SafeWork NSW v MMP Industrial Pty Ltd

[2022] NSWDC 581

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v MMP Industrial Pty Ltd [2022] NSWDC 581

Hearing dates:

17 November 2022

Date of orders:

24 November 2022

Decision date:

24 November 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   MMP Industrial Pty Ltd is convicted.

2   The appropriate fine is one of $350,000 which will be reduced by 25% to reflect the plea of guilty.

3   I impose a fine of $262,500.

4   The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors –penalty

SENTENCING PRINCIPLES - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Fines Act 1996

Work Health and Safety Act 2011

Cases Cited:

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

R v Borkowski (2009) 195 A Crim R 1

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
MMP Industrial Pty Ltd (Defendant)

Representation:

Counsel:
C Magee (Prosecutor)
I Latham (Defendant)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Wotton + Kearney (Defendant)

File Number(s):

2021/229128

Publication restriction:

None

JUDGMENT

Introduction

1. MMP Industrial Pty Ltd (MMP or the offender) appears for sentence after pleading guilty to an offence contrary to s 32 Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Sharon Mathews to a risk of death or serious injury.

2. The maximum penalty for the offence is a fine of $1.5 million.

Facts

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

General Background

4. MMP is a manufacturer and supplier of industrial and paint aerosol products.

5. MMP operates two sites, one located in Mulgrave, New South Wales, and the other in Auckland, New Zealand. The incident occurred at the Mulgrave site. At the time of the incident, the Mulgrave site was 8 acres in size, with 11 warehouses, each producing different products.

6. At all material times, David Stewart (Mr Stewart) was the sole director of MMP. Barney Stewart was the Sales Manager and Nathaniel Stewart was the Production Manager. They formed the Senior Management of MMP.

Workers

7. Ms Mathews was a 57-year-old process line worker who had commenced employment with MMP in June 2017. Her main duties included operating the Gasket Machine.

8. Christopher Brown commenced employment with MMP in 2006. At the time of the incident, he was employed as a “line setter” and his main duties included maintenance of plant in the warehouses. He was described as “head of maintenance”. He did not hold any formal qualifications in relation to maintenance of machinery. He had previously completed two years of a four-year machinist apprenticeship.

9. William Dennehy was employed as a maintenance worker. He did not hold any formal qualifications in relation to maintenance of machinery and states he was not “mechanically minded”. He reported to Mr Brown.

10. Janette Fabian was the Production supervisor at the time of the incident. She was responsible for supervising the production operations at the Mulgrave site, allocating work to staff. She also supervised Ms Mathews.

11. Amy Borgman commenced employment with MMP in 2013. At the time of the incident, she was the Work Health & Safety and Human Resources Officer. Her duties included the following:

1. liaising with managers and supervisors in relation to the performance of staff and their relevant work health and safety protocols;

2. recruiting staff;

3. administering employment benefits;

4. liaising with various contractors; and

5. drafting and implementing policies/procedures (including work health and safety policies).

12. Ms Borgman had completed a course in Occupational Health & Safety Consultation for Safety Committees and Representatives in 2009. She had commenced a Cert IV in Workplace Health and Safety three years prior to the incident but had placed it “on hold”. She completed the course after the incident.

Gasket Paste Machine

13. At the Mulgrave site, MMP operated a machine known as the “gasket paste packing machine” (the Gasket Machine). The Gasket Machine filled tubes with a product marketed as “Performance Plus Gasket Paste”, also known as “Gasket Goo”, which was a heavy-duty sealant product used in vehicles. The Gasket Machine was approximately 60 years old at the time of the incident.

14. The Gasket Machine had a rotary style conveyer which consisted of 12 stations and operated in a counter-clockwise direction. Upon start-up of the Gasket Machine, the rotary conveyer operates at a constant speed until the stop button is pressed. Whilst in motion, empty aluminium cylinder tubes would be manually placed in a vertical position one at a time onto the rotary conveyor, with the lid side down and the base open.

