Citation: Safe Work NSW v New South Wales Sugar Milling Co-operative Limited [2017] NSWDC 230
Court: District Court of New South Wales
Date: 28 August 2017
Judge: Judge AC Scotting
Background
The defendant is a grower-owned sugar cane milling co-operative operating several facilities in northern New South Wales. At its Broadwater site, it ran both a sugar mill and an electrical co-generation facility using two boilers, one of which (the No 12 boiler) had been converted from bunker oil to diesel as its auxiliary fuel from around 2008. That conversion was carried out without proper risk assessment, without completing the manufacturer-recommended parts installation (quoted at just over $5,000), and without any written safe work procedures.
On 4 September 2014, two workers were directed to restart the No 12 boiler after it had shut down. Following an informal and undocumented protocol, one worker opened the furnace door and hosed diesel onto bagasse (the fibrous residue left after sugar cane crushing) inside the furnace. The furnace temperature at the time was approximately 155 degrees Celsius, well above diesel's flash point of 63 degrees. The diesel ignited immediately, causing a fireball that blew back through the open door and burned the worker on his face, wrists, ears, and neck.
Safe Work NSW prosecuted the co-operative for failing to comply with its health and safety duty under the Work Health and Safety Act 2011, thereby exposing both workers to a risk of serious injury or death.
Legal Issues
- Whether the co-operative failed to comply with its primary work health and safety duty under section 19 of the Work Health and Safety Act 2011, contrary to section 32 of that Act
- What the appropriate penalty was, having regard to objective seriousness, mitigating factors, capacity to pay, and sentencing principles including parity, totality, and deterrence
- Whether the matter should be dealt with without recording a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999, given the risk to the co-operative's Bonsucro sustainability certification
Decision
The co-operative pleaded guilty to the offence. The agreed facts confirmed that, for years, workers had been restarting the No 12 boiler using diesel under an entirely informal and undocumented protocol, with no risk assessment, no written procedures, no specification of when a restart was "cold" or "hot," and no requirement to wear face shields. The incident worker had never previously performed a hot restart unsupervised. Reasonably practicable measures to prevent the injury were plainly available and had not been taken.
The court declined to deal with the matter under section 10 of the Crimes (Sentencing Procedure) Act 1999 (which allows a finding of guilt without recording a conviction). Judge Scotting found no sufficient evidence that a conviction would actually result in the loss of Bonsucro certification, noting that the co-operative had already obtained that certification in 2012 despite holding six prior convictions at the time. The court also found that the circumstances of the offence could not be characterised as trivial, and that no relevant extenuating circumstances existed.
On penalty, the court set the appropriate fine at $50,000 before discount. A 15 percent discount was applied to reflect the guilty plea, producing a final fine of $42,500. The maximum penalty for the offence was $1.5 million, so the fine represented a modest fraction of the maximum, reflecting the mitigating factors the court accepted, including the co-operative's remorse, its remedial steps after the incident, and its community role as a grower-owned entity.
Orders Made
- The co-operative was convicted of the offence under section 32 of the Work Health and Safety Act 2011.
- A fine of $42,500 was imposed (being $50,000 discounted by 15% for the guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
- The co-operative was ordered to pay the prosecutor's costs in the agreed sum of $92,500.
Key Takeaways
- A section 10 discharge without conviction is unavailable where the offence cannot be characterised as trivial and there is insufficient evidence that a conviction will cause the specific adverse consequence relied upon by the defendant.
- The District Court confirmed that an informal, undocumented workplace protocol for a procedure carrying significant fire risk will not satisfy a duty holder's obligations under section 19 of the Work Health and Safety Act 2011, particularly where manufacturer guidance and written procedures existed for comparable equipment at the same site.
- Prior good character and community contribution may be mitigating factors at sentence, but they do not displace the need for a penalty that serves general and specific deterrence in workplace safety prosecutions.
- The co-operative's existing Bonsucro certification, obtained despite prior convictions, undermined the argument that a further conviction would necessarily jeopardise that certification.
- Where a duty holder takes genuine remedial steps after an incident, including developing written procedures and obtaining expert advice, those steps may be weighed as mitigating factors at sentence, though they do not eliminate culpability for the original failure.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 10, 21A(2)(d), 21A(3)(i), 21A(3)(k), 21A(3)(m)
- Fines Act 1996 (NSW), ss 6, 122(2)
Cases:
- 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
- Cobiac v Liddy (1969) 119 CLR 257
- R v Nguyen [2002] NSWCCA 183