SafeWork NSW v Pacific Tissue Pty Ltd

[2025] NSWIC 13

Industrial Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Pacific Tissue Pty Ltd [2025] NSWIC 13

Hearing dates:

11 September 2025

Date of orders:

19 September 2025

Decision date:

19 September 2025

Before:

Paingakulam J

Decision:

(1) I convict Pacific Tissue Pty Ltd of the offence as charged.

(2) I impose a fine of $150,000.

(3) Pacific Tissue Pty Ltd is to pay the prosecutor’s costs of the proceedings in the agreed sum of $35,000.

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

Catchwords:

CRIMINAL LAW — work health and safety — offences — category 2 — worker’s hand crushed by machinery — safety mechanisms designed to protect workers bypassed to achieve productivity gains — worker not provided with copies of safety documents — no verification undertaken to ensure worker understood manual — no risk assessment undertaken — guilty plea — upper mid-range of objective seriousness

SENTENCING — relevant factors on sentence — objective seriousness — aggravating factors — mitigating factors — deterrence — specific deterrence necessary despite the fact that the pleaded risk giving rise to the offence has been eliminated — appropriate penalty

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety Regulation 2017 (NSW)

Cases Cited:

Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67

BW v The Queen [2011] NSWCCA 176

Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71

Mahdi Jahandideh v The Queen [2014] NSWCCA 178

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

R v Borkowski [2009] NSWCCA 102

R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Wilkinson (No 5) [2009] NSWSC 432

R v Youkhana [2004] NSWCCA 412

SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Pacific Tissue Pty Ltd (Offender)

Representation:

Counsel:
M Scott (Prosecutor)
E Aitken (Offender)

Solicitors:
SafeWork NSW (Prosecutor)
Holman Webb Lawyers (Offender)

File Number(s):

2025/89126

Publication restriction:

Nil

JUDGMENT

1. Pacific Tissue Pty Ltd (Pacific Tissue) manufactures paper products including hand towels and toilet paper at a premises located in St Peters, New South Wales (the premises). In early 2023, it did so using an Ultra-Grande Compact Machine (Ultra-Grande) which carried out multiple processes, including unwinding, embossing, perforating, rewinding, tail sealing, cutting and packaging. On 8 March 2023, Ms Nixja Viscalya was undertaking work on the Ultra-Grande’s Rewinder when her left hand was pulled into the roller and crushed. She sustained serious injuries to her left hand as a result of the incident.

2. Pacific Tissue appeared for sentence after pleading 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) (WHS Act) it failed to comply with that duty and thereby exposed Ms Nixja Viscalya to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The risk particularised at paragraph 9 of Annexure A to the Summons is as follows:

“The risk was the risk of workers, in particular Ms Viscalya, suffering serious injury or death as a result of coming into contact with moving parts of the Rewinder, in circumstances where guarding of the rewinder has been bypassed and is ineffective, whilst performing work at the premises.”

4. The maximum penalty for this offence is a fine of 17,315 penalty units ($1,860,843).

Facts

5. The prosecutor tendered an Agreed Statement of Facts. I have taken this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offence to permit an understanding of the sentence imposed.

Background

6. At the time of the incident, Pacific Tissue employed approximately nine workers at the premises. Those workers included the sole director and secretary of Pacific Tissue, Mr Robert Little, and Mr Sijith Poolakkil, the site supervisor.

7. Also employed was Ms Nixja Viscalya, a factory worker and machine operator. She began working for Pacific Tissue in May 2022 as a packer. She commenced working as a machine operator just four weeks prior to the incident. Ms Viscalya was in Australia on a student visa and her proficiency in understanding written English was poor.

The plant

8. The Ultra-Grande consisted of a series of machines in a production line, including a machine known as the Rewinder. The Rewinder consisted of approximately 10 exposed rotating rollers and was designed to convert large rolls of paper into small toilet rolls.

9. The Ultra-Grande, including the Rewinder, was surrounded by perimeter safety fencing which included three access gates. Gate 3 provided access to the Rewinder. Each of the access gates was fitted with an interlock device to prevent workers from accessing the machines whilst they were operating. However, at the time of the incident, all of the access gates, including Gate 3, were fitted with actuators which bypassed the interlock devices. This meant that workers could open the access gates and enter the fenced area while the machines were operating.

