SafeWork NSW v ll Pastaio Pty Ltd

[2020] NSWDC 677

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v ll Pastaio Pty Ltd [2020] NSWDC 677

Hearing dates:

5 November 2020

Date of orders:

9 November 2020

Decision date:

09 November 2020

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   ll Pastaio Pty Limited is convicted.

(2)   The appropriate fine is $180,000 but that will be reduced by 25% to reflect the plea of guilty.

(3)   Order Il Pastaio Pty Limited to pay a fine of $135,000.

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

(5)   Order Il Pastaio Pty Limited to pay the prosecutor’s costs.

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 – worker’s arm entangled in moving parts of mixing machine – safety interlock deliberately bypassed – failure to use appropriate guarding and safety mechanisms – absence of adequate risk assessment – failure to review and consult relevant machine operation manuals – failure to provide sufficient information, instruction and training to workers on machinery and safety guards – absence of adequate supervision

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22

Fines Act 1996 (NSW), ss 6, 122

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 191, 274

Work Health and Safety Regulation 2011 (NSW), cll 34, 39, 203, 206, 208

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

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

Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266

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

Texts Cited:

Australian Standard 4024.1, Series Safety of Machinery, dated November 2014

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

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Il Pastaio Pty Limited (Defendant)

Representation:

Counsel:
I Fraser (Prosecutor)
R Ranken (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
Stevens & Associates (Defendant)

File Number(s):

2019/166063

Judgment

1. On 7 June 2017, a worker’s arm was entangled in the moving parts of a mixing machine. A safety interlock guard on the machine had been deliberately disabled.

2. Il Pastaio Pty Limited (“Il Pastaio”) 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 Reza Yuniar 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. ll Pastaio conducted a business or undertaking which involved the manufacture of pasta and pasta products. At 42 Gould Street, Strathfield South, New South Wales (“the Premises”) it employed 28 workers, 19 of whom worked in the food production area. Mr Albert Bacci was and is a director of Il Pastaio.

6. Reza Yuniar was employed by ll Pastaio as a Pasta Maker. He commenced employment in August 2011. Mr Yuniar’s duties included preparing meat to be minced and cooked for use as a pasta filling. Mr Yuniar performed his duties under the direction and supervision of Mr John Sabanal.

7. Mr Sabanal was employed by ll Pastaio as a Production Floor Manager. He commenced employment with ll Pastaio in 1992. Mr Sabanal provided instruction to and supervised all workers in the production area including Mr Yuniar. Mr Sabanal was present at the Premises daily and oversaw the use of all machinery. He was the supervisor at the Premises at the time of the incident.

Plant and Equipment

8. The item of plant involved in the incident was a Thompson Meat Machinery 900 Series Mixer Mincer (“the Mixer”).

9. The Mixer was a free-standing, stainless steel rectangular machine with four legs mounted on a caster. It had the following features:

1. A stainless steel bowl which had a removable steel mixing paddle attached at each end of the bowl. The mixing paddle was made up of a shaft with three blunt curved blades. The blades were 170mm long and 220mm apart.

2. A dome-shaped safety lid over the bowl that the paddles sat in and into which the meat was tipped.

3. A magnetic interlock safety mechanism which sensed when the lid or guard was closed and it was safe to start mixing and mincing, which consisted of a magnetic interlock in the lid and a proximity sensor in the casing.

4. A control panel on the front casing with a green “mix” button, a green “mix and mince” button, a red “stop” button and a black “foot control” button.

10. The original guarding on the Mixer operated so that the machine was not able to start if the lid was open. If the lid was opened during operation, the paddles automatically and immediately stopped rotating (“magnetic interlock safety system”). The magnetic interlock safety system had the effect of eliminating the risk of workers’ limbs becoming entangled in any rotating parts.

