Citation: Safe Work (NSW) v Matthew Albans t/as Matt & Bella's Meats [2016] NSWDC 125
Court: District Court of New South Wales
Date: 8 July 2016
Judge: Judge AC Scotting
Background
The offender was a sole trader operating a retail butchery in Bradbury, NSW. He employed a 17-year-old second-year apprentice who had not received training on the specific mincing machine used at the premises.
In September 2014, the apprentice attempted to free a piece of meat caught inside the mincing machine while the lid was open. A moving part trapped his right arm, causing a broken arm and wrist, torn muscles and tendons, and severed nerves to the thumb and little finger. The machine had no interlock to stop operation when the lid was opened, and the emergency stop button was out of the apprentice's reach.
The offender pleaded guilty to failing to comply with his health and safety duty as a person conducting a business, thereby exposing a worker to a risk of death or serious injury under the Work Health and Safety Act 2011. The proceedings before the District Court concerned the appropriate penalty.
Legal Issues
- What was the objective seriousness of the offence, having regard to the nature of the risk, the absence of safety measures, and the injury that resulted?
- What weight should be given to the offender's subjective circumstances, including his bankruptcy, PTSD, and the financial impact of any penalty on his dependants?
- What discount was appropriate for the early guilty plea?
- How should the court approach the imposition of prosecution costs against an undischarged bankrupt?
Decision
Judge Scotting assessed the objective seriousness of the offence as moderate. The risk posed by machinery with moving parts was obvious and foreseeable. The mincing machine lacked an interlock to prevent operation when the lid was open, no risk assessment or safe work procedures had been documented, and the apprentice had received no specific training on the machine. A replacement machine with an appropriate interlock was sourced within days of the incident, illustrating how readily the risk could have been addressed.
The court acknowledged significant subjective mitigating features. The offender had pleaded guilty, expressed genuine remorse, had no prior convictions, and was no longer working in the butchery industry. A forensic psychologist diagnosed the offender with PTSD attributable to childhood sexual abuse, and the psychologist opined that the incident had exacerbated that condition and causally contributed to the offender's failure to address safety requirements. The offender had since become bankrupt, was working as a casual labourer earning approximately $600 per week net, and was the sole financial provider for a young family.
Without those subjective features, the court assessed the appropriate starting point as a fine of $50,000. The combination of the offender's PTSD, its ongoing effect on his earning capacity, his undischarged bankruptcy, and the anticipated prosecution costs (expected to exceed $20,000) justified a substantial reduction from that figure. The court noted that fines imposed in sentence proceedings are not provable debts in bankruptcy and would therefore survive the offender's discharge, adding further weight to the totality of the financial burden he faced.
A 15% discount was applied for the guilty plea, producing a final fine of $3,400. Fifty per cent of that fine was ordered to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996, and the offender was also ordered to pay prosecution costs as agreed or assessed.
Orders Made
- The offender was convicted.
- A fine of $3,400 was imposed (reflecting a 15% guilty plea discount from a notional $4,000 fine).
- Fifty per cent of the fine was ordered to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996.
- The offender was ordered to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- The District Court confirmed that the foreseeability of a risk and the ease with which it could have been eliminated are relevant considerations when assessing the objective seriousness of a WHS offence.
- A sole trader's acute personal circumstances, including bankruptcy, a diagnosed mental health condition causally connected to the offence, and dependent family members, can justify a substantial reduction from an otherwise appropriate starting point for a WHS fine.
- Fines and costs imposed in sentence proceedings are not provable debts in bankruptcy, meaning they survive the offender's discharge. The District Court treated the anticipated prosecution costs as a material factor in calibrating the amount of the fine itself.
- Under section 122(2) of the Fines Act 1996, a court may order that a proportion of a fine be paid to the prosecutor, a mechanism the court applied here alongside a separate costs order.
- Where a worker has not received specific training on a particular machine and no documented risk assessments or safe work procedures exist, those omissions are treated as directly relevant to both the duty holder's culpability and the gravity of any resulting harm.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 21(2), 32
- Work Health and Safety Regulation 2011 (NSW), cll 208(2), 211
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 21A(3)(e), 21A(3)(g), 21A(3)(i), 21A(3)(k), 22
- Fines Act 1996 (NSW), ss 6, 122(2)
- AS/NZS 4024.1601:2014, 4024.1602:2014, 4024.1604:2014 (machinery safety standards)
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 Borkowski (2009) 195 A Crim R 1
- Environmental Protection Agency v Barnes [2006] NSWCCA 246
- Jahandideh v R [2014] NSWCCA 178
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37