SafeWork NSW v Williams Pressing and Packaging Services Pty Limited

[2018] NSWDC 409

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Williams Pressing and Packaging Services Pty Limited [2018] NSWDC 409

Hearing dates:

17 December 2018

Date of orders:

20 December 2018

Decision date:

20 December 2018

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   The offender is convicted.
(2)   The appropriate fine is $80,000 but that will be reduced by 25% to reflect the plea of guilty.
(3)   Order the offender to pay a fine of $60,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(5)   Order the offender to pay the prosecutor’s costs agreed in the amount of $20,000.

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 – appropriate penalty

 

SENTENCING PRINCIPLES – totality – remorse – contrition – parity – appropriate penalty

 

COSTS - prosecution costs

  OTHER – collision between forklift and worker – need for training and supervision – need to consult with company supplying workers to factory

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Act 2011

Cases Cited:

Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
Baumer v R (1998) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
DPP v Gregory [2011] VSCA 145
Jimmy v R (2010) 77 NSWLR 540
Green v R [2011] HCA 49
Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125
Jahandideh v R [2014] NSWCCA 178
Markarian v R (2005) 228 CLR 357
R v McNaughton (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
SafeWork NSW v Phong Warehouse & Distributor Pty Ltd [2018] NSWDC 253
Veen v R (No. 2) (1998) 164 CLR 465
WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316

Texts Cited:

SafeWork Australia General Guide for Workplace Traffic Management
Guide for Warehousing
SafeWork Australia General Guide for Industrial Lift Trucks

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Williams Pressing and Packaging Services Pty Limited (Defendant)

Representation:

Counsel:
T Hammond (Prosecutor)
M Cahill (Defendant)

  Solicitors:
SafeWork NSW (Prosecutor)
Sparke Helmore (Defendant)

File Number(s):

2017/386251

Judgment

1. Williams Pressing and Packaging Services Pty Limited (Williams) 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 (the Act) it failed to comply with that duty and thereby exposed Ms Binh-Dieu Tuyen Ta (Ms Ta) to a risk of death or serious injury contrary to s 32 of the Act.

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

Background

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

4. Williams was in the business of the provision of warehousing, distribution and e-commerce fulfilment services for the fashion industry.

5. Phong Warehouse & Distributor Pty Ltd (Phong) was in the business of the provision of warehouse labour to pick stock, principally clothing, to fulfil customer orders.

6. Williams and Phong conducted their businesses or undertakings at a warehouse located at 69 – 73 Gow Street, Padstow, New South Wales (Warehouse). The Warehouse was owned or rented by Williams.

7. Within the Warehouse are a number of steel storage racks, holding timber pallets of stock. The steel storage racks make up numerous aisles that lead to a main thoroughfare.

Plant and equipment

8. When the incident occurred, Williams operated a BT Reflex Electric High Reach Forklift Truck (Forklift). The Forklift was a battery-operated mobile plant that was used inside the warehouse to move stock onto, and retrieve stock from, the storage racks.

The work being performed

9. Williams contracted Phong to provide stock picking services at the Warehouse.

10. Ms Ta was employed by Phong as a stock picker. She commenced employment with Phong on 18 July 2016. The main duty of the workers employed by Phong was to pick stock at the Warehouse, specifically clothing, to fill customer orders. The workers picked stock from boxes located on the ground level of the storage racks.

11. Williams used the Forklift to bring stock down from the storage racks to ground level so workers could pick and pack stock. This would usually occur either before workers commenced work or after they had finished work.

12. When workers required stock to be brought down from the racks during work hours, workers were required to give the Forklift driver a list of the items they needed and were then required to leave the aisle before the Forklift entered that aisle. Workers were required to wait until the items had been brought down and the Forklift had left the aisle, before returning to picking and packing.

