SafeWork NSW v O2 Motorsports Pty Ltd;; SafeWork NSW v Weissel

[2020] NSWDC 201

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v O2 Motorsports Pty Ltd;; SafeWork NSW v Weissel [2020] NSWDC 201

Hearing dates:

12 May 2020

Date of orders:

15 May 2020

Decision date:

15 May 2020

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

Penalty for O2 Motorsports Pty Ltd (2019/95655):

 

(1)   The offender O2 Motorsports Pty Ltd is convicted.
(2)   The appropriate fine is $180,000 but that will be reduced by 25% to reflect the plea of guilty.
(3)   Order the offender O2 Motorsports Pty Ltd to pay a fine of $135,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(5)   Order the offender O2 Motorsports Pty Ltd to pay the prosecutor’s costs as agreed or assessed.

 

Penalty for Nathan Weissel (2019/95590):

 (1)   The offender Nathan Weissel is convicted.
(2)   The appropriate fine is $30,000 but that will be reduced by 25% to reflect the plea of guilty.
(3)   Order the offender Nathan Weissel to pay a fine of $22,500.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(5)   Order the offender Nathan Weissel 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

 

COSTS – prosecution costs

  OTHER – motor vehicle service and repair business – director decided to add the manufacturing of biofuel for internal use to business activities – inexperienced, young worker tasked with manufacturing biofuel – worker assisted by work experience placement student in pouring bucket of the methanol/sodium hydroxide mix into mixing vat – worker did not inspect the gas burner flame – gas burner flame was on under vat when mixture was poured – worker suffered burns – placement student suffered flash burns – outdoor gas burner used inside – LPG cylinder used incorrectly – inaccurate labelling and storage of hazardous chemicals – inadequate training – absence of risk assessment and appropriate controls

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32
Work Health and Safety Regulation 2011, cll 34, 39, 44, 342, 344, 346, 379

Cases Cited:

Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:

“Australia/New Zealand Standard 1425:2013 LPG Gas Fuel Systems for Vehicle Systems”
“Australian Standard 2658-2008: Amdt 2 - LP Gas - Portable and mobile appliances”
Australia/New Zealand Standard 1425:2003 LP Gas Fuel Systems for Vehicle Engines
WorkCover NSW “Managing the Risks of Hazardous Chemicals in the Workplace” dated July 2014

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
O2 Motorsports Pty Ltd (Defendant)
Nathan Weissel (Defendant)

Representation:

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

  Solicitors:
SafeWork NSW (Prosecutor)
Rishworth Dodd & Co (Defendant)

File Number(s):

2019/956552019/95590

Judgment

Introduction

1. This case concerns an organisation and director in the core business of the service and repair of motor vehicles embarking upon the occasional production of biofuel for private use, without the appropriate safety controls in place. The informal nature of the systems of work for the manufacture of biofuel led to an incident in August 2017 when hazardous chemicals being poured by young, inexperienced workers into a vat were ignited by a gas burner flame underneath the vat, resulting in burn injuries.

2. O2 Motorsports Pty Limited (O2 Motorsports) has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Dylan Cowlishaw and Reece White to a risk of death or serious injury contrary to s 32(1) of the Act.

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

4. Mr Nathan Weissel, the director of O2 Motorsports, has pleaded guilty to an offence that being an officer of O2 Motorsports, a corporation which was a person that had a work health and safety duty pursuant to s 19 of the Act, he failed to comply with his duty under s 27(1) of the Act to exercise due diligence to ensure that O2 Motorsports complied with its duty pursuant to section 19(1) of the WHS Act, and the failure to comply with his duty exposed Dylan Cowlishaw and Reece White to a risk of death or serious injury contrary to s 32(1) of the Act.

5. In the case of a director of a corporation, the maximum penalty is a fine of $300,000.

Background

6. The parties presented an Agreed Statement of Facts and this material is summarised below.

7. O2 Motorsports conducted a business or undertaking which provided mechanical repairs and services for motor vehicles and jet skis. It also operated a small used car dealership and manufactured biofuel. Biofuel is energy made from renewable biological feed stocks, either crops or waste. Bioethanol, biodiesel and biogas are all types of biofuels.

