SafeWork NSW v Visy Board Pty Limited

[2024] NSWDC 95

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Visy Board Pty Limited [2024] NSWDC 95

Hearing dates:

27 March 2024

Date of orders:

5 April 2024

Decision date:

05 April 2024

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Visy Board Pty Limited was convicted on 27 March 2024.

(2)   The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3)   Order Visy Board Pty Limited to pay a fine of $375,000.

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

(5)   Order Visy Board Pty Limited to pay the prosecutor’s costs agreed in the amount of $55,000.

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 – capacity to pay appropriate penalty

COSTS – prosecution costs

OTHER – manufacturer of corrugated cardboard – powered mobile equipment - corrugator machine – trolley car – worker crushed between corrugator and trolley car – serious injury – amputation – failure to control risks – inadequate risk assessment – inadequate safe work procedure – no physical barrier to separate worker from machinery – no markings

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E

Factories, Shops and Industries Act 1962 (NSW)

Fines Act 1996 (NSW), ss 6, 122

Occupational Health and Safety Act 1983 (NSW)

Occupational Health and Safety Act 2000 (NSW)

Work Health and Safety Act 2011 (NSW), ss 3, 19, 32

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:

SafeWork NSW Code of Practice How to Manage Work Health and Safety Risks, August 2019

SafeWork NSW Code of Practice Managing the Risks of Plant in the Workplace, August 2019

SafeWork NSW Fact Sheet Machine Safety – Guide for Operators

SafeWork NSW Guide to Machine Safety, Catalogue No SW09449

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Visy Board Pty Ltd (Defendant)

Representation:

Counsel:
C Magee (Prosecutor)
P Barry (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Kingston Reid (Defendant)

File Number(s):

2022/181735

Judgment

1. On 25 June 2020 Mr Zoran Stojanovski, an employee of Visy Board Pty Limited (Visy), was crushed between a Trolley Car and Corrugator Conveyor at Visy’s worksite at Smithfield (Worksite), resulting in significant left foot injuries. Subsequently Mr Stojanovski had his left leg amputated below the knee.

2. Visy has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed Mr Stojanovski to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. The maximum penalty for the offence is a fine of $1,731,500.

The Risk

4. The risk described in par 9 of Annexure A of the Amended Summons is as follows:

“The risk was of workers, in particular Mr Stojanovski, suffering death or serious injury from being crushed between the Trolley Car (Trolley Car) and the Corrugator Outfeed Conveyor in the event that workers moved into the path of the Trolley Car whilst it was operating without there being time for the Trolley Car to stop before impact.”

Reasonably Practicable Measures

5. Paragraph 10 of Annexure A of the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the WHS Act as follows:

“10. The defendant failed to ensure so far as is reasonably practicable the health and safety of workers, in particular Mr Stojanovski, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate or, alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

(a) develop, implement and enforce (by training) an adequate documented standard work procedure for the Corrugator Outfeed Conveyor process that addressed the hazards and controls relating to the risk of workers being crushed by the Trolley Car;

(b) undertake an adequate risk assessment of the Trolley Car operating procedure, to identify the risk of workers being crushed by the Trolley Car in circumstances in which that Car was unable to stop before contacting them, to enable the development and implementation of adequate control measures;

(c) develop, implement and enforce an adequate documented standard work procedure for the operation of the Trolley Car, which included a requirement to:

(i) conduct an adequate daily Pre-Start to check the operation of the sensors; and/or

(ii) stop prior to reaching the Corrugator take-off line; and/or

(iii) contact the Corrugator Operators by radio and advise of approach; and/or

(iv) confirm that workers are out of the exclusion zone, before proceeding;

(d) to require that workers performing the role of the Corrugator Trolley Car operator are trained, and assessed as competent in the requirements of the standard work procedure for the Trolley Car (as set out in 10(c) above);

(e) Enhancing, implementing and enforcing its PME [powered mobile equipment] Standards in the vicinity of the Corrugator Outfeed Conveyor by installing:

(i) a physical barrier (gate) at the end of the take-off conveyor; and/or

(ii) a designated pedestrian exclusion zone; and/or

(iii) a yellow line marked on the floor in front of the control room near the take-off line; and/or

(iv) a 2-way radio system to give Operators the ability to communicate to other Operators (including of PME)

(f) Upgrading the systems on the Trolley Car by installing:

(i) a new alarm on the Trolley Car so that it could be heard over the noise of the Corrugator; and/or

(ii) bumpers on the front corners of the Trolley Car; and/or

(iii) object detection sensors on the Trolley Car to enable it to come to a complete and immediate stop on detection of an object in its path; and/or

(iv) a 2-way radio system to give Operators the ability to communicate to other Operators.”

Background

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

7. Visy was a person conducting a business or undertaking (PCBU) as a manufacturer of corrugated cardboard boxes from 100% recycled fibre and Kraft paper.

Work Undertaken at the Worksite

8. The process of converting paper into corrugated cardboard included the use of a large piece of plant known as a “Corrugator”. After the sheets of corrugated cardboard were manufactured they were put onto the part of the manufacturing line known as the “Corrugator outfeed conveyors”. These parts of the line were also referred to as “Stackers”, as individual sheets of cardboard were stacked into larger stacks.

9. The Corrugator outfeed conveyors included of a number of rollers which moved the stacks of cardboard along the conveyor. A series of sensors were placed underneath the rollers on the conveyors to monitor and control the movement of the stacks of cardboard along the line.

10. Once the stacks of cardboard reached the end of the Corrugator outfeed conveyors, (which was referred to as the corrugator take-off line), a sensor was designed to detect the stacks of cardboard and stop the movement of the rollers, to prevent the stacks falling off the end of the conveyor.

11. There were several corrugator outfeed conveyors or stackers that were placed parallel to each other. There was a small aisle between each of the corrugator outfeed conveyors. A corrugator operator stood in the aisle and operated the corrugator outfeed conveyors via a control panel. The control panel was located a few metres from the corrugator take-off line.

12. Once the stacks of cardboard reached the corrugator take-off line, the stacks of cardboard needed to be taken off the line by powered mobile equipment (PME).

13. The Corrugator and the corrugator outfeed conveyors created considerable noise. Operators were required to use hearing protection.

14. The Worksite also used a PME known as an SF Corrugator Trolley Car (Trolley Car). The Trolley Car was designed to take large stacks of cardboard off the corrugator outfeed conveyors at the corrugator take-off line. The Trolley Car operated along a rail type line in the floor. The Trolley Car was able to be moved forwards and backwards along the line and stop at the relevant corrugator take-off line, before transferring the stacks of cardboard from the conveyor onto the Trolley Car.

15. An operator stood at the back of the Trolley Car at a control panel and used a joystick to move the Trolley Car in a forward or reverse direction to the designated conveyor line. The Trolley Car control panel also allowed the operator to release the load of stacks of cardboard from the conveyor onto the Trolley Car. The operator then used the joystick to drive loads on and off the Trolley Car.

16. The Trolley Car was fitted with a scanner/sensor at the front of the Trolley Car, which was designed to detect objects or people and to stop the Trolley Car colliding with the object or person. The Trolley Car was fitted with a brake that could be operated by the operator from the control panel. The Trolley Car was fitted with a siren that made an audible noise when the Trolley Car was moving.

17. As the Trolley Car passed the ends of the corrugator outfeed conveyors there was a 40mm gap between the edge of the Trolley Car and the end of the conveyors. The gap between the Trolley Car and the ends of corrugator outfeed conveyors created a crush or pinch point hazard.

18. Leuze Electronic Pty Ltd (Leuze) is an independent supplier of sensors and related equipment.

19. Leuze supplied sensors to Visy that were fitted to the corrugator outfeed conveyors. These included an optical sensor fitted to the corrugator take-off line, designed to detect the stack of cardboard and stop the movement of the rollers of the conveyor. The sensor was a model HT49C.UC/M4 – Diffuse sensor with background suppression.

