Citation: Workcover v Visy Paper P/L [2015] NSWDC 284
Court: District Court of New South Wales
Date: 4 September 2015
Judge: Judge AC Scotting
Background
The offender, a waste recycling company, operated a covered paper yard (CPY) at Smithfield that ran 24 hours a day, seven days a week, handling deliveries from approximately 70 trucks per day. The CPY involved the movement of heavy mobile plant, including front-end loaders (FELs), alongside pedestrian workers and truck drivers.
A 25-year employee of the company was working as a traffic controller in the CPY on 12 December 2012. While directing a truck driver, he was struck by a reversing FEL and suffered fatal crush injuries.
The company pleaded guilty to a Category 2 offence under the Work Health and Safety Act 2011 (WHS Act), namely failing to comply with its health and safety duty as a person conducting a business, thereby exposing the employee to a risk of death or serious injury.
Legal Issues
- Whether the death of the employee was an element of the offence under section 32(c) of the WHS Act, or merely a sentencing consideration
- How to assess the objective seriousness of the offence given the multiple safety failures present at the time of the incident
- What weight to give to mitigating factors, including a guilty plea, genuine remorse, post-incident remediation, and co-operation with investigators
- How to treat the offender's prior convictions for similar offences in fixing the appropriate penalty
- The appropriate quantum of the fine, having regard to the maximum penalty of $1.5 million, the offender's capacity to pay, and the purposes of general and specific deterrence
Decision
Preliminary issue on the elements of the offence. The offender disputed one particular in the Amended Summons, which stated that the employee's fatal injuries were "manifestations of the risk." Judge Scotting held that this was not an element of the offence. Section 32(c) of the WHS Act requires only that an individual be exposed to a risk of death or serious injury, not that the risk actually materialise. The employee's death was, however, taken into account as a factor going to the objective seriousness of the offence and as an aggravating circumstance under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
Objective seriousness. The court found that, at the time of the incident, the company was operating in breach of its own published safety policies in multiple serious respects. No traffic controller had been present in the CPY for several months. There were no physical barriers, no marked exclusion zones, no restricted areas, and no two-way radio communications. The FEL was operating within 10 metres of both the pedestrian employee and the truck driver, and its reversing alarm was inaudible when operating above idle. These failures, taken together, placed the objective seriousness of the offence in the upper range.
Aggravating factors. The court treated the employee's death as an aggravating factor, noting it reflected substantial injury and loss under section 21A(2)(g). The offender also had prior convictions for offences of a similar nature, which did not assist it in attracting any particular leniency, although the court was careful not to punish the offender again for those earlier matters.
Mitigating factors and penalty. The court accepted that the offender had demonstrated genuine remorse, including personal visits to the family, financial assistance, and a sincere apology by its General Manager. The company had co-operated with the investigation and, following the incident, invested significantly in safety improvements, including concrete barriers, permanent traffic controllers, revised work practices, and updated training, at an approximate annual cost of $692,000. The offender entered an early guilty plea, entitling it to the maximum 25% discount. The court fixed a base penalty of $550,000, reduced to $412,500 after the plea discount.
Orders Made
- The offender was convicted and fined $412,500.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor.
- The offender was ordered to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- Under section 32(c) of the WHS Act, the prosecution need only prove exposure to a risk of death or serious injury. The actual manifestation of that risk, such as a fatality, is not an element of the offence, though it remains highly relevant to sentencing as an aggravating factor.
- A fine of $412,500 (before the plea discount, $550,000) was imposed out of a maximum of $1.5 million, reflecting upper-range objective seriousness where multiple concurrent safety failures existed over an extended period.
- Substantial post-incident remediation and genuine corporate remorse, including direct engagement with the victim's family and significant ongoing safety expenditure, can operate as meaningful mitigating factors in WHS sentencing.
- An early guilty plea attracted the maximum 25% discount on penalty, consistent with the principle that the earlier the plea, the greater the utilitarian value to the justice system.
- The District Court also reminded prosecutors that agreed statements of facts in sentence hearings should be concise enough to be fully incorporated into remarks on sentence, flagging that an unnecessarily lengthy statement of facts risks omitting pertinent matters of aggravation or mitigation from the court's published reasons.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 21A(2)(g), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22, 26-30A
- Fines Act 1996 (NSW), s 122(2)
Cases
- 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 Limited 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