Citation: SafeWork NSW v Millwell Cush Pty Ltd [2019] NSWDC 302
Court: District Court of New South Wales
Date: 8 July 2019
Judge: Strathdee DCJ
Background
The defendant, a corporation operating a semolina flour mill in regional New South Wales, employed a miller who was seriously injured while cleaning an operating roller mill in December 2016. While attempting to remove a lump of mouldy wheat from the break rollers by hand, the worker's left hand was drawn into the machine. His attempt to free himself with his right hand resulted in that hand also being caught.
The consequences were severe. The worker lost four fingers on his left hand and the tip of his left thumb, while the fingers of his right hand were severely crushed, with degloving of skin and multiple fractures. At the time of the incident, the mill's guarding could be easily removed while the machine was operating, and there were no safe work procedures, no documented risk assessments, and no adequate training on isolating power before cleaning.
SafeWork NSW prosecuted the corporation for failing to comply with its primary duty under the Work Health and Safety Act 2011, namely the duty to ensure the health and safety of workers so far as was reasonably practicable. The corporation pleaded guilty.
Legal Issues
- What was the appropriate penalty for a corporation that pleaded guilty to a Category 2 offence under s 32 of the Work Health and Safety Act 2011, where a worker suffered serious injuries due to inadequate machine guarding and absent safe work procedures?
- What discount, if any, should apply for the early guilty plea?
- What weight should be given to aggravating factors (severity of injury) versus mitigating factors (early plea, no prior record, demonstrated remorse, post-incident remediation)?
Decision
The District Court assessed the objective seriousness of the offence as significant. The guarding on the roller mill was neither permanently fixed nor interlocked, allowing workers to remove it while the machine operated. There were no safe work procedures, no documented risk assessments, and no adequate training on isolating power. The court found that simply disabling the mill whenever the cover was lifted could have prevented the incident entirely.
The court treated the severity of the worker's injuries as an aggravating factor. The worker suffered permanent and life-altering harm, and the ongoing consequences were characterised as very serious.
On the mitigating side, the corporation entered a guilty plea at the earliest opportunity, had no prior convictions, demonstrated remorse, and had cooperated with SafeWork during the investigation. The court also noted post-incident remediation, including installation of secured guarding requiring a special key for removal and the creation of a safe work method statement requiring power isolation before cleaning. The court accepted these measures as genuine evidence of changed management practices, while noting that deterrence, both general and specific, remained significant purposes of sentencing under WHS legislation.
The court set the appropriate fine at $150,000 before applying a 25% discount for the early guilty plea, resulting in a final fine of $112,500.
Orders Made
- The defendant was convicted of the offence.
- A fine of $112,500 was imposed (being $150,000 reduced by 25% for the early guilty plea).
- 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
- A corporation that failed to provide interlocked or permanently fixed machine guarding, safe work procedures, risk assessments, and adequate training was found to have significantly departed from the standard required by WHS legislation, even where no prior offences existed.
- Under WHS sentencing principles, the asymmetry between employer and worker is a relevant consideration: the employer's risk is economic, while the worker's risk directly concerns their physical wellbeing or life, as affirmed in DPP v Amcor Packaging Australia Pty Ltd.
- An early guilty plea attracted a 25% discount from the base fine, consistent with the approach to the utility of pleas under the Crimes (Sentencing Procedure) Act 1999.
- Post-incident remediation, including upgraded guarding and the introduction of formal safe work procedures, was treated as evidence of rehabilitation and genuine change, though it did not displace the importance of general deterrence.
- Where a worker suffers permanent and serious physical harm as a direct manifestation of the identified risk, that outcome operates as an aggravating factor in sentencing.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 5, 7, 8, 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 21A(3)
- Fines Act 1996 (NSW), s 122(2)
Cases:
- Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610
- DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; [2005] VSCA 219
- WorkCover Authority (NSW) (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- 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
- WorkCover Authority of New South Wales (Inspector Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363
- R v McNaughton (2006) 66 NSWLR 566
- Veen v R (No. 2) (1988) 164 CLR 465
- Baumer v R (1998) 166 CLR 51
- BW v R [2011] NSWCCA 176