RESOURCE RECOVERY SOLUTIONS PTY LTD -v- AYTON [No 2] [2022] WASC 142 (27 April 2022)

2 Following a hearing as to sentence on 9 November 2020, the appellant was fined $310,000 on Charge PE 39876/18, and $20,000 on Charge PE 39837/18, and ordered to pay costs of $234,000.

3 The appellant sought leave to appeal each conviction on nine grounds of appeal[1] in a notice of appeal dated 30 November 2020.

4 On 10 December 2021, leave to appeal was granted on grounds 7, 8 and 9 of the appeal, and the appeal allowed against conviction:

(a) for the offence contravening s 19(1) of the OSH Act in circumstances of gross negligence contrary to s 19A(1) of the OSH Act (Charge PE 39876/18); and

(b) for the offence of failing to comply with an improvement notice contrary to s 48(4) and s 54 of the OSH Act (Charge PE 39837/18).

5 Orders were made in the appeal on 10 December 2021 setting aside:

(a) the conviction of the offence against s 19A(1) and in lieu thereof the appellant was convicted of an offence against s 19A(2) (being the general duty offence absent the circumstances of aggravation of gross negligence) pursuant to s 19A(4)(a) of the OSH Act;

(b) the conviction of the offence of failing to comply with an improvement notice and in lieu thereof a judgement of acquittal was entered; and

(c) the costs order made by the magistrate.

6 Orders were also made to program a further hearing as to resentencing of the appellant and the filing of written submissions in respect of the general duty offence in Charge PE 39876/18.

7 At the conclusion of the resentencing hearing, an order was made that the fine imposed by Magistrate L Dias on 9 November 2020 in respect of PE 39876/18 of $310,000 is set aside and, in lieu thereof, the appellant is fined $230,000.

8 By consent of the parties, it was agreed that there be no order as to the costs of the appeal, and no order as to the costs of the trial.

9 These are the reasons why I formed the opinion that a fine of $230,000 is the appropriate penalty for the general duty offence, having regard to all relevant circumstances, including the mitigating factors.

2.0 Sentencing principles 2.1 General principles of sentencing

(a) s 6(1) of the Sentencing Act 1995 (WA) requires that the sentence imposed must be commensurate with the seriousness of the offence; and

(b) s 6(2) of the Sentencing Act requires that the seriousness of the offence be determined by taking into account: the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors.

11 The maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which the penalty is prescribed.[2]

2.2 Sentencing factors that apply to the determination of appropriate penalty of breaches of a failure to maintain a safe work environment contrary to the OSH Act

12 In Ayton v City of Armadale, the Court of Appeal recently set out the principles applicable to determining an appropriate penalty for a breach of statutory duty imposed upon an employer under the OSH Act.[3] These principles are as follows:[4]

(1) The primary factor in determining the appropriate penalty is the objective seriousness of the offence.

(2) To a substantial extent, the seriousness of a breach must be assessed by reference to the foreseeable potential consequences and the measure of disregard concerning the safety of the persons to whom the employer has a duty to protect in all of the circumstances of the case.

(3) Particularly in cases involving a serious breach of the OSH Act, personal mitigating factors, such as a plea of guilty, cooperation with the investigation and subsequent measures taken to improve safety must play a subsidiary role against the gravity of the offence in determining the appropriate penalty.

(4) The conduct in question is the failure, so far as is 'practicable', to ensure that the safety or health of an employee,[5] is not adversely affected by hazards in the relevant working environment.

(5) The conduct will be more serious where the severity of the potential injury or harm is serious. So too the degree of risk of such potential injury or harm occurring is relevant in assessing the seriousness of the contravening conduct.

(6) The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken. The offender's state of knowledge about these matters should also be taken into account in assessing the seriousness of the offence.

(7) In circumstances where an offender knew, over many years, of the risks of serious injury and the means of avoiding those risks, its failure to take reasonably practical steps to avoid those risks reflects a substantial measure of disregard towards the safety of the persons who are owed the duty.

(8) If an obvious potential risk of serious injury was, in fact, realised, the amount of the fine imposed must reflect that realisation. Where a person was seriously injured as a result of a breach of statutory duty, the amount of the fine must also reflect that realisation.