20. Visy employed Mr Stojanovski as a machine servicer at the Worksite. He had approximately 35 years of experience working for Visy. During that period Mr Stojanovski had performed a number of roles at Visy.

21. Mr Mile (Mick) Gorgievski was employed by Visy as a corrugator supervisor at the Worksite. His role involved the supervision of the production of board for the afternoon shift. He had been engaged by Visy for over 30 years.

25 June 2020

22. On 25 June 2020 at approximately 7.30pm, Mr Stojanovski was acting in the role of corrugator stacker operator on a corrugator outfeed conveyor known as “Stacker 1” (the Conveyor).

23. Mr Stojanovski was relieving other workers who worked on the Corrugator and who were on a designated meal break. Mr Stojanovski undertook this relief work twice per shift from 5.00pm to 5.30pm and then again from 7.30pm to 9.00pm. As part of this work, Mr Stojanovski operated the corrugator outfeed conveyors at the Worksite.

24. While performing this work Mr Stojanovski was generally located at the control panel for the Conveyor, which was a few metres from the end of the Conveyor. The control panel was in the aisle between Stacker 1 and another stacker, known as “Stacker 2”.

25. As at 25 June 2020, Mr Stojanovski (and other workers) understood that, when a type of corrugated cardboard known as “black board” (due to it being black in colour) was being manufactured on the Conveyor, the sensor underneath the rollers on the take-off line of the Conveyor may not detect the black board and therefore may not stop the stacks of black board at the appropriate location on the Conveyor. This could result in the stacks of black board falling off the end of the Conveyor.

26. As at 25 June 2020 Mr Stojanovski (and other workers) understood that a piece of brown coloured Kraft Board could be placed on the rollers over the sensor location at the end of the take-off line of the Conveyor shortly prior to the stack of black board reaching that point on the take-off line.

27. The piece of brown coloured Kraft Board would be detected by the sensor under the roller at the end of the take-off line of the Conveyor. This would stop the rollers in that location and stop the stacks of black board before they reached the end of the Conveyor.

28. Shortly after 7.30pm Mr Stojanovski observed a stack of black board being transported on the rollers towards the end of the take-off line of the Conveyor. In order to prevent the stack of black board falling off the end of the Conveyor, Mr Stojanovski decided to obtain a piece of brown coloured Kraft Board to place on the Conveyor.

29. A pallet stacked with brown coloured Kraft Board was in a section of the Worksite not far from the location of the Conveyor.

30. Mr Stojanovski walked away from the control panel of the Conveyor towards the take-off line of the Conveyor and walked around the Conveyor to the pallet stacked with brown coloured Kraft Board.

31. Mr Stojanovski then walked back towards the take-off line of the Conveyor and placed a piece of brown coloured Kraft Board on the rollers and returned to his workstation.

32. At about the same time, the operator of the Trolley Car was on a designated meal break. While that worker was on their break Mr Gorgievski commenced operating the Trolley Car.

33. The Trolley Car was being driven in the direction of the Conveyor where Mr Stojanovski was working. The Trolley Car moved at a walking pace along the rail line at the end of the corrugator outfeed conveyors.

34. The Conveyor then resumed the feed of black board along the conveyor rollers towards the take-off line. Mr Stojanovski was watching the black board move along the conveyors. At that time Mr Stojanovski was standing at the end of the take-off line near the piece of brown coloured Kraft Board and near the rail line upon which the Trolley Car travelled.

35. In order to manipulate the piece of brown coloured Kraft Board into the correct location on the take-off line, Mr Stojanovski took a step backwards which placed his left foot on the rail line on which the Trolley Car was travelling.

36. There was no adequate physical barrier preventing workers from moving from the area between Stacker 1 and Stacker 2 and into the path of the Trolley Car while it was operating. Further, there were no markings in this area between Stacker 1 and Stacker 2 to indicate that this area was part of the Trolley Car path and it was not safe for workers to be standing there.

