SafeWork NSW v Inghams Enterprises Pty Limited

[2023] NSWDC 580

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Inghams Enterprises Pty Limited [2023] NSWDC 580

Hearing dates:

20 November 2023

Date of orders:

21 December 2023

Decision date:

21 December 2023

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine for the offence is $600,000, 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.

(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 in the sum of $51,000.00.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty
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 – maximum penalties
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)

Cases Cited:

Bulga Underground Operations v Nash (2016) 93 NSWLR 338

Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610

Environmental Protection Authority v Barnes [2006] NSWCCA 246

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Latoudis v Casey (1990) 170 CLR 534

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

Muldrock v The Queen (2011) 244 CLR 120

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

Veen v R (No 2) (1988) 164 CLR 465

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Inghams Enterprises Pty Limited (Defendant)

Representation:

Counsel:
Mr P Boncardo (for the Prosecutor)
Mr B Hodgkinson SC and Miss E Aitken (for the Defendant)

Solicitors:
Department of Customer Service (for the Prosecutor)
Seyfarth Shaw (for the Defendant)

File Number(s):

2022/40947

JUDGMENT

1. Inghams Enterprises Pty Limited (‘the defendant’), entered a plea of guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (NSW) (‘the WHS Act’) on 4 September 2023, being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the WHS Act to ensure, so far as was reasonably practicable, the health and safety of workers whilst the workers were at work in the business or undertaking, did fail to comply with such duty and that failure exposed workers, in particular John Evans (‘Mr Evans’) to a risk of death or serious injury contrary to s 32 of the WHS Act.

2. The particulars of the offending are contained in an Amended Summons filed 4 September 2023.

3. The Prosecutor tendered a prosecution Sentence Tender Bundle which became exhibit A, a copy of the Inghams Group Limited 2023 Annual Results Presentation which became exhibit C and a copy of Inghams Group Limited Annual Report 2023 which became exhibit D. Due to an oversight on my behalf, there was no exhibit B.

4. The defendant tendered an affidavit of Sean David Starkey dated 6 November 2023 which became exhibit 1. Mr Starkey is the General Manager for safety for Inghams Group Limited, which is the parent entity of the defendant.

Background

5. The defendant is a corporation with registered premises in North Ryde, New South Wales.

6. The defendant is the operating entity for the Ingham’s Group Australian Operations. The defendant is a wholly owned subsidiary of the Ingham’s Group. The defendant owns all of the Ingham’s Group Australian operations, which are geographically dispersed across Australia, and range from farming facilities and hatcheries to processing plants, feedmills, and warehouse and distribution facilities. The defendant also operates protein conversion plants, further processing sites, research laboratories and has offices in Queensland, South Australia, Tasmania, Victoria and Western Australia and its corporate head office located in New South Wales (Exhibit 1 at [20]).

7. At all material times, the defendant was a person carrying on a business or undertaking (‘PCBU’) which involved the operation of a turkey processing plant located at 2 Ralfe Street in Tahmoor, New South Wales (‘the plant’).

8. Mr Evans had been employed by the defendant as a Process Worker at the plant since August 2012. Mr Evans primarily performed his duties in the plant’s ‘ice rooms’ known as Ice Bunker 1 and Ice Bunker 2.

Ice Bunker 1

9. The cooling system at the plant relied on the movement of crushed ice around the facility. Ice Bunker 1 was integral to this system. Ice was made above the roof of Ice Bunker 1. Chemicals including chlorine were combined with water to produce the ice which then dropped through two cut-outs in the ceiling of Ice Bunker 1.

10. At all material times, an auger ran through the floor of Ice Bunker 1. The auger was powered by a motor. The purpose of the auger was to move ice out of Ice Bunker 1 into other augers which then carried the ice to other areas of the plant.

11. At all material times, the auger was covered by metal grates to prevent persons coming into contact with the auger. The grates were bolted to the floor and could not be lifted up without using hand tools such as spanners.

