Citation: SafeWork NSW v Ampelite Australia Pty Ltd [2022] NSWDC 22
Court: District Court of New South Wales
Date: 22 February 2022
Judge: Russell SC DCJ
Background
Ampelite Australia Pty Ltd is a manufacturer of fibreglass and polycarbonate roof sheets, ventilators, and skylights, operating a factory at Mount Druitt, NSW, with approximately 130 employees nationally. On 12 April 2019, a worker, Mr Anitema Pasi, was operating a mechanical power press at the site. His chair slipped, his foot accidentally activated the press, and the unguarded machine crushed his right hand and fingers, causing the complete amputation of his right index and middle fingers and partial amputation of his right ring finger.
Ampelite had failed to conduct a risk assessment for use of the press, failed to maintain or install adequate guarding, failed to install a shroud over the foot pedal to prevent inadvertent activation, and failed to provide adequate instruction, training, or supervision to workers. The company also failed to notify SafeWork NSW of the incident immediately after becoming aware of it. SafeWork NSW's officers only learned of the incident when they attended the site on 21 May 2019, over five weeks later.
Ampelite pleaded guilty to two separate offences: failing to comply with its primary work health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the primary offence, maximum penalty $1,500,000), and failing to notify the regulator of a notifiable incident under s 38(1) of the same Act (maximum penalty $50,000).
Legal Issues
- What was the objective seriousness of each offence, having regard to the nature and extent of the risk, the degree of departure from the required standard, and the severity of actual harm caused?
- What mitigating and aggravating factors applied to sentencing?
- What discount, if any, should apply to reflect the early guilty plea?
- What weight should be given to the purposes of general and specific deterrence?
- Whether Ampelite's capacity to pay a fine was a relevant consideration.
- Whether the agreed prosecution costs of $46,000 should be ordered.
Decision
Russell SC DCJ assessed the objective seriousness of the primary offence as lying in the low-to-moderate range. The risk of crush injury from an unguarded mechanical press was foreseeable and well-known. Multiple, readily available control measures had not been implemented, including guarding, interlocking mechanisms, a foot-pedal shroud, safe work procedures, and adequate worker training. The injury sustained, including the loss of fingers, was severe and irreversible.
On the s 38 notification offence, the court found the failure was straightforward. Ampelite was aware of the incident on the day it occurred, yet never notified SafeWork NSW at all. The regulator only became aware through its own attendance at the site more than five weeks later. The failure was assessed as a matter of low objective seriousness given the maximum penalty applicable, but a penalty was nonetheless warranted.
In mitigation, the court took into account Ampelite's early guilty plea, its genuine remorse, its lack of prior convictions, post-incident remediation steps (including installation of guarding and engagement of a WHS consultant), and its cooperation with the prosecution. There were no significant aggravating factors beyond the severity of the actual injury, which informed the objective seriousness assessment rather than being double-counted as a separate aggravating feature.
The court applied a 25% discount to each penalty to reflect the early guilty pleas, reducing the primary fine from $180,000 to $135,000, and the notification fine from $16,000 to $12,000. No issue as to capacity to pay arose, as no submission on that point was made. The court also ordered that 50% of each fine be paid to the prosecutor pursuant to s 122(2) of the Fines Act 1996 (NSW), and ordered Ampelite to pay agreed prosecution costs of $46,000.
Orders Made
In proceedings relating to the s 19(1) primary duty offence:
- Ampelite Australia Pty Ltd convicted.
- Fine of $135,000 imposed (reduced by 25% from $180,000 for early guilty plea).
- 50% of the fine ordered to be paid to the prosecutor (pursuant to s 122(2) of the Fines Act 1996 (NSW)).
- Ampelite ordered to pay agreed prosecution costs of $46,000.
In proceedings relating to the s 38(1) notification offence:
- Ampelite Australia Pty Ltd convicted.
- Fine of $12,000 imposed (reduced by 25% from $16,000 for early guilty plea).
- 50% of the fine ordered to be paid to the prosecutor (pursuant to s 122(2) of the Fines Act 1996 (NSW)).
- No order as to costs.
Key Takeaways
- The District Court assessed objective seriousness in the low-to-moderate range where multiple basic and readily available safety controls were absent, the risk was foreseeable, and the resulting injury was severe and permanent.
- A 25% discount applied to both penalties for early guilty pleas, consistent with the approach under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Failure to notify the regulator of a notifiable incident under s 38(1) of the WHS Act 2011 (NSW) constitutes a distinct offence carrying its own penalty, and a complete failure to notify at all, rather than merely a delay, was treated as a discrete breach.
- Post-incident remediation, genuine remorse, absence of prior convictions, and cooperation with prosecutors were all identified as mitigating factors reducing the appropriate penalty.
- Under s 122(2) of the Fines Act 1996 (NSW), the court has power to direct that a portion of a fine be paid to the prosecuting authority; the court exercised that power here, directing 50% of each fine to SafeWork NSW.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 38
- Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 36, 37, 38, 203, 208
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (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
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465