37. Mr Stojanovski was facing away from the Trolley Car. He leaned forward towards the Conveyor and placed his hands over the first board stack. At that time, he was unaware that the Trolley Car was proceeding down the line towards his location.

38. At that time Mr Stojanovski was wearing hearing protection and could not hear the Trolley Car’s audible alarm over the noise of the Corrugator and other plant in the area. Further, the audible alarm was not loud on the northern side of the Trolley Car.

39. At that time the front of the Trolley Car had reached a point at which the gap between the edge of the Trolley Car and the Conveyor was approximately 40mm.

40. The proximity of Mr Stojanovski to the Trolley Car was such that the sensors, Trolley Car operator and braking system could not react quickly enough to prevent the Trolley Car contacting Mr Stojanovski’s left foot.

41. After the initial impact the Trolley Car travelled a further estimated 600-700mm and Mr Stojanovski’s foot was trapped in the 40mm gap between the Trolley Car and Conveyor, which caused a shearing and crushing injury to his left ankle and foot.

42. Mr Stojanovski’s left foot remained trapped in the 40mm gap between the Trolley Car and Conveyor for some time until a forklift truck was used to lift the Trolley Car away from its position.

43. Mr Stojanovski was attended to by the workers and was provided first aid emergency care. Emergency services were also called to the scene. Mr Stojanovski was stabilised and taken to Westmead Hospital for assessment and treatment.

44. Mr Stojanovski underwent multiple surgical procedures to his injured left foot. However, following the surgical procedures, Mr Stojanovski’s left leg was surgically amputated below the knee on 13 July 2020 due to an infection.

Relevant Guidance Material

45. Prior to the incident the following industry guidance material was published and was available to Visy:

1. The Code of Practice Managing the Risks of Plant in the Workplace dated August 2019 (SafeWork NSW) – which identified using plant and machinery as a major cause of workplace death and injury within Australia.

2. The Code of Practice How to Manage Work Health and Safety Risks dated August 2019 (SafeWork NSW) – which identified how to find hazards and how to implement risk assessments.

3. The SafeWork NSW Fact Sheet – Machine Safety – Guide for Operators (undated) – which provided guidance on machine safety and guards.

4. The SafeWork NSW Guide to Machine Safety, Catalogue No SW09449 – which identified the risks of presence sensing devices.

Visy’s Pre-Incident Systems of Work

46. Prior to the incident Visy had a documented safety management system.

47. The safety management system relevantly included the following documents:

1. “Visy Minimum Standards for Powered Mobile Equipment and People Interaction” (PME Standards),

2. “Machinery Hazard & Risk Assessment” document for the “Equipment – Trolley car/Stacker outfeed area” (Machinery RA),

3. “VBD – Trolley Car – SOP v2” dated 03/2014 (Trolley Car SOP v2).

48. The PME Standards were designed to control the hazards of all interactions between PME and people in relation to all Visy operations through segregation, separation and risk assessed tasks. The PME Standards applied to, and in respect of, trolley cars.

49. The PME Standards included a number of interaction categories that were to be used to determine what category the area or tasks fell into, and then what minimum controls should be applied. The intent of the PME Standards was to reduce risk, to an acceptable level, from any interaction between PME and people through controls consistent and standardised across all Visy sites.

50. The interaction categories were:

1. Category 1: Physical Barrier

2. Category 2: Physical Separation

3. Category 3: Task-Based Only

4. Authorised Access Areas

51. The PME Standards stated that a physical barrier shall be the primary control. It stated that only when this control proved to be impracticable shall physical separation of 3 metres between the PME and pedestrians be utilised.

52. The section of the PME Standards dealing with Authorised Access Areas defined those areas as being:

• Those areas of interaction between PME and people when there are blind spots which increased the risk of impact between PME and people, and

• Those areas where there was an infrequent need for pedestrian work tasks to be performed, making work-related pedestrian traffic abnormal.

53. The Machinery RA identified the following: “Crushing Hazard: Crush/pinch points between edge of trolley car & conveyors corners”.