8. Mr Weissel was the sole Director, Head Mechanic and Manager of O2 Motorsports. He worked in the business five days a week and had eight staff reporting to him. Mr Weissel had approximately 20 years’ experience in the mechanical trade.

9. Mr Reece White was a 16 year old high school student who was participating in a work experience program at O2 Motorsports. He commenced work experience on 11 August 2017. Mr White and his school were informed that he would be assisting and observing the mechanics and undertaking a range of jobs including washing cars, cleaning the workshop and helping employees.

10. Mr Dylan Cowlishaw was an employee of O2 Motorsports. He was 19 years old. His duties included washing and cleaning cars, undertaking some mechanic duties and making biofuel. At the time of the incident, he had been working for O2 Motorsports for eight months.

Plant and Equipment

11. The workshop was divided into two rooms: the “Engine Building Room” (Room 1) and “Metal Work Room” (Room 2).

Manufacture of biofuel at the workplace

12. The manufacture of biofuel at the workplace occurred in Room 1 and commenced approximately two and a half years before the incident occurred. It was manufactured as required in batches of 100 to 200 litres. It took approximately two to three hours of labour and four days for the process to be completed and for the product to be ready for use.

13. The manufacture of biofuel required the following ingredients:

1. Vegetable cooking oil, which was obtained by Mr Weissel from a local fast-food restaurant. It was transported back to the workplace and stored in 20-litre drums. It was filtered to remove coarse particulars.

2. Methanol.

3. Pottery Plaster.

4. Methylated spirits.

5. Turmeric.

6. Lye (sodium hydroxide).

14. The mixing instructions for the manufacture of biofuel were placed on the workbenches in Room 1 and labelled “Making Bio”.

15. The titration steps were placed on the workbenches in Room 1 and some of them were also handwritten in marker pen on one of the filtering drums.

16. To access the methanol, workers had to turn a tap on an Intermediate Bulk Container (IBC) and pour the methanol into a bucket. The bucket was then placed onto a trolley and wheeled to Room 1. Two workers were required to lift the methanol into the vat.

17. The vat was heated by an Oztrail OZ1094 Cast Iron Quad Ring Burner (gas burner). The Australian Gas Association (AGA) certification tag attached to the gas burner provided the following information:

“To be used on a non combustible surface only. This appliance shall only be used with LPG from cylinders complying with AS2030.1 (or equivalent). It may be hazardous to attempt to fit other types of gas containers.”

18. The gas burner warranty plate specified that it was a “camping and leisure product”.

19. The instruction manual for the gas burner specified that it was for outdoor use only. It also stated: “Do not use or store any flammable liquid or material in the area surrounding the burner”.

20. The Oztrail OZ1094 Cast Iron Quad Ring Burner is an approved appliance certified by AGA with an approval number of 7799G. It has been certified to comply with “Australian Standard 2658-2008: Amdt 2 - LP Gas - Portable and mobile appliances”. It was certified for use with propane gas.

21. The LPG gas tank connected to the gas burner was removed from a vehicle.

22. The sodium hydroxide was stored in a bucket that formerly contained mayonnaise. The word “acid” had been handwritten on the lid of the bucket. The Safety Data Sheet (SDS) for sodium hydroxide specifies that sodium hydroxide should be stored in its original container.

23. The biofuel manufacturing process was designed by Mr Weissel based on internet research he undertook.

24. The biofuel manufacturing process exposed workers to a risk of injury from fire and/or explosion occurring during the manufacture of biofuel. For example, the methanol was stored in IBCs in the unit O2 Motorsports occupied next door to the workplace.

25. Mr Weissel did not ensure the company had in place a safe system for the production of biofuel. The system utilised by the company was not fully enclosed. An enclosed system would have protected workers from being in direct contact with the hazardous chemicals.