10. The Human Machine Interface (HMI) was the control panel for the Rewinder. It was located within the perimeter safety fencing. As a result, workers needed to reach over the top of the access gate to access the machine controls. The distance from Gate 3 to the operational controls was at least 847 millimetres. The HMI was set at 90 degrees to the gate with no possibility of adjusting the angle.

The incident

11. On the morning of 8 March 2023, Ms Viscalya was directed by her supervisor Mr Poolakkil to undertake work on the Rewinder. This involved producing 2ply toilet rolls, a continuation of the product line from the previous day. Ms Viscalya was also directed to supervise a new employee who was undertaking packing work nearby.

12. At approximately 10:29am, Ms Viscalya was working alone within the perimeter safety fencing of the Rewinder when she noticed a spot of glue on one of the exposed rollers. Concerned that the glue might cause the machine to jam, she approached the exposed rollers and attempted to remove it. As she reached out to pinch off the glue with her fingers, her left hand was pulled into the roller and was crushed.

13. Ms Viscalya was unable to release her hand from the roller and attempted to press the emergency stop button located on the left-hand side of the machine. This required her to reach her right hand approximately 270 degrees around her body, which took some time. It also necessitated her withdrawing her left hand from the roller which was both difficult and very painful.

14. Mr Poolakkil arrived at the Rewinder moments later, having heard Ms Viscalya’s screams. Mr Poolakkil immediately isolated the power and opened the electrical cabinet at the end of machine, cutting the cable drive to the roller which had trapped Ms Viscalya’s hand.

Injuries

15. Emergency services were called to the premises. It took approximately one and a half hours to free Ms Viscalya’s hand from the Rewinder with the assistance of NSW Police Rescue.

16. Ms Viscalya was taken by ambulance to Royal Prince Alfred Hospital where she underwent an emergency surgery to treat a crush avulsion injury (degloving) to her left hand. Between 10 March 2023 and 22 March 2023, Ms Viscalya underwent four further surgeries. She was discharged from hospital on 3 April 2023.

17. Following the incident, Ms Viscalya continues to suffer from post-traumatic stress disorder. She attends a weekly consultation with both a psychologist and a hand therapist and a fortnightly consultation with an exercise physiologist. As of 8 November 2024, she had not returned to work.

Legal obligations and guidance material

18. The Ultra-Grande was “plant” for the purpose of cl 203 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation). Accordingly, Pacific Tissue was required to manage risks to health and safety arising from its operation. In particular, the guarding requirements set out in cl 208(2)–(3) of the WHS Regulation include making the bypassing or disabling of the guarding, whether deliberately or by accident, as difficult as is reasonably practicable. They also include ensuring that any operator’s controls are located so as to be readily and conveniently operated by each person using the plant.

19. There was also a significant amount of industry guidance material available to Pacific Tissue. The SafeWork NSW Code of Practice, “Managing the Risks of Plant in the Workplace” dated December 2022 deals with guarding of machinery and outlines the guarding hierarchy. At Part 4.1, it provides that interlocked guards should “remain locked whilst the plant is in operation” or, if it is unlocked, it should “stop the operation of the machine when opened”.

20. The “Guide to Machine Safety, SafeWork NSW” provides information to help businesses to manage the risks involved with using plant in the workplace. Relevantly, it states that where a fixed guard is removed or an interlock is defeated, this is usually because of the need for frequent access to the guarded area to rectify a problem. The guide recommends implementing a long-term solution to the problem.

21. The Australia Standard 4021.1601:2014, “Safety of Machinery: Design Controls, Interlocks and Guarding – Guarding – General Requirements for the Design and Construction of Fixed and Movable Guards” specifies the general requirements for the design and construction of guards primarily to protect persons from mechanical hazards. Relevantly, the standard requires instructions to be provided directing the user to the correct operation of the guards and their interlocks. It also requires warnings against reasonably foreseeable misuse.

22. The Australia Standard 4024.1201:2014, “General Principles for Design – Risk Assessment and Risk Reduction” highlights the importance of conducting a risk assessment in relation to machinery. It requires risk estimation to consider the possibility of defeating or circumventing protective measures and the incentive to do so. It also requires risk estimation to consider the need to maintain the protective measures in the condition necessary to provide the necessary protection.