54. The Machinery RA identified that this “Crushing Hazard” had a “Raw Risk Score of 8”, placing it in the “Unacceptable” category of “Almost certain/moderate severity” and “Likely/Major severity”. The Machinery RA identified the following controls to be applied in respect to the “Crushing Hazard”:

• Use the PME 3 metre rule;

• Barriers in between stackers;

• Upgrade siren on trolley; and

• Flashing light when trolley is used.

55. Prior to the incident, in January 2017 Visy also prepared and delivered a Toolbox Talk that was entitled “Working Safely with Powered Mobile Equipment (PME)” (Toolbox Talk). The content of this Toolbox Talk was delivered to workers in the Corrugator section by Mr Gorgievski on 5 December 2019. While it did not address the specific hazard that arose in the circumstances of Mr Stojanovski’s incident, it identified the more general crush hazards relevant to working around PMEs.

56. In 2018 Visy had replaced some sensors at the Worksite due to the sensors not being able to detect the black board.

The Corrugator Conveyor

57. Prior to the incident, Visy had a number of documents that dealt with the duties and responsibilities of workers performing the task of Corrugator Stacker Operator. These documents included:

1. Corrugator Stacker Operator Responsibilities dated 03/10/2014

2. Corrugator Take-off Stacking Operator – Job Analysis dated 12/07/2016

3. Pallet Stacking & Flagging dated 02/04/2012

4. Operation of a Corrugator dated 02/04/2012.

58. None of the above documents identified the hazard of operators interacting with a PME, and in particular the Trolley Car, while undertaking tasks associated with that work.

The Trolley Car

59. Prior to the incident, the Trolley Car SOP v2 included requirements for a pre-start check of the Trolley Car to “check that all safety systems are working, i.e., scanner.”

60. The Trolley Car SOP v2 included the following:

“NOTE: operator must check the area is clear before moving the trolley car and must be looking in the direction they are heading. Do not rely on the scanner to detect objects and people.”

61. In practice, prior to the incident in respect of the operation of the Trolley Car at the Worksite there:

1. Was no communication between workers working in the vicinity of the Stackers that the Trolley Car was moving in the Worksite.

2. Were no markers or indicators to clearly distinguish the Trolley Car path.

3. Were no signs warning workers of the moving Trolley Car.

4. Were no gates or barriers preventing entry into the conveyor space.

5. Were no visible exclusion zones marked to indicate the Trolley Car path.

Systems of Work After the Incident

62. On 26 June 2020 Visy prepared an Interim Trolley Car Operations Procedure that addressed the crush injury hazard and implemented a number of control measures for the trolley car operators, corrugator stacker operators and supervisors to implement to address the hazards and risks associated with the use of the Trolley Car. This document was subsequently discussed with relevant workers who were then required to sign off on it to show that they understood it.

63. After the incident Visy also prepared a document titled “SF Corrugator Outfeed Conveyor – Safe Work Practice” dated 2 July 2020 (Conveyor SWP).

64. The Conveyor SWP included a sequential step-by-step procedure for undertaking the work, including dealing with the “Start-Up Process”, “Stacker operation”, “stoppages, jam-ups and end run”, and “the interaction of operators with PME and the Trolley Car”.

65. On or about 14 July 2020 Visy requested that its sensor provider Leuze supply a new sensor to be fitted under the rollers on the Conveyor.

66. On 15 July 2020 Visy prepared a risk assessment of the Trolley Car Operating Procedure. This was created by a number of staff from Visy, including Mr Gorgievski.

67. On 4 August 2020 Leuze supplied a new sensor to Visy to be fitted under the rollers on the Conveyor.

68. On 3 September 2020 Visy published a “Corrugator Trolley Car Standard Work Practice”. This standard work practice included a sequential step-by-step procedure for undertaking the work, including dealing with pre-start and a series of detailed instructions in relation to operating the Trolley Car. It included a number of measures to be taken to minimise the interaction of the Trolley Car with operators and other personnel.