15. The Gasket Machine’s rotary style conveyer would then move each tube forward to the hopper section where the filling nozzle dispenses the material from the hopper into the empty tubes. The rotary working station then continues to rotate and the filled tubes are moved through the crimping mechanisms where the ends of the tubes are crimped and folded four times.

16. The filled and crimped tubes then exit the guarded section of the Gasket Machine. The operator manually removed the finished tube, replacing it with an empty tube to repeat the cycle.

17. A “control panel” for the Gasket Machine was located to the right of the rotary style conveyer. This panel contains several labelled buttons and switches, including an Emergency “Stop” button, a red stop button that ceases operation of the Gasket Machine and reverts the crimping mechanism to an open position, a green start button and a toggle “inch” switch that rotates the working stations. A guard open light is also present.

18. The “goo” or “paste” would occasionally need to be cleaned from the rotary style conveyer and crimper. This would involve switching off the power to the Gasket Machine, opening the Perspex guarding, removing the mess and restarting the Gasket Machine.

Guarding of the Gasket Machine

19. The Gasket Machine did not have adequate guarding to prevent parts of workers’ bodies entering moving parts of the Gasket Machine, in particular the crimper, during its operation. There was some perspex guarding around parts of the Gasket Machine, including the hopper, but this did not prevent access to the crimper. An L-shaped gap allowed access by workers to the rotary slots where tubes were placed and consequently, the crimper during its operation. The guarding panels were mounted on hinges and latches. The latches were not interlocked and can be opened without use of tools.

20. The Gasket Machine could be restarted when the exiting guards were not back in place where workers’ limbs could be in the vicinity of pinch points.

21. The crimping mechanism was located 140mm away from the opening of the Perspex guard. The Perspex guard had an opening of approximately 350mm wide x 270mm high at the site of the rotary style conveyer.

22. Newer machines performing the same function as the Gasket Machine were available on the market, with automatic tube feeders and unloaders removing the requirement to manually access areas such as the crimper.

Safety procedures at the Mulgrave site

Safe operating of machinery procedures

23. At all material times MMP had minimal safety policies and procedures in place for the operation of machinery in the warehouses. MMP had a one-page document titled “Employee Policy Statements” that stated the following:

24. MPP Industrial is a manufacturer of Dangerous Goods. Every product used on the site is potentially hazardous and all care must be taken in the following safety policies and procedures set by management.

25. In relation to the Gasket Machine, MMP did not have a copy of the manufacturer’s operating instructions and had not undertaken a risk assessment as to the use of the Gasket Machine prior to the incident. There was no Safe Work Method Statement (SWMS) nor adequate Safe Operating Procedure (SOP) for the Gasket Machine.

26. MMP had a document related to the Gasket Machine titled “Procedure for MMP Operations – Warehouse 2 – Gasket Goo/Koroda Kure” dated 4 September 2018 (Procedure Document). The Procedure Document provided minimal information regarding safety processes or procedures for the Gasket Machine’s use and did not specifically address any risks associated with the operation of the Gasket Machine, including those that could arise during maintenance and repairs of the Gasket Machine. The Procedure Document did not require that a daily start-up and maintenance check of the Gasket Machine be conducted to ensure it was in good working order and that adequate guards were in place to prevent access to moving parts. MMP similarly did not have any system requiring daily checks. The Procedure Document does not include a procedure to ensure that operators were not exposed to risk during periods where the Gasket Machine was shut down for maintenance and/or cleaning, nor a system for re-starting the Gasket Machine after it had been shut down for maintenance or cleaning.

27. It was common for the Gasket Machine to be started by a “line setter” worker such as Mr Brown while another employee was inserting empty tubes and removing filled tubes. The workers relied on an informal system whereby the person conducting maintenance would call out to the operator that they were restarting the Gasket Machine and wait for the operator’s reply before restarting the Machine.