Systems of work prior to the incident

23. At the time of the incident, Pacific Tissue had the following systems of work in place:

1. Guarding of the Rewinder, including perimeter fencing and interlocking devices fitted to access gates within the fencing. However, as noted, this system had been disabled by the overriding of the interlocking devices.

2. A Safe Work Procedure (SWP) titled “Paper Converting Machine 400 Sheet Line (Log Saw & Rewinder)”. The document was undated and was generic in that it went across several machines. Its sole reference to safety was a requirement to wait for machine parts to stop moving before making adjustments or reloading.

3. A Safe Operating Procedure (SOP) for the Rewinder titled “Feeding Paper from New Roll or Roll Breaks”. This document was undated and contained minimal safety information, but it did state that workers should not have any contact with the Rewinder’s moving parts.

24. Ms Visacalya was provided with training which comprised of verbal instruction and task observation over a three-month period prior to being assessed as competent. During this training, she was provided with a copy of the HMI manual. However, the manual did not contain information addressing the safe use of the Rewinder such as information relating to hazards, risks and emergencies. No verification was undertaken to determine whether Ms Viscalya, whose first language was not English, understood the document. Ms Viscalya was not provided with any information or training in relation to the risks or hazards associated with operating the Rewinder whilst the interlocking devices to the access gates had been overridden. She was also not provided with copies of the SOP and SWP referred to above.

25. Pacific Tissue had not conducted any risk assessment to address the hazards of working in an environment where the machinery guard system had effectively been overridden. Nor were there any controls in place to ensure that inexperienced workers such as Ms Viscalya were actively supervised when using the Rewinder.

Systems of work after the incident

26. Following the incident, Pacific Tissue decommissioned and scrapped the Ultra-Grande, which included the Rewinder. Extra training sessions were provided to staff which focussed on the importance of interlocks.

Offender’s case on sentence

27. Pacific Tissue relied on two affidavits of Robert James Little, Chief Executive Officer and sole director of Pacific Tissue, sworn 29 August 2025 and 10 September 2025. The following is a summary of his evidence, in addition to matters already set out in the Agreed Statement of Facts.

28. Mr Little started Pacific Tissue in 2001 and has been in the paper manufacturing and distribution industry since this time. He holds a Bachelor of Business from the University of Southern Queensland. He also holds a forklift licence. Prior to 2001, Mr Little was involved in other business ventures, including setting up a distribution company in the mid-nineties.

Expression of remorse and contrition

29. Mr Little stated that Pacific Tissue acknowledges and deeply regrets the incident that occurred on 8 March 2023, and the serious injury sustained by Ms Viscalya as a result. On behalf of Pacific Tissue, Mr Little accepted responsibility for the failures giving rise to the risk that resulted in Ms Viscalya’s injury. He also acknowledged with deep regret the significant impact of the incident on Ms Viscalya, her family and the workers and employees of Pacific Tissue. Mr Little apologised unreservedly to Ms Viscalya, her family, other affected workers and the Court.

30. Mr Little reached out to Ms Viscalya multiple times via text message offering support. He also offered her an administrative role during her recovery. Ms Viscalya has not returned to work since the incident.

About Pacific Tissue

31. Pacific Tissue operates out of a warehouse in Alexandria and specialises in the production and packing of tissue paper products, including toilet paper and paper towel products. At the time of the incident, Pacific Tissue had six operating lines producing various toilet paper and hand towel products.

32. In addition to Mr Little, Pacific Tissue currently employees five full-time workers, including Ms Viscalya. Pacific Tissue’s workforce has reduced since the incident due to falling demand for its product and the high natural employment attrition rate in the manufacturing industry. Mr Little has always paid himself last to ensure his employees are paid and there are “often” occasions where he doesn’t pay himself due to the financial position of Pacific Tissue.

33. In March 2023, Pacific Tissue entered into a contract for the supply of tissue products that was anticipated to run for three years and be worth $1.5 million. However, this contract ended after only one year. Despite Mr Little’s efforts to source alternative contracts, Pacific Tissue currently has no major contracts in place, and the company’s business has been adversely affected over the previous eight years, particularly by competition from Chinese based suppliers whose products are significantly cheaper.