26. The photographs of the biofuel machinery show a Heath Robinson-type of contraption which is obviously home-made.

The Incident

27. On 11 August 2017 Mr Cowlishaw had a cast on his left wrist from a prior accident.

28. On 11 August 2017 at around 9.00am Mr Weissel directed Mr Cowlishaw to make a batch of biofuel. This was only the second time Mr Cowlishaw had undertaken the manufacture of biofuel. He had previously assisted another worker, Brad Burns, to manufacture biofuel and had also assisted Mr Weissel with discrete tasks as part of the manufacturing process.

29. Mr Cowlishaw and Mr White washed vehicles until approximately 10.30am.

30. Mr Cowlishaw had told Mr Weissel that he did not feel he was competent to make biofuel and that he was nervous about doing it. Mr Weissel had told him that he would train him and get him comfortable with making the biofuel.

31. Mr Weissel only supervised Mr Cowlishaw during the initial steps of the manufacturing process, including the titration steps from approximately 10.30am to 11.30am. Mr Cowlishaw started to mix biofuel at approximately 11.30am. He poured 200 litres of cooking oil into a vat and heated it to 60 degrees using the burner.

32. At approximately 11.50am he was directed by Mr Weissel to complete the biofuel by lunchtime. He had to pause the process to wash some cars and drive some colleagues to get lunch.

33. Mr Cowlishaw recommenced the process of making biofuel from approximately 12.20pm to 12.30pm. The other workers of O2 Motorsports were on their lunch break at the time. Mr Cowlishaw mixed 40 litres of methanol with sodium hydroxide for 5 minutes in a bucket, using a mixing attachment on a drill. He then asked Mr White to assist him. Mr Cowlishaw and Mr White carried the bucket of methanol/sodium hydroxide mix over to the mixing vat. The burner was still lit. Before the bucket was poured into the vat the mixture ignited.

34. Mr White told SafeWork NSW investigators that he and Mr Cowlishaw had not realised that the gas burner flame was still on under the vat at the time that they poured the mixture. Mr Cowlishaw told SafeWork NSW investigators he believed the gas burner flame would have been turned off, but did not check.

35. Mr White was thrown backwards by the flame. Mr Cowlishaw’s clothes caught on fire. He ripped his clothes off. Another worker became aware that Mr Cowlishaw had caught on fire and turned on a nearby hose and hosed Mr Cowlishaw with water for 15 minutes.

36. At 12:39pm Fire and Rescue NSW attended the scene. The eAIRS Report produced by Fire and Rescue NSW, noted that the material which ignited first was “undetermined” but the considered opinion was “methanol due to mixing chemicals” and the ignition source was “heat from direct flame, convection currents”.

Injuries

37. At the scene, Mr White was given saline for his eyes because he had flash burns. He was taken to Shoalhaven District Memorial Hospital by ambulance but did not receive any treatment. He returned to the workplace on 18 August 2017.

38. Mr Cowlishaw was intubated due to pain and for airway protection and was flown to Royal North Shore Hospital (RNSH) for treatment.

39. He suffered approximately 7% Total Body Surface Area burns including the following:

1. 1% right leg – superficial dermal;

2. 1% left leg – superficial dermal;

3. 1% left hand palm and dorsum – superficial/mid dermal;

4. 1.5% right forearm and hand – superficial dermal;

5. 2% abdomen – superficial dermal;

6. 0.75% face (left cheek, nose, forehead) – mixed thickness, some deeper patches;

7. Singed facial hairs, including nasal and eye brows/lashes; and

8. Mid left inferior corneal epithelial defect.

40. Mr Cowlishaw was discharged from RNSH on 17 August 2017.

41. He returned to work with O2 Motorsports, undertaking some casual work including washing cars at their new dealership for approximately two months. He is now employed elsewhere.

42. On 30 January 2019, Mr Cowlishaw reported that his wounds and pigmentation had healed although a scar under his eye remained.

