious crush injuries to three fingers on his right hand. There were no witnesses to the incident and Mr William does not recall how his fingers became caught in the Press.

22. Other workers standing nearby heard Mr William screaming and an ambulance was called.

Injuries

23. Mr William was treated at the scene and then taken to Auburn Hospital where he underwent surgery. He sustained serious crush injuries to three fingers on his right hand, with the following results:

1. the right index finger was amputated at the distal phalanx with sparing of the proximal interphalangeal joint;

2. the right middle finger was amputated through the middle phalanx with sparing of the proximal interphalangeal joint; and

3. the right ring finger was amputated at the level of the distal interphalangeal joint.

24. Mr William was discharged from hospital on 4 September 2017.

25. Mr William is right hand dominant for all activities except writing.

26. As at June 2019, Mr William had not returned to his pre-injury work duties, with any employer, and he is still certified as having limited capacity.

Systems of work prior to the Incident

Guarding

27. Although the Press was fitted with an interlocked guard, the guard was not adjusted correctly to prevent access to the moving parts. The Press still functioned when the guard remained partially open.

28. The finger guards at the front of the machine were ineffective to prevent access to moving parts. The finger guards consisted of ten steel brackets which were set at various lengths across the width of the guard. The gaps between the guard base and the press machine operating area (die area) varied between 35-90mm for the whole width of the guard, which was approximately 715mm in length. The gaps were large enough to allow an operator’s hands or fingers to access the die area. Had the finger guards been appropriately adjusted, and therefore functioning as designed, Mr William would not have been able to access the die area and sustain the injury that he did.

29. On the right hand side of the machine, the metal guard over the flywheel was loose, which allowed access to moving parts of the flywheel. The flywheel guard was held in place by a piece of timber.

30. Clause 203 of the Work Health and Safety Regulation 2011 (the Regulation) provides: “A person with management or control of a plant at a workplace must manage risks to health and safety associated with plant, in accordance with Part 3.1”.

31. Clause 208(2) of the Regulation provides:

“If guarding is used, the person with management or control of the plant must ensure that:

(a)    if access to the area of the plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed physical barrier, or

(b)   if access to the area of the plant requiring guarding is necessary during operation, maintenance or cleaning of the plant, the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time, or

(c)   if it is not reasonably practicable to use guarding referred to in paragraph (a) or (b), the guarding used is a physical barrier that can only be altered or removed by the use of tools.”

32. SafeWork NSW Code of Practice Managing the Risks of Plant in the Workplace (the Code) commenced on 18 July 2014 and is an approved Code of Practice under Section 274 of the Act. It provided practical guidance on how to manage the risks to health and safety associated with plant in the workplace and in particular, guidance in relation to guarding.

33. Section 4.1 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. It also states that guarding must:

34. Be of solid construction and securely mounted so as to resist impact or shock

35. Prevent by-passing or disabling of the guard

36. Be properly maintained

37. Control any risk from potential broken or ejected parts and workpieces

38. If guarding is removed the plant cannot be restarted unless the guarding is replaced.

39. Section 3.6 of the Code states, under the heading “Inspecting plant”, that control measures such as guards must be regularly inspected and tested to ensure they remain effective. Had appropriate inspections of the various guards on the Press been carried out by a competent person, it would have been immediately apparent that the guards were ineffective to prevent contact with moving parts.

40. The risk of the workers coming into contact with moving parts of the Press could have been eliminated or reduced by:

1. reviewing the operation and effectiveness of all guarding on the machine;

2. putting in place a schedule of maintenance of the guarding mechanism;

3. instructing operators to test the guarding mechanism prior to operating the machine; and

4. if the guard was ineffective, not operating the machine until it was repaired and rectified.

Induction, Training and Supervision

41. Bullock did not provide a formal induction to Mr William.

42. On 5 February 2018, in response to a Request to Give Information issued by SafeWork NSW pursuant to s 155 of the Act (notice number 7-320447), Bullock stated that it had implemented induction training. Bullock was not able to provide any documentation relating to induction training.

43. Bullock did not conduct any documented training. Any training provided to workers was done verbally and by physical instruction by a staff supervisor.

44. Aside from the initial demonstration and returning to tighten the screws in the die area, Mr Southwood’s supervision of Mr William was limited to checking on him an hour after he commenced using the machine.