34. Mr Little’s evidence included the following details about Pacific Tissue’s manufacturing operations at [23]–[29]:

“[23] In or around March 2023, following the Incident, I made the decision to cease production of tissue paper roll products. Since that time, Pacific Tissue has ceased operating three production lines.

[24] Pacific Tissue currently operates three production lines, all producing folded tissue products. Two of these lines manufacture folded paper towels for use in commercial washrooms, and the third produced folded tissue for similar use.

[25] Given the current financial position, operating costs and competition from cheaper imports (particularly from China), Pacific Tissue can only continue operating at its preset capacity for a limited time, maybe 6-12 months. Based on my current assessment of Pacific Tissue, I anticipate reviewing the company’s profitability and future financial outlook seriously in December 2025.

[26] It is my current intention to shut down one of the folded towel production lines by the end of 2025 which will result in the company operating only two production lines moving forward.

[27] Whether Pacific Tissue will continue operating into 2026 will depend on whether new work or another contract materialises.

[28] To date, no employees have been made redundant as a result of the contract ending, however, due to uncertainties, I can’t rule out the possibility of redundancies in the future.

[29] Labour remains the company’s largest single outgoing cost, and managing these expenses is a key factor in Pacific Tissue’s ongoing financial planning. In the 2023/2024 financial year, employment costs made up $535,282.00 (or approximately 33.7%) of Pacific Tissue’s business costs.”

35. Mr Little also gave evidence that the destruction of the Ultra-Grande meant that Pacific Tissue ceased the production of toilet paper in Australia. However, in his second affidavit, Mr Little corrected that evidence and stated that he anticipated that this would occur later this year and that Pacific Tissue continues to produce a “minimal amount” of folded toilet paper products whilst it has the required materials.

The injured worker

36. Mr Little and Mr Poolakkil commenced structured on-the-job training with Ms Viscalya on the Rewinder in November 2022. During this period, Mr Little personally spoke with Ms Viscalya on several occasions in relation to the contents of the operating manual and confirmed her understanding. Mr Little states that she was able to competently answer questions regarding the machine’s operation.

37. On 3 February 2023, Ms Viscalya was formally promoted to the position of machine operator and her training on the Rewinder continued following this promotion under the supervision of Mr Poolakkil.

Systems of work prior to the incident

38. Mr Little gave evidence of the following systems of work in place at the time of the incident, in addition to those set out in the Agreed Statement of Facts.

1. Safety policies which were communicated to all team members during their induction and through ongoing certification training. These policies covered the operation of machinery, isolating and shutting down equipment prior to any repairs, refraining from operating machinery when unwell, mobile phone restrictions, forklift safety, general awareness and personal requirements for personal protective equipment (PPE).

2. A factory supervisor in Mr Poolakkil, who had held the role for more than eight years. He was a qualified mechanical engineer whose responsibilities included staff supervision, training, advising and machine maintenance and repair. Mr Poolakkil actively monitored production, ensured compliance with safety policies and procedures and provided supervision and guidance to workers.

3. All new employees underwent an induction upon commencing employment. The induction included an introduction to the team, completion of relevant employment and safety paperwork, a walkthrough of workplace safety procedures, distribution of required PPE and a guided tour of the workplace. New employees would then be paired with an experienced team member for initial training involving hands-on training specific to the tasks they would be performing. New workers typically began as packers and as their skills developed, they progressed to machine operator training conducted under a buddy system until they were assessed as competent.

1. A strict policy which was communicated to all workers prohibiting the use of mobile phones on the factory floor. Workers were further required to wear high-visibility vests, closed in shoes and ear plugs which were all provided by Pacific Tissue. Further, face masks and hair nets were made available if desired by workers.

2. Mr Little and Mr Poolakkil routinely conducted walkthroughs of the factory floor and engaged with staff to identify and correct hazards. They took the opportunity to educate team members on the types of risks present and the immediate corrective actions required.

3. Maintenance checklists on the Rewinder were completed monthly by Mr Poolakkil. In the month prior to the incident, the following maintenance items were recorded and addressed:

1. replacing a missing log support;

2. adjusting the tension of the HTD belt on the operator’s side;

3. removing paper dust build-up from the ply using compressed air and a wire brush;

4. lubricating the perforation roll and the felts of the ply bond;

5. clearing blocked holes on the vacuum roller using compressed air and a pin punch;

6. adjusting the tension of the HTD drive belt; and

7. removing the build-up of paper dust on the grinding wheel and regrinding the blade.

