Workcover v Visy Paper P/L

[2015] NSWDC 284

District Court

New South Wales

Medium Neutral Citation:	Workcover v Visy Paper P/L [2015] NSWDC 284
Hearing dates:	24 August 2015
Date of orders:	04 September 2015
Decision date:	04 September 2015
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 The offender is convicted and I impose a fine of $412,500. 2 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 3 I order that the offender pay the prosecutor’s costs as agreed or assessed
Catchwords:	CRIMINAL LAW – prosecution – plea of guilty - work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee – safety measures – lack of safety plan SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty – measures taken since incident – implementation of safety recommendations COSTS – prosecution costs
Legislation Cited:	Work Health and Safety Act 2011 Crimes (Sentencing Procedure) Act 1999 Fines Act 1996
Cases Cited:	Veen v R (No 2) (1988) 164 CLR 465 R v McNaughton (2006) 66 NSWLR 566 Baumer v R (1988) 166 CLR 51 BW v R [2011] NSWCCA 176 R v Wilkinson (No 5) [2009] NSWSC 432 Capral Aluminium Limted v Workcover Authority of New South Wales (2000) 49 NSWLR 610 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Bottin [2005] NSWCCA 254 R v Borkowski (2009) 195 A Crim R 1
Category:	Sentence
Parties:	Workcover (Prosecutor) Visy Paper P/L (Defendant)
Representation:	Counsel: Mr M Moir (Prosecutor) Mr J Fernon SC     Solicitors: Workcover Authority (Prosecutor)
File Number(s):	2014/150518

SENTENCE

Visy Paper Pty Limited (the offender) has pleaded guilty to an offence that as a person who had a health and safety duty under section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Boge Soleski, an employee of the offender, to a risk of death or serious injury contrary to section 32 of the Act.

The maximum penalty for the offence is a fine of $1.5 million.

On the sentence hearing, Mr Moir appeared for the prosecutor and Mr Fernon SC appeared for the offender.

Preliminary issue as to the acceptance of the particulars of the Amended Summons

In the course of the sentence hearing, I was informed that the offender admitted the particulars set out in the Amended Summons, except for the last sentence of particular 7 which provides, “[T]he fatal injuries sustained by Boge Soleski when he was struck by the reversing loader in the covered paper yard were manifestations of the risk”.

Mr Moir submits that the last sentence in particular 7 is an ingredient of the actual offence specified in section 32(c) of the Act. I do not accept that submission for the reasons that follow.

Section 32 of the Act provides:

A person commits a Category 2 offence if:

(a) the person has a health and safety duty, and

(b) the person fails to comply with a duty, and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

All that is required to prove the element of the offence contained section 32(c) of the Act is that an individual be exposed to a risk of death or serious injury or illness. The manifestation of the risk is not an element of the offence. If it was, then it would follow that the offence could only be committed where the risk had manifested and resulted in the specific harm.

The death of Mr Soleski is taken into account in the sentencing exercise because it is a factor relevant to the objective seriousness of the offence and by reference to section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

Notwithstanding that it may be logical to draw an inference in the context of this case that the death of Mr Soleski was a manifestation of the risk, it is improper and unnecessary to do so, because:

1. that is not an element of the statutory offence and that is patent from the plain words of the statute; and

2. it is not a prerequisite to considering the extent of the harm suffered.

Facts

The parties presented an Agreed Statement of Facts. Unfortunately, it runs to 10 pages and is unnecessarily prolix. Remarks on sentence must be published orally so that all persons in Court can understand the sentence passed and the reasons why the sentence was passed. This is for the benefit of the offender, the victims and the public: R v Bottin [2005] NSWCCA 254 at [12]. The length of the Agreed Statement of Facts does not allow for it to be incorporated in my remarks on sentence. As a result I am required to summarise the contents of the Agreed Statement of Facts, which may result in the omission of a pertinent matter of aggravation or mitigation. I would urge the prosecutor in future matters to address this. At the very least I would expect counsel appearing in ordinary matters to be able to present a cogent statement of facts of no more than 2 pages in length that can be completely incorporated into the remarks on sentence.

The Agreed Statement of Facts can be summarised as follows.

The offender operates a waste recycling facility at Smithfield (the site). The site included a large warehouse building known as the covered paper yard (CPY). Loose and baled recyclable paper materials were delivered to the CPY by truck. Those materials were unloaded from the trucks and moved by the use of a forklift and a front end loader (FEL) with a view to loading them into a conveyor with the FEL at the western end of the CPY.

The CPY operated 24 hours per day, 7 days per week and received the materials unloaded from approximately 70 trucks per day.

Mr Soleski was employed as a forklift operator and a traffic controller in the CPY. He had been employed by the offender for 25 years at the time of the incident. When he was not operating a forklift, Mr Soleski’s duties included acting as the traffic controller and directing truck drivers as to where to unload the materials within designated exclusion zones of the CPY.