45. Such limited supervision was insufficient considering that Mr William had never used the Press before the day of the incident. Further, the Press had loose bolts and guards, which was known to Mr Southwood and which posed a clear risk to Mr William’s health and safety.

Safe System of Work

46. Bullock did not have a Safe Work Procedure for operating the Press.

47. A work instruction sheet for the Press, referred to as “WI-6”, was mounted on a pole near the machine. This instruction sheet, which was dated 5 July 2004, gave a broad description of the actions required to operate the machine. However, it did not provide specific details of the steps to be followed to safely set up and operate the machine. The process relied on the knowledge of experienced operators. This document was not shown to Mr William nor was its existence made known to him.

Maintenance on the Press

48. Bullock does not have any maintenance records for the Press. However, on 5 February 2018, in response to a Request to Give Information issued by SafeWork NSW pursuant to s 155 of the Act (notice number 7-320447), Bullock stated that the Press was maintained.

49. No records exist to indicate that any regular maintenance was conducted on the Press.

50. The defendant accepts that the risk of hand injury due to ineffective or inoperative guarding was known to it.

Systems of work following the Incident

51. SafeWork NSW inspectors attended the site on 31 August 2017 in response to the incident notification and witnessed a demonstration of the Press and observed the machine operating even though the front guard was partially open.

52. Prohibition Notice No 7-76-NK6CB7 was issued to Bullock on 1 September 2017 by SafeWork NSW. This Notice directed Bullock to immediately cease operation of the Press until appropriate guarding was installed, being an interlocked physical barrier.

53. Improvement Notice No 7-312766 was issued to Bullock on 7 September 2017 by SafeWork NSW. This Notice directed Bullock to carry out maintenance, inspection and testing of the Press, and to keep records of the same.

54. Improvement Notice No 7-312774 was issued to Bullock on 7 September 2017 by SafeWork NSW. This Notice directed Bullock to install and maintain guarding including installing fixed physical guarding and interlocked physical guarding.

55. Improvement Notice No 7-312776 was issued to Bullock on 7 September 2017 by SafeWork NSW. This Notice directed Bullock to develop and maintain a safe system of work for the operation of the Press that is safe and without risk.

56. Improvement Notice No 7-312777 was issued to Bullock on 7 September 2017 by SafeWork NSW. This Notice directed Bullock to provide training, information, instruction and supervision to all workers for the safe operation of the Press.

57. Bullock complied with the Improvement Notices by decommissioning the Press and replacing it with a similar press at the cost of $7,700.

Evidence for Bullock

58. Mr Christopher Graeme Mason affirmed an affidavit on 5 August 2020. His affidavit was admirably concise and frank. Mr Mason first worked with Bullock in 1997 as an Apprentice. He left after four years. He returned to Bullock to work in a sales role between 2010 and June 2017. He has been employed as the New South Wales State Manager at Bullock since June 2017 and was authorised to make the affidavit on its behalf.

59. Bullock was established in 1974 by Mr Roy Jackson, whose son Mr Rodney Jackson is now the sole owner of the business. Bullock manufactures and supplies sheet metal products for the commercial air-conditioning industry, including duct hardware, fire and air volume dampers, seals and insulation. It operates two sites in New South Wales, one at Rydalmere and the other at Ingleburn. Sixteen employees work at Rydalmere and eight employees work at Ingleburn.

60. Pre-Incident Systems and Acceptance of Responsibility

61. Prior to, and at the time of the incident, the following safety procedures were in place at Bullock:

1. Informal induction training;

2. On-the-job training and supervision by senior staff;

3. Machinery maintenance on an as-needed basis;

4. Hazardous goods assessments;

5. General toolbox talks;

6. Informal discussions and reviews;

7. Work instructions for the Press, which were located next to the machine.

62. Mr Southwood has been employed by Bullock for 23 years and was one of only two workers at Rydalmere who were permitted to set up the Press. Setting up the press required the guarding to be removed and adjusted so that the die could be fitted. Until the incident, Mr Mason did not think it was necessary to train the operators to check that the Press was properly guarded, as the die setter had this responsibility.

63. Mr Mason accepts on behalf of Bullock that the company’s system failed. The company acknowledges that had Mr William been trained to recognise that the guarding had not been appropriately set up, the risk to Mr William would have been minimised so far as was reasonably practicable.

