SafeWork NSW v N Moit & Sons (NSW) Pty Ltd

[2023] NSWDC 205

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v N Moit & Sons (NSW) Pty Ltd [2023] NSWDC 205

Hearing dates:

17 May 2023

Date of orders:

16 June 2023

Decision date:

16 June 2023

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine for the offence is $100,000.00 and that will be reduced by 25% to reflect the plea of guilty.

(3)   Accordingly, I order the defendant to pay a fine of $75,000.00.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed 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 – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition

COSTS – prosecutor’s costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Fines Act 1996 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety Regulation 2011 (NSW)

Work Health and Safety Regulation 2017 (NSW)

Cases Cited:

Bulga Underground Operations v Nash (2016) 93 NSWLR 338

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

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

Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464

Markarian v The Queen (2005) 228 CLR 357

Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117

Muldrock v The Queen (2011) 244 CLR 120

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling v The Queen (2012) 35 VR 399

R v Cage [2006] NSWCCA 304

R v MA [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK [2006] NSWCCA 272

R v Thomson & Houlton (2000) 49 NSWLR 383

SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117

SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398

SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632

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

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

WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Texts Cited:

Australian Standard AS/NZS Selection, use and maintenance of respiratory protective equipment 1715:2009

Respirable Crystalline Silica and Occupational Health Issues

The Control of Workplace Hazardous Substances Code of Practice

Workplace Exposure Standards for Airborne Contaminants

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
N Moit & Sons (NSW) Pty Ltd (Defendant)

Representation:

Counsel:
Mr A Mykkeltvedt (for the Prosecutor)
Mr B Rauf (for the Defendant)

Solicitors:
Department of Customer Service (for the Prosecutor)
Source Legal (for the Defendant)

File Number(s):

2022/229597

Publication restriction:

Nil

Judgment

1. Between 28 January 2014 and April 2021, at 306 Racecourse Road, Clarendon in New South Wales, N Moit & Sons (NSW) Pty Ltd (‘the defendant’), being a person conducting a business or undertaking who had a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (‘the WHS Act’) to ensure, so far as was reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking, did fail to comply with that duty contrary to s 33 of the WHS Act.

2. The defendant entered a plea of guilty on 6 February 2023. The maximum penalty for the offence is $500,000.00.

3. The prosecutor tendered a Sentence Tender Bundle, which became exhibit A. The defendant tendered an affidavit of Tony Moit affirmed 3 May 2023, which became exhibit 1.

Background

4. The defendant carried on a business or undertaking which provided services including earthmoving, demolition, excavation, civil infrastructure and the recycling of masonry waste.

5. The defendant employs approximately 250 people and operated a rock and dirt recycling facility at 306 Racecourse Road in Clarendon, New South Wales (‘the facility’). The facility operates by recycling building material waste and selling the recycled products such as aggregate, crushed sandstone and road base.

6. Mr Michael Moit (‘Mr Moit’) was the sole director and company secretary of the defendant.

7. Mr Mohammad Sharif (‘Mr Sharif’) commenced employment with the defendant on 28 January 2014 as a general labourer. Mr Sharif’s employment became permanent on 13 January 2015.

8. During the first three years of his employment, Mr Sharif worked at the facility between 5:00am and 6:00pm on weekdays and between 5:00am and 1:00pm on Saturdays. After his first 5 years with the defendant, Mr Sharif generally worked 12 hour shifts, five days per week.

9. Mr Sharif’s working hours were reduced as a result of COVID-19 and since November 2021, Mr Sharif has worked 8.5 hour shifts.

10. Mr Sharif’s duties involved removing metals and plastics from the masonry waste (such as brick and concrete) before loading the waste into concrete crushers to be crushed into smaller sized aggregate for onsale.

Respirable crystalline silica

11. SafeWork Australia released the Workplace Exposure Standards for Airborne Contaminants on 22 December 2011. That document contained a list of workplace exposure standards (‘WES’). The WES for quartz respirable dust was 0.1 milligrams per cubic metre of air (‘mg/m³’) which is a time-weighted average for an 8-hour work shift. On 1 July 2020, the WES for quartz was halved to 0.05 mg/m³.

12. Between 28 January 2014 and April 2021 (‘the relevant period’), the defendant had a duty to ensure that no persons at its workplace were exposed to an airborne substance that exceeded its WES pursuant to cl 49 of the Work Health and Safety Regulation 2011 (NSW) (‘the 2011 Regulation’) and cl 49 of the Work Health and Safety Regulation 2017 (NSW) (‘the 2017 Regulation’).