12. Workers stationed in Ice Bunker 1 were required to shovel ice into the auger. This was the task performed by Mr Evans when he was working in Ice Bunker 1.

13. The grates covering the auger in Ice Bunker 1 were made from stainless steel, galvanised steel and aluminium. The grates could be replaced as required. Although there were no spare grates kept at the plant, stainless steel grates could be manufactured on the premises.

14. The aluminium grates were bolted down and clipped together with metal clips and secured with Nyloc nuts. These Nyloc nuts would come loose over time and would need to be replaced. Whether a Nyloc nut needed to be replaced could not be ascertained by visual inspection, rather, the nut would need to be touched to assess whether in fact it was loose. The defendant did not have any procedures in place about the inspection and maintenance of Nyloc nuts at its plant prior to the incident.

15. Two doors provided access to Ice Bunker 1: A front set of double doors and a single door at the rear. The single door was not ordinarily used as it was usually covered by ice. When the double doors to Ice Bunker 1 were closed, it was difficult to see what was happening inside.

16. An emergency button was located on the left hand side of the double doors. Pressing the emergency button would stop the auger but would also cause a warning light and siren to activate outside. The auger could otherwise be stopped by pressing an isolation switch which was located outside of Ice Bunker 1.

The prior incident

17. On 18 January 2019, Mr Evans was working in Ice Bunker 1 when a large amount of ice collapsed onto him. The ice hit Mr Evans in the head, causing him to fall backwards and injure his left arm, left palm and neck.

18. In response to the incident on 18 January 2019, the defendant proposed that there should always be two people in Ice Bunker 1 at all times prior to 5:45am.

The incident

19. On 19 February 2020, Mr Evans was working in Ice Bunker 1. He started work at about 5:30am that morning and was by himself. No one else had been assigned to work with him.

20. At some point between 7:00am and 8:00am, one of the grates dislodged and Mr Evans’ right leg became caught in the auger. Mr Evans fell down and his left leg also became trapped. Mr Evans was able to pull his right leg free but could not free his left leg. Mr Evans’ torso was not drawn into the auger.

21. The grate that Mr Evans fell through was located towards the back of Ice Bunker 1. The three grates towards the back of the room were not readily visible because they were usually covered with ice.

22. It is not known how long Mr Evans was trapped in the auger. He was discovered when a worker outside Ice Bunker 1 heard yelling and entered Ice Bunker 1 to investigate. When he saw Mr Evans trapped, he ran outside to switch off the auger and yelled out to other workers to assist. When he was discovered, Mr Evans was covered by fallen ice. The grate in front of Mr Evans had bowed up and was covered in ice and blood.

23. Mr Evans passed in and out of consciousness until emergency services attended the plant.

Injuries

24. Emergency services were not able to free Mr Evans’ left leg from the auger and a decision was made to amputate it at the scene, up to the top of his knee.

25. Mr Evans was thereafter transported to Liverpool Hospital where he underwent a number of operations and remained an inpatient for two weeks.

Expert opinion of Emeritus Professor David Young dated 9 February 2022

26. Emeritus Professor David Young (‘Professor Young’) was retained to provide an opinion regarding whether the incident occurred because the metal grates covering the auger were corroded and gave way under Mr Evans’ weight.

27. Working on the assumption that chlorine was present in the ice as hypochlorite and chloride ions and that at least some of the ice and melted so that liquid water contacted the metal grates, Professor Young opined that:

1. Both stainless steel and aluminium corrode substantially faster when exposed to partly melted chlorinated ice than if exposed to clean water or normal atmospheric conditions. Such corrosion would weaken the grates by decreasing their section thickness and thereby increase their susceptibility to failure under mechanical load.

2. Aluminium alone would be at less risk of corrosion by chlorinated ice than would standard grades of stainless steel.

3. Using a mixture of stainless steel and aluminium grates resulted in increased corrosion known as ‘galvanic corrosion’.

4. Aluminium grates would be the best, provided that the use of stainless steel fasteners was avoided, in order to prevent galvanic corrosion.

