SafeWork NSW v Morris, McMahon & Co Pty Limited

[2017] NSWDC 349

District Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

5 December 2017

Date of orders:

11 December 2017

Decision date:

11 December 2017

Jurisdiction:

Criminal

Before:

Judge D. Russell

Decision:

(1) The offender is convicted.
(2) Order the offender to pay a fine of $180,000.
(3) Order that 50% of the fine is to be paid to the prosecutor.
(4) Order the offender to pay the prosecutor’s costs as agreed or assessed.

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 – appropriate penalty

 

SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty

 

COSTS – prosecution costs

  OTHER – amputation of fingers in press – machine reset but interlock guarding systems not made operational – need for safety check – need for challenge testing – need for training of operators

Legislation Cited:

Work Health and Safety Act 2011
Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Regulation 2011
Occupational Health and Safety Act 1983

Cases Cited:

Veen v R (No. 2) (1998) 164 CLR 465
R v McNaughton (2006) 66 NSWLR 566
Baumer v R (1998) 166 CLR 51
BW v R [2011] NSWCCA 176
R v Wilkinson (No. 5) [2009] NSWSC 432
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
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
Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37
Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
Jahandideh v R [2014] NSWCCA 178

Texts Cited:

AS/NZS 3760:2010 In-service safety inspection and testing of electrical equipment

 

AS/NZS 4024.1602:2014 Safety of Machinery - Interlocking devices associated with guards - Principles for design and selection

 

AS 4024.3001-2009 Safety of Machinery - Materials forming and shearing - Mechanical power presses

  WorkCover Managing the Risks of Plant in the Workplace Code of Practice (July 2014)

Category:

Sentence

Parties:

SafeWork NSW (prosecutor)
Morris, McMahon & Co Pty Limited (defendant)

Representation:

Counsel:
D. Nagle (prosecutor)
S. Meehan (defendant)

  Solicitors:
SafeWork NSW (prosecutor)
Beswick Lynch Lawyers (defendant)

File Number(s):

2016/343110

Judgment

1. Morris, McMahon & Co Pty Limited (the offender) has pleaded guilty to an offence that being a person conducting a business or undertaking that had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (the Act) it failed to comply with that duty and thereby exposed Mrs Snezana Kilmoska (the victim) to a risk of death or serious injury contrary to s 32 of the Act.

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

BACKGROUND

3. The prosecutor tendered an Agreed Statement of Facts and a Prosecution Tender Bundle which forms the basis of the background summarised below.

4. The offender is a registered corporation with its registered address at Level 4, 131 Clarence Street, Sydney NSW 2000. Mr Leo Lynch and Ms Judith Beswick of 17 Tunstall Avenue, Kingsford NSW 2032, are Directors of the offender.

5. The offender conducted a business or undertaking that manufactured metal packaging including a full range of cans, drums and pails from 250ml up to 23 litres in volume. The offender conducted its business or undertaking at 34 Arncliffe Street, Wolli Creek NSW 2205 (the workplace). The offender employed around 120 workers at the workplace.

6. Astar Personnel Pty Ltd (ACN 122 223 161) (Astar) was a registered corporation with its registered address at Suite 5, 55 Phillip Street, Parramatta NSW 2150. Astar conducted a business or undertaking which provided recruitment services and workers for temporary, permanent and contract roles in various industries. The offender engaged Astar to provide casual labour hire staff.

7. Mr Raj Kamal was employed in roles as Team Leader Press Department and as a Line Setter in the Press Department for the offender. Mr Kamal had been an employee of the offender for 7 years at the time of the incident. Mr Kamal stated he had done some training through the offender in relation to work health and safety, and equipment setting. He was a Consultative Committee member and a member of the offender’s Occupational Health and Safety Committee.

