SafeWork NSW v Millwell Cush Pty Ltd

[2019] NSWDC 302

District Court

New South Wales

Medium Neutral Citation:	SafeWork NSW v Millwell Cush Pty Ltd [2019] NSWDC 302
Hearing dates:	16 May 2019
Date of orders:	08 July 2019
Decision date:	08 July 2019
Jurisdiction:	Criminal
Before:	Strathdee, DCJ
Decision:	(1)   The offender is convicted. (2)   The appropriate fine is $150,000 but that will be reduced by 25% to reflect a plea of guilty. (3)   I impose a fine of $112,500 in total. (4) I order pursuant to s122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor. (5)   I order the offender to pay the prosecutor’s costs as agreed or assessed.
Catchwords:	CRIMINAL LAW – prosecution – work, health & 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 – appropriate penalty COSTS – prosecution costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011
Cases Cited:	Baumer v R (1998) 166 CLR 51 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; [2005] VSCA 219 Nash v Silver City Drilling (NSW) Pty Limited ; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96;93 NSWLR 338 R v McNaughton (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] MSWSC 432 Veen v R (No. 2) (1088) 164 CLR 465 WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIR Comm 363
Category:	Sentence
Parties:	SafeWork New South Wales (Prosecutor) Millwell Cush Pty Ltd (Offender)
Representation:	Counsel: Ms N Evans appeared for the Prosecutor Mr R Reitano appeared for the Offender   Solicitors: SafeWork NSW Legal Services (Prosecutor) Leigh Virtue & Associates (Offender)
File Number(s):	2017/386273
Publication restriction:	None

Judgment

1. Millwell Cush Pty Ltd (‘the offender’) pleaded guilty to an offence contrary to s32 of the Work Health and Safety Act 2011 ‘(the Act’), by failing to comply with its health and safety duty imposed upon him by s19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the offender’s business or undertaking and in doing so exposed an individual to a risk of death or serious injury.

This offence, in the case of a corporation, carries the maximum penalty of $1,500,000.

2. The offence was committed at the offender’s premises in Wesdale on 16 December 2016. At that time and place there were workers working in the offender’s business who were exposed to a risk to their health and safety. One of the workers exposed to the risk was Douglas McGuffog (‘McGuffog’) who, as a result of being exposed to the risk, was injured when the risk came home.

3. The prosecutor tendered an Agreed Statement of Facts and an Agreed Tender Bundle which forms the basis of the background set out below.

BACKGROUND

4. At all material times Millwell Cush Pty Limited (ACN 092 292 423) (‘Millwell’) was a registered corporation, located at ‘Saltwell’, Terry Hie Hie Road, Bellata NSW 2397. The offender was a person conducting a business or undertaking within the meaning of s5 the Act.

5. Millwell’s business or undertaking involved producing semolina flour. Millwell supplied the flour to domestic and international pasta producers, and traded as ‘Bellata Gold Miling’. Millwell conducted this business or undertaking at 41 Bowlers Lane, Wesdale NSW (‘the workplace’). The workplace adheres to the definition within s8 of the Act.

6. Douglas Fred Cush (‘Cush’) was a director of Millwell. At the time of the incident Millwell had been trading for 16 years.

7. McGuffog was a miller employed by Millwell, and had been so employed since 16 November 2015. At the workplace, McGuffog was responsible for the operations of the mill, including starting, running and shutting down the mill.

8. Benjamin Felsman (‘Felsman’) was a labourer and an employee of Millwell. Felsman commenced employment in October 2016, training as a miller with Millwell. Pursuant to s7 of the Act, Felsman was a worker caused to be engaged by the offender.

THE INCIDENT

9. On 16 December 2016 McGuffog was using a pneumatic air hose to blow dust and grain residue through the empty feed bin and down towards the break rollers. During this process, the machines were switched on, the clear Perspex door was opened, and the feed and break rollers were activated.

10. To obtain better access to clean the feed rollers, McGuffog lifted the major roll cover and observed a large chunk of mouldy wheat on the break roller. Whilst attempting to move this lump with his left hand, the break rollers caught the fingers on his left hand and pulled it into the break rollers of the roller mill.

11. McGuffog attempted to use his right hand to try and pull his left hand out of the roller mill. The fingers of his right hand were also caught between the rollers.

12. As a consequence of the incident, McGuffog had four fingers of his left hand surgically removed, as well as the tip of his left thumb. The fingers on his right hand were severely crushed, resulting in a degloving of the skin and multiple fractures.

SYSTEMS OF WORK BEFORE THE INCIDENT

13. At the time of the incident, there were guarding mechanisms on the roller mill, but they were not permanently fixed or interlocked physical barriers. This allowed the workers to remove the guarding with ease, whilst the roller mill was operating, thus allowing contact with the rollers. The sheet metal guard, which could be folded along its hinges to gain access to the sections of the rollers, was folded up thus exposing the break rollers.

