Citation: SafeWork NSW v Macleay River Protein Pty Limited [2017] NSWDC 204
Court: District Court of New South Wales
Date: 11 August 2017
Judge: Russell DCJ
Background
Macleay River Protein Pty Limited, a rendering plant operator, employed Jason Noble as a general hand and trainee forklift driver. Mr Noble had commenced employment only six weeks before his death. On 4 August 2015, he was directed to use an ageing Toyota forklift to move large steel bins along an external wall at the company's site in Frederickton, New South Wales.
After parking the forklift and applying its handbrake, Mr Noble stepped in front of the machine to reposition a bin. Approximately 37 seconds later, the forklift moved forward and crushed him between the bin and the wall. He was pinned for around ten to twelve minutes before assistance arrived. Mr Noble died from his injuries. At the time of his death, his wife was pregnant with their second child, and the couple had a ten-month-old son.
The company pleaded guilty to a charge under the Work Health and Safety Act 2011 (WHS Act): as a person conducting a business or undertaking, it failed to comply with its primary health and safety duty under section 19, thereby exposing Mr Noble to a risk of death or serious injury, contrary to section 32. The maximum penalty for such an offence is a fine of $1,500,000.
Legal Issues
- What was the objective seriousness of the offending, having regard to the nature of the risk and the circumstances of the workplace failure?
- What mitigating and aggravating factors applied to the sentence?
- What discount, if any, was warranted for the guilty plea?
- What fine was appropriate, taking into account general and specific deterrence, remorse, contrition, and the offender's capacity to pay?
- What costs order should be made?
Decision
The court assessed the objective seriousness of the offending as falling in the mid-range. Several factors contributed to the risk: the Toyota forklift was approximately 30 years old and had a worn handbrake pawl system that could release under minimal pressure; Mr Noble had been trained only on Crown forklifts, which had a different handbrake system; the area where he was directed to park was on a concrete gradient of around 4.43 degrees; and there was no formal safe work procedure governing forklift operations in that location. The court found the company had direct and immediate control over all of these conditions.
Mitigating factors included the company's guilty plea, cooperation with the prosecution, absence of prior convictions, evidence of genuine remorse and contrition, and steps taken after the incident to improve safety practices on site. There were no significant aggravating factors beyond those inherent in the offence itself.
The court accepted that general deterrence carries particular weight in work health and safety prosecutions, given the importance of encouraging safe practices across industry. Specific deterrence was also relevant, as the offender remained an operating business. A victim impact statement from Mr Noble's widow conveyed the profound loss suffered by her and her young family; the court took this into account as evidence of harm done to the community.
Starting from a base fine of $500,000, the court applied a 25 percent reduction for the early guilty plea, consistent with the principles in R v Thomson and Houlton and the approach to discounts for pleas in serious offence matters. The court imposed a final fine of $375,000. The agreed costs of $32,000 were also ordered in favour of the prosecutor.
Orders Made
- The offender was convicted of the offence under section 32 of the Work Health and Safety Act 2011.
- A fine of $375,000 was imposed.
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine ($187,500) was ordered to be paid to the prosecutor (SafeWork NSW).
- The offender was ordered to pay the prosecutor's agreed costs of $32,000.
Key Takeaways
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A company's failure to maintain ageing equipment, train workers on the specific machinery they are directed to use, and establish safe work procedures for foreseeable risks can collectively ground mid-range objective seriousness in a WHS Act prosecution, even where the immediate incident resulted from equipment failure.
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Under the WHS Act sentencing framework, a 25% discount on the base fine was applied for an early guilty plea, consistent with established principles from R v Thomson and Houlton and subsequent Court of Criminal Appeal authority.
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General deterrence remains a significant sentencing consideration in work health and safety matters, reflecting the public interest in promoting safe workplaces across all industries.
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The District Court treated the harm suffered by a deceased worker's immediate family, as conveyed through a victim impact statement, as relevant to the assessment of harm done to the community under section 28(4) of the Crimes (Sentencing Procedure) Act 1999, rather than as a freestanding aggravating factor.
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Where an offender does not adduce evidence of a limited capacity to pay, the court will not reduce a fine on that basis; capacity to pay is relevant but not determinative, and a substantial fine may still be warranted by the seriousness of the offence and the need for deterrence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 28(4)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases
- Veen v R (No. 2) (1998) 164 CLR
- R v McNaughton (2006) 66 NSWLR 566
- Baumer v R (1998) 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
- Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- Jahandideh v R [2014] NSWCCA 178
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96