Prior to December 2012 the offender had published rules, systems and procedures (the policies) addressing workplace health and safety issues relating to the use of powered mobile equipment (PME), forklifts and FELs.

At about 10.00am on 12 December 2012 Mr Soleski operated the boom gate to allow the entry of a semi-trailer into the CPY and walked to a position in the CPY where he directed the truck driver where to park and unload. The truck driver alighted and operated the controls of the truck to unload it by mechanical means. At the time the FEL was being operated by another employee of the offender, in close proximity to the truck, the truck driver and Mr Soleski who was on foot. Whilst the truck was unloading, Mr Soleski was struck by the reversing FEL and suffered fatal crush injuries.

At the time of the incident, in breach of the offender’s policies:

1. no traffic controller was present to ensure that safe distances were maintained between pedestrians and FELs. No traffic controller had been present for several months prior;

2. there were no physical barriers to protect pedestrians (either employees or truck drivers) performing duties within the CPY from being struck by mobile plant;

3. there were no exclusion zones marked out by the use of red painted zones on the floor of the CPY;

4. there were no areas within the CPY within which mobile plant could operate in which pedestrians could not enter without authorisation;

5. two way radios were not used to allow communication between employees within the CPY;

6. the FEL was operating within 10 m of an unloading truck; and

7. the FEL was operating within 10 m of pedestrians, being Mr Soleski and the truck driver.

Further, the reversing alarm on the FEL was not audible when it was operating above idle.

Following the incident the defendant took a number of steps to develop a safe system of work for operating mobile plant within the CPY. Measures include installing concrete barriers within the CPY, designating exclusion zones with red paint, engaging a permanent traffic controller, creating a restricted area within the CPY in which pedestrians could not enter without permission and revising and updating Site Rules and Safe Work Practices. The approximate annual cost to the offender of the concrete barriers, fencing and restructured activities for traffic control in the CPY is $692,000.

Victim Impact Statements

The Court has received and considered the Victim Impact Statements of:

1. Goricka Soleska (wife);

2. Diana Milosevski (daughter);

3. Nikolina Kurioska (daughter);

4. Stefce Soleski (son).

I find that it was appropriate to do so.

The Victim Impact Statements were read to the Court by the deceased’s family members. Each statement was thoughtfully prepared and conveyed the love held by all of the family for a patriarch who will be sadly missed.

I have had regard to the use to which I can put the Victim Impact Statements by reference to sections 3A(g) and 26-30A Crimes (Sentencing Procedure) Act 1999.

The offender’s evidence

The offender read the Affidavit of Ian Harmer sworn 20 August 2015. Mr Harmer was present at court but was not required for cross examination. The evidence of Mr Harmer can be summarised as follows.

Mr Harmer is the General Manager, Advisory Services Health Safety Environment and Human Resources of the Visy Group and has held this role since September 2012. He is responsible for safety matters in relation to the offender as well as other companies in the group.

Mr Harmer and General Manager of Visy Recycling Tony Kane visited the Soleski family to offer condolences and support on behalf of the offender following the incident. The family was offered ongoing support by the offender including the provision of grief counselling, the payment of $17,700 for funeral expenses and the payment of $5,000 for general financial assistance. Luke Krstanovski of Visy Recycling assisted the Soleski family with the processes relating to contact with WorkCover and the insurance company, because he was of a Maecdonian background. A number of Visy Group employees and senior managers attended Mr Soleski’s funeral to pay their respect to his family.

Mr Harmer was aware of the facts of the incident and had read the Victim Impact Statements. He sincerely apologised to the family for failing to provide so far as reasonably practicable for Mr Soleski’s health and safety.

Immediately following the incident the offender implemented a number of physical changes to the CPY and reviewed and upgraded the systems of work in place with respect to the CPY and the use of FELs therein. The offender provided further safety training to employees and contractors. The ‘Behavioural Safety Observation Conversation Program was implemented to encourage employees to speak with supervisors about safety issues and possible improvements.

The offender has ISO 9001 accreditation, ISO 14001 accreditation, and is audited annually to ensure compliance with AS/NZS 4801.

The Visy Group, to which the offender belongs, has in place a Safety Policy approved by the Chief Operating Officer and a number of other standards, plans and policies to ensure the safety of employees which were annexed to Mr Harmer’s affidavit. Employees are required to undertake general and site specific induction programs upon commencing with Visy which provide instruction regarding relevant safety policies, standards and procedures.

Visy sites have dedicated Workplace Health and Safety Committees, and conduct at least 12 ‘toolbox talks’ per year relating to health and safety issues.

The offender was cooperative with WorkCover and assisted in providing information, responding to questions and facilitating WorkCover interviews with employees.

Consideration

Objective seriousness of the offence

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) (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) 66 NSWLR 566 at [15].

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) 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].

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].

The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relevant to the gravity of the offence: Capral Aluminium Limted v Workcover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of forseeability of the risk is to be determined objectively.