Systems of work prior to the incident

28. MMP did not have a formal system of undertaking audits of plant and other machinery to assess the hazards and risks associated with the operation of plant and machinery. There was also no formal system for assessing whether guarding that had been installed on machinery was adequate to eliminate or minimise the risk of workers suffering injury while operating, maintaining and cleaning the Gasket Machine.

29. Several of the machines at the Mulgrave site were older machines, including the Gasket Machine. Despite his knowledge of the age of these machines, Mr Stewart did not request or instruct that a risk assessment be undertaken. Similarly, he did not instruct nor request implementation of a formal system for auditing and assessing the risks associated with the operation, maintenance and cleaning of plant and other machinery.

30. MMP did not provide Mr Brown with access to relevant Australian Standards or guidelines addressing plant and machinery, and in particular, guarding, to ensure that the Gasket Machine and other machinery at the Mulgrave site were safe for use. Mr Brown would perform inspections and audits around machinery which, prior to the incident, were not documented. Mr Brown consulted some external consultants in machinery and maintenance on an as-required basis. Mr Brown would inform Mr Stewart if there was something he thought needed attention.

31. Mr Stewart was at the Mulgrave site approximately twice a week. Mr Brown did not recall him performing many site walks on those occasions. When Mr Stewart would walk around the site, his interactions with staff were largely social in nature and he did not attend the warehouses during these walks.

32. Ms Borgman would perform some site walks, consult with some workers and perform informal audits. These were not documented prior to the incident. Ms Borgman would also hold some toolbox meetings with production workers at least once a month. The risks associated with use of plant and machinery were not discussed in these meetings. Mr Stewart would not attend these meetings and did not ensure that the meetings addressed risks associated with use of plant and machinery. Ms Borgman would also hold toolbox meetings with maintenance workers regarding maintenance. These occurred once every few months. Mr Stewart would not attend these meetings. Ms Borgman would consult Mr Stewart and senior managers such as Mr Nathaniel Stewart, on an ad hoc basis regarding safety; no formal reporting or weekly meeting occurred between Ms Borgman and senior managers. Ms Borgman did not receive instructions from Mr Stewart or senior management regarding health and safety.

33. Ms Borgman did not have a budget related to her position as Work Health and Safety and Human Resources Officer. Ms Borgman was required to seek Mr Stewart’s approval for the financial decisions associated with MMP and Ms Borgman or management were required to seek Mr Stewart’s approval for all spending for the company with respect to health and safety.

34. MMP had engaged an external consultant, Steve Sylvester, from Riskcon Engineering Pty Ltd (Riskcon), to provide advice on updates to the dangerous goods laws and governance. Mr Sylvester is a mechanical engineer and dangerous goods consultant. On occasion, Ms Borgman would ask external consultants such as Riskcon or another firm, InterRISK, for advice. However, these consultants were predominately engaged for advice on “dangerous goods” regulations and did not provide, and were not requested to provide, assistance with respect to machine guarding in the warehouses at the site.

Training and competency

35. MMP did not provide adequate information, instruction and training to workers to enable them to adequately and competently perform all tasks that they were required to perform, including operation of the Gasket Machine. There was little, if any, formal training provided regarding safety procedures in relation to cleaning, maintaining and restarting the Gasket Machine. MMP did not have an adequate system to document the information, instruction and training it provided to workers and did not provide workers with refresher training.

36. Ms Mathews was inducted by MMP at the commencement of her employment in 2017. She was provided with “on the job” training to operate machinery by another employee, “Linda”. Ms Mathews was trained by Linda to use the Gasket Machine when she was first assigned to work on the Gasket Machine. This training was not recorded. This training did not encompass the specific risks associated with operating the Gasket Machine, beyond Linda telling Ms Mathews “not to get her finger caught in anything”. Ms Mathews was not provided with information about the steps that she, as the operator, was required to take prior to the Gasket Machine being started up again after maintenance and cleaning. Ms Mathews’ ability to competently use the Gasket Machine was not assessed or reviewed by MMP.