5. In relation to regular inspections of the grates, Professor Young opined that:

1. Regular inspections should have been undertaken visually by persons with engineering or science qualifications;

2. If corrosion appeared to be present, a corrosion specialist should have been retained to advise;

3. Inspections of the exposed (top) surfaces of the grates should have been undertaken on a monthly basis;

4. Inspections of the undersides of the grates (requiring complete removal of the grates) should have been undertaken every three to four months.

Systems of work before the incident

28. Some time before the incident (and after Mr Evans’ prior incident) the defendant required two production workers to be in Ice Bunker Number 1 at any one time. This requirement was discarded prior to the incident so long as there was a clear line of sight to the back of the room, however, workers outside of did not have a clear line of sight into Ice Bunker Number 1 if there were mounds of ice present in the room, which was regularly the case.

29. There was no requirement for workers outside to check on workers inside Ice Bunker Number 1.

30. The defendant had in place a document titled Standard Work Procedure – 002 Backline Ice Bunkers 1 and 2 (‘SWP’). The SWP relevantly provided:

1. Ice room doors must be open whenever someone is in the ice room;

2. Floor auger covers were not to be lifted. If they were loose, work was to stop immediately, and this was to be reported;

3. Tags for ‘Out’ and ‘In’ were to be used to denote how many people were in the ice room. These were to be hung near the entry to the set of double doors;

4. Emergency buttons near the doors of Ice Bunker Number 1 were to be pressed to activate a local alarm alerting people nearby to an emergency in the room.

31. The following facts are agreed (Agreed Statement of Facts (‘ASOF’) at [35] – [36]) in relation to the defendant’s routine inspection and maintenance of Ice Bunker 1:

1. The defendant carried out inspections and maintenance of Ice Bunker 1 every three months, which included inspection of the Nyloc nuts for wear and tear.

2. The defendant did not provide specific instructions or directions as to how the grates were to be inspected.

3. The workers that inspected the grates were mechanical fitters.

4. There was no requirement that the ice rooms be emptied of ice when inspection and maintenance took place.

5. The grates towards the back of the room were regularly covered with ice and therefore could not be visually inspected unless the ice in the room was removed first.

Guidance Material

32. It is agreed that the following guidance material was available to the defendant as a PCBU in relation to controlling the risk the subject of this proceeding:

1. SafeWork NSW Code of Practice: Managing the risks of plant in the workplace.

2. Section 4.1 of the SafeWork NSW Code of Practice, Managing the risks of plant in the workplace (‘COP’) titled ‘Guarding Plant’ 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 notes that if a guard is likely to be exposed to corrosion, a PCBU should consider corrosion-resistant materials.

3. Section 4.3 of the COP titled ‘Emergency Stops’ states that a PCBU must ensure that the stop control is immediately accessible to the operator of the plant.

4. The Australian Standard AS 4024 Safety of Machinery (‘the Standard’) is a comprehensive Standard with guidance on risks and controls for safe operation of all phases of the machine life cycle.

5. Part 3610:2015 of the Standard is titled ‘Conveyors – General Requirements’ (‘Conveyor Standard’). The Conveyor Standard describe safety measures to be implemented for the lifecycle of conveyor systems and identifies the hazard of entanglement in relation to those systems.

6. Part 5.1.1 of the Conveyor Standard requires all users to carry out an operational risk assessment to identify all hazards from the use of the conveyor, and to implement appropriate risk controls.

7. Part 5.2.2 of the Conveyor Standard requires the development of operational procedures which take into consideration any site-specific environmental conditions (including cold and corrosive environments) which may affect conveyor components.

8. Part 5.2.5 of the Conveyor Standard requires the development and implementation of a documented energy isolation and dissipation system for the conveyor.

9. Part 6 of the Conveyor Standard relates to repair and maintenance of conveyors, including a requirement in relation to periodic inspections and tests to check all guards are in place, secure and in a fit for purpose condition.

33. It is an agreed fact (ASOF at [46]) that the defendant did not adhere to the guidance material outlined above at [32].