The Removal of the Magnetic Interlock Safety System

11. The Mixer was capable of being operated with the lid open. This was because the magnetic interlock safety system had been removed. Someone with an understanding of the electrical wiring of the Mixer removed the proximity sensor that was supplied with the Mixer and installed a bridge in the wiring. This resulted in the magnetic interlock safety system being bypassed and the Mixer being able to operate normally while the lid was open. The removal of the safety proximity switch left a hole in the top of the casing of the Mixer.

12. Workers at the Premises were aware that the sensor on the Mixer had been removed and that the Mixer could be operated with the lid open. However, no concerns over the safety of the machine were raised with Mr Bacci as it was thought that an electrician would soon return with a new magnetic sensor. The magnetic sensor was not replaced and production continued for some time with the Mixer being operated with the lid up.

13. Mr Yuniar recalls the Mixer being out of order and Mr Sabanal explaining to him that following the repair works the machine would no longer automatically stop if the lid was opened. It then became a normal practice among workers at the Premises to operate the Mixer with the lid open. Mr Sabanal was fully aware of this practice taking place and also adopted it. The daily visual inspection report carried out on all machinery at the Premises did not identify the fault in the Mixer as an issue.

14. Operating the Mixing Machine with the lid open, or tampering with the safety devices built into the machine, was strictly prohibited by specific information provided by the manufacturer in the Manufacturer’s Operation and Maintenance Manual.

15. The removal of the safety proximity sensor and installation of the electrical bridge exposed workers engaged by Il Pastaio to the risk of becoming entangled in the moving parts of the Mixer by allowing it to operate when there was no barrier between workers’ limbs and the moving parts of the Mixer. Despite this, the company took no steps or measures to eliminate or minimise the risk of injury to workers.

The Incident

16. On 7 June 2017, while Mr Yuniar was at work preparing beef tortellini, his arm was pinched in the moving parts of the Mixer. This occurred as follows:

1. At approximately 10.00am, Mr Yuniar tipped a bucket of meat into the bowl of the Mixer and pressed the appropriate button to begin the mixing process.

2. The Mixer was being operated by Mr Yuniar with the lid up and without the safety guard in place.

3. After that particular batch had finished mixing, Mr Yuniar noticed that a small amount of meat remained in the bowl which had not been properly mixed. When interviewed by SafeWork NSW inspectors, Mr Yuniar said that in these circumstances it was standard practice for workers to open the lid of the Mixer (which would ordinarily cause the paddles in the bowl to immediately stop rotating) and use their hands to push the remaining meat in the bowl down the chute. Mr Yuniar confirmed that Mr Sabanal did this too.

17. The Manufacturer’s Operation and Maintenance Manual stated that a food or meat pusher should always be used, and that hands, arms, hair and loose clothing should always be kept clear of all moving parts. A meat pusher would prevent workers’ hands coming into contact with the feed screw or becoming caught in the chute of the Mixer.

18. The incident occurred just before 10.01am and was captured on Il Pastaio’s CCTV system. The footage depicts Mr Yuniar talking to a co-worker at the time of the incident and shows the machine being operated by Mr Yuniar with the lid open. The CCTV footage depicts Mr Yuniar putting his arm into the bowl and immediately withdrawing it, appearing to be in pain.

19. Mr Yuniar reported the incident immediately to Mr Bacci who telephoned for an ambulance.

Injuries

20. Mr Yuniar suffered a double fracture to his right forearm. He underwent surgery on 8 June 2017 at Royal Prince Alfred Hospital which involved having a screw and plate inserted into his forearm. He has since undergone further surgery to remove the screw and the plate.

21. Mr Yuniar was unfit for work for several months. He has now returned to work but is carrying out alternative duties. He has not been able to return to his pre-injury duties due to the pain and restricted movement in his right forearm.

Systems of Work Before the Incident

Risk Assessments and Safe Work Procedures

22. Il Pastaio did not conduct a risk assessment for the use of the Mixer. 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 s 274 of the Act. It details how a risk assessment could have been conducted at the Premises.

23. Clause 34 of the Work Health and Safety Regulation 2011 (NSW) (“the Regulation”) provides that “a duty holder, in managing the risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety”.