37. Mr Brown did not hold relevant qualifications to perform machine maintenance, nor did he receive formal training in relation to the maintenance of plant and machinery. Mr Dennehy was not aware that any operating procedures existed for the Gasket Machine. He stated he used “common sense” to disconnect power supply before engaging in maintenance. Mr Dennehy had not operated the Gasket Machine in the six years that he worked for MMP and did not know how to operate it.

SafeWork NSW notices

38. In the few months prior to the incident MMP had received two improvement notices and a prohibition notice relating to the guarding of machinery at the site.

The incident

39. At approximately 8.00am on 14 August 2019, Ms Mathews commenced work. She was assigned by Ms Fabian to Warehouse 2, where small packaging operations using packaging machines, including the Gasket Machine, occurred. Ms Mathews was directed to operate the Gasket Machine.

40. Whilst Ms Mathews was operating the Gasket Machine, she was having difficulty getting the “Gasket Goo” to the right consistency to fill the tubes. The mixture was too thick and as a result the tubes were overflowing onto the rotary conveyor and the crimper mechanism. Accordingly, Ms Mathews was required to clean the internal moving parts of the Gasket Machine on a number of occasions that morning. She did this by switching the power off, opening the Perspex guarding and reaching into the Gasket Machine with a piece of cloth to remove the excess mixture, and then restarting the Gasket Machine using the Start button.

41. Despite several attempts, Ms Mathews was unable to get the Gasket Machine to operate correctly. At approximately 11.40am, Ms Mathews sought the assistance of Mr Brown to help her with the set-up of the Gasket Machine. While Mr Brown was adjusting the Gasket Machine and the consistency of the product, Ms Mathews continued to clean the Gasket Machine.

42. At approximately 12.05pm Mr Brown completed his adjustments to the Gasket Machine. There was a line of sight between Ms Mathews and Mr Brown. Mr Brown then went to restart the Gasket Machine using the main power switch mounted on a metal upright on an adjacent mezzanine floor. While at the main power switch, Mr Brown was facing away from Ms Mathews. He then stated words to the effect of “Let’s get back to work”, to which Ms Mathews responded, “Yes”.

43. At that point in time, Ms Mathews observed part of the paste mixture still on the crimper within the Gasket Machine. She reached her hand into the Gasket Machine to clean it using the rag. Simultaneously, Mr Brown, who was not observing Ms Mathews, re-activated the Gasket Machine. Ms Mathews’ right hand was located between the two sides of the crimper and the crimper closed on her right hand, causing crush injuries to her ring finger, middle finger and index finger.

44. Mr Brown heard Ms Mathews call out in pain, so he hit the emergency stop button located on the side of the Gasket Machine which released the crimping mechanism. Mr Brown wrapped Ms Mathews’ hand in a rag and took her to the site office. Ms Borgman was in the office and an ambulance was called.

45. NSW Ambulance Service officers arrived at the site at approximately 12.25pm and Ms Mathews was transported to Westmead Hospital. She underwent surgery that day to repair her right index, middle and ring fingers. This included insertion of “K wire” fixture in the injured fingers.

46. On 16 August 2019, Ms Mathews underwent further surgical debridement of her right hand wounds at Westmead Hospital. She also later underwent further surgery to remove the dead tip of her middle finger.

47. Ms Mathews sustained significant and permanent crush injuries to her right hand, particularly her ring, middle and index fingers.

Steps following the incident

48. Ms Borgman completed an Incident Investigation Form. Under the selection options for, “What factors contributed to the incident”, Ms Borgman marked the option for “inadequate guarding”. The corrective actions table lists “inadequate training”, “inadequate procedure” and “guarding”.

49. After the incident, SafeWork NSW issued 18 notices (Improvement and Prohibition) to MMP for issues relating to unsafe plant around the workplace. This included an Improvement Notice for guarding on the Gasket Machine.