The risk was foreseeable and actually foreseen by the offender. A risk assessment of the operation of FELs was conducted on 28 May 2010 by the Visy Group for all of the sites operated in New South Wales. The risks of pedestrians being crushed between powered mobile equipment and structures and pedestrians being struck by powered mobile equipment and attachments, in the absence of controls were scored as an “extreme” risk. An “extreme risk” score could only be achieved if the likelihood of the occurrence was scored at the maximum and the consequences of the injury were considered to be a fatality. If the prescribed controls were implemented, the consequence of the injury was reduced from “fatality” to “medical treatment required”, but the combined score still remained as a “high risk”.

Following the risk assessment the offender adopted the following policies that were implemented at the site:

1. Code of Practice: Forklift Safety dated May 2010;

2. Minimum Standard: Powered Mobile Equipment and People Interaction dated May 2010;

3. Safe Work Practice: Operation of a FEL (SWP 1-303) dated 1 March 2011;

4. Safe Work Practice: Working around Powered Mobile Equipment (SWP 1-401) dated 8 July 2011;

5. Site Rules Visy Industries Smithfield dated 5 June 2012; and

6. Work Instruction Wasteyard Trucks Unloading Procedure dates 20 August 2012.

There were a number of material failures of the offender to follow the systems referred to that would have significantly ameliorated the risk faced by Mr Soleski on 12 December 2012 being those outlined earlier in the Agreed Statement of Facts and that:

7. the reversing lights on the FEL required repair to ensure that they were clearly visible; and

8. the visibility through the windows of the FEL was poor because the windows were not kept clean.

The reasons for the failure of the offender to comply with its own procedures have not been explained in the evidence of Mr Harmer. It was submitted by Mr Fernon SC that the failure to provide for physical barriers and painted exclusion zones was an “oversight” on behalf of the offender. I do not accept that submission. Whilst it was apparent that there were some precautions taken in the CPY, the published policies were not being implemented to a substantial degree. The failures were endemic and were apparent at each level of the offender’s operation. Management failed to provide the physical barriers and the painted exclusion zones, the supervisors failed to enforce the systems and the employees in the CPY failed to follow the systems.

The offender was on notice of the lack of systemic controls in the CPY as a result of an incident that took place on 25 May 2012, when a truck driver’s foot was run over by a reversing FEL. That incident was investigated by the prosecutor and the subject of an incident report and an investigator’s report.

The death of Mr Soleski is relevant to the objective seriousness of the offence.

The death of Mr Soleski was preventable if appropriate precautions were taken and the objective seriousness of the offence is significant.

Deterrence

There is a requirement for the penalty imposed in relation to this offence to provide for general deterrence. The penalty should draw attention to persons operating similar businesses which are inherently dangerous to employees that it is necessary to ensure that they operate without avoidable risk to the health and safety of their employees.

There is a need for specific deterrence in this case, although it is slightly reduced. The offender has a number of prior convictions and has a large workforce who are entitled to have the offender take the precautions that it has recognised as necessary and appropriate.

The matters that justify the reduction as are follows.

First, the offender took immediate steps to improve the safety of the operations in the CPY and to provide additional training and supervision of its workforce.

Second, the offender by its prior conduct, in the adoption of the various policies had demonstrated a significant commitment to workplace safety. I am satisfied that the offender took extensive steps to attempt to comply with its health and safety duty.

Third, the offender has through Mr Harmer has accepted responsibility for its failings that led to the incident and expressed an apology, remorse and contrition.

Aggravating factors

The offender has a record of previous convictions: section 21A(2)(d) Crimes (Sentencing Procedure) Act 1999. Prior convictions are pertinent to deciding where, within the boundaries set by the objective circumstances are set, a sentence should lie: R v McNaughton at [26]. It cannot be said in the present case that the offences before the Court were isolated. Prior convictions should not be taken into account in such a way to punish the offender again for those earlier matters, but in this case they do not assist the offender in affording to it any particular leniency.

The injury, emotional harm, loss or damage caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. The purposes of sentencing often overlap and the court must have regard to the death of Mr Soleski as an aggravating feature of the offence, notwithstanding that it has also been taken into account in assessing the objective seriousness of the offence.

Mitigating factors.

The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. I am satisfied that the offender has demonstrated genuine remorse and contrition.

The offender entered a plea of guilty to the Amended Summons at the earliest possible opportunity: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32] The prosecutor accepted that the offender’s plea was an early one. In the circumstances, the appropriate discount for the plea of guilty is 25%.

The offender co-operated with the investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.

Penalty

Taking all of those matters into account the appropriate penalty is $550,000. In recognition of the early plea of guilty that sum is to be discounted by 25%.

The offender is convicted and I impose a fine of $412,500.

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

Costs

I order that the offender pay the prosecutor’s costs as agreed or assessed.

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Decision last updated: 03 December 2015