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District Court 15 March 2023

SafeWork NSW v MON Natural Foods Pty Ltd

[2023] NSWDC 55

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v MON Natural Foods Pty Ltd [2023] NSWDC 55
Court: District Court of New South Wales
Date: 15 March 2023
Judge: Strathdee DCJ

Background

The defendant, a food manufacturing company operating a processing facility in Barooga NSW, was prosecuted under the Work Health and Safety Act 2011 (NSW) following the death of a worker. On 20 December 2019, a licensed electrician was fatally injured while standing in an elevated workbox attached to a forklift, performing cabling work for CCTV cameras at height inside a loading dock.

The workbox had been designed for use with a rear frame safety attachment, which functions as a physical barrier between the occupant and surrounding structures. That rear frame had been removed from the workbox at least two weeks before the incident and was not in place on the day. An apprentice electrician, who had never operated a forklift to raise a person in a workbox, was operating the forklift. While leaning out of the cab to inspect a cable on the ground, he accidentally contacted the joystick controls, causing the workbox to rise unexpectedly. The worker's head was crushed between the workbox rail and the loading dock roof structure. He was not wearing a helmet and did not survive.

The defendant pleaded guilty to failing to comply with its primary duty under s 19(1) of the WHS Act, thereby exposing the worker to a risk of serious injury or death, contrary to s 32 of that Act.

  • What was the appropriate sentence for the defendant's guilty plea to a Category 2 WHS offence, given a maximum penalty of $1.5 million?
  • How should the objective seriousness of the offence be assessed, including the nature and foreseeability of the risk and the adequacy of the defendant's systems of work?
  • What weight should be given to mitigating factors, including the early guilty plea, remorse, cooperation with the investigation, and post-incident remediation?
  • What discount applied to the fine for the utilitarian value of the guilty plea?

Decision

The District Court assessed the objective seriousness of the offence as significant. The defendant had sourced the forklift and workbox from different manufacturers without conducting any risk assessment of their combined use. It failed to implement its own Risk Management Procedure and Plant Safety Procedure, neither of which had been put into operation on the premises. The rear safety frame had been removed without documentation, workers were not trained on its necessity, and no safe work method statement existed for the task being performed.

The court found that the risk was foreseeable and the measures required to eliminate or minimise it were readily available. The rear frame was a manufacturer-specified safety component. Industry guidelines and relevant regulatory provisions under the Work Health and Safety Regulation 2017 (NSW) required the defendant to manage risks associated with plant and to ensure safety features were used in accordance with manufacturer instructions. None of those obligations were met.

In mitigation, the court accepted that the defendant had no prior convictions, cooperated with SafeWork during the investigation, entered an early guilty plea, demonstrated genuine remorse and contrition through affidavit evidence, and took prompt remedial action after the incident (including disposing of the workbox and engaging external safety experts). Financial and moral support was also provided to the deceased's family, and counselling was made available to employees present on the day.

The court set the appropriate base fine at $600,000 and then applied a 25% discount for the utilitarian value of the early guilty plea, consistent with the principles in R v Thomson & Houlton (2000) 49 NSWLR 383. The resulting fine was $450,000.

Orders Made

  • The defendant is convicted.
  • A fine of $600,000 is reduced by 25% for the early guilty plea, resulting in a fine of $450,000.
  • Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine ($225,000) is to be paid to the prosecutor (SafeWork NSW).
  • The defendant is to pay the prosecutor's costs, as agreed or assessed, pursuant to s 257B of the Criminal Procedure Act 1986 (NSW).

Key Takeaways

  • A company that sources plant components from separate manufacturers without conducting combined-use risk assessments, and that fails to implement its own documented safety procedures, faces significant objective culpability under the WHS Act even in the absence of prior convictions.

  • Under s 32 of the WHS Act (Category 2 offence), the maximum penalty at the time was $1.5 million for a corporation; the District Court imposed a base fine of $600,000, reflecting meaningful but not maximum objective seriousness.

  • Where a defendant enters an early guilty plea and demonstrates remorse, cooperation, and genuine post-incident remediation, a 25% discount on the fine for the utilitarian value of the plea remains available to a corporate offender.

  • The presence of a manufacturer's safety warning affixed directly to the equipment (stating the rear frame must be in place before use) was a material factor in the court's assessment of foreseeability and the adequacy, or inadequacy, of the defendant's risk management.

  • Prompt remedial steps taken after an incident, including engaging external safety experts and providing support to an affected worker's family, are relevant mitigating factors in WHS sentencing, though they do not displace the significance of the underlying systemic failures.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2017 (NSW), cll 203, 206(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)

Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Markarian v The Queen (2005) 228 CLR 357
- 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
- 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
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531