Steps taken to Prevent Recurrence

64. After the incident Bullock took the following steps:

1. Decommissioned and removed the Press from operation and replaced it with a later model purchased after the incident.

2. Engaged an external machinery services specialist to ensure the integrity of the new press and that all the guards were installed and functioning correctly.

3. Implemented a written induction process.

4. Spent $340,135.66 on a guarding expert and a safety expert. The guarding expert assisted in improving plant guarding and processes. The safety systems expert helped with the development of detailed written plant risk assessments and standard operating procedures (SOP), as well as a health, safety and environment management system and policy.

5. Provided individual and group training on the new SOPs to staff.

6. Invested $179,573.28 on guarding, electrical and hydraulic improvements to the machines at Rydalmere and Ingleburn.

7. Implemented a plant and machinery maintenance regime and corrective action system, involving annual servicing of machines and a red flag method.

8. Removed machinery that could not be upgraded to a standard which Bullock felt comfortable with.

1. The specific task undertaken by Mr William at the time of the incident is now conducted in a different way, by using a laser cutter in Queensland operated by an associated business.

Support for Workers

65. Bullock sought to engage with Mr William following the incident but was informed by his employer that he did not wish to be contacted. Representatives from Bullock visited Mr William when he was in hospital and were in communication with him via his sister.

66. Bullock provided the following assistance to other staff in the aftermath of the incident:

1. Offered counselling;

2. Changed the layout of the workshop and removed the Press to minimise the emotional impact on team members;

3. Adjusted the role of a worker who indicated that being in the workshop area brought up memories from the incident;

4. Extended an ongoing invitation to staff to approach the business with any requests for support, such as extra paid leave.

67. Bullock co-operated with the regulator’s investigation and pleaded guilty at the first opportunity.

Remorse and Contrition

68. Mr Mason states that Bullock is truly sorry for the incident, acknowledges its responsibility for the actions that caused Mr William’s injuries and is committed to ensuring that no similar incidents occur in the future.

Consideration

69. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Objective Seriousness of the Offence

70. 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 The Queen (No. 2) [1988] HCA 14; (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] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

71. 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] HCA 67; (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].

72. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

“The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.”

73. 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].

74. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

75. 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. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

76. The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at par 34, under the heading “Assessment of Risk” said:

“The sentencing judge commenced his consideration with the proposition that ‘greater 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 on assessment of all those factors.”

77. Further at par 42 his Honour continued:

“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 [event] 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 little, if any, costs.”

78. At par 53 his Honour dealt with the proper approach to considering the objective seriousness of offences under the 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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting 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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

79. My findings about the offender’s level of culpability are based upon the following:

1. The risk was actually known to Bullock, and in any event was completely foreseeable. Guidance material dealt with the potential risk.

2. Mr William was an inexperienced labour-hire worker who was put to work on a machine which had not been properly set up, checked or maintained. There was thus a high chance of the risk arising.

3. The potential consequences of the risk included death or serious injury.

4. Bullock took the machine out of operation and replaced it with a safer device at a cost of $7,700. It did this for a variety of reasons, including the morale of its staff.

5. Bullock has since spent a significant amount of money upgrading its safety generally, but only to bring its plant and systems at several sites up to an appropriate standard. As Mr Mason bluntly said in his affidavit, Bullock had become complacent.

6. The harm caused to Mr William was very significant. He has been left not only with serious physical limitations, but continues to suffer great economic hardship.

7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature’s view of the seriousness of the offence.

80. I find that Bullock’s level of culpability is in the mid range.

Deterrence

81. 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 Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

82. The penalty must reflect the need for specific deterrence. Bullock is still conducting a business. Its operations involve manufacturing sheet metal products for the air conditioning industry and the continuing engagement of workers who operate heavy machinery.

Aggravating Factors

83. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

84. Bullock has no significant record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. There is one prior conviction which occurred 22 years ago. Bullock has been in business for 46 years.

85. Bullock is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this.

86. Bullock is unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

87. Bullock has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its equipment and procedures up to a standard which, on all the evidence, should have been in place before this accident occurred.

88. Bullock has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr William was caused by its actions.

89. Bullock entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give Bullock a 25% discount for an early plea, a matter properly conceded by the prosecutor.