Systems of work after the incident

34. Following the incident, the defendant complied with notices issued by SafeWork NSW and in so doing revised its systems of work to ensure that workers in Ice Bunker 1 were not exposed to a risk of entanglement in the auger. The steps taken by the defendant include:

1. A revision of the SWP to require that inspections and ‘preventative maintenance’ occur on a weekly basis, including a specific direction that all bolts and nuts were to be checked and that all grates were secured in place.

2. The replacement of all grates with stainless steel grates.

3. Bolting down the grates with Nyloc nuts as well as with plates on top of them. Studs were also welded for the grates to go on so that they could not be pulled up and could not move.

4. The installation of emergency stops for the auger in Ice Bunker 1.

5. The reinstatement of a requirement that there be two workers in Ice Bunker 1 at all times.

The risk

35. The risk was the risk of workers, in particular Mr Evans suffering serious injury or death as a result of coming into contact with the moving parts of the auger while he was working in Ice Bunker Number 1 (Annexure A to Amended Summons at [9]).

Particulars of the defendant’s failures

36. The defendant failed to ensure so far as was reasonably practicable, the health and safety of its workers, in particular Mr Evans, in that it failed to take any one or more of the following reasonably practicable measures to eliminate the risk to the health and safety of the workers, or, in the alternative, if it was not reasonably practicable to eliminate the risk, to minimise the risk to health and safety of the workers:

1. Providing metal clip fasteners of a suitable material for the metal grates covering the auger in Ice Bunker Number 1

2. Conducting monthly visual inspections of Ice Bunker Number 1 and its metal grates, to assess the integrity of the grates and the locks which locked the grates into place over the auger;

3. Providing a documented procedure for inspecting and maintaining the metal grate system covering the in situ auger in Ice Bunker Number 1;

4. Requiring the presence of at least two employees in Ice Bunker 1 at any time. (Annexure A to Amended Summons [10]).

37. The serious injuries sustained by Mr Evans were a manifestation of the risk.

Sentencing

38. 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.

39. 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

40. The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120 at [27]:

‘…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 offending.’

41. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474–5.

42. 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 duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

43. 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.

44. 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].

45. 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.

41. 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].

42. 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’). His Honour Justice Basten, under the heading ‘Assessment of Risk’ said at [34]:

‘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.’

48. 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.’

49. 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.

50. 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).

51. 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).

52. 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:

1. 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: Nash v Silver City [34];

2. The availability of steps to eliminate or minimise the risk: Nash v Silver City [34];

3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City [34] and [53];

4. Whether the risk was known or ought reasonably have been known to or identified by the offender;

5. Whether the risk was an obvious or clear one; and

6. The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).

53. However, I accept 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.’

Matters relevant to determining the culpability of the defendant

54. Prior to 19 February 2020, Ice Bunker Number 1 was inspected and maintained every 3 months (this is contrary to particular 10(c) of Annexure A to the Amended Summons). The workers responsible for inspecting Ice Bunker 1 were mechanical fitters and did not receive any instructions or directions as to how to inspect the grates.

55. There was no requirement that all ice be removed from Ice Bunker 1 when these 3-monthly inspections occurred. That meant that the grates towards the back of the bunker were often covered with ice and could not be subject to any visual inspection.

56. There were no policies or procedures concerning the inspection and maintenance of the Nyloc nuts.

57. The grates used by the defendant in Ice Bunker 1 were particularly susceptible to corrosion by exposure to partly melted chlorinated ice. The use of both aluminium and stain-less steel grates alongside one another also meant that there was a risk of ‘galvanic corrosion’.

58. Historically, the defendant had required 2 workers be present in Ice Bunker 1 when performing work. At some point the defendant determined that only one person would be present. The consequences of this were laid bare on 18 January 2019 when Mr Evans was working in Ice Bunker 1 by himself and was hit by ice, causing him to fall backwards and sustain injuries to his left arm, palm and neck. Following this, the defendant proposed that 2 people should work in Ice Bunker 1, however the proposal only applied before 5.45 am. I note that this is not a charge which the defendant is required to meet, but I think it is relevant contextually. I do however note that the risk of a person being hit by ice is not part of the offence with which the defendant is charged.