8. Ms Aurelia Zielinski was employed as the Press and PUMA Departments Supervisor for the offender.

Plant and Equipment

9. The machine involved in the incident is a electric/pneumatic G.W. Goetze & Sons Ltd clutch activated power press identified as “P50” located in the Press Department area of the workplace. Press P50 was dedicated to 107, 87 and 72mm top Nozzle clenching tasks.

10. The P50 press was

1. provided with a lockable electrical isolation switch, an emergency stop switch, a stop-start switch and a pneumatically operated mushroom-headed activation button; and

2. fitted with a clear plastic rise-and-fall safety guard to screen the operator from the moving parts when the press is activated.

11. To work the press the operator placed components needed in the manufacturing process into the die of the P50 by hand when the safety screen is in the up position. The operator then manually pulled down the safety screen and pressed the activation button to cycle the P50 press.

12. There were two independent interlock guarding systems for Press P50 to guard the Operator from contact with the moving parts of the press machine when the primary safety screen is not in the down position. These were mechanical and pneumatic respectively. Either of these interlock guarding systems, functioning alone, would prevent the press from cycling if the safety screen is not down.

13. For the functioning of these interlock guarding systems the following devices were fitted to the primary guard screen of P50:

1. Mechanical - metal interrupter bar for the mechanical interlock guarding system.

2. Pneumatic - metal striker plate to activate the lever arm switch of the pneumatic isolation valve of the pneumatic interlock guarding system.

14. The mechanical interlock system comprises a metal interrupter bar fixed to the primary guard screen and positioned so that when the safety screen is not down, the mechanical interrupter bar is located between the flywheel and the clutch ring, preventing the clutch from engaging, thereby preventing the press from cycling.

15. The pneumatic interlock system comprises an isolation valve, the lever arm switch, the activation switch and the clutch release mechanism that are interconnected by nylon plastic airlines. The press can strike only when the activation switch and the lever arm switch are simultaneously open. When the safety screen is not down the metal striker plate is positioned clear of the pneumatic lever arm switch, which prevents the clutch from engaging, thereby preventing the press from cycling.

16. When either one (or both) of the interlock guarding mechanisms installed on the press machine is in place and fully operational, the P50 press will not cycle unless the safety screen is in the down position.

17. When the primary safety screen is brought down by the operator/worker, it allows the P50 press to cycle when the Operator presses the activation switch, because it causes:

1. the removal of the interrupter bar from the clutch of the P50 press, and

2. the metal striker plate to activate the lever arm switch of the pneumatic isolation valve of the pneumatic interlock guarding system thereby letting air reach the clutch release mechanism of the P50 press when the operator presses the activation button, allowing it to cycle.

18. The P50 was normally used to complete a task called 107mm nozzle clenching. On 17 March 2015 the P50 press tooling and guarding were reset from clenching 107mm tops to piercing 19mm rectangle tops. This was usually done by the P46 press, but it was out of service.

19. The resetting from clenching to piercing on the P50 press required the removal of the interrupter bar from the primary rise and fall guard of P50. The airline interconnections were changed to bypass the isolation valve of the pneumatic interlock guarding system to allow piercing to take place. There was no need for the pneumatic system to operate during 19mm piercing, as the operator did not put their hand inside the press.

20. On 17 April 2015, the maintenance team advised Ms Zielinski that the P46 press would be available again from 20 April 2015.

21. On the morning on 21 April 2015, Ms Zielinski requested the Line Setter, Mr Kamal, to change P50 back to clenching 107mm tops. Mr Kamal commenced the changeover at approximately 10am that day and completed it at approximately 12.15pm.

22. When completing the changeover, Mr Kamal failed to reinstall the interrupter bar for the mechanical interlock or reconnect the pneumatic interlock guarding system. Mr Kamal did not complete any documentation to confirm he had checked both guarding systems were properly installed and operational. Mr Kamal was not required by any procedure to make a written record of having checked that the guarding systems were properly installed and operational.