13. Masonry waste material such as concrete and bricks contain approximately 30% crystalline quartz, and upon being crushed, create very fine particles known as the ‘respirable fraction’ of dust, which in turn generate respirable crystalline silica dust (‘RCS’).

14. Tasks that involve crushing concrete and bricks can generate substantial amounts of RCS, which can be inhaled by workers. Therefore, workers who perform tasks associated with the sorting and crushing of masonry waste can be at risk of serious illness from the dust disease ‘silicosis’.

15. Silicosis is an occupational lung disease known to be caused by inhalation of RCS dust. It is a serious illness that can progress to severe disability including loss of lung function, potentially resulting in the requirement of a lung transplant and can often lead to the development of other serious illnesses and ultimately result in premature death.

16. Advice on the selection, use and maintenance of respiratory protective equipment (‘RPE’) is contained in the Australian Standard AS/NZS Selection, use and maintenance of respiratory protective equipment 1715:2009 (‘AS/NZS 1715:2009’). Section 3.55(i) of the AS/NZS 1715:2009 provided that RCS is a known airborne contaminant which may cause immediate or long-term health effects depending on the level of exposure and the duration of the exposure.

17. As such, suitable RPE is required whenever activities are undertaken that could generate RCS, for example, the sorting and crushing of masonry waste.

The work

18. During the relevant period, Mr Sharif’s duties included manually separating metal and plastic from the masonry waste that was brought into the facility. He would then load the masonry waste onto conveyor belts to be crushed by machines including the Komatsu Jaw Crusher and the Kleenmann Impact Crusher (‘concrete crushers’). The concrete crushers would generate RCS when Mr Sharif was performing his duties.

19. Mr Sharif was initially provided with disposable dust masks (P2 type) which he was only required to wear when working in the vicinity of the concrete crushers. These masks would become clogged by airborne dust which meant that Mr Sharif would have to change his mask multiple times per day.

20. Sometime after 1 July 2020, the masks were changed from disposable P2 dust masks to half face respirators combined class A-AUS P2 Gas & Particulate Filters.

Knowledge of the hazards and risk

21. The hazards and risks associated with airborne RCS were known during the relevant period.

22. In February 2009, the Australian Institute of Occupational Hygienists published a position paper in February 2009 titled Respirable Crystalline Silica and Occupational Health Issues (‘AIOH Position Paper’). The AIOH Position Paper outlined control principles that applied to RCS for all mechanically generated dust exposure to RCS.

23. The control measures relevant to the work being undertaken by workers such as Mr Sharif included:

1. Design and operate processes and activities to minimise emission, release and spread of dust;

2. Using wet processes to prevent dust generation;

3. Using water suppression to prevent dust spread;

4. Applying good house-keeping practises to prevent dust build-up; and

5. Providing training in the health effects of dust inhalation and its control.

24. Further, the paper stated that where adequate control of dust exposure cannot be achieved by other means, PCBUs should provide, in combination with other control measures, suitable personal protective equipment (‘PPE’).

25. The Control of Workplace Hazardous Substances Code of Practice (‘Code’) was published in 2014 and updated in 2019. The Code provided guidance on managing risks associated with hazardous chemicals in workplaces, including that where risks could not be eliminated, they were to be assessed and controlled. The Code also stipulated that the WES must not be exceeded.

26. The Code further outlined that some processes would produce hazardous chemicals as by-products or waste and that those hazards may not be easily identified when generated in the workplace and made clear that such risks must be managed and provided requirements for air monitoring and health monitoring.

Systems in place during the relevant period

27. The defendant did not have in place any systematic approach to assessing the health of its workers in relation to their exposure to RCS during the relevant period.

28. The defendant had a safe work method statement in place for general labouring (‘labouring SWMS’). It did not identify dust as a hazard.

29. The defendant had a SWMS in relation to the concrete crushers (‘concrete crushers SWMS’) which identified dust inhalation as a potential hazard. However, the concrete crushers SWMS was not applicable to general labourers such as Mr Sharif. Mr Sharif had not signed the concrete crushers SWMS.

30. Mr Sharif was required to perform his duties in close proximity to the concrete crushers. Mr Sharif spent at least half of each day working in close proximity to the concrete crushers.