(9) While there is no tariff for offending against the OSH Act, comparable cases are, potentially, another yardstick against which a sentence may be measured.

13 As to general deterrence, the appellant accepts that general deterrence is a consideration when sentencing an offender under the OSH Act, but in its written submissions argues that it should not be elevated to the same level of importance as the matters prescribed in s 6 of the Sentencing Act, for example, the circumstances of the offence or mitigating factors.

14 However, in Ayton v City of Armadale, the Court of Appeal found that general deterrence with the aim of protecting the public (or employees) from the risk of serious injury is the paramount sentencing consideration for offending under the OSH Act.[6]

15 When this finding of the Court of Appeal in Ayton v City of Armadale was raised, senior counsel for the appellant qualified what was stated in the appellant's written submissions on this point and properly pointed out that when imposing a penalty, regard to general deterrence should not be elevated so as to result in the imposition of a penalty that is disproportionate to the seriousness of the offence.

16 As to the scope of ss 19 and 19A of the OSH Act, pursuant to s 23E(1) ‑ (2) of the OSH Act, a worker (who, for remuneration, carries out work for another person in the course of trade or business) and where the other requirements of s 23E(1) are met, ss 19 and 19A have effect as if the worker were an employee.

17 The appellant provides resource recovery, recycling and waste processing services to a variety of clients in Western Australia, including universities, industry associations and local government councils.

18 It operates its business of recycling material from construction and demolition sites from premises in Bayswater.

19 A number of workers of Sri Lankan origin with limited English were employed by a contractor at the appellant's workplace at Bayswater, Mode 2 Group Pty Ltd (Mode 2), as sorters (also known as pickers) to carry out work at the workplace under the instruction and direction of the appellant. The sorters' role was to pick rubbish at picking stations and also to clear blockages from conveyor belts.

20 The sorters were essentially unskilled and unsophisticated workers who, when the offence occurred in January 2016, were recent arrivals from Sri Lanka, with different backgrounds, a very limited understanding of English, and no previous experience working in a recycling facility.[7]

21 The breach of the general duty offence arose out of an incident on 28 January 2016 at the appellant's recycling facility in Bayswater that caused serious harm to a sorter, Manikandan Rathinasabapathy. His right arm was amputated at the shoulder when he came into contact with the moving parts of a piece of plant known as the 'Diversion Belt'. The Diversion Belt was a conveyor belt located in a part of the recycling facility operated by the appellant known as Area 5.

22 The Diversion Belt was between a rock belt and a crusher belt. It diverted material to the crusher through a screen to a stacker belt. Any material which did not go through the screen went through the Diversion Belt and crusher again. The Diversion Belt and other conveyor belts throughout the workplace were, during each of two daily shifts, subject to regular blockages, which the sorters were required to clear.

23 On 28 January 2016, Manikandan Rathinasabapathy was working in the picking station with other workers. During his shift, the Diversion Belt experienced multiple blockages and Manikandan Rathinasabapathy attended Area 5 with the other workers to clear them.

24 On the final occasion, Manikandan Rathinasabapathy with three sorters and two machine operators attended Area 5 to clear a blockage. The Diversion Belt was switched off to enable clearance. After it had been cleared and switched on for testing, it blocked again, at least once. After the belt was switched off to clear the last blockage, another worker, a machine operator, Sayedreza Mosawe, known as Reza, turned the belt on again. When it was activated and moving, another worker reached in with his hand to remove a small stone from the top left side of the gap between the top and bottom sections of the moving Diversion Belt, and Manikandan Rathinasabapathy put his hands into the bottom end of the roller, where the roller meets the Diversion Belt, to remove a rock or stone. When doing so, his arm was dragged into a pinch point between the belt and roller of the Diversion Belt and was amputated at the shoulder. Reza pushed the emergency button to immediately stop the Diversion Belt. The Diversion Belt was cut to remove Manikandan Rathinasabapathy's arm.

25 An improvement notice had been issued in 2013 which informed the appellant that:[8]

a risk existed in workers accessing plant for the purpose of inspection, repair, maintenance and alteration or cleaning, in the absence of an adequate isolation procedure incorporating a lock‑out element

26 Approximately 11 months prior to the accident, on 4 March 2015, a WorkSafe inspector issued the appellant with an improvement notice after an incident at the workplace on 23 February 2015. The incident occurred when another worker suffered a broken arm when he was dragged into a moving conveyor belt.