THE INJURED PERSON

23. Ms Snezana Kilmoska was employed as a casual process worker with Astar. She commenced employment with Astar on 3 March 2015 and started working for the offender on 5 March 2015. Her main duties included manual handling tasks on production lines and operating machines such as press machines. Prior to working at the offender, Ms Klimoska was a hairdresser by trade and had no qualifications or experience in production or process work.

THE INCIDENT

24. On 21 April 2015, Ms Klimoska arrived at the workplace at 7.00am. Her supervisor, Ms Zielinski, was absent so she was allocated work on the welder machine by Mr Kamal.

25. After Ms Klimoska finished her work on the welder machine, Mr Kamal directed her to make 107mm tops on machine P50.

26. Ms Klimoska had completed this task twice before by herself, on 1 April 2015 and on 20 April 2015. Mr Kamal stated in his Record of Interview that he believed Ms Klimoska was suitable for the task as he had noticed her producing 107mm tops previously and that she told him that she was fine to work on the press and knew the job.

27. Ms Klimoska commenced work on machine P50 making 107mm tops at approximately 12.30pm. At approximately 2.10pm when Mrs Klimoska was operating machine P50 with the guard in the up position. Her right hand was caught in the press while it was cycling and 3 fingers were crushed. Mrs Klimoska screamed and was attended by another worker in the area who assisted her to lift up her hand and then took her to the first aid room.

28. At around 2.19pm Mr John Santos, the Production Manager, arrived at machine P50 to take photographs. He spoke to press department Setter Mr Alan Richmond who identified that the interrupter bar was not in the correct place and that the press had been set by Mr Raj Kamal. He then met with Mr Francisco Gonzalez, the Maintenance Supervisor, near the first aid room and then they returned to inspect machine P50 accompanied by Safety Officer Mr Craig Lucas.

29. They observed that:

1. the air was still on;

2. the P50 press was not locked out;

3. the flywheel was not spinning and the stop button was depressed;

4. the power was on and the conveyor was running; and,

5. the interrupter bar was not attached.

30. At this time Mr Gonzales performed checks on the P50 press and found that when he pressed the activation button the machine did not operate and air was escaping from the pneumatic system. Mr Gonzales concluded that the tubing of the pneumatic system was wrongly connected and the activation button was not functioning.

31. Around 2.30pm, following the checks by Mr Gonzales, Mr Kamal arrived. Mr Gonzales then demonstrated to him that when the activation button was pressed, the press did not function and that air was escaping the pneumatic system. After this, and in the presence of Mr Gonzales and Mr Santos, Mr Kamal adjusted the airlines and the pneumatic switch then worked correctly.

32. This rectification was completed prior to the SafeWork NSW expert Mr Terry Fouques inspecting the P50 press on 23 April 2015 and writing his report.

33. Mr Fouques stated in his report that:

1. there was no mechanical interlock fitted to the guard on machine P50;

2. Pressing the activation switch with the guard in the open position did not allow the machine to cycle or strike;

3. With the guard in the open position, depressing the pneumatic lever switch by hand and pressing the activation switch allowed the machine to cycle or strike;

4. Without the mechanical interlock fitted, it was possible to operate the machine with the guard in the open position.

INJURIES AND AFTERMATH

34. Mrs Klimoska sustained crush injuries to 3 fingers on her right hand resulting in the amputation of her middle finger and part of her index and ring fingers.

35. As at 28 July 2015 Mrs Klimoska had not returned to work and expressed uncertainty at her ability to return to work in any capacity. No other information was put before the court.

SYSTEMS OF WORK BEFORE THE INCIDENT

36. The offender’s systems of work required that the guarding of all power presses scheduled for use each day be checked by a Press department Setter to ensure that they were in place and operational. This was done prior to commencement of work and was recorded on a Daily Inspection Sheet.

37. Prior to the incident if a re-set press machine was required for unscheduled use an “Unchecked Status” on the daily inspection sheet would alert workers to the need for a check by a Setter prior to the press machine’s use. The offender’s systems of work required machines to be tagged and locked-out for resetting by the relevant Setter.

