SafeWork NSW v Royal Touch Paper Products Pty Ltd

[2023] NSWDC 533

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Royal Touch Paper Products Pty Ltd [2023] NSWDC 533

Hearing dates:

16 November 2023

Date of orders:

01 December 2023

Decision date:

01 December 2023

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine for the offence is $400,000 and that will be reduced by 25% to reflect the plea of guilty.

(3)   Accordingly, I order the defendant to pay a fine of $300,000.

(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 agreed in the sum of $27,500.00.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty
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 – maximum penalties
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)

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

Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455

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

R v Youkhana [2004] NSWCCA 412

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

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Royal Touch Paper Products Pty Ltd (Defendant)

Representation:

Counsel:
Mr M Scott (for the Prosecutor)
Miss E Aitken (for the Defendant)

Solicitors:
Department of Customer Service (for the Prosecutor)
Holman Webb Lawyers (for the Defendant)

File Number(s):

2023/68835

JUDGMENT

1. Royal Touch Paper Products Pty Ltd (‘the defendant’), entered a guilty plea to an offence contrary to s 32 of the Work Health and Safety Act 2011 (NSW) (‘the WHS Act’) on 11 September 2023, and the offence is detailed in the Amended Summons filed that date.

2. At the time of the offence the maximum penalty was $1,766,130.00. The maximum penalty amount is indicative of the parliamentary conclusion as to the seriousness of the offence: Markarian v The Queen (2005) 228 CLR 357 (‘Markarian’) at 372 [31].

3. The prosecutor tendered the Prosecutor’s Sentence Tender Bundle (‘PTB’) which became exhibit A. The defendant tendered an affidavit of Vincent Rosario Chetcuti affirmed 2 November 2023 which became exhibit 1.

Background

4. The defendant was a corporation registered in New South Wales. The defendant carried on a business involving the manufacture and supply of paper products. The defendant had registered premises at 11 Ashford Avenue in Milperra, New South Wales (‘the premises’).

5. At all material times, Vincent Chetcuti was the sole director of the defendant. Vincent Chetcuti’s brother, Dominic Chetcuti, was a manager.

6. At all material times, the defendant employed about 30 persons including:

1. Mintra Sudto (‘Ms Sudto’) as a Casual Machine Operator. Ms Sudto started working for the defendant as a casual machine operator on 6 March 2021. She had no previous machine operation experience having trained as a chef.

2. Suriya Warapiang (‘Mr Warapiang’) as a Machine Operator. Mr Warapiang is married to Ms Sudto. Mr Warapiang had sought casual employment for his wife with the defendant.

3. Parathumporn ‘Lina’ Naebsanthia (‘Ms Naebsanthia’) as a Machine Operator. Ms Naebsanthia had worked for the defendant for approximately five years.

4. Precha Phetcharit (‘Mr Phetcharit’) as a Machine Operator and Head Machinist. Mr Phetcharit had been employed by the defendant for approximately 4 to 5 years. Mr Phetcharit stated that his role did not have a particular title but that he was stationed at a machine that rolled paper around the roll.

5. Luis Tasaico (‘Mr Tasaico’) as a Core Tubes Operator and Head Machinist. Mr Tasaico had been employed by the defendant for approximately 7 years, having previously worked in the paper manufacturing industry for between 25 and 30 years. Mr Tasaico described his role with the defendant as operating a machine called the ‘tube rolling machine’.

7. Although Mr Tasaico and Mr Phetcharit were referred to by the defendant as ‘Head Machinists’, both denied that they had any supervisory duties or responsibilities to manage other workers in the defendant’s business.

Core Cutting Machine

8. In 2012, the defendant purchased and imported a machine called a Model 805 Core Cutting Machine Series 00199 which had been manufactured by a Turkish company called Tur-Var (‘the Core Cutting Machine’). No documentation or training was provided to the defendant by the manufacturer when the Core Cutting Machine was acquired.

9. The defendant used the Core Cutting Machine to create cylinder cores of cardboard. The operator of the machine was required to feed cardboard into the machine and press a button to drop several blades onto the cardboard to cut the rolls before ‘flicking’ them off by hand.

10. The Core Cutting Machine was located in a corner of the defendant’s warehouse. It had an operator panel which included a red mushroom button with ‘emergency stop’ labelled on it. The emergency stop button was located such that an operator of the Core Cutting Machine who was seated at a stool may have needed to stand to reach it.

