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District Court 24 November 2022

SafeWork NSW v MMP Industrial Pty Ltd

[2022] NSWDC 581

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS DUTY OF EMPLOYERS RISK OF D EATH OR SERIOUS INJURY

Citation: SafeWork NSW v MMP Industrial Pty Ltd [2022] NSWDC 581
Court: District Court of New South Wales
Date: 24 November 2022
Judge: Scotting DCJ

Background

MMP Industrial Pty Ltd is a manufacturer and supplier of industrial and aerosol paint products operating out of a site in Mulgrave, New South Wales. The company ran a 60-year-old gasket paste packing machine (the Gasket Machine) that required workers to manually insert and remove tubes in close proximity to a crimping mechanism. The guarding around the machine was inadequate: an L-shaped gap allowed workers to access moving parts, and the machine could be restarted while guards were not in place.

A 57-year-old process line worker, referred to by role as the injured worker, sustained injuries when exposed to the risk created by those inadequate conditions. MMP had no formal risk assessment, no adequate Safe Work Method Statement, and no Safe Operating Procedure for the Gasket Machine. Workers relied on an informal verbal system to coordinate machine restarts during cleaning and maintenance.

SafeWork NSW prosecuted MMP under the Work Health and Safety Act 2011. MMP pleaded guilty to failing to comply with its primary health and safety duty under s 19(1) of that Act, thereby exposing the injured worker to a risk of death or serious injury, contrary to s 32 of the Act.

  • The appropriate sentence, including fine quantum, for a Category 2 WHS offence under s 32 of the Work Health and Safety Act 2011
  • The objective seriousness of the offending conduct
  • The weight to be given to general and specific deterrence
  • Whether the statutory aggravating factor of substantial injury or harm was established
  • Which mitigating factors applied, including rehabilitation, remorse, guilty plea, and cooperation with investigators
  • The appropriate discount for MMP's early guilty plea

Decision

The District Court assessed the offending as being of moderate objective seriousness. MMP had a clear duty to ensure the safety of its workers and failed to discharge it through a combination of deficient guarding, the absence of formal safety procedures, and a reliance on informal verbal communication between workers during machine restarts. The Gasket Machine was approximately 60 years old, newer alternatives with safer designs were available, and MMP did not hold the manufacturer's operating instructions.

The Court placed significant weight on specific deterrence. In the period leading up to the incident, SafeWork NSW inspectors had issued MMP with multiple improvement notices, at least 25 of which related specifically to inadequate guarding of machinery. The Court found MMP had received more than fair warning that its machinery and systems were deficient and had not responded adequately.

On aggravation, the Court found that the injuries sustained by the worker were sufficient to establish substantial harm beyond what is ordinarily required to constitute the offence, which requires only the creation of a risk rather than actual injury. On mitigation, the Court accepted that MMP had good prospects of rehabilitation, having taken significant steps to upgrade its safety systems following the incident. Remorse was accepted through the director's personal acknowledgment of responsibility. Cooperation with SafeWork's investigation was also noted as a mitigating factor.

The Court set a pre-discount fine of $350,000 and applied a 25% reduction for the guilty plea, arriving at a final fine of $262,500.

Orders Made

  • MMP Industrial Pty Ltd convicted of the offence under s 32 of the Work Health and Safety Act 2011
  • Fine of $262,500 imposed (reduced from $350,000 by a 25% guilty plea discount)
  • MMP ordered to pay the prosecutor's costs of the proceedings, as agreed or assessed
  • 50% of the fine ordered to be paid to the prosecutor (SafeWork NSW) pursuant to s 122(2) of the Fines Act 1996

Key Takeaways

  • A 25% discount for a guilty plea was applied in a WHS prosecution where the plea indicated both utilitarian value and genuine remorse, consistent with the principles in R v Thomson & Houlton and R v Borkowski.
  • Under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, the aggravating factor of substantial injury requires the sentencing court to be satisfied beyond reasonable doubt that the harm was greater or more deleterious than ordinarily expected for the offence. Because the s 32 offence only requires the creation of a risk, actual injury to the worker was sufficient to establish the aggravating factor.
  • Prior regulatory warnings carry significant weight in WHS sentencing. The District Court found that a history of improvement notices specifically targeting inadequate guarding justified increased emphasis on specific deterrence.
  • Mitigating factors including post-incident remediation, demonstrated remorse, and cooperation with investigators were accepted by the District Court, though they did not prevent a substantial fine close to one-quarter of the $1.5 million statutory maximum.
  • Reliance on informal verbal communication between workers as a substitute for formal lockout or restart procedures was identified as a material system failure contributing to the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Fines Act 1996 (NSW), s 122(2)

Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Youkhana [2004] NSWCCA 412