27 The improvement notice required the appellant to ensure that all dangerous moving parts of plant at the workplace were adequately guarded in accordance with reg 4.29 of the Occupational Safety and Health Regulations 1996 (WA) by 30 June 2015. The appellant did not return a compliance slip by the date for compliance. WorkSafe followed up with the appellant about compliance with the improvement notice on several occasions during 2015.

28 In November 2015, another worker placed his right hand in the wrong place in Area 5 resulting in a right‑hand index finger and thumb fracture and laceration.[9]

29 On 18 January 2016, a workplace inspector observed that 'significant progress had been made towards providing adequate guarding on all the plant, but there was still considerable work to be done'.[10]

30 On 25 January 2016, the appellant's managing director, Salvatore Mangione, emailed a WorkSafe compliance slip, which he had signed. The compliance slip indicated that all dangerous moving parts of plant at the workplace were now adequately guarded as required by the improvement notice.

31 Following the incident on 28 January 2016, the appellant was charged with the general duty offence in circumstances of gross negligence (PE 39876/18) and failing to comply with the improvement notice issued on 4 March 2015 within the time specified.

32 The effect of allowing grounds 7 and 8 of the appeal is that the aggravating element of the offence alleged in s 19A(1) of the OSH Act of the general duty offence, that is, the allegation of the contravention of s 19(1) occurred in circumstances of gross negligence was set aside. The reason why the circumstance aggravation was set aside was because the presiding magistrate's findings in respect of actual knowledge and disregard went beyond the scope of the prosecution's particulars.[11]

33 The effect of allowing ground 9 of the appeal is that the conviction against the failure to comply with the 2015 improvement notice was set aside. The improvement notice was found to be invalid on grounds that the inspector who issued the improvement notice failed to state in the notice his reasonable grounds for forming the opinion that the person to whom the notice was issued was contravening a provision of the OSH Act.[12]

34 Following the setting aside of the conviction for the offence of failing to comply with the improvement notice, the appellant and respondent agree that in resentencing the appellant for the general duty offence:

(a) the appellant's failure to implement guarding as specified in the improvement notice is not an aggravating factor of the appellant's offending; and

(b) in relation to the knowledge of the appellant, the presiding magistrate in sentencing made findings to the effect that the appellant was wilfully blind in failing to employ the practicable measures specified in particulars 5(c) ‑ (e). The parties agree that these specific findings relate to her Honour's finding of gross negligence, and, in light of this court's decision on appeal, are now of limited relevance for the purposes of sentencing.

35 Notwithstanding this concession, the respondent submits that the appellant's offending is aggravated by the fact that it was on notice and had failed to implement adequate guarding to dangerous moving parts of machinery which were specified in the 2015 improvement notice, which notice directed the appellant to inadequate guarding of numerous items of fixed powered plant, including moving parts where the conveyor belts meet rotating drums and rollers and create in‑running nip points.

3.2 The presiding magistrate's findings in respect of the elements of the offence and the appellant's defence at trial

36 The appellant and the respondent agree that the basis upon which the appellant is to be resentenced is on the findings made by the presiding magistrate as summarised by her Honour's reasons for decision delivered 10 July 2020 at [17] which are as follows:

(1) Manikandan Rathinasabapathy was carrying out work for the appellant for remuneration, under a labour hire arrangement between Mode 2 and the appellant;

(2) particulars 5(b) and 5(c) ‑ (e) of the particularised measures were reasonably practicable. These particulars (together with particular 5(a)) are as follows:

(a) fitted physical guarding in place over the pinch points of the Diversion Belt that prevented a person's body or clothing from coming into contact with it whilst the Diversion Belt was operating, and which could not be removed without the use of a tool or key; and/or

(b) implemented and enforced a system that combined:

(i) a trapped key interlocking system which physically restricted any person from accessing the Diversion Belt at all times when the Diversion Belt was energised; and