Systems of work after the incident

39. Mr Little stated that after the incident, Pacific Tissue introduced enhanced safety protocols, increased staff training and conducted regular machine inspections across all areas of its operations. All machinery was reviewed for safety compliance, with modifications or replacements being carried out as required. Improvements were made to staff inductions, risk assessments and daily pre-start safety checks.

40. The new policies and procedures implemented by Pacific Tissue in the aftermath of the incident were as follows:

1. Despatch Procedures in or around June 2023;

2. General Workplace Safety Policy in or around June 2023;

3. Quality, Environmental and OHS System on or around 31 August 2023;

4. Integrated Management System Hazard Identification Form on or around 31 August 2023;

5. Induction Procedure and Induction Checklist on or around 12 October 2023;

6. First Aid Plan on or around 30 October 2023;

7. Emergency Plan on or around 8 November 2023;

8. Training Record Form on or around 24 November 2023; and

9. Cleaning Procedure on or around 7 December 2023.

41. Mr Little stated that the company remains committed to ensuring that no employee is exposed to unsafe machinery or working conditions.

Consideration

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

43. I have taken into account the maximum penalty for this offence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ (Markarian).

Evidence of Mr Little

44. There were a number of difficulties with Mr Little’s evidence. Firstly, the evidence that he personally spoke with Ms Viscalya on several occasions in relation to the contents of the Rewinder operating manual and confirmed her understanding of it contradicts the evidence contained in the Agreed Statement of Facts summarised at [24] above, and I reject it.

45. Secondly, Mr Little gives evidence that Pacific Tissue entered into a three-year contract in March 2023 which ended after a year (which coincides with the destruction of the Ultra-Grande in March 2024) and that, after that contract had ended, Mr Little maintained the production lines in the hope of attracting alternate sources of work. Mr Little also gives evidence that he made a decision following the incident in March 2023 to decommission the Ultra-Grande to eliminate the risk of a similar incident occurring in the future. Mr Little expressly states that “[i]n or around March 2023, following the incident, I made the decision to cease production of tissue paper roll products”. It is difficult to reconcile these aspects of Mr Little’s evidence.

46. It is also difficult to discern how much of the modification of Pacific Tissue’s business (and, in particular, the decision to decommission the Ultra-Grande) is a consequence of the already difficult financial context in which it was operating and how much was a response to the incident. In that regard, I note the evidence that the Ultra-Grande continued to operate for a further 12 months after the incident. There is no evidence that modifications were made to it during that time, for example, repositioning the HMI so that it could be operated from outside the safety perimeter. Contributing to this difficulty is the fact that, as noted above, Mr Little initially gave evidence that Pacific Tissue ceased the production of toilet paper in Australia as a consequence of the destruction of the Ultra-Grande, but later revised that evidence and accepted that it would make folded toilet paper until the company’s supplies of the necessary materials were exhausted. However, I accept that the scope of Pacific Tissue’s business has reduced since the time of the incident.

Objective seriousness

47. 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) 164 CLR 465; [1988] HCA 14 at 472, 485–6, 490–1 and 496. At common law, the term “objective circumstances” was used to describe the circumstances of a crime. The gravity of the offence was assessed by reference to its objective circumstances: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15].

48. This task requires the Court to consider where the conduct of Pacific Tissue falls in the range of conduct covered by the offence: Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at 57. As Whealy JA said in BW v The Queen [2011] NSWCCA 176 at [70] (Hulme and Harrison JJ agreeing at [75]–[76]):

“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.”

49. The objective seriousness of an offence is to be determined by reference to the nature of the offending without reference to matters personal to a particular offender or class of offenders: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

50. 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].

51. 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 Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71 at [82] (Capral). The question of foreseeability of the risk is to be determined objectively.

52. The Court arrives at the appropriate sentence through a process of “instinctive synthesis” in which the sentencing judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to the appropriate sentence given those factors: Markarian at [51].

53. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96. Under the heading “Assessment of Risk”, Basten J said:

“[34] 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 on assessment of all those factors.”