Respiratory protection program

31. The defendant had been providing disposable masks to its workers since at least 2014.

32. Disposable masks were only required to be worn in close proximity to the concrete crushers.

33. Mr Sharif was not instructed that it was necessary to be cleanly shaven when using the disposable masks.

34. In around July 2020, Mr Sharif’s mask changed from disposable masks to half face respirators.

35. Following an inspection on 30 March 2021, SafeWork NSW issued the following improvement notices to the defendant on 1 April 2021:

• 7-395055 – to provide appropriate RPE to workers; and

• 7-395065 for providing RPE fit-test and training for workers.

36. Fit testing was not conducted in relation to the disposable masks prior to April 2021.

37. Following the issue of the improvement notices, Mr Sharif was provided with a full-face powered air purifying respirator mask.

Personal exposure monitoring

38. The defendant did not have a personal exposure monitoring program in place to measure its workers’ exposure to RCS in the relevant period.

39. Crystalline silica was a substance listed for monitoring under schedule 14 of the 2011 Regulation.

40. Clause 50 in both the 2011 Regulation and the 2017 Regulation required the defendant to ensure that air monitoring was carried out to determine whether the airborne concentration of certain substances exceeded the prescribed WES.

41. The defendant did not arrange personal exposure monitoring for Mr Sharif at any time during the relevant period.

42. Mr Sharif undertook personal exposure monitoring on 4 June 2021 which recorded an exposure of 0.14 mg/m³ which exceeded the <0.05 mg/m³ threshold for an 8-hour time-weighted average.

Laundry

43. Mr Sharif’s work clothes would often become contaminated by dust generated by the concrete crushers.

44. During the relevant period, the defendant did not prevent workers from taking home contaminated clothes by:

• Providing appropriate on-site laundry services; or

• Requiring that contaminated clothing not be taken home.

Water based dust suppression

45. At various times throughout the relevant period, water-based dust suppression methods, including a water cart and external sprinkler system, were used to wet the work area.

46. It is agreed that the defendant’s water suppression methods were not adequate to address the emanation of airborne RCS from the concrete crushers.

47. The defendant did not have a system in place to suspend work being performed in the vicinity of the concrete crushers whilst water-based dust suppression systems were non-operational.

Information, instruction and training

48. On 15 April 2019, the defendant conducted a toolbox meeting during which silicosis was discussed.

49. The defendant did not otherwise provide adequate training, information and instruction in relation to the hazards, risks and control measures associated with the crushing of masonry waste containing crystalline silica.

50. Mr Sharif’s first language is Farsi and as such he did not understand the contents of the labouring SWMS or the concrete crushers SWMS, nor is there any record of them being translated and explained to Mr Sharif.

Systems of work following SafeWork inspection

51. On 1 April 2021, following an inspection on 30 March 2021, a SafeWork inspector issued two improvement notices requiring the provision of appropriate RPE and fit-testing and training. Subsequently, Mr Sharif was provided with a full-face powered air purifying respirator mask.

52. The defendant has undertaken many additional steps aimed at addressing the risks associated with RCS since the issue of the improvement Notices on 1 April 2021. Those steps have included the provision of more effective respiratory protection, personal exposure monitoring, systematic water-based dust suppression and the provision of disposable protective suits and a specific and wide ranging review of its procedures and policies.

The Duty

53. The defendant had a duty under s 19(1) of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of workers, including Mr Sharif while he was at work in the defendant’s business or undertaking.

The Risk

54. There was a risk of workers, in particular Mr Sharif, acquiring silicosis or other respiratory diseases or illness, as a result of the inhalation of airborne respirable crystalline silica while performing the tasks.

55. The defendant’s failure to comply with the duty under s 19(1) of the WHS Act is set out at [9] of Annexure A to the Summons.

56. The charge relates to a Category 3 offence under s 33 of the WHS Act. I note that unlike a category 2 charge under s 32, there is no element of ‘exposure’ or a failure exposing an individual to risk. The defendant submits that this reflects a lesser level of culpability than a breach of s 32, and that to the extent that the Statement of Facts (‘SOF’) refers to certain employees being exposed, this charge should be seen in the context of a failure or deficiency in relation to the system of work in place at the facility.

57. Furthermore, the Summons refers to the period of the offence as being from 28 January 2014 to April 2021. By the plea, the defendant accepts that there were occasions during the relevant period wherein it failed to comply with the duty.