38. The initial appointment of Mrs Klimoska as a casual process worker in the production department of the offender did not require any prior qualifications or prior experience.

39. Astar carried out an employee induction with Ms Klimoska prior to her commencing work at the offender. The Astar induction consisted of a multiple choice safety questionnaire and the provision of an induction manual. Ms Klimoska signed a statement certifying that she had read, understood and agreed to the contents of the induction manual on 3 March 2015. Astar also required their employees to watch a video about “Work Safety Essentials” as part of the induction.

40. The offender carried out a site specific induction with Mrs Klimoska when she commenced work on 5 March 2015. Mrs Klimoska signed a statement certifying that she had read, understood and agreed to the rules and safety requirements of the offender’s Employee Induction Manual which states that “Machinery must never be operated without guards”.

41. The offender provided workers, including Ms Klimoska, with on the job training from supervisors/experienced mentors. The training consisted of the supervisor training the worker on the specific machine to be operated and included the supervisor explaining the safety features and precautions on the machine and demonstrating the use of the machine. The supervisor then spent a period of time observing and advising on the trainee’s operation of the machine. Once the supervisor was satisfied that the trainee was competent in operating the machine properly, training was signed off as complete. The worker may then operate the machine with intermittent or roaming supervision. There was no minimum amount of time under supervision.

42. The offender’s training records indicate that Ms Klimoska received one hour of training in the nozzle pressing task on 26 March 2015 by Ms Kahu Henare, an experienced operator. After this Ms Klimoska was signed off by Ms Henare as competent in this task. Ms Klimoska’s training from Ms Henare did not include the operation of the safety guards or conducting checks to ensure that the safety features of the press machine were operational prior to commencing work. The offender relied upon buddy-system training, and on-the-job training for its workers.

43. On the day of the incident, Ms Klimoska had been working at the offender for just under seven weeks and had used a press machine for nozzle clenching by herself twice before. She was operating the press machine alone. Ms Zielinski was responsible for supervising her at the time.

44. The offender had several safe operating procedures which applied to the use of the P50 machine at the time of the incident including:

1. Nozzle Clenching (Doc No. PRWP008, dated November 2007);

2. Working on Presses in Press Department (Doc No. PRW005, dated August 2006);

3. Safeguarding Machinery (Doc No. 4.4.6.19, dated September 2003); and

4. Safe Working Procedures (Doc No. 4.4.6.7, dated September 2003).

45. The offender’s procedures require that personnel working with machinery are informed, trained, instructed and supervised in relation to machine guarding and safe operating and maintenance procedures. Ms Klimoska was not made aware of any safe operating procedures (including those listed above). Mrs Zielinski also confirmed that she never showed or trained Ms Klimoska in any of these procedures.

46. The Nozzle Clenching document contained a safety check procedure for the operator to carry out prior to operation. Ms Klimoska was not aware of this procedure or trained to complete the safety check. The safety check was not performed before she commenced the task on the day of the incident.

47. The Working on Presses in Press Department procedure states Line Setters are responsible for making sure the safety guards are in place, secure and functioning. The functionality of the safety guard does not appear to have been tested prior to allocating Ms Klimoska to the machine.

48. The procedures required Line Setters to complete and record safety checks at the beginning of shifts. However, at the time of the incident, there were no requirements for Line Setters to record the results of these safety checks on presses after completion of a changeover.

49. The offender did not require the Setter or the operator to conduct “challenge testing” after the Line Setter had completed the changeover of the die on the press. This would have involved checking the safety critical parts of the press prior to commencing use. If challenge testing had been done (a five second procedure) it would have been obvious that neither interlock guarding system was operating.

