Citation: SafeWork NSW v Freedom Foods P/L [2016] NSWDC 153
Court: District Court of New South Wales
Date: 1 August 2016
Judge: Judge AC Scotting
Background
The defendant was a food manufacturing company producing gluten and allergen-free cereal and snack products. One of its employees, an Operator who had been in a new role for approximately one week and had not yet been assessed as competent, was working alone on a flake roller machine when it became blocked.
Without shutting the machine down, the employee removed the in-feed chute and attempted to clear the blockage by hand. He slipped and his hand fell into the operating rollers. The injury was severe: all four fingers on his right hand were amputated, and he suffered torn ligaments in his arm and shoulder.
SafeWork NSW prosecuted the company for failing to comply with its health and safety duty under section 19 of the Work Health and Safety Act 2011, thereby exposing the employee to a risk of death or serious injury. The company pleaded guilty, and the matter came before the District Court for sentencing.
Legal Issues
- What was the appropriate fine within the $1.5 million maximum for the section 32 offence?
- How should objective seriousness be assessed given the training failures, machine modification history, and regulatory non-compliance?
- What weight should be given to mitigating factors including the early guilty plea, demonstrated remorse, steps taken to assist the injured worker, and post-incident safety improvements?
- Whether cooperation with investigators constituted an additional mitigating factor under the Crimes (Sentencing Procedure) Act 1999.
- What discount was appropriate for the early guilty plea, and how should prosecution costs be dealt with?
Decision
The court found the offence to be of moderate objective seriousness. The machine had originally been fitted with bolted guards, but those bolts were replaced with spring-loaded clips between 2009 and the incident without any risk assessment. One clip was missing on the day. The employee had not been trained in isolation (lock-out/tag-out) procedures, had not seen the Standard Operating Procedure or operator's manual, and had not been given any documented procedure for clearing blockages. The relevant regulation (cl 208(2) of the Work Health and Safety Regulation 2011) required an interlocked physical barrier where access to guarded plant was necessary during operation; no such interlock existed.
The court identified several significant mitigating factors. The company had no prior prosecutions, had taken extensive post-incident steps to assist the injured worker financially and practically, and had made substantial improvements to machine guarding and training systems after the incident. The court was satisfied that the company had demonstrated genuine remorse and contrition, and that re-offending was unlikely.
The prosecutor accepted that the plea of guilty was entered at the earliest opportunity, entitling the company to the maximum 25% discount. The court fixed the appropriate fine at $100,000 before discount, resulting in a final fine of $75,000. The claim of cooperation with investigators as an additional mitigating factor was not accepted, as it was neither conceded by the prosecutor nor supported by evidence at the hearing.
Under section 122(2) of the Fines Act 1996, the court ordered that 50% of the fine be paid to the prosecutor (SafeWork NSW), a standard provision in work health and safety prosecutions in New South Wales.
Orders Made
- The defendant was convicted of the offence under section 32 of the Work Health and Safety Act 2011.
- A fine of $75,000 was imposed (being $100,000 reduced by 25% for the early guilty plea).
- 50% of the fine was ordered to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996.
- The defendant was ordered to pay the prosecutor's costs in the agreed sum of $25,000.
Key Takeaways
- The District Court assessed the offence as moderately serious, pointing to inadequate training, the absence of isolation procedures, and an unassessed machine modification that reduced guarding effectiveness as the central failures.
- An employer's post-incident conduct towards an injured worker can carry genuine mitigating weight: the court gave credit for financial support, home modifications, tailored return-to-work arrangements, and ongoing employment commitments made to the injured employee.
- Under cl 208(2) of the Work Health and Safety Regulation 2011, a person with management or control of plant must ensure that where access to a guarded area is required during operation, an interlocked physical barrier is in place; the absence of such an interlock was a specific regulatory failing in this case.
- A maximum 25% guilty plea discount applies where the plea is entered at the earliest opportunity, consistent with the principles in R v Thomson & Houlton and R v Borkowski.
- Cooperation with investigating authorities as a mitigating factor under section 21A(3)(m) of the Crimes (Sentencing Procedure) Act 1999 requires either prosecutorial concession or evidentiary support at the hearing; an unsupported submission will not suffice.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19, 32
- Work Health and Safety Regulation 2011 (NSW), cl 208(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 21A(3)(e), 21A(3)(f), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22
- Fines Act 1996 (NSW), s 122(2)
- Managing the Risks of Plant in the Workplace Code of Conduct (July 2014)
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
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37