24. At the time of the incident, Il Pastaio did not have a safe system of work in place for the Mixer.

Manufacturer’s Operation and Maintenance Manual

25. When Il Pastaio purchased the Mixer in 2006, it was supplied with the relevant Operation and Maintenance Manual. Page 8 of the manual stated in bold capital letters: “To avoid serious injury and/or machine damage follow these safety checks before commencing operation”. The safety checks included:

1. Guards, where fitted, must be securely in place before operating the machine.

2. Never operate the machine without training and authorisation by your supervisor.

3. Never tamper with the safety devices built into the machine (test daily that the machine will not operate with the lid open).

4. Keep hands, arms, hair and loose clothing clear of all moving parts.

5. Always use a food pusher, never your hand.

6. Isolate the machine from the electrical power source before cleaning, sanitising or servicing.

26. Mr Yuniar understood that the Mixer was only supposed to operate if the safety lid was closed. However, since the interlock had been removed, it had become common practice to operate the machine with the lid up. Mr Yuniar was otherwise unaware of the remaining safety warnings described in the manual as he was not trained in its content or informed of its existence.

Training and Supervision

27. Mr Sabanal provided on-the-job training to new workers in the safe operation of the machinery at the Premises. He signed workers off as competent to use the machines. The only other training provided to workers related to food safety and hygiene.

28. Mr Yuniar described the training he received in respect of the Mixer as “on the spot” training. This involved being asked to perform a task on the machine and performing it under observation from Mr Sabanal. Following an initial observation, Mr Yuniar was signed off as competent. There was no formal assessment. Mr Sabanal explained to Mr Yuniar that he should be careful if he opened the lid and if he did open the lid, to make sure that the machine was turned off when doing so. Mr Yuniar was not supervised in his ongoing use of the Mixing Machine.

29. Clause 39(2) of the Regulation provides “the person must ensure that information, training and instruction provided to a worker is suitable and adequate having regard to:

“(a)    the nature of the work carried out by the worker, and

(b)   the nature of the risks associated with the work at the time the information, training or instruction is provided, and

(c)   the control measures implemented.”

30. Il Pastaio’s workers were not provided with anything other than verbal instruction on the safe use of machinery. Workers who were required to operate the Mixer were not shown the Manufacturer’s Operation and Maintenance Manual or advised about the safety checks set out in it.

31. Section 3.3 of the Code states, under the heading “Instruction, training and supervision”, that before plant is used in a workplace, workers and other persons who are using the plant must be provided with information, training, instruction or supervision that is necessary to protect them from risks arising from the use of the plant.

32. After the Mixer was modified so that the safety mechanism had been bypassed, no further information, training or instruction was given to workers.

Guidance Materials

33. Clause 203 of 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”.

34. Clause 206 of the Regulation provides that “The person with management or control of plant at a workplace must take all reasonable steps to ensure that all health and safety features and warning devices (including guarding, operational controls, emergency stops and warning devices) are used in accordance with the instructions and information provided by that person under clause 39”.

35. Clause 208(5) of the Regulation provides “… the person with management or control of the plant must ensure: a) If guarding is removed, that, so far as is reasonably practicable, the plant cannot be restarted unless the guarding is replaced”.

36. Section 4.1 of the Code states, under the heading, “Removal of guarding”, that if any type of guarding is removed for the purposes of maintenance or cleaning, it must be replaced before the plant is put back into normal operation and that the plant should not be able to restart unless the guarding is in place.

37. Section 3.6 of the Code states, under the heading, “Inspecting plant”, that inspection of associated work processes should be conducted regularly to identify any unsafe work practices associated with the use of plant. In addition, any control measures implemented, such as guards, must be regularly inspected and tested to ensure that they remain effective.