54. Further, at [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, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

55. At [53] his Honour 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 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

56. Both parties submitted that this offence falls within the mid-range of objective seriousness. In asking the Court to make that assessment, the prosecutor pointed to the following factors:

1. The general risks of a worker having part of their body crushed or injured by the exposed moving parts of an industrial machine are well-known and obvious.

2. The WHS Regulation includes regulations, referred to at [18] above, which are specifically directed towards preventing persons working around guarded plant or machinery from coming into contact with moving parts of the plant or machine. In addition, the Code of Practice, Standards and Guide referred to in the Agreed Statement of Facts, and which were available to Pacific Tissue at the time of the incident, existed to assist companies engaged in manufacturing operations to assess and overcome relevant risks.

3. The central issue in this matter is that Pacific Tissue had erected a guarding fence around the Ultra-Grande, with gates to allow for necessary access and interlocking devices placed on those gates so that when they open the machine would stop operating. However, the company bypassed these interlocking devices.

4. The layout of the control panel for the Rewinder was such that a person of small stature would have great difficulty reaching the HMI and, even if they could, the panel itself was turned at 90 degrees and was unable to be adjusted. This meant that workers such as Ms Viscalya needed to be inside Gate 3 to operate the Rewinder.

57. Pacific Tissue accepted that the risk giving rise to the offence was foreseeable and sought to demonstrate that it had made some endeavours to mitigate that risk. In that regard, it pointed to the “Safe Work Procedure – Machine/Plant/Process: Paper Converting Machine 400 Sheet Line (Logsaw & Rewinder)” in place at the time of the incident, which identified the risk of workers coming into contact with moving machinery parts. This document also provided control measures which included ensuring that hands, hair, clothing and jewellery were kept away from the machine and waiting for machine parts to stop moving before adjusting or reloading. Pacific Tissue also pointed to an SOP “Rewinder – Feeding Paper from New Roll or Roll Breaks”; the appointment of a factory supervisor in Mr Poolakkil; an induction process for new workers which covered policies concerning the operation of machinery; a buddy system which paired new workers with more experienced workers until they were assessed a competent to work independently; provision of personal protective equipment; guarding around the perimeter of the Ultra-Grande; technical and operating manuals for the Ultra-Grande and, finally, a rewinder maintenance checklist.

58. Pacific Tissue accepted that the likelihood of the risk materialising in Ms Viscalya’s case was increased by the fact that she couldn’t reach the HMI from outside the perimeter gate surrounding the Rewinder. However, it also pointed to the fact that the Ultra-Grande had been operated without incident by 14 different employees since its commissioning in 2009 until the incident occurred.

59. By its plea of guilty, Pacific Tissue accepts that it could have taken the following reasonably practicable steps to eliminate or at least minimise the reasonably foreseeable risk:

“(a)   Undertaking a risk assessment in relation to the work being done using the Rewinder to identify the hazards that could give rise to the risks to health and safety, including but not limited to:

(i)   Assessing the risk of the Rewinder being operated while the interlocking devices on the access gate had been bypassed.

(ii)   Assessing the risk of the Rewinder’s control panel, the Human Machine Interface (HMI), being positioned within the Rewinder’s isolating fence and the risk associated with workers entering the access gate in order to access and/or use the HMI;

(b)   Maintaining adequate guarding of the Rewinder by:

(i)   Requiring that interlock devices be fitted and maintained, at all times, on all access gates to the Ultra-Grande, including the Rewinder, with the exception of when maintenance is being undertaken by authorised workers; and

(ii)   Restricting access to any interlock by-pass keys including by arranging for all by-pass keys to be stored in a secured and or locked location, only accessible by maintenance workers;

(c)   Re-positioning the HMI to a location outside the safety fencing to allow workers to safely access/use the control panel, as required;

(d)   Developing and enforcing an adequate safe work procedure or a safe work method statement for using the Rewinder, including prohibiting the operation of the Rewinder when guarding or an interlocking barrier, such as interlocking devices fitted to access gates, was not in place;

(e)   Providing workers, in particular Ms Viscalya, with adequate instruction, information and training in the safe work procedures or safe work method statement for operating the Rewinder, having regard to their literacy skills and, in Ms Viscalya’s case, that she was not proficient in written English; and/or

(f)   Adequately supervising workers, in particular Ms Viscalya, to ensure that they follow the safe work procedures or safe work method statement for operating the Rewinder, including to verify that no work is being carried out while interlocks have been bypassed.”