(ii) a monitoring system to detect blockages of the Diversion Belt that utilised the observation of images captured by closed circuit television (CCTV) equipment installed in the vicinity of the Diversion Belt; and/or

(c) ensured that persons working at the Workplace were provided with such information on the hazards (including those presented by nip/pinch points), risks (including serious injury or death) and safety controls relevant to working closely with plant containing potentially dangerous moving parts, such as the Diversion Belt, as was necessary to enable them to perform work closely with such plant (including clearing blockages in such plant, and testing and start-up of such plant following attempted blockage clearance) in such a manner that they were not exposed to the Hazard[13] and ensured that those persons understood that information; and/or

(d) ensured that persons working at the Workplace were adequately instructed and trained in a formalised and documented safe working procedure (SWP) for clearing blockages in plant containing potentially dangerous moving parts, such as the Diversion Belt (including testing and start-up of such plant following attempted blockage clearance) which enabled them to perform such work in such a manner that they were not exposed to the hazard, and ensured that those persons understood that instruction and training; and/or

(e) ensured that persons working at the Workplace were provided with direct supervision by the leading shift supervisor or overall plant supervisor/manager to ensure that the SWP is correctly followed at all times when persons working at the Workplace were required to attend to clearing of blockages in plant containing potentially dangerous moving parts, such as the Diversion Belt, or testing and start‑up of such plant following attempted blockage clearance.

(3) these practicable measures were reasonably practicable because:

(i) the potential injury or harm to health from the hazard was serious, which was objectively known to any person in this field, and was known to the appellant;

(ii) there was a high risk of the serious potential injury or harm to health in all of the circumstances. That is, it was known to the appellant or was foreseeable to a reasonable employer in the appellant's position;

(iii) the following means of removing or mitigating the risk or mitigating the potential injury or harm to health were objectively known to any person in this field:

1. implement the system that was employed following the incident combining (particular 5(b)):

   1. a trapped key interlocking system restricting access to the Diversion Belt when energised; and

   2. a monitoring system to detect blockages of the Diversion Belt using closed‑circuit television (CCTV) facilities; and

   3. provide all relevant workers with adequate information, instruction, training and supervision to enable them to perform their work safely (particulars 5(c) ‑ (e));

(iv) the above measures were relatively available, suitable and cost-effective; and

(4) the breach in respect of each of these particulars caused Manikandan Rathinasabapathy's injuries.

37 In respect of each of these particulars, her Honour relevantly made the following findings, which go to the serious nature of the general duty offence committed by the appellant.

38 Her Honour relevantly found that there was no evidence that the proposed guarding could physically be installed in the location when the Diversion Belt was pulled out for operation, and that guarding would have to be removed whenever the Diversion Belt blocked in order to remove any blockage. Her Honour also found that there was no evidence that it would be practical to remove the guarding to attend blockages, which occurred regularly and randomly. Consequently, her Honour was not satisfied beyond reasonable doubt that it was practical for the appellant to fit physical guarding in place over the pinch points of the Diversion Belt as particularised in par 5(a) of the practicable measures.

39 The presiding magistrate observed that the cornerstone of the appellant's defence to the breach of duty charges was that it had implemented a standard blockage procedure to clear conveyor blockages after the earlier accident, which resulted in the worker's arm being broken and the improvement notice being issued to the appellant.[14] It was implicit in this procedure that workers were not to use their hands to clear blockages of running belts.[15] The procedure comprised a number of steps including, among other things, isolation of the belt and padlock the motor switch, prior to clearance.

40 Her Honour found in respect of this procedure that:[16]

(a) it was not implemented consistently, or at all. The appellant failed to implement a safe work procedure which applied to all blockage clearances of conveyor belts;

(b) the sorters used their hands to clear small blockages from operating/running conveyor belts. The belts were not isolated and the motor switch was not padlocked before clearing blockages. The sorters did not consistently use padlocks for the motor switches of conveyor belts and were not consistently given a verbal cue to stand back or move away prior to the operator turning a belt on to test it;

(c) the sorters did not receive adequate information, instruction, training and supervision in relation to the procedure and about hazards, risks and safety controls, to prevent them from using their hands to clear blockages from moving belts. Therefore, the sorters were not aware, or lacked understanding of the procedure;

(d) the procedure was not implemented immediately prior to the accident; and

(e) the area 5 gate was consistently open during operation of the plant in Area 5.