GUIDANCE MATERIAL

50. Clause 208(5) of the Work Health and Safety Regulation 2011 states that:

“…the person with management or control of the plant must ensure:

(a)   that the guarding is of a kind that can be removed to allow maintenance and cleaning of the plant at any time that the plant is not in normal operation, and

(b)   if guarding is removed, that, so far as is reasonably practicable, the plant cannot be restarted unless the guarding is replaced.”

51. The WorkCover Managing the Risks of Plant in the Workplace Code of Practice (dated July 2014) provides specific guidance relating to guarding requirements in section 4 “Specific control measures” and includes:

“Removal of guarding

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. The plant should not be able to restart unless the guarding is in place.”

52. Australian Standard AS 4024.1602:2014 “Interlocking devices associated with guards – Principles for design and selection” provides information on interlocking devices in association with guards. Section 5 “Requirements for the design and the installation of interlocking devices with and without guard locking” provides general requirements including the need to prevent defeat of interlock devices in foreseeable manners.

53. Australian Standard AS 4024.3001 - 2009: “Materials forming and shearing – Mechanical Power Presses” in section 3.3 “Mechanical Hazards in the Tools Area” provides direction in relation to guarding of presses.

SYSTEMS OF WORK FOLLOWING THE INCIDENT

54. The offender modified the guarding on the P50 press machine so that the Operator is no longer exposed to the moving parts when set for the Nozzle clenching task.

55. The offender installed an automatic press machine in December 2015, which completes the nozzle pressing process. This machinery was ordered prior to the incident for improved production efficiency.

56. The offender introduced procedures to require any press machines that are subject to resetting to be inspected and signed off by the Setter against a checklist for Power Presses Guards and Interlocks.

57. The offender provided training to operators in checking safety devices fitted to machinery and extended the “challenge test” to include in PRWP005 “Working on Presses” the requirement that operators complete a check of machinery and the safety guard’s functionality prior to operation, as was previously included in safe work procedure PRWP008 “Nozzle Clenching”.

58. The offender conducted a risk assessment on machine P50 and similar machines and identified hazards, risks and control measures.

THE EVIDENCE FOR THE OFFENDER

59. The evidence for the offender came from the affidavits of Mr Leo James Lynch and Ms Lile Tancevska. Both affidavits were sworn on 1 December 2017.

Affidavit of Mr Leo James Lynch

60. Mr Lynch was and has been a director of the offender since 11 November 1996. Prior to his role at the offender, Mr Lynch was employed by CSIRO as a chief research scientist. He has qualifications in accounting, finance, and physics.

61. The offender’s origins date back to the 1880s in Marrickville NSW as a tin-smithing business, with it being established as a specialist can-maker in the 1920s.

62. In 1954 the business was acquired by the family of the present managing director and current ownership and control commenced on 11 November 1996. The offender was incorporated in 1956.

63. In 1988 the offender moved to an integrated plant at its present location at 34 Arncliffe Street, Wolli Creek.

64. The offender manufactures metal containers and is also a metal printer. The containers range in capacities from 250 ml cans to 23 litre drums and pails. These products are supplied to the food, agriculture, paint and coating, chemical, oil, mining and other industries in Australia and internationally.

65. The offender presently employs around 120 people. Over the past 40 years this number has varied between 90 and 150 people.

66. Mrs Snezana Klimoska was engaged by contract with her employer Astar Personnel Pty Ltd to undertake factory process work commencing on 5 March 2015.

67. Mr Lynch said that he deeply regrets the injury to Mrs Klimoska which he believes would have been prevented had the company’s existing procedures been followed. Mr Lynch accepts and acknowledges that there was a failure in the training of Mrs Klimoska, a failure to test the interlock guarding of the P50 press on which she was working when injured, and a failure in the setting up of the press to ensure each of the interlock guards required for operating the press were functional.

68. Mr Lynch accepted Mrs Klimoska’s account of her training and that she was not shown how to test the guarding on Press P50. Mr Lynch states that the offender should have ensured that Mrs Klimoska was shown how to test that the guards were functioning before starting the clenching process on the press.