60. Pacific Tissue accepts that these measures were straightforward and inexpensive to implement, notwithstanding Mr Little’s evidence that the Ultra-Grande “could not easily be made compliant with current WHS standards, including because of the cost of retrofitting the machine” and that the “primary reason” for ceasing to operate the Ultra-Grande line included “the high cost of upgrading safety systems”. Pacific Tissue was well aware that measures had been taken to defeat the interlock system that it had in place to protect workers. The Agreed Statement of Facts records Mr Poolakkil’s account that it was common knowledge that bypass keys were being used to override the interlocking device on the access gate where Ms Viscalya was working, that the bypass keys were always in place, that the practice had been implemented since he began working at Pacific Tissue in 2010 and that he had discussed it with Mr Little.

61. In relation to the operation of the Rewinder, the practice was undoubtedly due to the inability of workers such as Ms Viscalya to operate the HMI from outside the fenced perimeter. As submitted by the prosecutor, the provision of generalised access to the restricted area should never have been deemed an acceptable solution to that problem.

62. In addition, I note that there were three gates for which the interlock system had been disabled, not just the one providing access to the HMI. Such conduct represents a deliberate disregard for the requirements of the WHS Regulation as set out at [18] above. Nonetheless, I accept that Pacific Tissue had made some attempt to address the risk which arose from facilitating the access of its workers to the machinery while it was in operation.

63. Ms Viscalya was 19 years old and had been assessed as capable of working independently on the machines barely a month before the incident occurred. Plainly, the dangers of the moving machinery parts had not been sufficiently instilled in her before she was permitted to work unsupervised in such a context. Further, she was permitted to undertake work under those conditions with no one in the immediate vicinity to assist her when the incident did occur, although Mr Poolakkil was in sufficient proximity to respond to her screams.

64. The potential consequences of the risk materialising included death. The serious injuries suffered by Ms Viscalya were a manifestation of the risk.

65. Taking the above matters into account in the manner indicated, I find that the objective seriousness of the offence falls within the upper mid-range.

Aggravating factors

66. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act. In order for the aggravating factor to be established, the Court must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the subject offence: R v Youkhana [2004] NSWCCA 412 at [26].

67. The injuries sustained by Ms Viscalya, which required treatment in the form of multiple surgeries, are set out in the Agreed Statement of Facts. They have seen her unable to return to work. In addition, the Agreed Statement of Facts records that Ms Viscalya suffers from post-traumatic stress disorder. The prosecutor also relied on medical records to substantiate both the physical and mental impact of the incident upon Ms Viscalya. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. I am satisfied that the injuries sustained by Ms Viscalya are sufficient to establish the aggravating factor.

Mitigating factors

68. Pacific Tissue has no prior convictions: s 21A(3)(e) CSP Act.

69. Pacific Tissue is otherwise of good character: s 21A(3)(f) CSP Act. Pacific Tissue has been operating since 2001, a period of more than 22 years without any prior convictions at the time of the incident. In his evidence, Mr Little set out the manner in which the company has sought to support Ms Viscalya following the incident, including by offering her the opportunity to return to work in an administrative role. Mr Little deposed to Pacific Tissue’s ethical supply chain practices as demonstrated by its Forest Stewardship Council certification, as well as its proven record of waste minimisation, responsible resource use and clean production methods. He also gave evidence of Pacific Tissue’s collaboration with women’s refuge Two Good for whom it acts as a non-profit distributor.

70. Given that Pacific Tissue has operated for 22 years without incident, has taken significant steps to reinforce its safety systems in the wake of the incident giving rise to these proceedings and has otherwise reduced the scope of its business operations, I find that it is unlikely to reoffend (s 21A(3)(g) CSP Act) and has good prospects of rehabilitation (s 21A(3)(h) CSP Act).

68. Pacific Tissue has provided evidence that it has accepted responsibility for its actions and has acknowledged that its failures led to the injury of Ms Viscalya. It has also apologised unreservedly to both those persons affected by the incident and the Court. I have already made references to its endeavours in supporting Ms Viscalya’s recovery. I am therefore satisfied that Pacific Tissue has shown remorse for the offence: s 21A(3)(i) CSP Act.