50. On or before 19 August 2019, within a week of the incident, MMP installed additional Perspex guarding to the Gasket Machine. Since then, it has also fitted a further secondary guarding system consisting of sections of rectangular steel tubing that had been designed to go around the sides and in front of the crimper to prevent workers from inserting their hands/fingers into that area of the Gasket Machine.

51. On or about 17 September 2019 MMP developed a new operational procedure for the Gasket Machine. The new procedure contained requirements for:

1. personal protective equipment to be worn when operating the Gasket Machine;

1. a pre-operational check for the Gasket Machine;

2. ensuring guards and other safety devices are in place;

3. an up-to-date, step-by-step procedure for operating the Gasket Machine; and

4. employee training information for the Gasket Machine.

52. Notes on machine safety have been included in monthly toolbox meeting minutes to discuss with MMP employees. Mr Stewart states that he has commenced a monthly check-in with Ms Borgman for issues raised in toolbox meetings.

53. In response to recommendations by SafeWork NSW, Ms Borgman contacted Ken Robinson from Machine Safety Consulting to perform an initial site inspection and risk assessment of machinery in Warehouses 1 and 2. The quote for this work is $6,650 plus GST. Mr Stewart did not provide financial approval for this inspection.

54. On 2 June 2020, MMP requested that Riskcon produce a report titled “Safety Case Outline”. This was so that MMP could be classified a Major Hazardous Facility. The purview of the report did not extend to assessment of the risks associated with machinery and guarding.

The Offender’s Case on Sentence

55. The offender relied on the affidavit of Mr Stewart sworn on 16 September 2022. I will not repeat matters I have already referred to.

56. Mr Stewart is the sole Director of MMP and has been so since 4 February 2000.

57. At the time of the incident, Mr Stewart described MMP’s safety management team as consisting of Ms Borgman as Work Health and Safety Manager, Mr Sylvester of Riskcon as a Risk and Safety Engineering Consultant and Mr Brown as Head of Maintenance. These individuals reported to Mr Stewart if there was a risk or safety issue requiring rectification.

58. Mr Stewart described MMP’s safety system prior to the incident as including the following:

1. employee induction on commencement of employment which included information on safeguarding and notifiable incidents and accidents in the workplace;

2. monthly toolbox meetings where hazards and risks were discussed;

3. bi-annual reintroductions of staff; and

4. specific training for certain hazards and risks as required.

59. Mr Stewart stated that MMP’s safety management system at the time of the incident was informal, with staff competencies observed by Ms Fabian and Mr Brown as part of their day-to-day site management. He stated that there was a system of ongoing communication between maintenance supervisors and machine operators.

Actions taken after the incident

60. Mr Stewart stated that after the incident, Ms Borgman commenced a formal consultation with all of MMP’s employees at the Mulgrave site to ensure that they were aware of the standard operating procedures and safety expectations on site when operating plant and machinery. MMP also completed a review of its Safety Management Systems.

61. Ms Borgman now performs monthly site checks that are specific to checking the guarding on machinery.

62. Further, MMP has expanded its induction process to include a more thorough assessment of employee competencies, supervised checks of guarding and detailed training on pre-start checks of machinery and equipment. Induction also now includes a site induction, a job description induction, and provision of a contractor/employee handbook. At induction and in toolbox talks, workers are told of their responsibility in the workplace, their duty of care both to themselves and their fellow workers, the importance of identifying risks and hazards and who to report to if they identify a risk or hazard.

63. Mr Stewart stated that from August 2019 until April 2022, where his day-to-day involvement in running MMP ended with the sale of the company, he would follow up on the monthly toolbox talks and assist in developing the minutes for the meetings.

64. Further, since the incident there are now mandatory start of shift checks on all machinery and if there are any issues observed by a machinery operator or any other worker, they are not permitted to start up until investigation into the source of the issue is conducted. These pre-start checks are documented in a Start of Shift Check Sheet.