38. At the time of the incident, Il Pastaio did not manage the risks associated with the hazardous functions of the Mixer in accordance with the Code. Once the safety mechanism had been removed from the Mixer, Il Pastaio did not take steps to prevent workers from operating the machine until the safety feature was reinstalled. Il Pastaio allowed the machine to be operated regularly with its safety lid open. In particular, Il Pastaio -

1. did not confirm that the magnetic interlock safety system that was built into and supplied with the Mixer was in place and in working order before workers undertook work on the Mixer in accordance with cl 208 of the Regulation, and did not prohibit the use of the Mixer if the guard is not functioning and operational; and

2. did not confirm that the moving parts of the Mixer were not accessible to workers by maintaining an effective interlock on the safety lid which prevented the Mixer from operating if the guard was removed, in accordance with cl 206 of the Regulation.

39. Australian Standard 4024.1, 1-2014 Series Safety of Machinery dated November 2014 (“the Standard”) provides that “the hazardous function of the machine shall only be possible when the monitoring detects the closed position of the guard and the engaged position of the locking element”.

40. The Standard also states that “the defeating of interlocking devices can increase significantly the risk of harm and so far as practicable protective measures shall be taken to minimize the effect of such foreseeable misuse”.

41. At the time of the incident, Il Pastaio did not manage the hazardous functions of the Mixing Machine in accordance with the Standard.

Maintenance, inspection and testing of plant

42. Visual inspections of machines on the Premises were undertaken each day by Mr Sabanal. A document headed “Daily Visual Inspection” was completed. Under the heading “Equipment and Machinery”, the person undertaking the inspection was asked to confirm each day that machinery had been inspected and there were no faults or issues. On the day of the incident, the Mixer was not recorded as having any faults or issues.

Systems of Work Following the Incident

43. On 8 June 2017 and 9 June 2017, SafeWork NSW issued Il Pastaio with two Improvement Notices pursuant to s 191 of the Act.

44. Improvement Notice Number 7-307905 required Il Pastaio to ensure that the Mixer was repaired by having the safety features reinstalled to prevent access to the moving parts when the Mixer was in operation. Il Pastaio complied with the notice by engaging Anyquip Services to repair the Mixer and reinstall the magnetic interlock system. The repairs took place on 15 June 2017 for a total cost, including labour and material, of $699.60. The notice was confirmed by SafeWork NSW as complied with on 16 June 2017.

45. Improvement Notice Number 7-307987 required II Pastaio to ensure that the Mixer, together with all other machinery at the Premises, was inspected and maintained in accordance with the manufacturer's specifications. Il Pastaio complied with the notice by creating a new data system which is used to register plant items and record maintenance records. Il Pastaio provided proof of compliance by providing SafeWork NSW with a copy of the asset maintenance document on 7 September 2017. The notice was confirmed by SafeWork NSW as complied with on 15 September 2017.

46. On 28 July 2017, SafeWork NSW issued II Pastaio with five further Improvement Notices relating to the guarding and safety features of other machinery at the Premises. All of these notices were fully complied with.

Evidence for the Defendant

47. Mr Albert Bacci, the Managing Director of II Pastaio, affirmed an affidavit on 8 October 2020. He has been involved with Il Pastaio in various forms since 1986. Prior to this, he worked in a different industry.

48. As the Managing Director of Il Pastaio, Mr Bacci explained that he is responsible for the overall direction of the company, including keeping informed of operations in the factory and in retail outlets, product sales and expenditure.

49. Mr Bacci was surprised to learn that the Mixer was capable of being operated while the lid was open. He had not been informed by the Production Manager, by the daily visual inspection sheet or otherwise, that the safety mechanism had been removed prior to the incident, nor were any faults or safety concerns expressed to him about the Mixer. If the fault had been brought to his attention, Mr Bacci would not have hesitated to have it fixed immediately and would not have allowed the Mixer to be used until that was resolved.