59. The defendant had a SWP in relation to Ice Bunker 1 prior to 9 February 2020 which required that the doors to the room be opened, that the floor auger covers not be lifted, that tags for ‘out’ and ‘in’ outside the bunker be used to detail how many people were in Ice Bunker 1 and that the emergency buttons were pressed in the event of an emergency.

60. This is not a defendant without systems to protect its workers, but unfortunately they were inadequate.

61. On 9 February 2020, Mr Evans was assigned to work in Ice Bunker 1 by himself from 5.40am that day and one of his duties was to shovel ice into the auger.

62. The precise mechanism as to how Mr Evans came into contact with the auger is not known. The evidence only establishes that Mr Evans as being put in a position of being exposed to the risk.

63. The purpose of the metal grates was to prevent persons coming into contact with the auger and getting entangled in it. They were bolted to the floor, and in order to be removed or lifted up, the grates needed to be unbolted with hand tools, such as a spanner. This was a significant and substantial step taken by the defendant prior to this incident to address the risk, and I accept that this demonstrates that the defendant had systems in place to address the risks, and if covers were to be lifted, or were loose, the work should stop immediately.

64. The grates used in the area were not in place and secured, but nobody is able with any precision to identify what it was that caused the grates to move. If they had been appropriately in place and secured, the risk would have been eliminated.

65. The risk to which workers including Mr Evans were exposed was an obvious one. It was readily foreseeable by the defendant and it had actually foreseen it – hence the use of the grates. It is referred to in the defendant’s ‘Standard Work Procedure – 002 Backline Ice Bunkers 1 & 2 which said at [11]:

NEVER LIFT THE FLOOR AUGER COVERS. IF THEY ARE LOOSE, STOP WORK IMMEDIATELY AND REPORT IT TO YOUR SUPERVISOR AND/OR MAINTENANCE PERSONNELL.

66. The harm, if the risk materialised, was of the utmost seriousness and was potentially catastrophic. So much is manifest from the serious injuries suffered by Mr Evans and the fact that the risk extended to both serious injury and death.

67. The steps taken to avoid resultant harm were simple and straightforward. Reasonably practicable measures which the defendant failed to take to eliminate or minimise the risk included using metal clip fasteners for the metal grates. This was both obvious and not burdensome. Given the fact that the Nyloc nuts were vulnerable to wear and tear and could become unfastened, such a measure was imperative.

68. It was reasonably practicable for the defendant to have arranged for the conduct of monthly visual inspections of all metal grates and, in the course of such inspections, to assess the integrity of the grates and locks over the auger. Unfortunately, inspections every 3 months did not necessarily involve inspections of all the grates.

69. It was also reasonably practicable for the defendant to have a documented procedure for the inspection and maintenance of the grates in Ice Bunker 1. This would have ensured that appropriate and thorough inspections occurred. Such a measure was simple, straightforward, and inexpensive.

70. Professor Young suggests one-monthly inspections at ASOF [35], and the defendant has pleaded guilty to that specific allegation.

71. The prosecutor asserts that at least two employees should have been present when work was being performed in Ice Bunker 1. The importance of this measure was previously perceived by the defendant, as previously it required two employees to be present. This fact, coupled with the incident that had occurred involving Mr Evans the year previously which had caused the defendant to propose to revise its procedure of only having one worker present, indicates that the defendant actually perceived the imperative for more than one worker to be present in the Ice Bunker 1 to eliminate or minimise risks to safety of workers in Ice Bunker 1.