The incident

13. On 19 July 2016, at approximately 11.00 am, workers employed by Phong commenced picking stock and filling customer orders in the Warehouse. Later in the day Ms Ta, Phong’s Manager, Ms Huynh Thuy Dung Pham (Ms Pham), and a stock picker, Ms Thi Thu Ha Nguyen (Ms Nguyen) and Williams employees were picking stock in aisle C2.

14. The workers employed by Williams ran out of stock and requested Williams’ Forklift operator, Mr Benjamin Mald (Mr Mald), to bring down more stock using the Forklift. Before Mr Mald drove the Forklift into aisle C2, Ms Ta left the area at the end of aisle C2. While Ms Ta was gone, Mr Mald drove the Forklift into aisle C2.

15. At approximately 4.10 pm, Mr Mald lowered the stock to the ground level of the storage racks and started moving the Forklift in reverse to the end of aisle C2. While doing this, Mr Mald stopped to give way and beeped the horn before proceeding out to the main thoroughfare. As Mr Mald exited the aisle, Ms Ta had come back to the end of the aisle and was unable to move out of the way in time, resulting in the right-side wheels of the forklift passing over her feet. She shouted out and Mr Mald stopped the Forklift and attended to her.

Injuries

16. Ms Ta sustained serious injuries including metatarsal fractures to her left big toe and second toe and her right big toe. She was provided with first aid at the Warehouse and was transported to hospital by ambulance. There she had surgery to repair her broken toes. She was discharged from hospital after three days.

Guidance material

17. The SafeWork Australia General Guide for Workplace Traffic Management (General Traffic Management Guide) was in place at the time of the incident and applied to all businesses and undertakings where there was a risk of traffic colliding with people in the workplace. It was readily available on the SafeWork Australia website at the time of the incident.

18. Relevantly, the General Traffic Management Guide provides the following:

“(a)   A flow chart identifying steps to ensure that, so far as is reasonably practicable, workers and other people are not exposed to traffic risks in the workplace;

(b)   Guidance about traffic management plans, including: desired flow of pedestrian and vehicle movements and the responsibilities of people managing traffic in the workplace; and

(c)   Guidance on ways to control traffic risks, including: the separation of people and vehicles; consideration of barriers or guardrail; and exclusion zones.”

19. The Guide for Warehousing was also readily available on the SafeWork Australia website at the time of the incident.

20. The SafeWork Australia General Guide for Industrial Lift Trucks (Lift Truck Guide) was in place at the time of the incident and was readily available on the SafeWork Australia website. The Lift Truck Guide applied to all businesses and undertakings where a lift truck (such as a forklift) was in use in the workplace.

21. The Lift Truck Guide provides guidance on the use and maintenance of lift trucks, and outlines how safety hazards can be identified, assessed, and controlled to minimise, if not eliminate, risks to health and safety.

Systems of work before the incident

22. Williams and Phong had an undocumented system in place in relation to Forklift and high reach vehicle operations (Undocumented Forklift Procedure). The system included the following requirements:

1. all forklift and forklift high reach vehicle operators were required to, and did, hold relevant high risk operator qualifications and licences;

2. workers were required to stop and give way to forklifts and forklift high reach vehicles in motion;

3. a three metre exclusion zone applied around all forklifts and forklift high reach vehicles, which workers were not to enter;

4. forklifts and high reach vehicles were to be operated at low speed;

5. forklifts and forklift high reach vehicles were to be fitted with a horn and the horn was to be sounded when the vehicle was driven through the main thoroughfare into the warehouse from the loading dock, and also when entering and exiting an aisle;

6. where a forklift or high reach vehicle was to enter an aisle in the warehouse, all workers were to exit the aisle prior to the vehicle entering the aisle;

7. once a forklift or high reach vehicle had entered an aisle, workers were not to enter the aisle until the vehicle had exited from the aisle; and

8. as far as possible, forklift or high reach vehicle operations inside the warehouse and aisles were to occur either before the warehouse workers commenced work at 7.30am, or after workers had finished work at approximately 4.00pm.

