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District Court 27 August 2018

SafeWork NSW v Duct Australia Pty Ltd

[2018] NSWDC 231

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY WORKER’S HAND CRUSHED IN A PRESS OBVIOUS AND FORESEEABLE RISK SENTENCE MITIGATING FACTORS

Citation: SafeWork NSW v Duct Australia Pty Ltd [2018] NSWDC 231
Court: District Court of New South Wales
Date: 27 August 2018
Judge: Strathdee DCJ

Background

The defendant, a sheet metal fabrication company operating from a factory in Wetherill Park, NSW, owned and operated a 100-tonne hydraulic brake press. On 4 October 2014, a 20-year-old general hand employed by the company was using the press to fold channels in sheet metal. He turned his head briefly to speak to his supervisor without withdrawing his hands from beneath the ram, and the descending ram and die crushed four fingers on his left hand. The injuries resulted in a partial amputation of all four fingers.

The press had been fitted with a light curtain, a beam-based safety sensor designed to stop the ram if an object passed through the beam. The light curtain had been set at the minimum clearance of 10 millimetres. The company's expert adviser had recommended fixing the light curtain in place, but the sole director declined, preferring to preserve operational flexibility. No documented safe operating procedure existed for the press at the time of the incident, and no worker had received training on the light curtain or its adjustment.

SafeWork NSW prosecuted the company under the Work Health and Safety Act 2011 (NSW). The company pleaded guilty to failing to comply with its primary duty under section 19(1) of that Act, thereby exposing the worker to a risk of serious injury or death, contrary to section 32(1).

  • What was the appropriate assessment of the objective seriousness of the offence?
  • What mitigating and aggravating factors applied to the sentencing exercise?
  • What discount should apply for the early guilty plea?
  • What fine was appropriate given the circumstances and the maximum penalty of $1,500,000?
  • Whether costs should be awarded to the prosecutor.

Decision

The court assessed the objective seriousness of the offence by examining the nature and foreseeability of the risk, the gravity of the potential consequences, and the availability and practicability of measures to eliminate or reduce the risk. Drawing on the Court of Criminal Appeal's analysis in the Silver City Drilling line of cases, the District Court noted that culpability turns on an overall evaluation of all relevant factors rather than a step-by-step checklist. The court placed the offence at the lower end of the seriousness scale, reflecting the circumstances of the particular breach.

Several factors bore on the appropriate penalty. The risk of crush injuries from the moving parts of a hydraulic press was obvious and foreseeable. The company had taken some positive steps, including purchasing the light curtain as additional guarding at extra cost and providing some verbal training, but had failed to document safe operating procedures, failed to ensure the light curtain was properly configured, and failed to train workers on its function. The sole director had rejected advice to fix the light curtain in place. Against those aggravating matters, the court weighed the company's prompt post-incident response, including toolbox meetings, engagement of an external WHS consultant, appointment of a WHS coordinator, and purchase of new machinery exceeding $200,000 that reduced reliance on the press.

The company pleaded guilty at the first available opportunity after an amended summons was filed, and the court allowed a 25% discount on the penalty in recognition of the utilitarian value of that plea. No application was made to reduce the fine on the basis of limited capacity to pay, so no such reduction was applied.

Applying these considerations, the court determined a pre-discount fine of $150,000, which it described as sitting at the lower end of the range. After applying the 25% guilty plea discount, the final fine was $112,500.

Orders Made

  • The defendant was convicted and fined $112,500.
  • Pursuant to section 122(2) of the Fines Act 1996, 50% of the fine ($56,250) was to be paid to the prosecutor.
  • The defendant was ordered to pay the prosecutor's costs and disbursements as agreed or assessed.

Key Takeaways

  • The District Court confirmed that objective seriousness in WHS prosecutions requires an overall evaluative exercise, having regard to the foreseeability of the risk, the severity of potential consequences, and the burden of available preventive measures rather than any formulaic step-by-step assessment.
  • A crush injury risk from a hydraulic press was treated as an obvious and foreseeable hazard, and the absence of a documented safe operating procedure, combined with inadequate training and a rejected expert recommendation about the light curtain, weighed against the defendant.
  • Prompt and genuine post-incident remediation, including engagement of external WHS expertise, development of formal procedures, and significant capital investment in safer equipment, operated as meaningful mitigating factors in the sentencing exercise.
  • Under the Thomson and Houlton principles, the timing of a guilty plea remains the primary consideration in setting the utilitarian discount; a plea at the first available opportunity attracted a 25% reduction here.
  • Where a defendant does not raise limited financial capacity as a ground for reducing a fine, the sentencing court applies no such reduction, and the evidentiary onus rests squarely on the defendant to put that material before the court.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1) and 32(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3 and 3A
- Fines Act 1996 (NSW), ss 6 and 122(2)

Cases
- Veen v R (No 2) (1988) 164 CLR 465
- Baumer v R (1988) 166 CLR 51
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Commercial Industrial Construction Group [2006] VSCA 181
- R v McNaughton (2006) 66 NSWLR 566
- R v Borkowski (2009) 195 A Crim R 1
- R v Wilkinson (No 5) [2009] NSWSC 432
- BW v R [2011] NSWCCA 176
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- 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