Citation: SafeWork NSW v DIC Australia Pty Limited [2021] NSWDC 143
Court: District Court of New South Wales
Date: 30 April 2021
Judge: Russell SC DCJ
Background
DIC Australia Pty Limited operated an ink manufacturing plant at Auburn, NSW, employing 86 workers at that site. On 7 December 2017, a contracted tank cleaner entered an ink holding tank at the premises to remove hardened residue. While he was inside the tank, the agitator activated automatically and his leg became trapped between the tank wall and the rotating anchor blade. He suffered fatal injuries. Two other workers who entered the tank to assist him also sustained leg injuries.
The ink holding tank was fitted with an agitator that could operate in automatic mode, activating on a timed cycle whenever the weight inside the tank exceeded a set threshold. At the time of the incident, the agitator had not been electrically isolated before the tank's access hatch was opened. There was no external isolator switch or emergency stop, and the confined space entry permit had only been partially completed.
DIC Australia pleaded guilty to a single charge under sections 19 and 32 of the Work Health and Safety Act 2011 (NSW): that as a person with a work health and safety duty, it failed to comply with that duty and thereby exposed three named workers to a risk of death or serious injury. The maximum penalty for the offence is a fine of $1,500,000.
Legal Issues
- What was the appropriate objective seriousness of the offence, having regard to the nature and circumstances of the failure?
- What mitigating and aggravating factors were relevant to sentence?
- What discount should be applied to reflect the guilty plea?
- What penalty, within the statutory maximum, was proportionate and sufficient to achieve general and specific deterrence?
- What costs order should follow?
Decision
The court assessed the offence as being of significant objective seriousness. The failures were multiple and interconnected: there was no engineering control to isolate the tank from all energy sources before entry, no external isolator switch or emergency stop, an inadequate electrical isolation system, a confined space entry permit that was only partially completed, and an inadequate audit procedure to ensure job safety analyses and confined space entry permits were actually being used. The safety documentation regarding the tank's electrical configuration was also found to be deficient.
In mitigation, the court took into account DIC Australia's guilty plea, its cooperation with the investigation, remedial steps taken after the incident, and the absence of prior convictions. The court also considered the defendant's capacity to pay and the need to avoid crushing a business that employed a significant number of workers, balanced against the imperative of general and specific deterrence.
The court considered the victim impact statement of the deceased contractor's widow, Ms Rachel Tanner, who described the profound and lasting impact of her husband's death on herself and their three young sons. The court acknowledged that any penalty imposed might feel inadequate to the family and extended its sympathies, while noting it was bound to apply the sentencing principles established by higher courts, including the Court of Criminal Appeal's guidance in Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33.
The court determined the appropriate fine before any discount was $600,000. A 25% reduction was applied to reflect the guilty plea, producing a final fine of $450,000. Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine was directed to be paid to the prosecutor.
Orders Made
- DIC Australia Pty Limited convicted of the offence under sections 19 and 32 of the Work Health and Safety Act 2011 (NSW).
- Fine of $450,000 imposed (reduced by 25% from a base of $600,000 to reflect the guilty plea).
- 50% of the fine directed to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996 (NSW).
- DIC Australia Pty Limited ordered to pay the prosecutor's agreed costs of $45,000.
Key Takeaways
- Multiple concurrent failures, including the absence of engineering isolation controls, an incomplete confined space entry permit, and deficient electrical safety documentation, can collectively elevate the objective seriousness of a single WHS charge even where the maximum penalty is not reached.
- A 25% guilty plea discount was applied in the sentencing calculation, consistent with established principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Under section 122(2) of the Fines Act 1996 (NSW), the court directed that 50% of the fine be paid to the prosecuting authority, SafeWork NSW, a mechanism available in WHS prosecutions.
- Where a confined space requires entry for cleaning or maintenance, the court's findings underscore that the absence of external isolation controls (such as lockout/tagout systems and emergency stops) and only partially completed entry permits constitute identifiable and particularised failures to comply with a duty of care.
- Victim impact statements from family members of deceased workers are accepted by the sentencing court as material relevant to understanding the harm caused by the offence, even where the court's ultimate task is to apply binding sentencing principles rather than to respond to the family's sense of loss.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 16, 19, 32, 274
- Work Health and Safety Regulation 2017 (NSW), cll 66, 70, 74, 76
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases
- Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Workcover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125
- Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (1999) 95 IR 383
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- BW v R [2011] NSWCCA 176