14. There was no supervision of the workers whilst they were cleaning the roller mill.

15. There was no Safe Work Method Statement (‘SWMS’), no documented risk assessments or safe operating procedures for the task of cleaning the roller mill.

16. Adequate training, information and instruction had not been provided to the workers on the way in which to isolate the power to the roller mill when it was not necessary for the plant to be in operation during maintenance or cleaning.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

17. The inadequate guarding on the roller mill was modified by installing steel blocks on each end of the sheet metal guard. The steel blocks were secured by screws that require a special key to unscrew them. The special key is kept by the maintenance engineer.

18. A SWMS was created and made available to workers who operated or cleaned the roller mills. In particular, the SWMS instructed that the power to the machine must be isolated before commencing cleaning task.

19. The offender cooperated with SafeWork in the course of the investigation into the incident.

CONSIDERATIONS

20. I have had regard to the objectives set out in s3A of the Crimes (Sentencing Procedure) Act1999 (‘CSP Act’) for the purpose of sentencing. In WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 (‘Baulderstone’) at [181] to [194] the principles to apply in sentencing offenders were summarised as below:

‘The purposes for which a court may impose a sentence on an offender are specified in the section as follows:

(a) to ensure that the offender is adequately punished for the offence

(b) to prevent crime by deterring the offender and other persons from committing similar offences

(c) to protect the community from the offender

(d) to promote the rehabilitation of the offender

(e) to make the offender accountable for his or her actions

(f) to denounce the conduct of the offender, and

(g) to recognise the harm done to the victim and the community.’

21. The principal and particular purpose of work health and safety legislation is the protection of workers from breaches of health and safety, giving rise to penalties that compel attention to occupational health and safety at the workplace. In DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; [2005] VSCA 219 at [34], the Victorian Court of Appeal stated as follows;

‘It must not be forgotten in this context that the risk to the employer is essentially economic whilst those to which the worker is exposed directly concern their physical or mental well-being or, as in this case, life.’

22. The plea of guilty entered reflects an acknowledgement by the offender that it owned and operated six OMAS Type A B1 double roller milling machines used for grain milling purposes.

23. The plea encompasses an admission that there was a risk of workers suffering serious injury or death while undertaking the task of cleaning the roller mill, as a result of a body part becoming caught in moving parts, such as the break rollers (‘the risk’).

24. In entering its plea of guilty, the offender acknowledges that it failed to implement measures that were reasonably practicable to eliminate or minimise the risk. Those measures are pleaded in paragraph 9 of Annexure A of the Amended Summons as follows;

1. Undertaking a risk assessment of work being done using the roller mill, including the task of cleaning the roller mill, that identified the risk of a worker’s fingers and/or hand coming into contact with the unguarded break rollers inside the roller mill and measures available to control the risk; and/or

2. Adequately guarding the roller mill to ensure workers were unable to access the break rollers inside the roller mill while it was in operation by either:

1. installing permanently fixed physical barriers; or

2. installing interlocked barriers such that the roller mill shut downs when the barriers are removed; and/or

3. Adequately developing and enforcing safe work procedures for operating and cleaning the roller mill which:

1. required the roller mill to be isolated from the electricity supply prior to any cleaning or maintenance being performed on it; and/or

2. ensured that workers hands and other body parts were not in proximity to any nip points, break rollers or other moving parts of the roller mill; and/or

4. Providing workers with instruction, information and training in the safe work procedures for operating and cleaning the roller mill.

25. The plea of guilty further encompasses admissions by the offender that:

1. The risk was one of serious injury;

2. An employee of Millwell, McGuffog was exposed to the risk; and

3. The injuries sustained by McGuffog were a serious manifestation of the risk.

OBJECTIVE SERIOUSNESS OF THE OFFENCE

26. The sentencing of an offender involves consideration of both objective and subjective factors. The Court must keep in mind not only the facts which establish the seriousness of the offence but also those which tend to mitigate that seriousness or exculpate the offender.

27. The starting point to consider in sentencing under work, health and safety legislation is the objective seriousness of an offence.

28. In determining the level of objective seriousness of the offence, the Court will assess objective seriousness of the offence by reference to the failures particularised in the charge and found proven, taking in to account all the relevant circumstances surrounding the offence.

29. The duty of the offender requires that they ensure that the health and safety of workers as far as reasonably practicable. As the offender pleaded guilty, it has admitted that the measures to ensure safety would have been reasonably practicable. This duty is not delegable, and the offender cannot escape it’s liability as a consequence of its contractual relations with other parties, as the offender had control and influence over the workers at the site. The duty requires the identification of risks in the workplace, and an assessment of measures to address such risks.

30. The proportionality principle requires that sentence should neither exceed nor be less than the gravity of the crime having regard to objective circumstances: Veen v R (No. 2) (1088) 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) 66 NSWLR 566 at [15].

31. 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 (1998) 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 time limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

32. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] MSWSC 432 at [61].

33. 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) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.