23. Williams did not conduct a risk assessment or implement a safe work procedure that identified the reasonably foreseeable risks associated with workers working in common areas with a moving forklift, or require its contractors to do the same.

24. Williams did not provide any form of physical separation, such as moveable barriers at the entrance to the aisles where workers picked stock, to ensure an exclusion zone between forklift operators and workers.

25. Williams had an Induction Workbook, written in English, which employees were required to read and sign before commencing work. The information in the Induction Workbook was verbally explained in Vietnamese by Ms Pham to non-English speaking Phong employees.

26. Williams did not take sufficient steps, including consultation and engagement with contractors, to ensure all workers, including contractor workers, were adequately trained and supervised, and did not place themselves at risk of being struck by a forklift while working in the warehouse.

27. Workers were required to wear high visibility fluorescent vests whilst working in the warehouse.

28. A small flashing light and a horn were installed on the forklift.

29. While the warehouse had some pedestrian walkways marked, these markings were worn and not clearly visible in some areas including the aisles where workers picked stock.

30. Ms Ta commenced work in the warehouse a day prior to the incident and had no previous experience working in a warehouse.

Systems of work following the incident

31. Following the incident, SafeWork NSW issued Improvement Notices to Williams. In response, Williams:

1. developed and implemented a documented traffic management plan which included physical separating barriers, marked walkways, pedestrian crossings, and signage and mirrors for corners and blind spots;

2. developed a documented safe work procedure for using forklifts;

3. developed a documented safe work procedure for working in common areas with forklifts;

4. attached signs to each forklift, stating “keep clear 3 metres”; and

5. provided re-training to Williams and Phong workers using the documented procedures.

32. Following the incident, SafeWork NSW also issued Improvement Notices to Phong. In response, Phong engaged the services of work health and safety consultant, WH&SA Pty Ltd, who:

1. Developed a worker induction handbook;

2. Provided training to the Director of Phong, Mr Phong Nguyen, and Ms Pham on how to induct workers in the future;

3. Provided training to Williams and Phong workers in the new procedures; and

4. Provided bi-monthly reviews of Phong’s work health and safety systems.

33. Following the incident, Phong also developed and implemented safe operating procedures for the use of forklifts and working in common areas with forklifts, which aligned with the procedures implemented by Williams.

The offender’s evidence

34. Mr Louis Karatasos (Mr Karatasos) affirmed an affidavit on 12 December 2018. He is one of the three directors of Williams and is also the CEO. He is responsible for overseeing company operations, including work health and safety.

Overview of the business

35. Williams is a family owned and operated business which provides integrated third party logistics services to the fashion industry. The services Williams provides include: warehousing of stock, inventory control, e-commerce and store-based order fulfilment, garment steaming and pressing services and stock ticketing and packaging services.

36. When the incident occurred, Williams had two directors. They were Mr Karatasos’s mother, Sylvia Karatasos (Mrs Karatasos), and father, William Karatasos. At this time, Mr Karatasos was the General Manager of Williams. After the incident occurred, Mr Karatasos became a director and also the CEO of Williams.

37. Initially, Williams provided garment pressing and packaging services to the fashion industry. However, Williams has expanded its business over the years to include third party warehousing and logistics. Currently, and at the time of the incident, this has been Williams’ main business. When business expanded to include third party warehousing and logistics, Williams transferred its operations to the Warehouse.

38. At the time of the incident, Williams employed approximately 90 workers. The number of employees fluctuates throughout the year and depends on how busy the business is. Of these 90 workers, Williams has approximately 60 to 70 full time workers.

39. In about September 2015 Williams contracted Phong to provide additional stock picking and packing services at the Warehouse. At the time of the incident, Phong employed approximately eight workers, including Ms Ta. Ms Pham was the team leader and supervisor of Phong and had worked in that role for around 10 months.

40. At the time of the incident, Phong workers picked and packed stock for orders placed with Williams. Phong workers were assigned by Williams mainly to pick and pack orders for t-shirts located in aisles seven and eight. On occasion, Phong workers were also assigned other work, such as picking product from an adjacent aisle, hanging garments and closing fashion bags for product transport. Presently, Phong employs about 10 workers and undertakes the same work which was performed at the time of the incident.