69. On 8 September 2020 Mr Gorgievski (and other workers) undertook the “Competency Assessment” document for the “Operation of the Corrugator Outfeed Conveyor.”

70. After the incident Visy implemented a number of control measures consistent with its PME Standards requirements. These included Visy installing:

1. A physical barrier (gate) at the end of the take-off conveyor.

2. A designated pedestrian exclusion zone.

3. A yellow line marked on the floor in front of the control room near the take-off line.

4. A 2-way radio system to give Operators the ability to communicate to other Operators (including of operators of PME).

71. After the incident Visy upgraded the safety systems of the Trolley Car, including by installing:

1. A new alarm on the Trolley Car so that it can be heard over the noise of the Corrugator.

2. Bumpers on the front corners of the Trolley Car.

3. New object detection sensors on the Trolley Car so that it comes to a complete and immediate stop,

4. A 2-way radio system to give operators the ability to communicate to other operators.

Cooperation

72. The defendant cooperated with SafeWork NSW (SafeWork) throughout its investigation.

Timing of Plea

73. The defendant was unsuccessful in its application to be admitted to SafeWork’s Enforceable Undertaking programme.

74. The defendant sought to enter into plea negotiations at an appropriately early time after that declinature.

75. The guilty plea entered by the defendant was entered at the first listing of this matter after the terms of the Amended Summons and Amended Statement of Agreed Facts had been agreed.

Evidence for the Defendant

76. Mr Zane Cassim affirmed an affidavit on 12 March 2024 (DX 1). Mr Cassim is Visy’s Site Operations Manager in Victoria.

77. Mr Cassim has been employed by Visy since April 2020 in the role of Site Operations Manager in the Fibre Division in New South Wales (between April 2020 and May 2022), Queensland (between June 2022 and June 2023) and now Victoria (from June 2023).

78. Mr Cassim’s current role involves overseeing Visy’s Truganina site operations which include manufacturing paper products, distribution, quality and safety. This is a similar role to that which Mr Cassim performed at the Smithfield site where the incident occurred.

79. Mr Cassim’s affidavit provided detailed evidence in relation to the following matters:

1. Mr Cassim’s qualifications and experience in relation to matters of safety (pars 6-10).

2. The structure of Visy, which is a member of the Visy Group of Companies (pars 11-15). Visy operates 12 manufacturing plants in Australia employing 1,900 people. At the Smithfield site there are 148 employees, most of whom are long-term employees.

3. Visy’s approach to health safety and environment (pars 16-30). Visy has a detailed and extensive written safety management system. Part of this system is a document entitled “10 Lifesaving Rules”. Rule 5 relates to PME which includes the following:

“Maintain exclusion zone around PME.”

4. Pre-incident systems (pars 31-32). Visy had identified the risk which is the subject of these proceedings.

5. The incident (pars 33-37).

6. Corrective actions (pars 38-39). The corrective actions are set out in the Amended Agreed Statement of Facts.

7. Support provided to Mr Stojanovski (pars 40-45). Visy has provided support to Mr Stojanovski and his family which includes medical and household support, rehabilitation and remaining in contact with Mr Stojanovski.

8. Co-operation with SafeWork NSW (pars 47-50).

9. Compliance history (pars 51-54). Visy has no convictions for breaches of the WHS Act. Visy had eight convictions under the Factories Shops and Industries Act 1962 (NSW) between 1975 and 1989. Visy had eight convictions under the Occupational Health and Safety Act 1983 (NSW) between 1999 and 2003. Visy had one conviction under the Occupational Health and Safety Act 2000 (NSW) in 2008.

10. Corporate citizenship (pars 55-59). Visy contributes funds to the philanthropic arm of the Visy Group.

11. Remorse (pars 60-62).

Consideration

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

Objective Seriousness of the Offence

81. 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].

82. 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].

83. 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.”

84. 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].

85. 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.

86. 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.

87. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS 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. Justice Basten at [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.”

88. 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 [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.”