34. I accept that the risk in these circumstances was foreseeable and quite obvious. To have a situation where there was no fixed physical barrier whereby the mill would have been prevented from operating until the guard was closed, is to my mind a very obvious risk to safety. To allow workers to work by hand in close proximity of moving rollers presented an obvious hazard. The removal of the risk was straight forward, by guarding and appropriate and adequate training and supervision.

35. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 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; 93 NSWLR 338. His Honour Justice Basten at paragraph 34, under the heading ‘Assessment of Risk’ said:

‘The sentencing judge commenced his consideration with the proposition that ‘greater culpability attached to the failure to guard against 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.’

Further at paragraph 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 and overall evaluation of various factors, which may pull in different directions.’

36. It is submitted by the Prosecutor that the offence falls within a reasonably high range of objective seriousness, as:

1. the risk was an obvious and ongoing one – a risk that should have been readily identified;

2. the seriousness of foreseeable harm was high;

3. the duty owed to the offender’s workers was a simple one; and

4. the steps to be taken to avoid the risk were straightforward and readily available.

INJURY, LOSS AND DAMAGE WAS SUBSTANTIAL – Section 21A(2)(g)

37. As a consequence of the incident on 16 December 2016, McGuffog sustained serious injuries. McGuffog read his victim impact to the court at the sentencing hearing, and it is readily apparent that he suffered significant injuries resulting in multiple surgeries, and continues to suffer greatly as a result of the injuries and surgeries. He has also suffered severe emotional trauma, and the financial effects of this incident on him are extreme and devastating.

38. The offender’s plea of guilty encompasses an admission that the incident was a manifestation of the risk. The offence committed by Millwell resulted both in the creation of the risk and its materialisation on the day of the offence.

39. I am therefore satisfied beyond a reasonable doubt that the injury, harm and ongoing loss caused by the offence was substantial.

PRIOR HISTORY – Section 21A(3)(d)

40. The offender has not previously appeared before the courts on health and safety matters, and this is a matter that I have taken into account as a mitigating factor.

GOOD PROSPECTS OF REHABILITATION – Section 21A(3)(h)

41. The Prosecutor accepts that the offender has good prospects of rehabilitation, as demonstrated by the offender’s approaches to workplace health and safety after the incident.

42. Counsel for the offender informed the court that the company no longer trades and will go into administration after the conclusion of these proceedings. The Prosecutor submits that there is no evidence that it no longer trades, however I accept that submission that specific deterrence is not a live issue.

REMORSE AND CONTRITION – Section 21A(3)(i)

43. The Prosecutor submits that there is no evidence of remorse and contrition before the Court. Counsel for the offender submits that the company’s remorse is demonstrated by the early plea, and I accept that is a matter that I can take into consideration. This early plea, it is submitted is demonstrative of the company’s remorse, and I accept that, and have taken it into account.

CO-OPERATED IN THE INVESTIGATION OF THE OFFENCE – Section 21A(3)(m)

44. Pursuant to the decision in WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIR Comm 363 at [30], co-operation with SafeWork NSW is a relevant consideration that I may take into account as a mitigating factor, and may in the exercise of my discretion as sentencing judge, entitle the offender to a sentence discount. I have taken the co-operation of this offender into my consideration as to appropriate sentence.

DETERRENCE

45. I accept that the offender has ceased trading, and that as such the question of specific deterrence is not live. The offender has accepted responsibility for the accident. The offender has taken steps after the incident to ensure the future safety of workers.

46. In imposing a penalty in relation to this offence, general deterrence must be provided for. 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 Act very seriously. 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 factors. I am satisfied that the changes in management practices and there is evidence before me of those changes.

47. The approach to be adopted is set out in Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 [(2000)] 49 NSWLR 610 at 644 para [74];

‘Both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be some exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No2) [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.’

48. The failure to supervise and train workers, and to allow workers to work by hand in such close proximity to the unguarded rollers is a significant departure from the impositions imposed by the legislation. The simple task of disabling the mills at any time when the mills were activated and the cover was up could have prevented the incident altogether, and such an oversight led to the workers sustaining serious injuries.

AGGRAVATING AND MITIGATING FACTORS

49. The aggravating and mitigating factors set out in ss21A(2) and 21A(3) respectively of the CSP Act require the court to take into account the these factors in determining the appropriate sentence.

50. The injuries sustained by McGuffog were significant and the ongoing consequences were very serious. This is an aggravating factor and has been taken into account.

51. The offender entered a plea of guilty at the earliest opportunity and is entitled to a discount of 25% based on the utility of the plea.

52. The offender has no antecedents and has demonstrated remorse.

COSTS

53. The offender is to pay the prosecutor’s costs and disbursements as agreed or assessed.

PENALTY

54. My orders are:

1. The offender is convicted.

2. The appropriate fine is $150,000 but that will be reduced by 25% to reflect a plea of guilty.

3. I impose a fine of $112,500 in total.

4. I order pursuant to s122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor.

5. I order the offender to pay the prosecutor’s costs as agreed or assessed.

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Decision last updated: 08 July 2019