Citation: R v Vetro Pty Ltd and R v Alexander Kola [2020] NSWDC 87
Court: District Court of New South Wales
Date: 3 April 2020
Judge: Strathdee DCJ
Background
Vetro Pty Ltd was a Wetherill Park company that manufactured shower screens and wardrobes. Its sole director, Alexander Kola, managed all aspects of the business, including workplace safety, and attended the site daily. The company employed approximately 25 workers.
On 23 May 2017, a worker who had been employed as an aluminium and glass cutter for around six years was using a drop saw to cut small sections of aluminium. He was holding the material with his left hand when the saw's return spring failed to retract the blade to its raised position after he released the handle. The saw dropped and partially severed his left hand just above the wrist. He subsequently required approximately ten surgeries and ongoing physiotherapy and psychological counselling.
An investigation by SafeWork NSW revealed that the return spring was broken and intertwined, the pneumatic clamps (designed to hold material so workers need not use their hands) were not attached to the bench, and no safe operating procedures, regular maintenance program, or adequate training had been in place. Both Vetro and Kola were aware that workers sometimes operated the saw without its safety features in place, but neither took steps to prevent the practice.
Legal Issues
- Whether Vetro Pty Ltd failed to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure, so far as reasonably practicable, the health and safety of its workers, exposing a worker to a risk of death or serious injury contrary to s 32 of that Act.
- Whether Alexander Kola, as director, failed to exercise due diligence under s 27(1) of the Act, also contrary to s 32.
- What penalty was appropriate, having regard to the objective seriousness of the offences, relevant aggravating and mitigating factors, and the utilitarian value of early guilty pleas.
Decision
Both defendants pleaded guilty on 14 October 2019. The court proceeded to sentence on agreed facts. The maximum penalties applicable were $1,500,000 for Vetro and $300,000 for Kola.
Strathdee DCJ assessed the objective seriousness of the offences as significant. The failures were multiple and systemic: no risk assessment, no safe operating procedure, no regular maintenance program, no adequate training, and supervisory awareness of unsafe practices without corrective action. The court treated the severity of the worker's injuries as an aggravating factor.
On general deterrence, the court emphasised the importance of sending a clear message to the manufacturing industry that plant and equipment must be properly maintained and that safe work procedures must be developed and enforced. Given that Vetro had ceased operations and was expected to go into liquidation, and that Kola (aged 64) was unlikely to re-offend, the need for specific deterrence was assessed as minimal.
Mitigating factors included the early guilty pleas, absence of prior convictions, cooperation with the SafeWork investigation, genuine remorse from both defendants, and good character prior to the incident. Each defendant received a 25% discount on the fine for the utilitarian value of the plea.
Orders Made
- Both defendants convicted.
- Vetro Pty Ltd fined $75,000 (reduced from a starting point of $100,000 by 25% for the guilty plea).
- Alexander Kola fined $7,500 (reduced from a starting point of $10,000 by 25% for the guilty plea).
- 50% of each fine to be paid to the prosecutor.
- Both defendants to pay the prosecutor's agreed costs of $43,900.
Key Takeaways
- A company's systemic failure across multiple fronts, including no risk assessments, no safe operating procedures, no maintenance program, and no meaningful supervision, will weigh heavily in assessing objective seriousness under the Work Health and Safety Act 2011 (NSW).
- Under s 32 of the Act, both a corporation and its director can be convicted for the same incident: the corporation for failing its primary safety duty, and the director separately for failing to exercise due diligence.
- The District Court held that general deterrence carries particular weight in manufacturing and industrial settings, where unsafe plant and equipment is a leading cause of workplace death and injury nationally.
- A 25% discount for the utilitarian value of an early guilty plea was applied consistently to both the corporate and individual defendant, in line with the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Where a corporate offender has ceased trading and faces liquidation, and an individual offender is elderly and unlikely to re-offend, the court may treat specific deterrence as a minimal sentencing consideration, without reducing the weight given to general deterrence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 27(1), 32
- Work Health and Safety Regulation 2011 (NSW), cls 34–39
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- WorkCover Authority (NSW) (Inspector Egan) v Atco Controls Pty Ltd (1988) 82 IR 80