Citation: Inspector Pamela Estreich v One Steel Coil Coaters Pty Limited [2015] NSWDC 242
Court: District Court of New South Wales
Date: 2 April 2015
Judge: Judge AC Scotting
Background
The offender, a steel strip painting company operating at Arndell Park in New South Wales, employed approximately 40 people at the time of the relevant incident. On 6 April 2011, a worker suffered catastrophic injuries when his right arm became caught between two in-running lower turnaround steel rollers on a Primer Coater Machine. He was found unconscious and was later transported to hospital, where he underwent an above-the-elbow amputation of his right arm. He has been unable to return to work.
Employees working near the machine were required to clean its lower rollers while the machine was running, crouching close to the rollers and applying chemical spray or a rag under pressure. A Standard Operating Procedure (SOP) was in place that distinguished between tasks that could be carried out while the machine was running and those requiring the line to be stopped and locked out. The worker, on his own account, was cleaning the rollers while the machine was running on the day of the accident.
A 2009 independent risk assessment had recommended that additional guarding be fitted to prevent access to in-running nip points (the pinch points where rotating rollers meet). The offender's internal Safety Action Plan Team accepted some recommendations but decided that existing safety mechanisms, including an interlocked trip bar and an emergency stop pull wire, were sufficient to address the foreseeable risk of a worker falling into the machine. The recommended additional guarding was not installed before the accident occurred.
Legal Issues
- What fine was appropriate for a corporate offender that pleaded guilty to failing to ensure the health, safety and welfare of an employee under section 8(1) of the Occupational Health and Safety Act 2000?
- What objective seriousness should be attributed to the offending, given the known risk, the prior risk assessment, and the nature of the injury?
- What mitigating factors were available to the offender, including the early guilty plea, cooperation with investigators, and post-incident remediation?
- What discount, if any, should apply to reflect the utilitarian value of the guilty plea?
Decision
Judge Scotting sentenced the offender following an agreed statement of facts. The maximum penalty for the offence was $550,000 (5,000 penalty units). The court assessed the appropriate penalty before discount at $60,000, reflecting the objective gravity of the offending balanced against significant mitigating factors.
On objective seriousness, the court found that the offending was at the lower end of the mid-range. The risk of entrapment in the machine's nip points was known, and the 2009 risk assessment had specifically recommended additional guarding that was not implemented. However, there was a SOP in place, training had been provided, and the worker was cleaning the rollers in a manner that was contrary to at least part of that procedure. The catastrophic and permanent nature of the injury, the loss of the worker's arm and his inability to return to work, weighed heavily as an objective factor reflecting the seriousness of the risk that was not adequately controlled.
On mitigation, the court took into account that the offender pleaded guilty at the earliest opportunity, cooperated with the investigation, and immediately after the accident installed substantial additional guarding and a new interlocking system at a combined cost of approximately $55,000. The court also noted the offender's assistance to the injured worker, the absence of prior offending, the low likelihood of reoffending (the business had since been sold), and expressions of genuine remorse. These were all treated as mitigating factors under the Crimes (Sentencing Procedure) Act 1999.
The court applied a 25% discount for the early guilty plea, consistent with the principles in R v Thomson & Houlton and R v Borkowski, reducing the fine from $60,000 to $45,000. The prosecutor was entitled to a moiety (half) of the fine, as is customary in WorkCover prosecutions. The offender was also ordered to pay the prosecutor's agreed costs of $30,000.
Orders Made
- Fine of $45,000 imposed (being $60,000 discounted by 25% for early guilty plea).
- The prosecutor to receive a moiety of the fine.
- The offender to pay the prosecutor's costs in the sum of $30,000.
Key Takeaways
- A prior independent risk assessment identifying an unaddressed guarding deficiency, which is then disregarded by a corporate offender's internal safety team, constitutes a significant aggravating factor going to objective seriousness in WorkCover sentencing.
- Under the Crimes (Sentencing Procedure) Act 1999, an early guilty plea can attract a discount at the top of the 10 to 25% range; here the court applied the full 25% where the prosecutor accepted the plea was entered at the earliest opportunity.
- Post-incident remediation, including prompt installation of substantial additional guarding and revised operating procedures, is a relevant mitigating consideration in sentencing for workplace safety offences, even where the harm was severe and permanent.
- The District Court treated the presence of a SOP and employee training as factors that reduced objective culpability, while also acknowledging that the SOP itself permitted some cleaning tasks while the machine was running, leaving an identifiable residual risk.
- Where an offender seeks a reduced fine on the basis of limited capacity to pay, the evidentiary onus rests on the offender to put relevant financial evidence before the court; the offender here led no such evidence.
Legislation and Cases Referenced
Legislation
- Occupational Health and Safety Act 2000 (NSW), ss 8(1), 12(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(g), 21A(3)(k), 21A(3)(m), 22
- Fines Act 1996 (NSW), s 6
Cases
- Veen v R (No 2) (1988) 164 CLR 465
- Baumer v R (1988) 166 CLR 51
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v McNaughton (2006) 66 NSWLR 566
- R v Wilkinson (No 5) [2009] NSWSC 432
- R v Borkowski (2009) 195 A Crim R 1
- BW v R [2011] NSWCCA 176