Manufacturing processes

69. Machinery used in the manufacturing processes included two metal printer/coater lines, metal slitting machines, manually operated and semi-automated power presses, welding machines; CNC press lines and other automated lines; twelve automated assembly lines and an engineering workshop. Around ninety per cent of the offender’s employees worked on this machinery, on differing hourly rotation systems. Due to the large quantity of material processed by the offender, there are many plant and manual task hazards.

Prior convictions

70. Mr Lynch has considered the record of prior convictions produced by SafeWork NSW, however he is unable to provide any information about the seven recorded convictions between 1961 and 1990 under the Factories Shops and Industries Act 1962. He states that there are no records available to him relating to this issue and the convictions occurred prior to his involvement in the offender, and also prior to the active involvement of his co-director and the current owner of the offender.

71. The three prior convictions under the Occupational Health and Safety Act 1983 occurred under the current board and ownership of the offender established in 1996. Mr Lynch relied upon both his own recollection and the offender’s records to provide the following information.

72. Proceedings 99/954 involved an injury in 1997 to a worker named Ms Faleata Saufoi. Ms Saufoi was operating a machine with a “2 button operation mode”. When one of the buttons became stuck, Ms Saufoi continued to operate the machine and consequently injured her finger. Following the incident, the machine was modified to include additional safety features that would prevent a similar injury. The offender also commissioned a machinery safety audit to help improve the health and safety aspects of its systems of work. All of the modifications recommended by the audit were implemented. Ms Saufoi remains an employee of the offender.

73. The 2001 proceedings concerned an injury to a line setter Ms Linda Wu. On 8 October 1998 Ms Wu was supervising the pail production line. Ms Wu’s role included attending to interruptions to the line and machinery. The process for removing a machine jam was to cut power and use a supplied tool. The incident was caused by a piece of wire became jammed in a die feed mechanism. Ms Wu removed the wire by hand, injuring her left index finger. Following this incident, access to components of the pail production line was closed off with fencing. Interlocked perimeter entry gates were also installed to ensure that disconnection of power to the machine occurred upon entry to the fenced off area.

74. The 2003 proceedings involved an injury to the hand of Ms Sotto whilst operating Press P35 on 21 June 2000. The press had fitted to it a mechanical interlock guarding system. The mechanical interlock (interrupter bar) had been tested on the morning of the incident. During Ms Sotto’s operation of the press, the weld connecting the interrupter bar failed and the bar dislodged from the primary guard. The failure occurred as a result of a stress fracture in the weld which was undetectable during routine inspection. Following this injury the offender:

1. replaced welded interrupter bars with bolt on bars where feasible;

2. introduced weld testing kits to scheduled routine maintenance procedures;

3. designed and installed a pneumatic interlock system as a second interlock safety system on presses;

4. substituted foot pedal activation with manual button activation on presses so both operators hands were engaged;

5. prepared a new detailed OH&S Manual;

6. introduced the “DuPont STOP” program;

7. completed a major risk register of 374 items which has been used to identify and minimise risks.

Safety management system

75. Mr Lynch asserted that the offender has a safety management system for putting into practice measures to protect people from hazards and to ensure that those working with machinery and in other high risk tasks are properly informed, trained, instructed and supervised.

76. The offender had previously developed its own safety procedures and engaged safety consultants to undertake external reviews of plant and machinery safety. In 1998 Freo Risk Management undertook a review of the offender’s operations and safe work procedures and produced a customised OH&S manual which was adopted by the offender in 2000. This was later revised to produce the company’s Safety Management System manual which was in turn adopted by the offender in 2003.