11. When the Core Cutting Machine first arrived at the defendant’s premises in 2012, Mr Tasaico suggested that a guard be placed in front of the drop blades. A drop guard was subsequently affixed to the Core Cutting Machine by a third party provider. However, the guard only prevented access to the blades from the top and did not adequately prevent workers’ body parts from coming into contact with the blades from other angles.

13 March 2021

12. Ms Sudto arrived at the defendant’s premises at 6:50am on Saturday 13 March 2021 to start work. It was the second occasion on which Ms Sudto had worked at the defendant’s premises, the first occasion being the previous Saturday when she had operated the Core Cutting Machine for the first time.

13. Ms Sudto was not required to report to anyone or sign in when she arrived at the defendant’s warehouse. Mr Tasaico, Mr Phetcharit and Ms Naebsanthia were each at the warehouse and had been since about 6:00am that morning.

14. On the previous occasion Ms Sudto had operated the Core Cutting Machine another worker was stationed in close proximity to her. On the day of the incident, Mr Phetcharit and Ms Naebsanthia were working on machines located on the other side of the warehouse, between 30 and 50 metres away from Ms Sudto. No other workers could see Ms Sudto.

15. When Ms Sudto arrived at the defendant’s warehouse on the morning of the incident, Mr Phetcharit saw her and said hello. He did not see her again before the incident.

16. Mr Tasaico saw Ms Sudto and set up the Core Cutting Machine for her to use. He did not inspect it. Mr Tasaico said to Ms Sudto that the ‘machine is set up’ and that ‘all you have to do is just cut.’ Mr Tasaico said that if Ms Sudto did not know what to do, she should go and help Mr Phetcharit.

17. Although Mr Tasaico was rostered to work that day, he did not spend the whole day at the warehouse as he had an appointment to visit another factory with Dominic Checuti to inspect a machine for possible purchase.

18. Shortly after Mr Tasaico left the premises to meet Dominic Chetcuti, at around 9:00am, Ms Sudto’s arms became entangled in the rotating blades of the Core Cutting Machine while she was removing cut rolls from the machine. The blades cut through Ms Sudto’s left hand up to her forearm and through her right hand. She was working alone at the time of the incident. Ms Sudto tried to push the emergency stop button but could not reach it.

19. Ms Sudto called out for approximately 10 minutes before Ms Phetcharit and Ms Naebsanthia heard her from the other side of the warehouse and went to her aid. Mr Phetcharit removed Ms Sudto’s arms from the machine and Ms Sudto became unconscious. Emergency services were called.

Injuries

20. Ms Sudto sustained significant injury to both arms as a result of the incident. Her left arm was partially amputated and there were severe lacerations to her right arm. Ms Sudto spent three days in Intensive Care and ten days in hospital.

Systems of work prior to the incident

Supervision

21. At the time of the incident, supervision of workers in the defendant’s warehouse was unclear.

22. Some workers stated that Dominic Checuti was in charge of supervising the floor. He would hand out papers to workers on the Friday prior indicating what machine they would be working on.

23. Mr Phetcharit and Mr Tasaico would usually turn on all the machines and program them. Mr Phetcharit would generally tell workers which machine on which they would be working on a given day before starting his own work.

24. Neither Mr Tasaico nor Mr Phetcharit worked directly with Ms Sudto.

25. It is an agreed fact that on 13 March 2021, there was no supervisor on site and that Ms Sudto was not being supervised in the course of her duties: Agreed Statement of Facts (‘ASOF’) at [33]. Mr Phetcharit was the most experienced worker on the premises on the day but he was not instructed to supervise Ms Sudto and was working on the other side of the warehouse.

26. Safe operating systems, audits, checks and maintenance

27. At all material times, the defendant had minimal safety policy and procedure in place.

28. There was an inspection of the defendant’s premises on 27 September 2019. It is unclear who conducted the inspection.

29. A document titled ‘Integrated Management System – Risks and Hazards Register’ noted the following controls:

Admin – Machine operating manual available to staff,
Admin – SWP for all machines
Admin – Minimum of 2 people on site at all times
Engineering – Barriers, Guards and Gates to be used

30. The defendant had a Safe Work Procedure (‘SWP’) for the Core Cutting Machine which identified the following relevant hazards:

Rotating turntable, spinning load, pinch points, crushing hazard, entrapment between film and load

31. The SWP specified:

To keep hands away from the machine
Wait for the machine parts to stop moving before making adjustments

32. Both Dominic Chetcuti and Vincent Chetcuti relied on Mr Tasaico to tell them if there was something wrong with the Core Cutting Machine as neither had experience operating it.