Work activities at the Warehouse – picking and packing

41. Mrs Karatasos, who manages day-to-day Warehouse operations, works on the shop floor in the Warehouse as a Production Manager, overseeing the allocation and conduct of the work done in and around the Warehouse. Such work includes the steaming, pressing, folding, sizing and ticketing of garments; the handling or picking and packing of stock; the replenishment of stock for picking and packing; the bulk manual handling of product, such as the unloading of containerised garments and accessories and the loading and unloading of delivery trucks. However, the primary work undertaken by workers is the picking and packing of stock.

42. Picking and packing is divided into the e-commerce section, where e-commerce orders are picked and packed; the hanging section, where hanging garments are picked and packed and the areas of racked storage, where garments and accessories are picked and packed.

43. Workers doing picking and packing will receive an order slip and fill the order by picking the named items of stock and then packing those items for delivery to the customer. Picking and packing usually occurs between 7.30 am and 4.30 pm from Monday to Friday. If there is a lot of work then picking and packing may occur on a Saturday or Sunday.

44. Picking and packing in the racked storage areas of the Warehouse is performed by work teams with a supervisor trained and experienced regarding a customer’s product range. Every morning, the supervisors meet with warehouse operations management at around 6.30 am for work allocation. These meetings, on occasion, are used to report and discuss operational and safety issues in the Warehouse.

45. At the time of the incident, forklift movement and operations within the Warehouse were restricted to areas of racked storage. There were no forklift movements or operations in either the e-commerce or hanging storage sections. These restrictions still apply.

46. At the time of the incident, forklift movements and operations in the Warehouse to replenish stock were to be avoided as much as possible during the hours of 7.30 am and 4.30 pm while picking and packing work took place. Williams follows the same practice regarding replenishment work.

47. At the time of the incident forklift movements and operations within the Warehouse were limited to Forklifts. The same Forklifts are currently used in the Warehouse. The Forklifts are fitted with a flashing yellow light and horn. When the incident occurred, Williams employed five licensed Forklift drivers. Williams currently employs the same number of Forklift drivers. Williams currently keeps a copy of Forklift operator’s licence in its personnel records.

Work health and safety management prior to and at the time of the incident

48. In about 2005, Williams contracted an occupational work health and safety consultancy business, WorkSafe In Business Pty Ltd (WorkSafe) to help develop Williams’ work health and safety systems for use in its warehouse at Cook Road, Marrickville, New South Wales. Also in about 2005, Williams purchased an Occupational Health and Safety Saver Plus occupational health and safety package from WorkSafe. WorkSafe assigned an occupational health and safety consultant, Anne Condren (Ms Condren), to consult with and help Williams to develop and implement a new work health and safety system.

49. In about 2005, Ms Condren created work, health and safety induction, policy and procedure documents for Williams. Ms Condren also assisted Williams to consult with its employees to provide work, health and safety training. Ms Condren has visited Williams’ various warehouses since 2005, including the Warehouse since approximately 2012.

50. These warehouse visits by Ms Condren included a work health and safety walk-through where Ms Condren reported to Williams’ management any work health and safety issues that needed to be raised. Ms Condren would also raise any opportunities for work, health and safety to be improved. Ms Condren’s visits also included a compulsory formal toolbox meeting with Warehouse supervisors and staff. At these meetings, Ms Condren addressed any issues she noted during her warehouse walk through, provided an update on recent developments in work, health and safety and conducted a formal work, health and safety training session on a specific work, health and safety topic. Ms Condren also consulted with staff if they had any work, health and safety concerns.

51. Work, health and safety consultancy services to Williams have continued. Williams has been provided with ongoing reviews of its occupational health and safety management and work, health and safety management documentation, procedures and processes.

