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District Court 1 December 2023

SafeWork NSW v Royal Touch Paper Products Pty Ltd

[2023] NSWDC 533

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS RISK OF DEATH OR SERIOUS INJURY MAXIMUM PENALTY SENTENCE

Citation: SafeWork NSW v Royal Touch Paper Products Pty Ltd [2023] NSWDC 533
Court: District Court of New South Wales
Date: 1 December 2023
Judge: Strathdee DCJ

Background

The defendant, a New South Wales paper products manufacturer, employed approximately 30 workers at its Milperra premises. In early 2021 it engaged a casual machine operator who had no prior machine operation experience and had worked at the premises only once before the incident.

On 13 March 2021, the worker was assigned to operate a core cutting machine, a device fitted with rotating drop blades used to cut cardboard rolls. She was set up on the machine by a more experienced worker, who then left the premises. No supervisor was on site, no other workers could see her, and the emergency stop button was positioned out of easy reach for a seated operator.

At around 9:00am, both of the worker's arms became entangled in the machine's rotating blades while she was removing cut rolls. She was unable to reach the emergency stop button and called out for approximately ten minutes before colleagues heard her from the other side of the warehouse. She sustained partial amputation of her left arm and severe lacerations to her right arm, spending three days in intensive care and ten days in hospital. The defendant pleaded guilty to an offence under section 32 of the Work Health and Safety Act 2011 (NSW).

  • What was the appropriate penalty for the defendant's contravention of section 32 of the WHS Act, having regard to the objective seriousness of the offence?
  • What weight should be given to mitigating factors including the early guilty plea, the defendant's prior good character, remorse, cooperation, and prospects of rehabilitation?
  • Whether any aggravating factors applied to the sentencing exercise.
  • What discount was appropriate for the utilitarian value of the early guilty plea?
  • What costs order should be made in favour of the prosecutor?

Decision

Strathdee DCJ assessed the objective seriousness of the offence against a maximum penalty of $1,766,130. The court identified a range of failures contributing to the risk: the machine's guarding was inadequate, protecting only against contact from above; the defendant lacked a daily maintenance checklist; supervision arrangements were unclear and no supervisor was present on the day; and a newly engaged worker with no machine experience was left to operate dangerous equipment alone with no one in sight.

The court accepted several mitigating factors in the defendant's favour. The defendant had no prior convictions, cooperated with SafeWork NSW during its investigation, and had taken steps to remediate its safety practices following the incident. The sole director's affidavit expressed acceptance of responsibility and genuine regret for the impact on the injured worker and her family. The court also accepted that the defendant was unlikely to reoffend and had good prospects of rehabilitation. Charitable contributions and community involvement were noted as evidence of good corporate character.

On the question of the guilty plea, the court was satisfied that the plea was entered early and accepted the prosecutor's submission that the maximum discount of 25% was available. This discount was applied in accordance with the principles in R v Thomson & Houlton (2000) 49 NSWLR 383 and the relevant provisions of the Crimes (Sentencing Procedure) Act 1999.

The court determined that a base fine of $400,000 was appropriate before the application of the plea discount. Reduced by 25%, the final fine imposed was $300,000. Costs in the agreed sum of $27,500 were also ordered in favour of the prosecutor.

Orders Made

  • The defendant is convicted of the offence under section 32 of the Work Health and Safety Act 2011 (NSW).
  • A fine of $300,000 is imposed (reflecting a base fine of $400,000 reduced by 25% for the early guilty plea).
  • Pursuant to section 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 prosecutor's costs in the agreed sum of $27,500.

Key Takeaways

  • A conviction under section 32 of the WHS Act was recorded against a corporate defendant where a newly engaged, inexperienced worker was left unsupervised to operate a machine with inadequate guarding, resulting in partial arm amputation.
  • The maximum available penalty functions as a legislative indicator of the seriousness with which Parliament regards WHS offences, and the court calibrated the base fine by reference to the full range.
  • An early guilty plea attracted the maximum utilitarian discount of 25%, consistent with the framework in R v Thomson & Houlton, reducing the fine from $400,000 to $300,000.
  • Where a defendant demonstrates genuine remorse, cooperation with investigators, remediation of unsafe conditions, and good corporate character, these mitigating factors will carry weight at sentencing, even where the objective circumstances of the offence are serious.
  • Under section 122(2) of the Fines Act 1996 (NSW) and section 257B of the Criminal Procedure Act 1986 (NSW), the court ordered both a share of the fine and agreed costs to be paid to the prosecutor, reinforcing that financial consequences in WHS prosecutions extend beyond the penalty itself.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), s 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)

Cases
- Markarian v The Queen (2005) 228 CLR 357
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Muldrock v The Queen (2011) 244 CLR 120
- Veen v R (No 2) (1988) 164 CLR 465
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632