90. Bullock gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

91. I am required to have regard to s 6 of the Fines Act 1996 (NSW) 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: Mahdi Jahandideh v The Queen [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.

92. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

93. There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statements

94. Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a).

95. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement – s 30D(1).

96. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1).

97. Mr William provided a Victim Impact Statement to the court. In his statement, he explains that life prior to his amputation injuries included many years of working in roles that involved hands-on tasks. He worked as a barista, car detailer, security camera installer and more recently as a machine operator. He also worked as a Master of Ceremonies (MC) and a Disc Jockey (DJ) for many years. He used to enjoy playing volleyball with his cultural and Church group. He serviced and detailed his own cars.

98. Mr William described the tremendous impact the loss of his index and ring fingers has had on his life. In terms of the physical impact, he explained that there are many simple daily tasks he struggles with such as writing, holding a soap bar, getting dressed, squeezing toothpaste out of a tube, opening and closing jars and packets, using eating utensils properly, using keys, hanging clothes with pegs, operating a car indicator, and utilising tools. He has to take pain medications that make him feel tired and severely affect his sleep patterns. He feels phantom pains and hypersensitivity, especially in colder weather. He has required hand therapy sessions and constant exercises to improve pinch and grip strength. Mr William is currently awaiting further operations to improve his neuromas, which would require more hand therapy. He cannot obtain or tolerate prosthetic fingers on the existing stumps until this additional treatment has occurred.

99. Psychologically, Mr William now struggles with anxiety and is worried about what will happen in his professional and personal life in the future given his limited capacity to resume the work he once engaged in. He described himself as a once bubbly and confident public speaker. Now he is self-conscious about his fingers so he will not hold a microphone. When he is in public, he tries to hide his hand in his pocket as he has had too many people ask him what happened to his fingers, causing him to re-live the traumatic experience. Sometimes people have made fun of him. He feels that he now is much more pessimistic about life and he lacks the routine and future goals he had prior to the incident. He has become more agitated and impatient, especially when he cannot do a task independently.

100. Mr William feels resentment to those responsible for the incident and he is angry that he was neither given a proper induction nor checked upon after the incident. He has sought psychological assistance from two psychologists but feels this has made no difference to his mood or coming to terms with his injuries.

101. Socially, Mr William now avoids spending time with family and friends. Most of his socialising is now limited to his immediate family members. He is too embarrassed to dine out at restaurants or at friends’ places due to his difficulty in using cutlery. He has stopped playing volleyball because it would put his finger stumps at risk of injury. His friends from volleyball no longer engage with him. Before the incident, much of his socialisation was with the people he interacted with through his DJ work and he has lost friends as a result of no longer being invited to perform this work. He feels the impact of his injury has reduced his chance of meeting someone and having a stable relationship and a family of his own.

102. Mr William also described the financial impact the injuries have had. He no longer has a full-time income as a machine operator and can no longer obtain a side income as a DJ or MC. He receives minimum wages through workers compensation and struggles to get by for basic rent, food and utility bills. Mr William explained that he often needs to borrow money from his sister to make ends meet and feels like he is “just existing, not living life”.

Costs

103. The parties have agreed to an order that the offender is to pay the prosecutor’s costs agreed in the amount of $36,106.

Penalty

104. This case has many factual similarities to my earlier decision in SafeWork NSW v Morris, McMahon & Co Pty Limited [2017] NSWDC 349. In that case I imposed a fine, before the discount for an early guilty plea, of $240,000. The sentence which I imposed was upheld on appeal: Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36. The offender in that case did not have an unblemished safety record. Of course, that sentence was imposed three years ago. A sentencing court simply cannot extrapolate from one case to another. Each matter must be decided on its own facts. I am of the view that the fine to be imposed in the present case should be less than that imposed in my previous decision because of the good past record of Bullock and also because of the extensive and costly remedial steps it has taken since the incident.

105. My orders are:

1. Bullock MFG Pty Limited is convicted.

2. I take into account the Victim Impact Statement of Mr Daniel William.

3. The appropriate fine is $220,000 but that will be reduced by 25% to reflect the plea of guilty.

4. Order Bullock MFG Pty Limited to pay a fine of $165,000.

5. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

6. Order Bullock MFG Pty Limited to pay the prosecutor’s costs agreed in the amount of $36,106.

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Decision last updated: 19 August 2020