Citation: Safe Work NSW v Alejandro Bocaz [2017] NSWDC 271
Court: District Court of New South Wales
Date: 9 October 2017
Judge: Judge AC Scotting
Background
The offender was a specialist employee of an engineering services company, Extrusion Machine Co (Australia) Pty Ltd (ExCo), with approximately 30 years of industry experience. He was engaged to diagnose and repair a plastic extrusion machine at the premises of a synthetic grass manufacturer in Botany. The work required him to purge the machine of residual material before dismantling it.
To carry out the purging process, the offender obtained a PVC-based purge compound from a chemical supplier. The supplier informed him that the material's maximum safe operating temperature was 180 degrees Celsius. When heated beyond that threshold in a machine designed for polyethylene or polypropylene, PVC resin carbonises and releases hydrochloric acid gas. Despite this, the purge was used at unsafe temperatures on two occasions.
On the second day of purging, the machine emitted fumes and an acidic chlorine smell. While the offender was retrieving a spanner from his vehicle, a worker at the site pressed buttons on the machine near a blocked die filter, and a discharge of steam and molten material struck him in the face. The worker was not wearing appropriate personal protective equipment and suffered facial injuries requiring multiple skin grafts. He was unable to work for four months.
Legal Issues
- Whether the offender, as an individual with a health and safety duty under section 28 of the Work Health and Safety Act 2011, failed to comply with that duty and thereby exposed workers to a risk of death or serious injury, contrary to section 32 of the Act
- The appropriate sentence, having regard to the objective seriousness of the offence, mitigating and aggravating factors, the offender's capacity to pay a fine, and the principles of deterrence
- Whether the guilty plea, entered shortly before the defended hearing, warranted a sentencing discount and what discount was appropriate
- How agreed prosecution costs should be factored into the overall penalty
Decision
The offender pleaded guilty to one count under sections 28 and 32 of the Work Health and Safety Act 2011. The maximum penalty for the offence was a fine of $150,000. The court assessed the objective seriousness of the offence having regard to the nature of the hazards, the foreseeability of the risks, and the absence of any safe work management system by either the offender or his employer.
Several mitigating factors were considered, including the offender's otherwise clear work history, his cooperation with investigators, his remorse, the personal toll the incident and proceedings had taken on him, and his limited capacity to pay. The court also noted that ExCo itself had systemic failures, including the absence of any safe system of work requiring the provision of a Material Safety Data Sheet to the client. The offender bore individual responsibility, but was operating within a broader context of employer-level failings.
The guilty plea was entered only a few days before the defended hearing was due to commence. Consistent with the approach in R v Borkowski, the court treated the plea as indicative of remorse and awarded a 10 per cent discount. However, given the lateness of the plea, the discount was at the lower end of the scale.
The court was satisfied that the offender had very limited, if any, capacity to pay a fine. His liquid assets were minimal, and meeting any substantial fine would likely require him to sell his home. The court took into account the agreed prosecution costs of $30,000, treating them as a significant financial impost in their own right. Having weighed all of these factors, the court imposed no further penalty beyond the costs order, making a conviction order under section 10A of the Crimes (Sentencing Procedure) Act 1999.
Orders Made
- The offender was convicted of the offence under sections 28 and 32 of the Work Health and Safety Act 2011
- No further penalty was imposed, pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999
- The offender was ordered to pay the prosecutor's agreed costs of $30,000
Key Takeaways
- An individual worker can be prosecuted under section 28 of the Work Health and Safety Act 2011 for failing to comply with a personal health and safety duty, even where the employing business also has systemic failures in its safe work management systems.
- Under the Work Health and Safety Act 2011, the maximum fine for an individual whose breach of duty exposes others to a risk of death or serious injury is $150,000, making the agreed costs impost of $30,000 a materially significant component of the overall penalty.
- A guilty plea entered only days before a defended hearing attracts a reduced discount, assessed at 10 per cent in this case, reflecting the limited utilitarian value and the timing as an indicator of remorse.
- Where an offender establishes limited capacity to pay, the court retains a discretion to moderate the fine, but the offender bears the evidentiary onus of demonstrating that capacity is genuinely constrained, and a court may still impose a substantial penalty if seriousness and deterrence warrant it.
- Agreed prosecution costs are to be taken into account when fixing the quantum of a fine, as confirmed by reference to Environmental Protection Authority v Barnes, effectively treating the costs as part of the overall financial burden imposed on the offender.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 28, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 10A, 21A(2)(g), 21A(3)(e), (f), (g), (i), (k), (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
- Environmental Protection Agency v Barnes [2006] NSWCCA 246
- Jahandideh v R [2014] NSWCCA 178
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Youkhana [2004] NSWCCA 412
- R v Tuala [2015] NSWCCA 8