72. Whilst I accept that having 2 employees present was important given that:

1. The auger could only be stopped by a switch located outside Ice Bunker;

2. A worker who got stuck in the auger had no ready means of alerting other workers to his or her predicament;

3. Workers outside Ice Bunker 1 were not required to look in on the solitary workers inside the Ice Bunker 1 from time to time or at all; and

4. The emergency button in Ice Bunker 1 would be inutile if a worker got stuck in the auger;

73. none of these steps would have stopped Mr Evans or any other worker from coming into contact with the auger, as by the time the switch was located, and other workers had observed what had happened, the risk would have come home and the contact with the auger would have happened.

74. As referred to in Mr Starkey’s affidavit (exhibit 1), the presence of two people would not have prevented this incident. Whatever happened was a quick circumstance. Having another person in the room could have done no more than sound the alarm, as the risk had already arisen and the injuries suffered.

75. The seriousness of the defendant’s offending is compounded by the availability of guidance materials relating to the management of the risks of plant in the workplace and an Australian Standard relevant to the operation of conveyers in the workplace. The defendant failed to follow this available guidance material.

76. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was significant, and the steps available to avoid the risk were straightforward and available to the defendant.

Deterrence

77. 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.

78. 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).

79. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.

80. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016)  93 NSWLR 338 (‘Bulga’) 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.’

81. 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 the food processing industry.

82. 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.

83. 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.

84. 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.

85. The steps taken by the defendant after this incident are important. There was a revision of the SWP, so as inspections of the Ice Bunker would occur on a weekly basis. Whilst Professor Young comments on the grates and prefers that aluminium grates as the least corrosive, all the grates were replaced with stainless steel grates. This did not include just the grates in the immediate area, but all grates. The grates were bolted down with Nyloc nuts, as well as plates placed on top of them. Studs were also welded on as well as the plates, so that they could not be pulled up and could not move. Importantly, I accept that there is nothing to suggest that the material used to cover the augers was causative of the terrible accident.

86. Within months of the incident, I accept that the defendant addressed the measures that it is charged with, and spent $7 million putting in an entirely different system, and got rid of the Ice Rooms entirely. There were extensive steps taken including from within the defendant and its WHS committee, and a serious process of consultation, training, discussion and review of the defendant’ s SWP was developed as a consequence of this incident, which involved a number of employees of the defendant at varying levels of seniority, including senior management.

87. These significant measures are set out in Mr Starkey’s affidavit (exhibit 1), particularly at [37] and [38]. The ice room was decommissioned in October 2020, as part of a program that the defendant had been planned and scheduled prior to this incident.

88. I accept that all the measures that the defendant has put in place eliminates the risk pleaded in this charge as the new system does not require ice rooms or augers.

89. I accept that the prospects of rehabilitation of the defendant are very good, as they have spent $7 million dollars reviewing their relevant work practices and have eliminated the risk of this charge. Expenditure of itself does not remove the imperative of specific deterrence. However, the steps taken to my mind demonstrate that the defendant has implemented proper and appropriate measures that are part of a proactive approach to workplace safety. I note that the defendant is also updating and upgrading various other systems to improve the standard of safety in its workplaces. Whilst this has to be considered in the context of a large publicly listed employer, who has a very significant financial turnover, I accept that the steps taken by the defendant show a significant commitment to ensuring workplace health and safety.

90. General deterrence must be a component of a sentence in this jurisdiction, and many might think, and I agree, that it should not be dependent upon the size of the defendant and its financial resources. Clearly, a fine for breaches of the WHS Act must be designed to have a punitive effect on not just the particular defendant, but one that conveys a message to all employers, and in particular, those in the same industry of the need to hold the safety of their workers at the forefront of their minds. That must be the case, and the message must be directed to the community.

91. However, I believe that it is worthwhile to identify positive steps taken by the defendant post-incident, which are proactive steps that demonstrate a commitment to the elimination of a risk, and workplace safety in general.

92. There are many factors that the court must weigh when coming to a penalty, including the instinctive synthesis, impacted by positive reaction even from a large company with significant resources, by positive expenditure. The penalty must reflect the criminality of the offending, and the objective seriousness of it. A proper consideration of the factors that determine the penalty involves an examination of all the factors relevant to sentencing, and if possible, a clear indication as to what is expected from a prudent and careful PCBU, at all times. The conduct and measures taken by a defendant after an incident, and the steps taken by a defendant to strive to at all times, and from all risks, to protect the safety of workers is a very relevant factor.