Systems of Work before the Incident

43. Before the incident, representatives from Mr White’s school attended the workplace and discussed work health and safety. They identified the tasks, activities and responsibilities that Mr White would be required to complete in his placement. They were advised that Mr White would be conducting general duties including observing, assisting where required and cleaning. The school was not advised that he would be involved in the making of biofuel, as it was not intended by O2 Motorsports that he would be involved in this.

Supervision

44. The defendants did not ensure workers were provided with adequate supervision while manufacturing biofuel.

45. Mr McFayden was listed on the work experience placement forms as being primarily responsible for the supervision and support of Mr White during his placement. However, Mr McFayden was unaware of this and was not directed to supervise Mr White.

46. Mr Cowlishaw was supervised by Mr Weissel while conducting the titration calculations but was unsupervised at the time of the incident. O2 Motorsports did not provide the supervision necessary to protect Mr Cowlishaw from risks to his health and safety arising from using, handling, generating or storing a hazardous chemical in contravention of cl 379 of the Work Health & Safety Regulation 2011 (NSW) (the Regulation).

Training and Induction

47. Mr White and Mr Cowlishaw were given a verbal induction at the workplace. Beyond this, O2 Motorsports did not provide adequate training to Mr Cowlishaw in the manufacture of biofuel.

48. The day of the incident was only the second time Mr Cowlishaw had mixed biofuel. It was a job that was usually undertaken by the previous apprentice, Mr Burns. Additionally, the only instruction Mr Cowlishaw received about how to use, store and handle hazardous chemicals was to “put the lid back on”. He did not receive any training about using the gas burner. The training provided to Mr Cowlishaw was not suitable or adequate having regard to the nature of the risks associated with the manufacture of biofuel or the control measures implemented at the workplace to control those risks in contravention of cl 39 of the Regulation. Mr Cowlishaw was not entirely sure what he was mixing to make the biofuel. He had some awareness that methanol was involved and some type of acid and cooking oil. He was not aware of the risks arising from the flammable nature of the methanol.

49. Mr Weissel did not ensure O2 Motorsports had implemented appropriate processes to provide a safe system of work for the manufacture of biofuel.

Absence of a Risk Assessment

50. O2 Motorsports did not conduct a risk assessment of the biofuel manufacturing process. Mr Weissel told employees that they were to keep the “bio room” clear of unnecessary clutter, not to touch anything unless they were the working with it, to respect every chemical and its packaging, to use gloves and to ensure no flames were present. The WorkCover NSW “Managing the Risks of Hazardous Chemicals in the Workplace” Code of Practice dated July 2014 was readily available and in place at the time of the incident. It details how a risk assessment could have been conducted at the workplace.

51. Pursuant to cl 34 of the Regulation O2 Motorsports had a duty to identify reasonably foreseeable hazards that could give rise to risks to health and safety.

52. Mr Weissel did not identify reasonably foreseeable hazards associated with the biofuel making at the workplace or ensure the company had a process in place to do so. Mr Weissel did not verify that O2 Motorsports had conducted a risk assessment.

System of work

53. The system of work O2 Motorsports was following was inherently dangerous. It required the use of a gas burner with a naked flame that was designed for outdoor leisure and camping and which was not to be used near flammable materials. It required the withdrawal of LPG Gas from a gas cylinder removed from a vehicle, a process that was not in accordance with “Australia/New Zealand Standard 1425:2013 LPG Gas Fuel Systems for Vehicle Systems” and it required workers to work in close proximity to highly flammable and toxic chemicals. For example, to access the methanol, Mr Cowlishaw had to turn a tap on an IBC and pour methanol into a bucket. He then placed the bucket onto a trolley and wheeled it to Room 1 to pour it into the vat. Additionally, he had to scoop sodium hydroxide out of a mayonnaise bucket and measure it on scales.

54. O2 Motorsports should have engaged a competent person such as an industrial chemist to design a system to protect workers from access to hazardous chemicals such as methanol or purchased an enclosed system such as the biodiesel processor and filtration system.

55. O2 Motorsports should not have been using the gas burner in the LPG gas cylinder.

56. O2 Motorsports should not have been using an LPG cylinder removed from a vehicle at the workplace in the manufacture of biofuel.

