Citation: SafeWork NSW v Epic Machinery Pty Ltd [2021] NSWDC 398
Court: District Court of New South Wales
Date: 13 August 2021
Judge: Strathdee DCJ
Background
Epic Machinery Pty Ltd was a small sheet metal manufacturing and engineering business operated by its sole director, with his son managing general operations. A worker, who had previously been a member of a religious charitable community and later invoiced Epic directly for his services, was using a four-metre metal-cutting guillotine at Epic's Picton workshop in August 2018.
The machine had been traded into Epic roughly a year earlier for repairs and was not intended for general use on site. Its front blade guard had been removed to facilitate inspection and repair, leaving the ram and blade exposed. The machine remained accessible and was not locked out, had no warning signage, and no risk assessment or safe work procedure had been prepared for its use in that condition.
While operating the machine to cut sheet metal, the worker turned away to retrieve the foot pedal. When he turned back, the machine activated. The descending ram and blade crushed four fingers on his right hand and the tips of two fingers on his left. He was 33 years old at the time. Four fingers on his right hand were subsequently amputated.
Legal Issues
- Whether Epic Machinery failed to comply with its primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), thereby exposing the worker to a risk of death or serious injury, constituting an offence under s 32 of that Act.
- What penalty was appropriate having regard to the objective seriousness of the offence, relevant mitigating and aggravating factors, the defendant's financial capacity, general and specific deterrence, and the totality of the sentence including prosecution costs.
- What discount, if any, applied to the fine by reason of the early guilty plea.
Decision
Epic entered a guilty plea on 3 May 2021. Strathdee DCJ identified the objective seriousness of the offence as the primary sentencing consideration, with subjective factors playing a subsidiary role. The risk of serious injury from an unguarded industrial guillotine was obvious and foreseeable, readily available guidance material existed on machinery guarding, and the remedial measures required were straightforward. Multiple layers of protection were entirely absent: no lockout, no signage, no safe work procedures, no supervision, and no risk assessment.
The court acknowledged mitigating factors, including the guilty plea, the defendant's remorse, the absence of prior convictions, and post-incident remediation steps taken promptly by Epic. The business received a 25% discount on the fine for its early guilty plea, consistent with the approach under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
On financial capacity, the court accepted that Epic had received government assistance (including JobKeeper payments and a rural assistance loan) and might face difficulty paying a substantial fine. However, the business remained viable with increasing turnover, and the court exercised only limited leniency on that basis. The court also took into account the prosecution costs and Epic's own legal costs as components of the overall financial burden, consistent with the approach in Environmental Protection Authority v Barnes [2006] NSWCCA 246.
Applying the "instinctive synthesis" method endorsed in Markarian v The Queen (2005) 228 CLR 357, the court determined that a base fine of $200,000 was appropriate. Reduced by the 25% guilty plea discount, the final fine was $150,000. Both general and specific deterrence required a meaningful penalty, and the court declined to reduce the fine to a level that would fail to signal the seriousness of employers' obligations to protect workers from foreseeable injury.
Orders Made
- Epic Machinery Pty Ltd is convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW).
- A fine of $150,000 is imposed (base fine of $200,000, reduced by 25% for the early guilty plea).
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to SafeWork NSW as prosecutor.
- The defendant is to pay the prosecutor's agreed costs of $43,247.20, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- A conviction under s 32 of the Work Health and Safety Act 2011 (NSW) requires proof that the defendant failed to comply with a duty under the Act and thereby exposed a person to a risk of death or serious injury. The maximum penalty for a corporation is $1,500,000.
- Objective seriousness is the primary sentencing consideration in WHS prosecutions; subjective factors, including financial hardship and remediation, play a secondary role and cannot displace the need for a penalty that adequately reflects the gravity of the breach.
- Where a risk is obvious, relevant industry guidance is available, and the measures required to address the risk are straightforward, courts will treat the failure to implement those measures as a significant aggravating feature of objective seriousness.
- Prosecution costs and the defendant's own legal costs form part of the overall financial penalty and are properly taken into account in calibrating the fine, particularly where capacity to pay is in issue.
- An early guilty plea attracted a 25% discount, and limited leniency was extended for financial constraints, but neither factor reduced the fine to a level the court considered insufficient for general or specific deterrence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), s 122(2)
- Criminal Procedure Act 1986 (NSW), s 257B
Cases
- Markarian v The Queen (2005) 228 CLR 357
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Orbit Drilling v The Queen (2012) 35 VR 399
- Veen v R (No 2) (1988) 164 CLR 465
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Environmental Protection Authority v Barnes [2006] NSWCCA 246
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v Poletti Corporation [2019] NSWDC 491
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338