69. Pacific Tissue entered a plea of guilty on 4 August 2025 to the charge particularised in the summons issued on 6 March 2025. The plea of guilty was entered at the third mention of proceedings. Pacific Tissue is entitled to a discount on penalty that reflects the utilitarian value of that early plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [123]; R v Borkowski [2009] NSWCCA 102 at [32]. I accept the joint submission of the parties that a discount of 25% is appropriate in the circumstances: ss 21A(3)(k) and 22 CSP Act.

70. Mr Little gave unchallenged evidence that Pacific Tissue “at all times assisted and fully cooperated” with the SafeWork NSW investigation. He deposed to the introduction of enhanced safety protocols, including the introduction of 10 new policies and procedures, increased staff training and regular machine inspections across all areas of its operations. I am satisfied consistent with the decision of this Court in SafeWork NSW v HibernianContracting Pty Ltd [2025] NSWIC 4 at [89(3)] that the cooperation of Pacific Tissue with the authorities is a matter which should afford it a modest discount of the sentence to be imposed upon it: s 21A(3)(m) CSP Act.

Deterrence

74. The penalty imposed in relation to this offence must provide for general deterrence and reinforce to the manufacturing industry that bypassing safety mechanisms designed to protect workers from moving machinery to achieve productivity gains is entirely unacceptable.

75. As to specific deterrence, the Ultra-Grande has been decommissioned and destroyed. However, the company is still engaged in paper towel manufacturing. As such, the prosecutor submitted that there is a role for specific deterrence in ensuring that Pacific Tissue assesses the risks involved, develops safe work methods to address those risks and trains its workforce accordingly.

76. Pacific Tissue submitted that the need for specific deterrence in this case was “close to nil” both because of the destruction of the Ultra-Grande and the restructure of its business so that it no longer produces rolled paper products. In that regard, it relied upon the evidence of Mr Little to the effect that it has only two paper converting machines operating, the first of which requires “a minimal amount of human intervention” and the second of which is fully automated. In oral submissions, counsel for Pacific Tissue placed significant emphasis on the fact that the pleaded risk giving rise to the offence set out at [3] above, which concerned workers’ interaction with the Rewinder, had been eliminated by Pacific Tissue’s subsequent actions.

77. I accept that the cessation of the use of the Rewinder and the restructuring of Pacific Tissue’s business such that it has only one machine operator in active employment both operate to mitigate the extent to which the sentence imposed ought to reflect specific deterrence. However, the offender’s submission that the need for the sentence imposed to reflect specific deterrence is largely eliminated by the removal of the pleaded risk does not appear to be supported by established authority. In Capral at [77], this Court held that the relevance of specific deterrence in sentencing for work, health and safety offences extends to an employer’s obligations to its employees more generally (emphasis added):

“In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (Court of Criminal Appeal, 19 December 1997, unreported) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (Court of Criminal Appeal, 8 December 1995, unreported). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46.”

Capacity to pay a fine

78. The Court is required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. An offender that seeks to have a fine reduced on the basis of limited capacity to pay bears the evidentiary onus of convincing the Court that it should limit the amount of the fine. An 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 due to the seriousness of the offence and the need for general deterrence.

79. Mr Little’s evidence concerning the financial viability of Pacific Tissue is set out at [32]–[34] above. That evidence is plainly relevant to Pacific Tissue’s capacity to pay a fine. Notwithstanding that evidence, Pacific Tissue confirmed at hearing that it does not seek to have the sentence moderated on the basis of its capacity to pay a fine and I have proceeded accordingly.

80. In Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal recognised that a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation and that the maximum penalty for the offence was “undoubtedly” set having regard to that circumstance. I accept that Pacific Tissue is a small business and I have regard to that matter in determining the appropriate penalty.

Penalty

81. The appropriate fine is $200,000 which will be reduced by 25% to reflect the plea of guilty.

82. I make the following orders:

1. I convict Pacific Tissue Pty Ltd of the offence as charged.

2. I impose a fine of $150,000.

3. Pacific Tissue Pty Ltd is to pay the prosecutor’s costs of the proceedings in the agreed sum of $35,000.

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

**********

Decision last updated: 19 September 2025