33. The SWP:

1. Stated that prior to use, the operator was to check the maintenance book for specific comments or breakdown information and to check with the supervisor for specific instructions.

2. Provided minimal information about the use of the machine and its safety processes.

34. The defendant did not have daily start-up checklist and maintenance documentation for the Core Cutting Machine. The defendant did not have a system whereby plant and machinery was audited so as to assess the risk of workers being exposed to serious injury or death whilst using its machines.

35. Mr Phetcharit would check machines as he turned them on and would only call an external mechanic if a machine was broken. He did not fill out any documentation or conduct any maintenance checks.

36. Mr Tasaico could perform only basic modifications to machines. He did not attempt to fix any substantial problems with the machines.

37. The SWP was ‘authorised’ by Vincent Chetcuti. Mr Phetcharit had never seen the SWP before. Mr Tasaico believed that it was kept with the other machine information sheets and that a copy was not kept near the Core Cutting Machine. Mr Tasaico did not give workers a copy of the SWP when he was showing them how to use it.

38. The SWP specified that PPE should be used but did not specify what type. Mr Tasaico stated that there wasn’t any set PPE available for use with the Core Cutting Machine but that some people wore gloves.

Training and competency

39. It is an agreed fact that the defendant did not provide adequate information, instruction and training to workers such as Ms Sudto to enable them to perform tasks competently, including operation of the Core Cutting Machine: ASOF at [64].

40. Ms Sudto had completed a ‘New Employee Application Form’ on 6 March 2021, but there is no record of Ms Sudto having completed any training or induction with the defendant.

41. Mr Phetcharit and Mr Tasaico were not required by the defendant to hold any qualifications in relation to machine maintenance.

42. Inductions were informal and often involved Mr Phetcharit showing new employees how to work the machines. Mr Chetcuti would determine whether an employee was good enough to be allowed to operate a machine by themselves. Ms Sudto was not assessed by Mr Chetcuti.

43. Usually, the defendant did not allow staff to operate larger machines until they had been employed for at least one or two years. The Core Cutting Machine was considered a smaller machine and therefore could be operated by newer staff sooner.

44. There was no formal training provided as to the safe work procedures applicable to the Core Cutting Machine to ensure that operators were not exposed to health and safety risks while using it.

45. On the Saturday prior to the incident, Ms Sudto had been shown how to use the Core Cutting Machine for approximately five minutes by Mr Tasaico. Although he did not generally operate it himself, Mr Tasaico was shown how to use it by the person who had installed it when it was originally acquired by the defendant. Mr Tasaico set up the machine and gave limited instruction to Ms Sudto, stating that ‘there’s not much training to do’ with respect to the Core Cutting Machine.

46. Ms Sudto’s ability to competently use the Core Cutting Machine was not assessed by the defendant.

Guarding

47. There was no guarding in place to prevent crush hazards for workers using the Core Cutting Machine.

48. The opening in the vicinity of the blades was large enough for workers to reach into the Core Cutting Machine whilst it was in operation.

49. The front section of fixed guard on the Core Cutting Machine was approximately 95 millimetres (‘mm’) away from the blades. It would have needed to have been under 10 mm away from the blades to comply with Australian Standard (‘AS’) 4024.1801.

50. The rear section of fixed guard on the Core Cutting Machine was approximately 50 mm away from the blades. It would have needed to have been under 10 mm away from the blades to comply with AS4024.1801.

51. Newer automatic tube cutting machines similar to the Core Cutting Machine were available on the market, removing the need for workers to manually access the blades.

Guidance material

52. AS4024.1801 was available and in place at the time of the incident. The object of AS4024.1801 is to establish values for safety distances in both industrial and non-industrial environments to prevent machinery hazard zones being reached. Part 4 of AS4024.1801 refers to safe distances to prevent access by upper and lower limbs and also requires that a risk assessment be undertaken to establish the probability of the occurrence of an injury and the foreseeable severity of that injury.

53. AS4024.1601 which deals with the design of controls interlocks and guarding and AS4024.1201 which deals with risk assessment and risk reduction were also available and in place at the time of the incident.

54. The SafeWork NSW Code of Practice titled Managing the Risks of Plant in the Workplace July 2014 (‘Risks of Plant COP’) was in place at the time of the incident.