57. Mr Weissel did not provide O2 Motorsports with equipment to enable biofuel to be manufactured safely.

Safety Data Sheets

58. O2 Motorsports did not have a current SDS for each of the hazardous chemicals. O2 Motorsports had a SDS for methanol from Auschem and a SDS at the workplace for sodium hydroxide from Chemsupply. However, in the manufacture of biofuel they were using methanol from Coogee Energy Pty Ltd and sodium hydroxide from NowChem.

59. The Auschem and Chemsupply documents were not readily accessible to workers using, handling or storing those hazardous chemicals or who were likely to be affected. They were not placed in a location near the work area where the biofuel was made, in contravention of clause 344 of the Regulation. Mr Cowlishaw did not know what a SDS was, how to find it or how to use it. No-one at O2 Motorsports had spoken to Mr White about the SDS documents.

Labelling and Storage of Hazardous Chemicals

60. Mr Weissel and O2 Motorsports did not correctly label or store hazardous chemicals. For instance, in contravention of cl 342 of the Regulation, the sodium hydroxide was stored in a former mayonnaise container with the word “acid” written on the lid.

Hazardous Chemicals Register

61. O2 Motorsports did not have an up-to-date register of all hazardous chemicals used, handled or stored at the workplace for the biofuel process. This is in contravention of cl 346 of the Regulation.

Personal Protective Equipment

62. O2 Motorsports and Mr Weissel did not provide workers with information, training and instruction in the proper use and wearing of PPE and the storage and maintenance of PPE in contravention of cl 44 of the Regulation.

63. At the time of the incident, Mr Cowlishaw was wearing his work uniform which consisted of a button-up t-shirt, pants and steel cap boots. Mr White was wearing a black polo t-shirt, black jeans and boots. Mr Cowlishaw and Mr White were not provided with any PPE. The SDS for methanol specified that the following PPE is recommended:

“Safety glasses with unperforated side shields where continuous eye protection is desirable; chemical goggles wherever there is a danger of the chemical coming into contact with the eyes; full face shield may be required; elbow length PVC gloves, PVC apron and safety boots.”

64. The SDS for sodium hydroxide specified that the following PPE is recommended:

“A full-face shield and chemical splash googles when transferring is taking place, butyl and nitrile rubbers are recommended for gloves, coveralls and chemical resistant footwear, where an inhalation risk exists to wear a Type A (Organic vapour) respirator and if spraying to wear a Type A-Class- P1 (organise gasses/vapours and particulate) respirator.”

Introduction of Ignition Sources

65. The SDS for methanol specified that the chemical was highly flammable and the SDS on methanol and sodium hydroxide specified that the chemicals should not be used in an area with ignition sources. O2 Motorsports did not prevent ignition sources from being introduced into the area where the biofuel was manufactured such as the naked flame from the OZtrail Iron Ring Burner. The WorkCover NSW “Managing the Risks of Hazardous Chemicals in the Workplace” Code of Practice dated July 2014 identifies common examples of ignition sources at Part 3.4. Mr Weissel did not ensure that O2 Motorsports had and implemented processes to prevent the introduction of ignition sources into the area of the workplace where biofuel was manufactured.

Systems of Work following the Incident

66. On 11 August 2017 SafeWork NSW issued Prohibition Notice number 40235 directing that O2 Motorsports cease the mixing of biofuels, develop a safe work procedure for the mixing of fuels, remove unapproved gas bottles and burner and undertake a risk assessment on the mixing of hazardous chemicals for biofuels.

67. In response to Prohibition Notice number 40235, the making of biofuels at the workplace ceased and the manufacturing equipment was cleared out of the workplace. By 4 October 2017 O2 Motorsports had complied with the Notice.

68. On 17 August 2017 SafeWork NSW issued a number of Improvement Notices. Later visits by Safework NSW Inspectors established that O2 Motorsports complied with all Notices.