47. Mr Bacci believed that Mr Yuniar, along with other staff, had received on-the-job training on how to properly operate the Mixer. Nevertheless, he accepted that at the time of the incident, Il Pastaio did not have a documented Risk Assessment or Safe Operating Procedure (SOP) in relation to the work being carried out on the Mixer. The risk of a worker sustaining serious injury as a result of a limb becoming entrapped or entangled in the Mixer while operating the Mixer without the interlocked safety device was not identified by a risk assessment. A risk assessment of the Mixer should have been conducted to assess that risk, as well as the risk of injury arising from workers using the Mixer without the use of recommended equipment such as a meat pusher.

Response to the Incident

51. Two Improvement Notices issued by SafeWork NSW on 8 June 2017 were fully complied with within about a week of their issue.

52. Mr Bacci described the following measures taken by Il Pastaio post-incident:

1. Providing support to Mr Yuniar during his rehabilitation and providing a return to work plan for Mr Yuniar who continues to remain a full-time employee for Il Pastaio.

2. Employing a Quality Assurance Manager to re-develop Il Pastaio’s safety systems, including its work health and safety system.

3. Engaging Mr Hammam at a cost of $28,600 to conduct a comprehensive review and upgrade of all of Il Pastaio’s food safety and WHS policies and procedures.

4. Conducting a high-level risk assessment of all plant and equipment, with the assistance of Mr Hamman.

5. Conducting a risk assessment specific to the Mixer in its new location, with the assistance of Mr Hamman (DX1, p 256).

6. Development of a SOP for the Mixer and other SOPs for various other plant (DX 1, p 257).

7. Training workers to operate the Mixer in accordance with the risk assessment and SOP (DX 1, p 209).

8. Applying safety recommendations identified by Mr Kirwin Hamman, Managing Director of the Environmental Health Consultancy, who conducts an annual Hazard Analysis and Critical Control Points (HACCP) review.

9. Ensuring all staff members are certified with HACCP status by an external HACCP trainer annually.

10. Ensuring the new WHS system provides for the identification of defects in plant and equipment and a procedure for having those defects rectified, including the following requirements:

1. Daily inspections are to be undertaken by the Quality Assurance Supervisor and recorded on a Daily Equipment Inspection Record.

2. Electrical or mechanical faults reported by workers to the Operations Manager be recorded on an Equipment Fault Record form.

3. When a machine is under repair or being serviced, it must be tagged as faulty and those responsible must isolate and disconnect it from the power supply or remove the plug fuse.

11. Arranging for machinery parts that are not operating to be inspected, isolated and repaired by relevant experts within a short period of time, usually within 1-2 days.

Contrition and Remorse

53. Mr Bacci expressed contrition and remorse for the incident. He accepted responsibility on behalf of Il Pastaio for the offence and expressed personal distress for the injuries suffered by Mr Yuniar while performing work for Il Pastaio. He also expressed regret for the distress suffered by Mr Yuniar, Il Pastaio’s employees and Mr Yuniar’s family and friends.

Community Contribution and Charitable Involvement

54. At the time of the incident, Il Pastaio had 19 full-time equivalent employees who operated the factory and managed the associated sales and administrative functions of the business. Today, the business employs 30 full-time equivalent employees, including a Financial Controller, an Operations Manager, a Quality Assurance Supervisor and other workers involved in the preparation and manufacture of pasta products.

55. Over the years, Il Pastaio has donated food and prizes to charitable events. A particular example noted by Mr Bacci was the joint project that Il Pastaio undertook with Kosmos Foods Darwin (“Kosmos”) for the Arnhem Land Progressive Association (“ALPA”), a not-for-profit organisation providing nutritionally balanced meals to remote Indigenous communities. As part of this project, Il Pastaio supplied nutritionally balanced meals to Indigenous communities and produced training manuals and a training video in conjunction with ALPA. Mr Bacci also personally travelled to remote communities many times to provide food production training. The longstanding relationship with Kosmos and ALPA lasted from 2005 until 2016 when Kosmos was sold.

Financial Situation

56. The material in Mr Bacci’s affidavit pertaining to the capacity to pay a fine is dealt with later in this judgment.

Consideration

57. 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

58. 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].