Aggravating factors

93. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this aggravating factor to be established, I must be satisfied beyond 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).

93. After becoming caught in the auger, Mr Evans was able to pull one of his legs free. The other remained trapped whilst the auger continued to operate and he was trapped. When Mr Evans’ crying out was heard he had been trapped for some time and when the auger was ultimately switched off, Mr Evans was coming in and out of consciousness.

94. Emergency services could not extricate Mr Evan’s left leg from the auger and had to amputate it up to his knee to free him from the auger. After his leg was amputated, Mr Evans was transported to hospital where he remained for two weeks and was subject to a number of surgeries. One can only imagine the suffering that Mr Evans has experienced and sadly will continue to do so, the incident having had no doubt a lifelong impact on him.

95. I am satisfied that the injury, emotional harm, loss or damage caused by the offence was substantial.

96. The defendant’s offending conduct exposed a person or persons to a grave risk of death: s 21A(2)(ib) of the Sentencing Act.

Mitigating factors

98. 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.'

99. The defendant has been subject to many prior convictions under work health and safety law between 1985 and 2000. Whilst this is a significant record, I note that the defendant has had no further offences in the last 20 years, which I view as an impressive record, given the variety and scope of the defendant’s operation, which does involve high risk work: s 21A(3)(e) of the Sentencing Act.

100. I accept that the defendant is a corporate citizen of good character and has made significant charitable donations as an active contributor to and sponsor of its community: s 21A(3)(f) of the Sentencing Act.

101. I accept the defendant is unlikely to reoffend: s 21A(3)(g) of the Sentencing Act.

102. I accept that the defendant has very good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.

103. Whilst the Prosecutor does not accept that the defendant has demonstrated remorse and contrition because neither of the directors gave evidence, I do not accept this to be the case. My understanding was that the deponent of exhibit 1 was not required for cross-examination.

104. In his affidavit (exhibit 1) Mr Starkey speaks at [8] – [11] of his contrition and remorse of the defendant, as can only be expressed by senior management of the defendant, and note that this expression of remorse comes from the highest level of the defendant’s management. I also note at [12]-[17] of exhibit 1 that the defendant has provided significant assistance to Mr Evans and his family after the incident. I find that the defendant has accepted responsibility for the offence and has acknowledged the injury, loss and damage caused by the offence: s 21A(3)(i) of the Sentencing Act.

105. The defendant co-operated with SafeWork NSW during its investigations: ss 21A(3)(m) of the Sentencing Act.

106. The defendant entered a plea of guilty on 4 September 2023, which of itself demonstrates to my mind, remorse. The prosecutor submits that the entry of the plea was not at an early stage and that the defendant should only be entitled to a discount of 10-15% for the utilitarian value of the plea.

107. The defendant had entered into the Enforceable Undertaking process and I accept that this can be lengthy, however the defendant entered a plea of guilty immediately upon the Amended Summons being filed. On that basis, I will allow a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the Sentencing Act.

108. Were it not for a very strong subjective case, I would have fined the defendant $800,000. Having regard to all the matters out before the Court, the appropriate fine is $600,000.

Costs

109. The issuing of costs against a defendant in both criminal and civil proceedings is not punitive, but rather compensatory to the prosecution: Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ).

110. The Court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor’s costs when considering any monetary penalty to be imposed on the defendants, particularly in circumstances where there is evidence of a limited capacity to pay a fine, and I have done so. Costs payable to the prosecutor are the ‘normal’ rule as the prosecutor has been successful, although there can be exceptions: see for example, Bulga. 

111. The Court can also have regard to the defendant’s own costs that it will have to bear as a consequence of a breach of the WHS Act, and I have done so: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].

Penalty

112. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the offence is $600,000 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.

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 in the sum of $51,000.00.

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Decision last updated: 21 December 2023