65. MMP has now formalised its process for suggesting modifications to plant and machinery, requiring written documentation of suggestions by workers on the ground as to repairs, maintenance or improvements.

66. MMP has also expanded the scope of Mr Sylvester’s services such that he is now involved in the assessment of existing machine guarding and developing new machine guarding. Mr Sylvester has certification in guarding and equipment engineering.

67. Further, the Gasket Goo Machine has been decommissioned as a result of the incident, but also MMP’s discontinuation of Gasket Goo products. MMP is also considering replacing most machine lines with fully enclosed self-operating lines, with new machinery that is more automated and requires less manual handling.

68. Mr Stewart stated that he felt deep contrition and regret that the incident occurred. He acknowledged the severity of the impact of the incident on Ms Mathews and her family, as well as the workers who witnessed the incident and its aftermath. Mr Stewart also stated that the company is committed to a safer future for its workers going forward.

Consideration

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

Objective Seriousness

70. The offence is objectively serious.

71. The risk of workers getting their hands trapped in unguarded machinery was obvious and well-known in the industry and to the offender. There was ample objective guidance material available to the offender before the incident in the form of Codes of Practice, Safety Guides and Australian Standards

72. The likelihood of the risk coming home was moderate. The operation of the machine required an operator to place and remove tubes into the rotary conveyor while the machine was in operation, thereby putting their hands into close proximity with the crimper. However, the machine had been used for an extended period without incident and I note that the incident occurred during cleaning of the machine.

73. The steps that could have been taken to prevent the incident were well-known, simple and relatively inexpensive to implement. The offender accepted that it failed to take the reasonably practicable steps particularised in the Summons, including the replacement of the machine, installation of adequate guarding, conducting a risk assessment, preparing a SOP and providing adequate training on the use and maintenance of the machine. I accept that by reason of the age of the machine that it may not have been possible to fit an interlock system to it.

74. The consequences of the risk did not include a risk of death.

75. The injuries sustained by Mr Mathews were serious and involved significant treatment.

76. I have taken into account the maximum penalty for the offence.

Deterrence

77. 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 Ltd v Nash [2016] NSWCCA 37 at [180].

78. It is hard to envisage that PCBUs continue to operate unguarded machinery that is not fitted with an electrical interlock system. The penalty imposed must bring home to other PCBUs involving the risk of entrapment in unguarded machinery, that if they fail to take all reasonably practicable steps to eliminate or minimise the risk that they will meet with condign punishment.

79. The penalty imposed must provide for specific deterrence because the offender continues to operate a vast array of machinery that may pose risks to its workers and it has been slow to respond to its interactions with the regulator. The offender has a prior conviction for an offence under the Act committed in 2016 that did not relate to unguarded machinery. However, following that incident, in the period of 2107 to 2019, it was also issued with multiple prohibition and improvement notices of which 25 of the notices related to inadequate guarding of machinery. I am satisfied that in the period leading up to this incident that the offender had more than fair warning that its machinery and systems were deficient and it did not respond adequately to the advice it received in the course of inspections on behalf of the regulator. It follows that more weight should be given to specific deterrence in this sentencing exercise.

Aggravating Factors

80. The injury, harm and loss caused by the s 32 offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.  In order for the 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]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, the injuries sustained by Ms Mathews are sufficient to establish the aggravating factor.

Mitigating Factors

81. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken significant steps following the incident to upgrade its safety systems and has demonstrated that it has good prospects of rehabilitation.

82. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Stewart, on behalf of the offender, has accepted responsibility for its failings and expressed remorse for the incident and its impact on Ms Mathews.

83. The offender entered a plea of guilty: s 21A(3)(k) and s 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.

84. The offender co-operated with the SafeWork investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Penalty

85. MMP Industrial Pty Ltd is convicted.

86. The appropriate fine is one of $350,000 which will be reduced by 25% to reflect the plea of guilty.

87. I impose a fine of $262,500.

88. The offender is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.

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

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Decision last updated: 24 November 2022