55. The Risks of Plant COP:

1. Stated that use of plant and machinery is a major cause of workplace death and injury within Australia;

2. Referred to the information, training and instruction required for workers interacting with plant;

3. Required that where guarding is used, the person with management of the plant must ensure:

if access to the area of plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed barrier;

if access to the areas requiring guarding is necessary during operation, maintenance or cleaning, the guarding is an interlocked physical barrier…

if it is not reasonably practicable to use a permanently fixed barrier or an interlocked physical barrier in accordance with the above dot points:

if it is not reasonably practicable to use a permanently fixed barrier or an interlocked physical barrier, the guarding is a physical barrier that can only be altered or removed using a tool, or

if it is not reasonably practicable to use a permanently fixed barrier, an interlocked physical barrier or a physical barrier fixed in position, the guarding includes a presence-sensing safeguarding system.

56. At all material times, the SafeWork NSW Code of Practice titled How to Manage Work Health and Safety Risks December 2011 was in place and relevantly provided:

‘The hierarchy of risk control

If it is not reasonably practicable to eliminate the hazards and associated risks, you should minimise the risks using one or more of the following approaches:

Substitute the hazard with something safer

For instance, replace solvent-based paints with water-based ones.

Isolate the hazard from people

This involves physically separating the source of harm from people by distance or using barriers. For instance, install guard rails around exposed edges and holes in floors; use remote control systems to operate machinery; store chemicals in a fume cabinet.     

Use engineering controls

An engineering control is a control measure that is physical in nature, including a mechanical device or process. For instance, use mechanical devices such as trolleys or hoists to move heavy loads; place guards around moving parts of machinery; install residual current devices (electrical safety switches); set work rates on a production line to reduce fatigue’

57. SafeWork NSW also provides a guide to machine safety which specified barriers as a control measure where eliminating hazards is not possible.

58. SafeWork Australia provides a guide for the safe design of plant, which stated:

‘The designer must ensure, so far as is reasonably practicable, the guarding will prevent access to the danger point or danger area of the plant. If guarding is used the designer must ensure that if access to the area of plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed barrier.’

Steps following the incident

59. Following the incident, SafeWork NSW issued a Prohibition Notice to the defendant, preventing the operation of the Core Cutting Machine due to inadequately guarded rotating blades that directly related to the risk that gave rise to the incident.

The duty

60. The defendant had a duty under s 19(1) of the WHS Act, to ensure, so far as was reasonably practicable, the health and safety of the workers engaged or caused to be engaged by it and/or whose activities at work are influenced or directed by it, while the workers are at work in the business or undertaking.

The risk

61. The risk relevant to this offence is described in Annexure “A” to the Amended Summons in the following terms:

‘The risk was the risk of workers, in particular Ms Sudto, suffering serious injury or death as a result of coming into contract with moving components and/or parts of the machine whilst performing work at the site.’

62. The term ‘the machine’ is defined in paragraph 4 of Annexure “A” as the Core Cutting Machine.

Sentencing

63. 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.

64. 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.

65. The Court is to approach a sentencing exercise on the basis of it being one of ‘instinctive synthesis’: Markarian.

66. 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

67. 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.’

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

69. 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.

70. 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.

71. 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].

72. 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.

73. 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].

74. 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’). His Honour Justice Basten, under the heading ‘Assessment of Risk’ said at [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 upon an assessment of all those factors.’

75. 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.’

76. 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.

77. 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).

78. 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).

79. 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:

1. 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];

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

3. 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];

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

5. Whether the risk was an obvious or clear one; and

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

80. 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.’

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

1. The machine was only partly guarded as there is a significant gap between the bed of the machine and the guard. The gap was sufficient to allow the operator to place their hand under it and onto the lower metal bar.

2. At the time of the incident, there was a build-up of cardboard rolls at the front of the machine, limiting the amount of room available to the operator. When carrying out the ‘flick’ with a subsequent impact upon the angle upon which the operator’s hands would travel under the guard.

3. At the time of the incident, the operator was undertaking a ‘flick’ of the roll, before inserting the new one, and the four blades had retracted 1 ½ inches and were continuing to spin.

4. Whilst Ms Sudto was attempting to remove cut rolls from the machine, her arms became entangled in the rotating blades of the machine

5. At the time of the incident Ms Sudto was very inexperienced in operating the machine;

6. At the time of the incident Ms Sudto was not supervised despite it being her second day as a casual machine operator, who was given limited instruction and training prior to 13 March 2021;

7. The design of the machine (including its later affixed guarding) and the requirements put upon the operator disclose an obvious risk of serious injury or death;

8. There was ample guidance material available to the defendant.

9. When that fact is taken together with the very limited instruction and training given to the new operator, and the lack of any effective supervision, that suggests that the breach by the defendant is objectively serious.