89. 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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.”

90. My findings about the defendant’s level of culpability are based upon the following:

1. The risk was known to and foreseen by Visy. Anyone standing in the stacker outfeed area would have seen the potential for the Trolley Car to crush a worker standing at the end of the conveyor. This risk is patently obvious even on the post-incident video which was played to the court (DX 2).

2. A risk assessment was conducted on 5 December 2019 in relation to the Trolley Car and stacker outfeed area (PX 1, tab 9). A hazard identified was:

“Crush/pinch points between edge of trolley car and conveyors corners.”

3. This hazard was given a risk score of 8. By reference to the scale at PX 1, tab 9, p 7, a risk score of 8 meant that there was a risk of moderate severity with an almost certain likelihood of occurrence, or a risk of major severity with a likely risk of occurrence. The risk score of 8 was described as “unacceptable”.

4. The risk assessment set out the following controls to deal with the hazard:

“Use the PME 3 metre rule. Get barriers in between stackers. Upgrade siren on trolley and a flashing light when trolley used.”

5. None of these controls were implemented by Visy, even though it recognised the very hazard which led to the amputation of Mr Stojanovski’s lower leg. There was no evidence to explain why, when Visy had categorised the risk as “unacceptable”, something was not done immediately. In so many cases which come before the court there is no risk assessment carried out. In this case there was a blunt, plain English risk assessment performed, but no-one acted upon it before the incident occurred. It is of course desirable to have a detailed written safety management system. But it is not worth the paper it is written on if a PCBU does not carry it into effect.

6. The likelihood of the risk occurring was rated by Visy as “almost certain” or “likely”.

7. The potential consequences of the risk were obviously death or very serious injury.

8. There were steps available to eliminate or minimise the risk. These were identified in the 2019 risk assessment. They were steps taken immediately after the incident by Visy. The current set up of the area involving the interaction between the Trolley Car and the conveyers was demonstrated in the video DX 2.

9. There was no evidence of any particular burden or inconvenience of those steps being implemented. Clearly the same processes are carried on at the Smithfield site by Visy now, and the additional safety precautions have not interfered with production.

10. The extent of the harm caused by the commission of the offence by Visy was most serious. The injury to Mr Stojanovski resulted in the amputation of his left leg below the knee. The extent of the harm is further dealt with below in relation to Mr Stojanovski’s Victim Impact Statement.

11. The maximum penalty for the offence is a fine of $1,731,500, which reflects the legislature’s view of the seriousness of the offence.

91. I find that the level of culpability of Visy is in the upper half of the mid range.

Deterrence

92. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the WHS 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].

93. The penalty must reflect the need for specific deterrence. Visy is still conducting a business. Its operations involve use of powered machinery and the continuing engagement of workers.

Aggravating Factors

94. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.

Mitigating Factors

95. Visy has a record of convictions under previous legislation but has not committed any offences under the WHS Act. This means that Visy does not qualify for the mitigating factor in s 21A(3)(e) of the CSP Act. I find that the past record is relevant to sentence but does not weigh heavily against Visy. I take into account the scale of Visy’s operations (see DX 1), the corrective actions taken after the incident and the lack of any conviction since 2008.

96. Visy is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. Visy has been in business since 1948.

97. Visy is unlikely to re-offend: s 21A(3)(g) CSP Act.

98. Visy has good prospects of rehabilitation: s 21A(3)(h) CSP Act. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this incident occurred.

99. Visy has shown remorse for the offence: s 21A(3)(i) CSP. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Stojanovski was caused by its actions.

100. Visy entered a plea of guilty: s 21A(3)(k) CSP Act. 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) CSP Act. It is appropriate to give Visy a 25% discount for an early plea.

101. Visy gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It cooperated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

102. 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.

103. 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.”

104. There was no submission about capacity to pay, so this issue does not arise.

Victim Impact Statement

105. The defendant was convicted at the sentence hearing on 27 March 2024.

106. Part 3 Division 2 of the CSP Act deals with Victim Impact Statements. The provisions apply to an offence being dealt with summarily by the District Court where the offence results in the death of, or actual physical bodily harm to, any person – s 27(2)(a).