The Defendants’ Evidence

Affidavit of Mr Nathan Weissel

69. Mr Weissel swore an affidavit on 7 May 2020. The primary business of O2 Motorsports was the service and repair of motor vehicles. Mr Weissel was the Director, Head Mechanic and Manager of O2 Motorsports at the time of the incident. He received his Motor Mechanics trade qualifications in 2001 and has worked in the mechanical repair industry ever since.

70. Mr Weissel accepted that as the duty holders, he and O2 Motorsports had duties to ensure the safety of the biofuel manufacturing system. He expressed remorse in his affidavit for the injuries suffered by Mr Cowlishaw and Mr White and accepted responsibility for the failures in the system of work for the manufacture of biofuels at the business, which exposed Mr Cowlishaw and Mr White to risk. Mr Weissel has cooperated with SafeWork NSW throughout its investigation. O2 Motorsports has had no further incidents and has been compliant in all areas since the incident.

71. Mr Weissel deposed that the business did not commence manufacturing biofuels until 2015. The system of work for the production of biofuel was largely informal and the business only manufactured the product on an occasional basis. The purpose of the manufacture of the biofuel was for Mr Weissel’s use of the fuel in vehicles, not for public sale. The main precaution taken was the documentation of both the mixing and the titration steps. There were some steps written on the filtering drums and the steps involving flammable materials were to be carried out in Room 1 away from the ignition sources. Personal Protective Equipment (PPE) including safety glasses, welding masks and gloves was available for use by workers. There were SDSs for methanol and sodium hydroxide that dealt with the issue of flammability but they were from a different supplier.

72. Mr Weissel said that there were formal and informal systems in place for safety in respect of the service and repair of vehicles in the workshop. This included online training courses for staff, staff meetings where safety and health issues could be raised, on site first aid kits and books, fire safety systems, and the wearing of PPE including steel cap boots, gloves, safety clothing, safety glasses and shields.

73. In relation to the incident, Mr Weissel stated that he assisted Mr Cowlishaw with the initial steps, particularly the titration process. He was under the impression that the manufacturing tasks would be completed prior to the lunch break and he was not aware that Mr Cowlishaw would be engaging in the process of making biofuel during the break time.

74. Following the incident, Mr Weissel engaged counselling services for all the affected employees. Mr Weissel engaged in a debrief session following the incident with Mr White and a school aide and he personally continued to regularly monitor how Mr White was progressing by communicating with a school contact person. Not long after the incident, Mr Weissel contacted Mr Cowlishaw’s parents to check on how he was and to ask if he could visit. His parents declined the request. Mr Weissel spoke to Mr Cowlishaw directly by phone on 12 August 2017 and said he was “so relieved” to learn that Mr Cowlishaw was expected to make a full recovery from his injuries. Mr Weissel also met with Mr Cowlishaw soon after his discharge from hospital to check on his well-being and return his car to him. Mr Weissel also assisted with re-registering Mr Cowlishaw’s car. In September 2018, Mr Cowlishaw was again employed by O2 Motorsports as a car detailer and continued to be employed by O2 Motorsports until he resigned to pursue a role in a different industry in December 2018.

75. Mr Weissel said that since the incident O2 Motorsports does not manufacture biofuels. It embarked on an extensive review of the safety of all systems undertaking signage update, as well as fire safety and first aid safety updates. Immediately after the incident an emergency eyewash station was installed. A WHS Monitor system has also since been implemented and staff now undergo a much more detailed induction process that includes training in respect of emergency processes and protocols. Mr Weissel also deposed that an external consultant has been engaged by O2 Motorsports at a cost of $60,000 to provide ongoing independent WHS advice and auditing for the period of 1 August 2018 to 1 August 2023. O2 Motorsports has complied with all recommendations the consultant has made thus far.

76. Mr Weissel explained that in terms of community involvement, he is engaged in the activities of his local church and partakes in volunteer activities. Mr Weissel has been actively involved in community sport, annual talks at local schools on car maintenance and safety, community group fundraising and sponsorship. He has also made an overseas charitable trip.

Consideration

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

Objective Seriousness of the Offence

78. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].

79. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].

80. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:

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

81. 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].

82. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.

83. The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.

84. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. His Honour Justice Basten at par 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.”

85. Further at par 42 his Honour continued:

“The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

86. At par 53 his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

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

87. My findings about the defendants’ level of culpability are based upon the following:

1. The risk of ignition of highly flammable chemicals was known to the defendants. Further, that risk was made clear in the guidance material.

2. The risk was quite likely to occur, given that the task of carrying an open bucket of a highly flammable chemical mix past a burner, without adequate warning or supervision, was almost certain to lead to an explosion.

3. The potential consequences of the risk included death and serious injury.

4. Steps were available to eliminate or minimise the risk. The reasonably practicable measures set out in the Amended Summonses were all admitted by the defendants as steps which could and should have been taken.

5. There was little burden or inconvenience in taking such steps.

6. The burns received by Mr Cowlishaw were serious enough for him to be intubated and taken to hospital for treatment. Fortunately he has made a relatively good recovery.

7. The maximum penalty for the offences is a fine of $1,500,000 for O2 Motorsports and a fine of $300,000 for Mr Weissel, which reflects the legislature’s view of the seriousness of the offences.

8. I reject the submission of counsel for the defendant that the objective seriousness of the offence is somehow reduced because the manufacture of biofuel was not the main business of O2 Motorsports. The introduction of hazardous chemicals and naked flames in any business premises, whether it be for profit or personal use, necessitates adherence to appropriate safety standards and precautions.

9. The exposure of Mr White, a 16 year old school boy on his first day of work experience, to the risk of an explosion, fire and burns, is most troubling. No-one was supervising such a young boy in this dangerous environment when the accident happened. This is not the first case to come before this Court where a work experience student has suffered industrial injuries through a breach of duty imposed by the Act. Employers who take on a work experience student should be fastidious in ensuring the safety of such a young and vulnerable person.

88. I find that O2 Motorsport’s level of culpability is in the mid range.

89. I find that Mr Weissel’s level of culpability is in the mid range.

Deterrence

90. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].

91. The penalty must reflect the need for specific deterrence. Although it is no longer manufacturing biofuel, O2 Motorsports is still conducting a motor mechanical business, which can carry risks to workers if safety is not observed.

Aggravating Factors

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

93. Both victims were vulnerable because of their young age: s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

94. Neither defendant has any previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

95. Both defendants are otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The steps which they took after the incident demonstrate this.

96. The defendants are unlikely to re-offend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999.

97. Both defendants have good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. They have taken positive steps to guard against the risk of an incident such as this ever happening again. The manufacture of biofuel has ceased for good. General safety in the motor mechanical business has been improved.

98. Both defendants have shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. They have provided evidence that they have accepted responsibility for their actions and have acknowledged that the injuries to Mr Cowlishaw and Mr White were caused by their actions.

99. Both defendants entered pleas of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give each defendant a 25% discount for an early plea.

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

Capacity to Pay a Fine

101. I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

102. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:

“First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to ‘the means’ of the defendant, pursuant to s 6 of the Fines Act 1996.”

103. There was no evidence of a limited capacity to pay, so this issue does not arise.

Costs

104. The defendants are to pay the prosecutor’s costs as agreed or assessed.

Penalty

105. Penalty for O2 Motorsports Pty Ltd (2019/95655):

1. The offender O2 Motorsports Pty Ltd is convicted.

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

3. Order the offender O2 Motorsports Pty Ltd to pay a fine of $135,000.

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

5. Order the offender O2 Motorsports Pty Ltd to pay the prosecutor’s costs as agreed or assessed.

106. Penalty for Nathan Weissel (2019/95590):

1. The offender Nathan Weissel is convicted.

2. The appropriate fine is $30,000 but that will be reduced by 25% to reflect the plea of guilty.

1. Order the offender Nathan Weissel to pay a fine of $22,500.

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

3. Order the offender Nathan Weissel to pay the prosecutor’s costs as agreed or assessed.

**********

Decision last updated: 15 May 2020