52. At the time of the incident, attendance at toolbox meetings was mandatory for all workers, including Phong workers, in the Warehouse. The meetings usually went for around 30 minutes and workers could raise any issues relevant to their work at the Warehouse. At toolbox talks Ms Condren would provide workers with different work, health and safety training modules. Ms Condren would use a buddy system at the meetings so workers could discuss issues together in their primary language.

48. At the time of the incident, Mr Karatasos would do regular walks around the Warehouse floor and speak to staff about work safety.

Induction

54. Ms Condren, in about 2005, developed the induction material for the workplace and provided Williams with guidance on how to deliver inductions.

55. All workers engaged to work at Williams were required to undergo the induction process. The induction provided each worker with information and guidance in relation to the Undocumented Forklift Procedure.

56. There were three workers at Williams who would provide employees with inductions. These workers inducted a number of people, were familiar with the Warehouse and induction materials and had been trained in the Undocumented Forklift Procedure.

57. At each induction, a worker was provided with a copy of Williams’ Induction Handbook and was taken through its content. The worker was also taken through the Warehouse and spoken to about work safety in the Warehouse and site-specific hazards, including Forklift operations, which they should be aware of.

58. After each induction, the worker was meant to return a signed acknowledgment stating that they had received a copy of the Induction Handbook and had read and understood its contents. However, at the time of the incident, copies were not always returned signed. A copy of each worker’s induction was kept on each worker’s personnel file.

59. In about July 2013 and June 2015, all of the Williams workers were re-inducted, with assistance from Ms Condren, following updates of the work health and safety system provided by Williams’ consultants.

60. At the time of the incident, Williams required Phong to induct each of its workers in accordance with Williams’ induction procedure and handbook prior to commencing work at the Warehouse. Phong workers were also required to sign the induction acknowledgement. However, Williams did not routinely follow up on Phong to obtain signed copies of the induction acknowledgements.

61. On 15 July 2016 Ms Pham provided Ms Ta with an induction to the Warehouse. Ms Ta’s first language is Vietnamese. Phong chose Ms Pham to do Ms Ta’s induction as Ms Pham also speaks Vietnamese.

Forklift Safe Work Procedure

62. At the time of the incident, Forklift work in the Warehouse was done prior to 7.30 am and after 4.30 pm. Occasionally, during normal working hours, a Forklift would lower stock from the upper shelves when workers working in the rack storage areas ran out of stock.

63. At the time of the incident, the Undocumented Forklift Procedure involved the following:

1. Workers were to maintain a clear exclusion zone around the Forklift at all times;

2. Workers were to give the Forklift right of way at all times;

3. Where the Forklift was turning into the main thoroughfare, or it was approaching an area where workers were undertaking work, the Forklift driver was to ‘beep’ the horn to alert nearby workers of the presence of the Forklift;

4. Where a Forklift operator was required to enter an aisle in the Warehouse to retrieve stock from the storage racking, all workers were to vacate the aisle before the Forklift entered the aisle, and workers were only permitted to return to work in the aisle after the Forklift had exited the aisle; and

5. While workers were waiting for the Forklift to finish retrieving the stock and exit the aisle, workers were to wait in a ‘safe area’, at the front of the racking.

Safety features of the Warehouse

64. When Williams first leased the Warehouse, in around 2012, there were a number of painted walkways and Forklift safety signs already in place. Williams then reviewed the walkways and safety signs, including refreshing the paint, and developed its Undocumented Forklift Procedure to limit interactions in the Warehouse between workers and Forklifts. Williams also installed additional Forklift warning signs. From around 2012 to the date of the incident, some of the walkways and safety signs had deteriorated. Williams acknowledges that it should have taken steps to maintain those markings and refresh the paintwork.

Acknowledgement

65. Mr Karatasos said that he and the other two directors of Williams should have been more attentive at keeping workers safe. He, and the other directors, had thought that they had taken appropriate steps to keep workers safe by engaging a work, health and safety consultant.