58. However, the defendant asserts that this is not an admission of some continuing breach during the whole of the relevant period. Indeed, they say, if it were the position of the prosecutor, it would be precluded from alleging as much having regard to the observations of his Honour Judge Russell SC DCJ in SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117.

59. I accept that to be the case, and have sentenced the defendant on the basis that there were occasions during the relevant period when it failed to comply with that duty, but not on the basis of a continuing breach during the whole of the relevantperiod.

Sentencing

60. The penalty to be imposed must be one which will give overall effect to the policy of the WHS Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the WHS Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the WHS Act.

61. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) which include:

1. Section 3A which sets out the purpose of sentencing;

2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and

3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.

62. The Court is to approach a sentencing exercise on the basis of it being one of ‘instinctive synthesis’: Markarian v The Queen (2005) 228 CLR 357.

63. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way:

‘The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.’

Objective seriousness of the offence

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

‘…The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of offending.’

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

66. The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

67. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465.

68. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 (‘Capral Aluminium’) at [81].

69. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117.

65. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].

66. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (‘Nash v Silver City’). Justice Basten at [34], under the heading ‘Assessment of Risk’ said:

‘The sentencing judge commenced his consideration with the proposition that ‘[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.’ However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.’

72. His Honour further observed at [42]:

‘The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.’

73. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.

74. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]–[18] (Latham J).

75. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

76. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31–32 of the WHS Act: Nash v Silver City at [54]–[56]. The matters relevant to objective seriousness for a s 32 offence include:

• The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Nash v Silver City [34];

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

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

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

• Whether the risk was an obvious or clear one; and

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

77. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying:

‘It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.’

78. The following matters are relevant to determining the culpability of the defendant:

1. The defendant did not have any systematic assessment of risks to its workers health during the relevant period, and in particular it did not conduct any quantitative assessment of the airborne RCS dust levels in the workplace;

2. The systems of work in place in the relevant period required Mr Sharif to perform his work in close proximity to the crushing machinery for at least half of the workday;

3. No provision was made for the materials to be separated out prior to being placed in the crushing machinery and/or the associated hopper;

4. The SWMS in place made no reference to dust inhalation as a potential hazard, and whilst the defendant did have in place a SWMS in relation to the crusher that made reference to dust inhalation, it did not apply to labourers, and thus Mr Sharif was not trained in the crusher SWMS. In any event these documents were not in Farsi so as to allow Mr Sharif to understand them;

5. There was a very real risk to the health and safety of the defendant’s workers, in particular Mr Sharif, and the measures implemented to address that risk in a way to ensure the health and safety of workers were manifestly deficient.

6. Mr Sharif was not instructed in respect of the requirement to be clean shaven in order to increase the efficacy of the P2 mask he had worn for most of the relevant period. Additionally, fit-testing was not conducted in relation to those masks;

7. The defendant did not have in place a program to monitor the RCS exposure in the relevant period, and Mr Sharif undertook personal air monitoring in relation to the RCS on 4 June 2021 and recorded 0.14mg/m3 which exceeded the <0.05mg/m3 for an 8 hour TWA;

8. Mr Sharif has not as yet required any time off work due to illness or incapacity as a consequence of inhaling any airborne RCS, and continues to be employed by the defendant and undertake work at the facility. Nonetheless, the risks as described in paragraphs 14, 15 & 16 can result in serious illness and incapacity.

9. Mr Sharif’s work garments regularly became contaminated with significant quantities of dust, and the defendant did not have a laundry or other program in place to prevent workers taking contaminated clothing home;

10. Despite the use of a water cart and an external sprinkler system to wet down the work area, these measures were not enough to achieve adequate suppression of RCS dust. In any event, the external sprinkler system was not regularly operational and the water cart was not used in a systematic way;

11. Apart from a tool box meeting on 15 April 2019, that included a discussion of silicosis, the defendant failed to provide adequate information, instruction and training to its workers in connection with the hazards, risks and control measures associated with the crushing of masonry waste containing crystalline silica;

12. As discussed previously, which is summarised from the Statement of Facts, papers were published by the relevant experts as to the relevant control principles that applied to RCS for all mechanically generated dust exposures, which included straightforward control measures to minimise exposure to RCS including the use of water suppression, training, and the use of PPE;

13. Further, papers were published and guidance material was readily available to inform the defendant of the significant risks to the health of workers exposed to silica dust as a consequence of the defendant’s business activities. I accept that the risk was readily foreseeable;