105. By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence:

1. Any personal harm.

2. Any emotional suffering or distress.

3. Any harm to relationships with other persons.

4. Any economic loss or harm that arises from any matter referred to in (1) – (3) above.

108. A Victim Impact Statement may be tendered to the court only by the prosecutor – s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division – s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement – s 30D(1).

109. A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate – s 30E(1).

110. The prosecutor tendered a Victim Impact Statement by Mr Stojanovski (PX 2). Mr Stojanovski observed the sentence hearing by AVL and his wife attended court. He did not wish to read his statement aloud to the court.

111. After the incident Mr Stojanovski felt scared and worried about how his future would turn out and how difficult his life would be, knowing that he no longer has “two functioning legs.” Mr Stojanovski started experiencing anxiety attacks and lost interest in all his previous hobbies and activities. Mr Stojanovski could also barely help his wife with housework.

112. Mr Stojanovski has experienced high stress levels and anger. He said that he would yell at people “for no reason at all” and had feelings of violence and anger towards some family members. Mr Stojanovski said that these feelings led to him increasing his consumption of alcohol and occasionally harming himself.

113. For about two months after Mr Stojanovski’s amputation, he did not have a prosthetic due to swelling from the surgery. Mr Stojanovski said that this made it extremely difficult to move around his home, especially as he lives in a two-storey house. Mr Stojanovski had to slide up and down the stairs and spent most of his time crawling around on the floor to move around the house.

114. When Mr Stojanovski’s first grandson visited after the amputation he was scared to get close to Mr Stojanovski. It took him about six months to become comfortable around Mr Stojanovski again. Mr Stojanovski was extremely upset about this and was unable to play with his grandson and chase him around the house. Mr Stojanovski said he was even afraid to hold his grandson in case he dropped him.

115. When Mr Stojanovski’s grandson got older he started asking questions which made Mr Stojanovski “even more upset because how could you possibly explain to a 5 year old the why’s and how’s of what has happened”.

116. Mr Stojanovski required a wheelchair before getting his prosthetic leg. Mr Stojanovski said that he was “constantly getting stared at by people” which made him “feel really uncomfortable”. Mr Stojanovski said he “couldn’t stand it” and “felt completely embarrassed and useless”.

117. Mr Stojanovski said that the stares did not stop after receiving his prosthetic leg and that he “truly felt like a freak”. During this time Mr Stojanovski said that his anger was “uncontrollable” and that he sometimes got into “arguments with people for the smallest reasons”. Mr Stojanovski was in an “angered and hateful state of mind” which “was not a good feeling at all”.

118. The more Mr Stojanovski thought about the incident the more depressed he became. Mr Stojanovski said that he “completely lost hope in life” and would often wonder “[w]hy me, why did this have to happen to me”.

119. Mr Stojanovski expressed gratitude to people in his life during this time, including his relatives and health professionals who have been “a great help”. Mr Stojanovski has received a lot of comfort and companionship from his German Shepherd dog who was always happy to see him. Mr Stojanovski is also comforted by his grandsons who “are an absolute joy to be around” and always put him “in a much better place”.

120. Mr Stojanovski said that this incident has “greatly impacted” his life and that “if anyone would even picture for a second how hard it has been for me to live with only one leg, they might have a bit of understanding as to how I am feeling on a daily basis and the type of impact it might have on their own lives as it has on mine”.

Costs

121. The parties have agreed to an order that the defendant is to pay the prosecutor’s costs in the amount of $55,000.

Penalty

122. My orders are:

1. Visy Board Pty Limited was convicted on 27 March 2024.

2. The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty.

3. Order Visy Board Pty Limited to pay a fine of $375,000.

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

5. Order Visy Board Pty Limited to pay the prosecutor’s costs agreed in the amount of $55,000.

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Decision last updated: 05 April 2024