77. The elements of the offender’s safety management system in place prior to and at the time of the incident included:

1. The Safety Management System manual;

2. An induction manual which was provided to all workers at induction;

3. The DuPont developed STOP behaviour-based safety program designed to prevent injuries in the workplace;

4. Documented simple safe work procedures for the conduct of specific workplace tasks;

5. New workers were inducted by the human resources manager and introduced to safety aspects of the workplace;

6. Workers were trained on how to safely undertake specific processes before being assigned to undertake the relevant process;

7. Workers were reminded of safety by their supervisors in daily work assignment meetings;

8. Weekly toolbox meetings were held to emphasise safety;

9. A work health and safety committee with active worker representation was established;

10. Guarding was supplied for all equipment where appropriate to prevent operator contact with moving parts of equipment;

11. Procedural requirements that presses are checked at the beginning of each day by specially qualified employees to ensure that the guarding is in place and operational;

12. Procedural requirements that the supervisor assigning qualified operators to a machine check to ensure that a safety check of the machine has occurred that day;

13. Use of the MEX maintenance management system to schedule preventative maintenance of its plant and equipment;

14. The offender periodically overhauls and renovates its press machines.

P50 Press

78. The press is now fitted with two interlock guarding systems to protect the operator.

79. At the time of the incident, the offender had two safe work procedures in place for the P50 press, namely:

1. PRW005 Working on Presses in Press Department (dated August 2006); and

2. PRWP008 Nozzle Clenching (dated November 2007). These safe work procedures are audited for compliance periodically.

80. At the time of the incident, the offender had two safety management system documents in place for the P50 press, namely:

1. Safeguarding Machinery (Doc No. 4.4.6.19, September 2003);

2. Safe Working Procedures (Doc No 4.4.6.7, September 2003).

Systems of Work following Incident

81. The offender since the incident has:

1. Given refresher training to personnel who use presses;

2. Refreshed press department practice and safe work procedures, including: instituting a “Pink Card checklist”; revising PRWP005 Working on Presses; and requiring that operators sign off that they have completed a press safety check.

3. Completed “plant hazard assessments” of all plant and machinery employed by the offender, and “human manual task risk assessments” of all manual tasks undertaken for the offender. These checks were carried out by a Productivity Council of Australia consultant over the course of ten months;

4. Modified the guarding on the P50 Press, so that the operator could not be exposed to moving parts;

5. Installed an automatic press machine, which was ordered on 21 November 2014 and installed in December 2015.

Affidavit of Lile Tancevska

82. Ms Tancevska is the human resources officer at the offender. She commenced that role in December 2010.

83. Ms Tancevska said that she takes every new employee or contract casual worker through an induction procedure on their first day, and maintains an employee pre-start checklist. She says that she carried out an induction for Mrs Klimoska according to her usual practice.

84. That practice entails: providing the worker with a copy of the offender’s Employee Induction Manual; walking around the plant with the worker to show them emergency evacuation exit points, first aid rooms, notice boards, photo boards, walkways, work health and safety representatives; and introducing them to their supervisor. She also explains forklift safety, issues them with personal protective equipment, demonstrates its appropriate use and ensures they have appropriate work wear. The supervisor is then provided with an employee training log, and they then arrange department specific familiarisation and safety briefings and introductory training.

85. Ms Tancevska states that the offender applies the “Dupont STOP” system which involves observation of workers and appropriate intervention. The system requires trained observers completing at least four random observations of other workers per month. The observers also carry out spot checks of other workers.

86. The offender has a practice to sign process workers up to process manufacturing training provided by TAFE or another qualified trainer, within their first three months of employment. A trainer will then come on site. Most of the offender’s employees have completed the process manufacturing course and received Certificate III in Process Manufacturing.

87. The offender also provides a variety of other safety focussed training to employees in the following areas:

1. First aid certification

2. Quality inspection

3. Fire fighting and fire warden training

4. Logistics management

5. Forklift driving

6. Lock-out procedures

7. Confined space procedures

8. Working at heights

9. RTA blue card/traffic controller

CONSIDERATION

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

OBJECTIVE SERIOUSNESS OF THE OFFENCE

89. 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 R (No. 2) (1998) 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].