41 Importantly, as to the seriousness of the offence:

(1) her Honour accepted the sorters' evidence that, prior to the accident on 28 January 2016, neither at the toolbox meetings nor otherwise, did they receive instructions:[17]

(a) on the need to isolate and lock out conveyor belts, specifically the Diversion Belt, using a padlock before the belt could be cleared, or how to use the locks;

(b) not to use their hands to clear blockages (reach into a machine) while the belt was running or that machines should be turned off when clearing blockages;

(c) regarding a verbal cue to stand back from a belt which had been isolated, prior to the belt being switched on for testing; and

(d) about the Area 5 Gate, or to make sure it was kept closed. This was reinforced by the evidence that some sorters did not know about the Area 5 Gate.

Sorters provided evidence that the main thing Clarke made clear to them was that they needed to clear blockages quickly.

(2) as to the system of work that was in place, her Honour found that the sorters were initially trained under a buddy system and relied on each other to learn the job. Her Honour also found the sorters were left to their own devices to perform a hazardous job, which they were required to perform under time pressure;[18]

(3) her Honour found it was questionable whether a blockage procedure was in existence, and in any event, her Honour found the procedure was so inadequate as to amount to no procedure at all. Further, her Honour found in the context in which it occurred, the contravention represented a complete departure from acceptable safe work systems.[19]

42 Her Honour found it was practicable for the appellant to:

(a) implement and enforce a trapped key interlocking system which physically restricted any person from accessing the Diversion Belt at times when it was energised; and

(b) a monitoring system to detect blockages by CCTV equipment installed in the vicinity of the Diversion Belt.

43 In her Honour's sentencing remarks her Honour also noted that, following the accident, the appellant had engaged an external health and safety consultant to provide advice and work together with the appellant to develop a suite of formalised safe work method statements and implement additional changes which included the installation of the interlock gates and the CCTV monitoring system. In addition, it had engaged other external safety and health consultants to carry out regular inspections and carry out monthly safety audits and had engaged an engineering or RSA engineer to carry out periodical reviews of the material handling and safety procedures at the workplace.[20]

44 Following Manikandan Rathinasabapathy's accident, the appellant shut down the plant in Area 5 and engaged the services of an external health and safety consultant, Elkington Safety Solutions Pty Ltd, to provide advice on improving the health and safety of the workplace and particularly the work procedures relating to the use of the Diversion Belt in Area 5. Elkington worked with the appellant to develop a suite of formalised safe work method statements and implement a number of additional changes, which included introducing a system that combined the trapped key interlocking gate system for Area 5 and a CCTV monitoring system.[21]

45 The trapped key interlocking system was designed so that the plant could not be restarted unless the gate was closed, and comprises the use of a gate key which could not be accessed unless the whole plant was turned off and must be returned to the mechanical isolation key rack after a blockage has been cleared, which enables the whole plant to be turned back on.[22]

46 Through external consultants, the appellant developed six formalised and documented safe work method statements, including specifically for lockout and start up, Area 5 blockages and repairs, and the Area 5 Diversion Belt. The appellant started monthly training for the sorters in each of these procedures.[23]

47 The appellant also introduced other procedures and implemented formal training, which was information and training in respect of isolation and tag out, a shutdown end of day procedure, an instant waste safety system, training attendance record ‑ induction for employees, induction checklists, training attendance record ‑ working safely presentation and training attendance sheets.[24]

48 The appellant also engaged external consultants to carry out the following work:[25]

(a) RRS engaged an external safety and health consultant, Tania Saggers‑Clarke to carry out fortnightly inspections of the Workplace from about March 2016 to November 2019.

(b) RRS engaged RSA Engineering (RSA) to carry out periodical reviews of the material handling and safety procedures of the Workplace. Pursuant to that engagement, RSA inspected and reviewed the Workplace in July and August 2017, March 2019 and April 2020. RRS intends to continue with RSA's engagement.

(c) At RRS' request, RSA also carried out two inspections of selected areas of the Workplace / items of plant in February and April 2016 to confirm they were structurally and mechanically safe.