59. 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].

60. 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.”

61. 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].

62. 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.

63. 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.

64. 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 [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.”

65. Further at [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.”

66. At [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.”

67. My findings about the defendant’s level of culpability are based upon the following:

1. The risk of a worker being seriously injured as a result of having a limb pinched in the moving part of a Mixer being operated with its lid up and without an interlock safety guard in place, was obvious and foreseeable. The risk was one that was known, or ought to have been known, to Il Pastaio. Further, there was guidance material available regarding the risk of using machinery without guarding devices.

2. The likelihood of the risk occurring was quite high. Il Pastaio failed to:

1. conduct and document a risk assessment in relation to the Mixer;

2. consult and review the relevant machine manuals;

3. prohibit workers from using the Mixer if the guard was not functioning and securely in place;

4. adequately inspect and isolate faulty machinery;

5. ensure moving parts of the Mixer were not accessible when the guard was not in place.

3. The potential consequence was the exposure of workers to a risk of serious injury.

4. The necessary steps to eliminate or minimise the risk were known and readily available to Il Pastaio. Following the incident, Il Pastaio promptly complied with all Improvement Notices relating to guarding and safety features, inspections and reinstallation of safety features.

5. As a result of the Il Pastaio’s failures, Mr Yuniar suffered serious injuries that have had a considerable impact on his life.

6. 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.

7. While Mr Bacci himself did not know that the interlock had been bypassed and that the Mixer was regularly being operated with the lid open, senior personnel in the factory knew both things and yet did nothing.

68. I find that Il Pastaio’s level of culpability is in the mid range.

Deterrence

69. 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].

70. The penalty must reflect the need for specific deterrence. Il Pastaio is still conducting a business. Its operations involve potentially dangerous machinery and the continuing engagement of workers.

Aggravating Factors

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

Mitigating Factors

72. Il Pastaio has no previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

73. Il Pastaio is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which it took after the incident demonstrate this. Il Pastaio has been in business for 29 years. Il Pastaio and Mr Bacci stood by Mr Yuniar, who has returned to work in the business.

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

75. Il Pastaio 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 documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.

76. Il Pastaio 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 Yuniar was caused by its actions.

77. Il Pastaio 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 Il Pastaio a 25% discount for an early plea.

78. Il Pastaio 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

79. 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.

80. 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.”

81. There was no submission that Il Pastaio did not have the capacity to pay a fine.

82. In relation to the size and scope of Il Pastaio’s business, counsel for the defendant submitted that Il Pastaio is a small business. According to Mr Bacci’s affidavit and the attached annexures, while there was a loss of $25,556 in 2017, the business remains profitable making a profit of $213,930 in 2018 and $38,102 in 2019 (DX 1, par 24). Further, the retained earnings at the end of the 2019 financial year were $1,816,221 and the total equity was $1,394,105 (DX 1, pp 53-54).

83. Counsel for the prosecutor submitted that Il Pastaio has experienced an increase in sales during the 2020 calendar year, despite the COVID-19 pandemic. This is reflected in the Income Review conducted by Il Pastaio’s accountant, which records an increase in sales in the January to March quarter and the April to June quarter (DX 1, p 69). The relevant figures are reproduced below:

Quarterly Sales		Percentage Change
January – March 2019	January – March 2020
$1,390,644	$1,714,979	23%
April – June 2019	April – June 2020
$1,566,814	$1,804,479	15%
July – August 2019	July – August 2020
$1,147,307	$934,709	-19%

Costs

84. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs.

Penalty

85. My orders are:

1. Il Pastaio Pty Limited is convicted.

2. The appropriate fine is $180,000 but that will be reduced by 25% to reflect the plea of guilty.

3. Order Il Pastaio Pty Limited to pay a fine of $135,000.

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

5. Order Il Pastaio Pty Limited to pay the prosecutor’s costs.

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Decision last updated: 09 November 2020