Citation: SafeWork NSW v Penrose Pine Products Pty Ltd [2021] NSWDC 45
Court: District Court of New South Wales
Date: 5 March 2021
Judge: Strathdee DCJ
Background
The defendant company operated a timber sawmill at Penrose, New South Wales, employing approximately 35 workers. As part of its operations, the defendant ran a "Small Waste Conveyor" in the chipper area, which processed waste wood into wood chips. The conveyor was critical to production: if it stopped, the entire Green Mill came to a halt.
Workers regularly cleaned sawdust and wood chip build-up from underneath the conveyor while it was still running, using sticks, shovels, brooms, and in at least one case, bare hands. The conveyor's underside was not adequately guarded, a hinged mesh guard was neither interlocked nor bolted shut, and emergency stops were not accessible to anyone who came into contact with moving parts. There was no documented safe work procedure for this cleaning task, no physical barrier preventing access, and no supervision.
SafeWork NSW prosecuted the defendant for failing to comply with its primary health and safety duty under the Work Health and Safety Act 2011 (NSW), thereby exposing workers to a risk of death or serious injury. The defendant pleaded guilty after an Amended Summons was filed on 9 November 2020.
Legal Issues
- Whether the defendant failed to discharge 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 workers
- The appropriate penalty for a Category 2 offence under s 32 of the Act, which carries a maximum fine of $1,500,000 for a corporation
- The weight to be given to objective seriousness, aggravating factors, mitigating factors, and the utilitarian value of a guilty plea
- The relevance of the defendant's prior convictions and post-incident remediation to specific deterrence
Decision
Strathdee DCJ found that the defendant's failures were multiple and compounding. There was no adequate guarding of the conveyor's underside, no interlocked or secured hinged guard, no documented system of work for the cleaning task, no physical barrier preventing access, and no supervision of workers who routinely cleaned the conveyor while it was running. The defendant's own Safety Booklet acknowledged the importance of guarding moving parts, yet a number of its provisions were simply not implemented.
The court assessed the offence as occupying a position of moderate objective seriousness. The risk of significant injury was reasonably high, constituting an aggravating factor. Against this, the court accepted several mitigating factors: the defendant cooperated with SafeWork's investigation, the director expressed genuine remorse and contrition, and the defendant had been a longstanding and community-engaged employer. The defendant did have prior convictions, but the prosecutor did not press these as aggravating factors, and the court treated them simply as limiting the leniency that might otherwise have applied.
The court placed significant weight on the defendant's post-incident response. Within two days, the defendant arranged for compressed air to replace manual cleaning under the conveyor, a step described as all but eliminating the risk. The defendant also undertook a broader safety review of the entire mill. These steps led the court to conclude that specific deterrence was of minimal importance and that the likelihood of reoffending was low. General deterrence, however, remained a relevant consideration.
A 25% reduction was applied to the notional fine of $100,000 to reflect the utilitarian value of the guilty plea entered immediately after the Amended Summons was filed, resulting in a final fine of $75,000.
Orders Made
- The defendant was convicted of the offence under s 32 of the Work Health and Safety Act 2011 (NSW)
- A fine of $75,000 was imposed (reduced from a notional $100,000 by 25% for the guilty plea)
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor
- The defendant is to pay the prosecution's costs as agreed or assessed
Key Takeaways
- A defendant's genuine post-incident remediation can significantly reduce the weight given to specific deterrence in WHS sentencing, even where the underlying breach was serious.
- Prior convictions did not function as an aggravating factor here because the prosecutor did not press them as such; their practical effect was to limit the degree of leniency otherwise available to the defendant.
- Under s 22A(3)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a guilty plea entered promptly after the filing of an amended summons attracted a 25% discount for its utilitarian value.
- The District Court applied the principle that guarding requirements for plant and equipment are well established in both the Work Health and Safety Regulation 2017 (NSW) and the SafeWork NSW Code of Practice, such that failure to implement them is an acknowledged and identifiable breach.
- Where workers routinely perform hazardous tasks without instruction, supervision, or a documented safe work procedure, the absence of those controls weighs toward a finding of greater objective seriousness.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 7, 8, 19(1), 32, 274
- Work Health and Safety Regulation 2011 (Cth), cl 208(2)
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22A
- Fines Act 1996 (NSW), s 122(2)
Cases
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
- Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
- Markarian v The Queen (2005) 228 CLR 357
- R v Miria [2009] NSWCCA 68
- SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632
- WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151