Action taken by Williams following the incident

66. Following the incident, Williams engaged Engistics Pty Ltd (Engistics) to provide advice about and to develop a traffic management plan for the Warehouse and to assist Williams to formalise a documented traffic management plan (Traffic Plan).

67. After the Traffic Plan was developed, all Warehouse staff were re-inducted and were provided with new training. Each worker was also given a copy of the Traffic Plan. The Traffic Plan is given to each new worker when they are inducted.

68. Williams also required Phong to re-induct its employees in the new procedures contained within the Traffic Plan and the Induction Handbook.

69. Phong has engaged Work Health and Safety Australia Pty Ltd to prepare its own safety documentation and induction process. New Phong employees now undergo two inductions, one conducted by Phong and one by Williams. Williams also obtains regular confirmations from Phong that new Phong employees have completed both inductions.

70. In September 2018, David Ibanez (Mr Ibanez) commenced work with Williams as a new General Manager. Mr Ibanez is fluent in Chinese and Vietnamese. Mr Ibanez is responsible for overseeing and implementing Williams’ work, health and safety procedures. He has also undertaken a complete review of Williams’ work, health and safety policies and procedures.

71. Williams wants to develop an induction video specific to the Warehouse which would also be translated into the other main languages spoken by Warehouse staff.

Support and return to work

72. Mrs Karatasos attended to Ms Ta immediately after the incident. She arranged for an ambulance to be called and for Ms Ta’s husband to be called. She also made arrangements for Mr Phong Qouc Nguyen, the owner of Phong, to accompany Ms Ta to the hospital.

73. Following the incident, Mr Karatasos made enquiries about Ms Ta’s wellbeing. Mr Karatasos and the other directors have also made further enquiries in respect of Ms Ta since the indicent.

Corporate Citizenship

74. Williams has extended personal and financial support to its workers, including providing loans to workers and other support. It also makes yearly donations of approximately $10,000 to various charities.

Consideration

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

Objective seriousness of the offence

76. 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 R (No. 2) (1998) 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) 66 NSWLR 566 at [15].

77. 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 (1998) 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].

78. 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].

79. 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) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.

80. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 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; 93 NSWLR 338. His Honour Justice Basten at paragraph 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.”

81. Further at paragraph 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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs.”

82. My findings about the offender’s level of culpability are based upon the following:

1. The risk of a collision between a forklift and a worker was foreseeable;

2. The offender failed to develop and implement a traffic management plan and train all workers on its contents;

3. The offender failed to provide adequate information and training to workers concerning the risks of working in areas where forklifts were operating;

4. The offender failed to ensure that workers were appropriately supervised;

5. The offender failed to consult with Phong in relation to training and supervision of its workers;

6. Ms Ta began working at the premises only the day before the incident, and had clearly not been properly trained. She was a vulnerable new worker at the factory;

7. There was a significant amount of guidance material which the offender could have consulted in order to minimise the risk of injury from a forklift;

8. The offender did have a safety system in place in relation to the movement of forklifts, but it was undocumented, and was not adequately conveyed to new workers in the factory such as Ms Ta;

9. The offender was the entity with the ultimate control over movements within the factory and the interaction between forklifts and workers.

83. I find that the offender’s level of culpability is in the low end of the mid-range.

Deterrence

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

85. The penalty must reflect the need for specific deterrence. The offender is still conducting a business. Its operations involve the continuing use of forklifts and the continuing engagement of workers.

Aggravating factors

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

Mitigating factors

87. The offender does not have a significant record of previous convictions: s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999. It has no previous convictions in its 35 years of operations.

88. The offender is otherwise of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. The steps which the offender took after the incident demonstrate this. Williams has been in business for approximately 35 years.

89. The offender is unlikely to re-offend: s 21A(3(g) of the Crimes (Sentencing Procedure) Act 1999.

90. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken positive steps to guard against the risk of an incident such as this ever happening again. Williams has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.