10. The defendant accepts that the risk of workers coming into contact with the moving components and/or parts of the Core Cutting Machine was foreseeable, and the risk was foreseen by the defendant evidenced by the steps, albeit inadequate, that the defendant had taken to address the risk.

11. The defendant accepts that it did not adequately respond to the risk, and failed to take the reasonably practicable steps particularised in the Annexure to the Amended Summons. The defendant also accepts that the potential consequences were very serious.

12. I accept that the defendant did have processes and systems in place, but they were clearly inadequate. I accept that this was not a defendant who had blatant disregard of its obligations, but a situation where those systems were clearly inadequate.

82. 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 straightforward and available to the defendant.

Deterrence

83. 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.

84. 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).

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

86. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016)  93 NSWLR 338 (‘Bulga’) 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.’

87. 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 undertaking the manufacturing and supply of hand towel and toilet roll production, which necessitated the use of a variety of machines processing different aspects of the manufacturing operation.

88. 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.

89. 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.

90. 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.

91. The defendant continues to operate as a business in the paper conversion industry, but it has undertaken, and will continue to, address and take significant improvements to address the risks to health and safety that resulted in the incident, and additionally will undertake other improvements to it’s operations which result in benefits to safety.

92. There improvements are detailed in Mr Chetcuti’s affidavit at [48]-[68] and include:

1. Decommissioning the Core Cutter;

2. Translation of Safe Work Procedures into Thai, Mandarin/Cantonese and Vietnamese;

3. The production of instructional videos for workers, which will be dubbed and subtitled in various languages; and

4. Fully automating its production line.

93. 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

94. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing).

95. The defendant’s offending conduct exposed a person or persons to a grave risk of death: s 21A(2)(ib) of the Sentencing Act.

96. Ms Sudto’s arms became entangled in the rotating blades of the core cutting machine. The machine cut through her left hand up to her forearm and her right hand. She was working alone and could not reach the emergency stop button located to her left. She called out for help for approximately 10 minutes until someone heard and went to her aid. When her arms were removed from the Core Cutting Machine, Ms Sudto lost consciousness. She has been left with very significant injuries.

Mitigating factors

97. In Haynes v CI & D Manufacturing (No 2), Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following:

'We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record.

Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.'

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

99. The steps taken after the accident by the defendant to protect the workers from harm were extensive and expensive. This gives me confidence that the defendant has accepted its failures and is committed to a far safer workplace from here on. This is a strong subjective aspect of the plea, which in my mind ought afford the defendant some leniency, which I have reflected in my determination.

100. I accept that the defendant is a corporate citizen of good character and has made significant charitable donations as an active contributor to and sponsor of its community, as detailed in Mr Chetcuti’s Affidavit at [75]-[79]: s 21A(3)(f) of the Sentencing Act.

101. I accept the defendant is unlikely to reoffend: s 21A(3)(g) of the Sentencing Act.

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

103. I accept that the defendant has demonstrated its remorse by providing evidence that it has accepted responsibility for the offence and has acknowledged the injury, loss and damage caused by the offence: s 21A(3)(i) of the Sentencing Act. In his affidavit, Mr Chetcuti at [3] and [4] states as follows:

‘On behalf of Royal Touch, I accept responsibility for the failures that gave rise to the risk that Ms Sudto was exposed to, resulting in the incident on 13 March 2021(Incident).

On behalf of Royal Touch, I also acknowledge and deeply regret the significant impact that the Incident has had on Ms Sudto and her family. Additionally, on behalf of Royal Touch, I acknowledge and deeply regret the impact that this Incident had on our employees and workers.’

104. The defendant co-operated with SafeWork NSW during its investigations: ss 21A(3)(m) of the Sentencing Act.

105. 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 a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383 and ss 21A(3)(k) and 22 of the Sentencing Act.

Penalty

106. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the offence is $400,000 and that will be reduced by 25% to reflect the plea of guilty.

3. Accordingly, I order the defendant to pay a fine of $300,000.

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 agreed in the sum of $27,500.00.

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Amendments

05 December 2023 - Amendment: Correction of typographical error on cover sheet

Decision last updated: 05 December 2023