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District Court 27 August 2018

SafeWork NSW v Haconby Pty Ltd

[2018] NSWDC 230

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY FATALITY OBVIOUS AND FORESEEABLE RISK SENTENCE MITIGATING FACTORS

Citation: SafeWork NSW v Haconby Pty Ltd [2018] NSWDC 230
Court: District Court of New South Wales
Date: 27 August 2018
Judge(s): Strathdee DCJ

Background

The defendant company operated a tyre fitting business in Deniliquin, NSW. On 8 October 2014, the company's site manager attended the premises of a rice mill operator to remove and replace large pneumatic tyres on a heavy container reachstacker. No work permit was obtained before work commenced, contrary to the site's own procedures.

During the removal process, difficulties arose in dislodging the wheel assembly. The site manager persisted in striking the wheel rim with a steel sledgehammer, and on one occasion the wheel assembly blew off with enough force to throw him five to ten metres from the machine. Despite this first incident, work continued on the opposite side of the machine using the same unsafe method. A second explosion of the wheel assembly followed, fatally injuring a Ricegrowers employee and seriously injuring a bystander.

SafeWork NSW prosecuted the company on two charges under the Work Health and Safety Act 2011. The first charge related to the failure to ensure the safety of non-workers at the site, exposing two Ricegrowers employees to a risk of death or serious injury. The second charge related to the failure to ensure the safety of the company's own worker, the site manager.

  • Whether the defendant's failure to comply with its health and safety duties under ss 19(1) and 19(2) of the Work Health and Safety Act 2011 exposed workers and others to a risk of death or serious injury, contrary to s 32 of that Act
  • The appropriate objective seriousness of each offence
  • The applicable mitigating and aggravating factors relevant to sentence
  • The appropriate fine having regard to the totality principle, including the 25% discount for an early guilty plea
  • The allocation of any fine under s 122(2) of the Fines Act 1996

Decision

Strathdee DCJ assessed the objective seriousness of both offences as significant. The risks involved in removing large pneumatic tyres under pressure from heavy machinery were obvious and foreseeable. Safe procedures for this type of work were well known in the industry, and basic precautions such as fully deflating tyres before striking the wheel assembly were not taken.

The court identified several aggravating factors. The risk of serious injury or death was plainly foreseeable. Critically, after the first wheel assembly blew off and the site manager was thrown several metres, work was not stopped. The continuation of the same unsafe task in the same manner, resulting in a second and fatal incident on the same day, was treated as an independent aggravating feature.

The mitigating factors weighed in the defendant's favour included a clear record over many decades of operation, an early indication of a guilty plea attracting a 25% utilitarian discount, demonstrated remorse, significant post-incident improvements to work health and safety systems, cooperation with the investigation, and contributions to community and charitable causes.

Applying the totality principle, the court set the appropriate fines at $300,000 for the first charge and $100,000 for the second charge before discount, arriving at a combined total of $300,000 after applying the 25% guilty plea reduction across both matters.

Orders Made

  • The defendant was convicted on both charges
  • A fine of $300,000 in total was imposed (reflecting a 25% reduction from pre-discount fines of $300,000 and $100,000 respectively)
  • Pursuant to s 122(2) of the Fines Act 1996, 50% of the fine was ordered to be paid to the prosecutor
  • The defendant was ordered to pay the prosecutor's costs as agreed or assessed

Key Takeaways

  • The District Court treated the continuation of dangerous work after a first incident, without stopping to reassess safety, as an aggravating factor at sentencing under the Work Health and Safety Act 2011.
  • An early guilty plea to WHS offences attracts a 25% discount for its utilitarian value, consistent with the approach taken in Nash v Silver City Drilling and related authorities.
  • Where a defendant faces multiple WHS charges arising from a single course of events, the totality principle applies to ensure the aggregate penalty is not disproportionate, though its force may be less pronounced for fines than for terms of imprisonment (following Camilleri's Stock Feeds).
  • Under s 122(2) of the Fines Act 1996, the court has a discretion to direct that a portion of any fine be paid to the prosecuting authority, and here directed 50% accordingly.
  • A long trading history without prior convictions, post-incident remediation of safety systems, and cooperation with investigators each operated as mitigating factors going to the appropriate penalty.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 19(2), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Fines Act 1996 (NSW), s 122(2)

Cases
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96; 93 NSWLR 338
- Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
- EPA v Barnes [2006] NSWCCA 246
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- Inspector Marie Davidson v Plasser Australia Pty Ltd [2009] NSWIRComm 79
- R v McNaughton (2006) 66 NSWLR 566
- Veen v R (No. 2) (1988) 164 CLR 465
- Baumer v R (1988) 166 CLR 51
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No. 5) [2009] NSWSC 432