91. The offender has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Ms Ta was caused by its actions.

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

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

Parity

94. Phong was also prosecuted for a breach of its health and safety duties arising under the Act, relating to the same incident in which Ms Ta was injured. Phong appeared before Strathdee DCJ on 11 September 2018. On 14 September 2018 Phong was convicted and her Honour imposed a fine of $30,000 plus costs of $18,000 – SafeWork NSW v Phong Warehouse & Distributor Pty Ltd [2018] NSWDC 253. The submission was made in that case that if the offender was given a fine that it was unable to pay, the company would become insolvent, cease trading and dismiss its 15 workers. Having reviewed the evidence her Honour said at [47]:

“But for the mitigating factors, the financial position of the offender and the costs for which it has agreed it is liable to pay, a higher penalty than that which I propose would be appropriate. In all the circumstances, taking into account the discount for the early plea of guilty, the appropriate penalty in this matter is $40,000, to be discounted by 25% for the early plea.”

95. Counsel for the prosecutor in the present case submitted that Williams was more culpable than Phong. Counsel for Williams submitted to the opposite effect.

96. Where two or more offenders are involved in the same criminal conduct or enterprise the parity principle requires that there should not be such disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. The effect of the application of the principle may vary according to the circumstances of the matter including differences between the charged offences: Green v R [2011] HCA 49 at [30].

97. The principle operates in the nature of a “check” required of the sentencing Court: DPP v Gregory [2011] VSCA 145 at [31]. The Court should first determine the appropriate sentence having regard to the objective criminality and the other relevant factors and then consider whether the sentence needs further adjustment because of the parity principle: DPP v Gregory. In Jimmy v R (2010) 77 NSWLR 540 Justice Campbell said:

“An essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence.”

98. The court should not use a co-offender’s sentence as a starting point and then increase or decrease the sentence by reference to other factors: Jimmy v R at [32]; Markarian v R (2005) 228 CLR 357.

99. It is appropriate for the court to consider the respective contributions of Phong and the offender. The reason for doing so is not to reduce the culpability of any one party in any proportionate way in an overall penalty, but rather it is a factor that assists in determining the real culpability of a defendant for the offence charged: WorkCover Authority of NSW (Inspector Carmody) v Consolidated Constructions Pty Limited [2001] NSWIR Comm 263; (2001) 109 IR 316 at [46]. The contribution of other entities may in some cases be relevant in mitigation: Inspector Howard v Baulderstone Hornibrook Pty Limited [2009] NSWIR Comm 92; (2009) 187 IR 125 at [241].

100. I find that Williams was more culpable than Phong. Williams controlled and ran its business from the factory where the injury occurred. Williams owned the forklift involved in the accident and employed its driver. Williams engaged Phong to supply workers to work in the factory in the business of Williams. It was for Williams to ensure that not only its employees, but also Phong employees, were safe within the factory in relation to the possibility of collisions between forklifts and pedestrians. Williams had control over every factor which affected the risk.

101. Having said that, it is difficult to apply the traditional principles in relation to parity of sentencing, where the other offender has received a reduced sentence because of impecuniosity. I determine that the appropriate sentence for Williams is a fine of $80,000 which will be reduced by 25% for the early guilty plea. I see no need to alter that sentence, taking into account the parity principle and the sentence imposed upon Phong by Strathdee DCJ.

Capacity to pay a fine

102. I am required to have regard to s 6 of the Fines Act 1996 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: Jahandideh v R [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. There was no submission about capacity to pay, so this issue does not arise.

Costs

104. The parties have agreed to an order that the offender is to pay the prosecutor’s costs agreed in the amount of $20,000.

Penalty for Williams Pressing and Packaging Services Pty Ltd

105. My orders are:

1. The offender is convicted.

2. The appropriate fine is $80,000 but that will be reduced by 25% to reflect the plea of guilty.

3. Order the offender to pay a fine of $60,000.

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

5. Order the offender to pay the prosecutor’s costs agreed in the amount of $20,000.

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Decision last updated: 20 December 2018