14. The control measures that ought to have been implemented were not unduly costly or labour-intensive. The defendant accepts that the control measures at [9] of the Summons were reasonably practicable (Defendant’s written submissions at [18]);

15. The defendant accepts that the degree of foreseeability of the risk to health and safety was high, and that whilst the defendant had regard to the risk of inhalation of dust in relation to the workers undertaking the crusher operations, it did not consider the risk of the general labourers, who, from time to time, worked in the vicinity of the concrete crusher plant at the site (Defendant’s written submissions at [14]);

16. The defendant accepts that the systems in place with regard to general labourers were deficient, and I accept that it had taken steps during the period of the offence that went to addressing the risk, including the following (Defendant’s written submissions at [20]):

1. Provision of P2 disposable and half-face masks, which were required to be used by employees when working in the vicinity of the crushing operations;

2. Use of water-based dust suppression by way of water cart and external sprinkler system;

3. Employee health monitoring undertaken through the iCare Dust Diseases service for all employees; and

4. The development and use of a SWMS for the operation of the concrete crusher machine at the site.

17. Nonetheless, the defendant accepts that the gravity of the potential risk to health and safety was serious. However, the defendant submits that the ‘nature and quality’ of the criminality of this offence should be seen as less than a defendant which fails to have any system at all. I accept that submission.

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

Deterrence

80. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

81. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).

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

83. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 at [177]–[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]–[75] which said:

‘[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

…

[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.’

84. General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with working in an industry wherein mechanically generated dusts expose workers to the inhalation of such dusts.

85. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the WHS Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.

86. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

87. I accept that the prospects of rehabilitation of the defendant are very good, however, the need for an element of specific deterrence is still necessary in these circumstances.

Aggravating Factors

88. As conceded by the prosecutor, there are no aggravating features.

Mitigating Factors

89. The defendant has not been subject to any prior convictions under work health and safety law – ss 21A(3)(e) of the Sentencing Act.

90. I accept that the defendant is a good corporate citizen of good character and based on the contents of Mr Moit’s affidavit 3 May 2023 (exhibit 1), has made significant charitable donations as an active sponsor of the community: s 21A (3)(f) of the Sentencing Act.

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

92. I accept that since the incident, the defendant has implemented many measures to minimise the risk, at a significant cost to the defendant. These include:

• The purchase of full-face powered air purifying respirator masks for all workers operating the relevant equipment;

• contracting a third-party provider, Cleansafe Environmental Solutions, to perform onsite monitoring every 6 months, and Rapid Induct to conduct Asbestos and Silica Dust awareness training for all workers;

• utilising systematic water-based dust suppression at the site;

• utilising a 24-hour sprinkler system;

• modifying the screen at the end of each belt to install water sprayers to suppress dust;

• providing disposable protective suits;

• reviewing and updating relevant SWMS and reducing the time of each shift and thus potential exposure to dusty environments, and having an independent specialist work health and safety consultant for advice and review; and

• specific training program for directors and senior management of the company with regard to work health and safety laws, duties and obligations.

93. These steps, to my mind, demonstrate the defendant’s acceptance of its breach, and has put in place a set of procedures to ensure they comply with the defendant’s duties under the WHS Act.

94. I accept the defendant is unlikely to reoffend and the prospects of rehabilitation are very good.

95. The defendant co-operated with SafeWork during the investigations: s21A(3)(m) of the Sentencing Act.

96. Mr Moit’s affidavit of 3 May 2023 (exhibit 1) demonstrates the acceptance of responsibility for the defendant’s failures, and that the defendant through its senior officer and director, Mr Moit, is deeply remorseful and contrite. The defendant also expresses a sincere apology: s 21A(3)(i) and s 22 of the Sentencing Act.

97. The defendant entered a plea of guilty early, which of itself demonstrates remorse, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis. Thus, I will allow the deduction of 25% for the utilitarian value of the pleas in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s 21A(3)(k) of the Sentencing Act.

98. Having taken all of those matters into consideration, the appropriate fine for the defendant is $100,000.00. The defendant is entitled to a discount of 25% for the utility of the early plea.

PENALTY

99. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the offence is $100,000.00, and that will be reduced by 25% to reflect the plea of guilty.

3. Accordingly, I order the defendant to pay a fine of $75,000.00.

4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

5. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.

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Decision last updated: 16 June 2023