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

91. 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].

92. 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.

93. 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 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.”

94. 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 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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

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

1. Employees of the offender were placed at risk of death or serious injury. The risk of a worker operating a press being struck, crushed or otherwise injured was obvious, identifiable and foreseeable;

2. The existence of the risk was known or should have been known as the risk was identified in:

1. Work Health and Safety Regulation 2011;

2. WorkCover Managing the Risks of Plant in the Workplace Code of Practice (dated July 2014);

3. Australian Standard AS 4024.1602:2014 “Interlocking devices associated with guards – Principles for design and selection”;

4. Australian Standard AS 4024.3001 - 2009: “Materials forming and shearing – Mechanical Power Presses”;

5. Clause 1.0 of the offender’s document PRWP 008;

3. Simple remedial steps were available which would have completely avoided the risk. A challenge test by the operator would have taken seconds to complete. The Setter completing a checklist would have also only taken seconds;

4. The likelihood of the risk coming home was quite high, if the Settler through human error did not re-activate the two interlock guarding mechanisms;

5. The injuries sustained by Ms Klimoska were a manifestation of that risk;

6. The policies and procedures that were in place meant that the offender must have foreseen the risk manifesting. I find this because:

1. there had been previous incidents regarding crush injuries at the offender;

2. the offender knew the presses were dangerous and had policies and procedures in place to manage that risk;

3. the terms of the offender’s own document PRWP008 – specifically Clause 1.0;

7. The offender failed to train or make known the relevant policies which were in place at the time relating to the safe operation of machinery at the offender’s premises. The offender took no steps to ensure that Ms Klimoska was aware of the content of the policies and procedures;

8. Ms Klimoska did not have any qualifications or relevant experience in relation to the operation of a press. She had only worked for the offender for 7 weeks. In such circumstances the offender had a duty to provide Ms Klimoska with adequate training and supervision. She was not in a position to know if the guarding was operational or not. She was a vulnerable person;

9. The offender failed to ensure that the press was in an appropriate condition to be used by its employees;

10. The offender failed to ensure the Setter signed off on machines being safe to use, thereby allowing the risk to arise;

11. The offender failed to guard against human error by a Setter. It could not rely on its Setters being perfect 100% of the time;

12. I find that the offender’s level of culpability is in the mid-range.

DETERRENCE

96. The penalty imposed in relation to these offences 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 at [180]. Crush injuries in presses are sadly all too frequent.

97. The penalty must reflect the need for specific deterrence. The offender is still conducting a business, and has a large number of employees who operate machines which are very dangerous if safety is not ensured.

AGGRAVATING FACTORS

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

MITIGATING FACTORS

99. The offender is otherwise of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. The steps which the offender took after the incident demonstrate this. It provides employment for a large number of people. However its safety record is not unblemished. There have been previous incidents involving press machines.

100. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken positive steps to guard against the risk of an incident such as this ever happening again.

101. The offender has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender proved that it has accepted responsibility for its actions and has acknowledged that the injury to the victim was caused by its actions.

102. The offender 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 it pleaded guilty, and the circumstances in which it indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. In my view the offender indicated its intention to enter a plea of guilty at the earliest possible opportunity. It is appropriate to apply a discount of 25%.

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

CAPACITY TO PAY A FINE

104. I am required to have regard to s 6 of the Fines Act 1996 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: Jahandideh v R [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.

105. There was no submission that the offender had a limited capacity to pay a fine, so this issue does not arise.

COSTS

106. The prosecutor seeks an order that the offender pay the costs as agreed or assessed. That is an appropriate order.

PENALTY

107. The offender is convicted.

108. The appropriate fine is $240,000 but that will be reduced by 25% to reflect a plea of guilty.

109. I impose a fine of $180,000.

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

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

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Decision last updated: 11 December 2017