(d) RRS has engaged another external safety and health consultant, Millenium Safetynet Services (MSS) to carry out monthly safety audits of the Workplace from November 2019. RRS intends to continue using MMS to carry out monthly safety audits.

49 In her Honour's reasons for entering a conviction, her Honour had regard to the introduction of the combined trapped key interlocking system for Area 5 and the CCTV monitoring system, which were introduced pursuant to the advice of a safety consultant. Her Honour found that this combined system could have been introduced prior to the accident.[26]

50 Her Honour found when delivering her reasons for decision on conviction[27] and in her sentencing remarks that the fact that remedial measures had been subsequently taken tended to emphasise that the measures could have been taken prior to the accident.[28] Her Honour also found that the six formalised and documented safe work method statements and other changes introduced by the appellant to provide information instruction and training to the workers had clearly improved the level of safety information provided to workers.[29]

51 Her Honour also noted in her sentencing remarks that the appellant no longer uses the Diversion Belt or other plant in Area 5 because after the accident, the appellant made the decision to cease crushing activities at the workplace.[30]

52 At the time of sentencing by the presiding magistrate, information was put before the Magistrates Court about an accident that occurred at the workplace in 2013 that resulted in the death of an employee. Her Honour did not have regard to the circumstances of this accident, or to the fact that the appellant was subsequently convicted of a breach of s 19(1) and s 19A(2) of the OSH Act as a result of this accident.

53 I too have not had regard to the fact that a worker died on 9 September 2013 as a result of a breach of statutory duty by the appellant. This is because:

(a) the conviction was entered on 14 October 2016 following a guilty plea by the appellant, and after the date of the general duty offence for which the appellant is being resentenced in this matter. Consequently, for sentencing purposes, the appellant is required to be sentenced as a first offender against the OSH Act; and

(b) having had regard to the description of the prosecution details of that offence attached as an appendix to the outline of the prosecutor's sentencing submission lodged in the Magistrates Court, it is clear that the circumstances and the hazard the employees were exposed to which resulted in the death of the worker in 2013 was different to and unrelated to the hazard that Manikandan Rathinasabapathy and the other sorters were exposed to in this matter. In the 2013 accident, the hazard was an accumulation of sand on top of the picking station roof, which resulted in the collapse of the picking station roof.[31]

54 The appellant accepts that its breach of the general duty offence is a serious breach.

55 The statutory penalty for the s 19A(2) general duty offence, at the time the offence was committed, is a fine of $400,000.

56 The maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed.[32] The maximum penalty serves as an indication of the relative seriousness of the offence.[33]

57 Attention should be directed to where the facts of the particular offence and offender lie on the spectrum that extends from the least serious offences of the offence to the worst category, being those offences so grave as to warrant the maximum prescribed penalty.[34]

58 The risk of serious injury or harm to the health of the workers, or death, from clearing blockages of small rocks or stones from running conveyor belts was obvious and foreseeable. The risk was not low. It was very significant.

59 Her Honour found that the sorters at the workplace, including Manikandan Rathinasabapathy, consistently placed their own hands into powerful machinery with dangerous moving parts. They did not know a safe way to do the job, because it was not obvious to them, and had not effectively been provided.

60 The appellant did not provide the sorters with adequate information, instruction, training or supervision to prevent the workers from placing their hands in moving belts, even though it was apparent that a significant risk existed.

61 There was a known high risk of serious injury or harm to health. There was a similar incident less than a year prior to the date of Manikandan Rathinasabapathy's accident, which resulted in a broken arm to a worker. There were also injuries to another worker's hand when working in Area 5. It is not clear, however, whether that injury was a result of a worker placing their hand in a moving part of any machinery in Area 5.

62 The appellant was on notice by the 2015 improvement notice, which highlighted relevant risks and dangers of workers accessing plant in the absence of an adequate isolation procedure.

63 The appellant points out that a contravention causing death should generally be treated as a more serious offence than one that causes serious harm.[35] In general, that would usually be the case, but not always.

64 This matter is particularly serious given that there had been one similar accident prior to the accident that resulted in Manikandan Rathinasabapathy losing his right arm and suffering a catastrophic and life changing injury as a result of the appellant's breach of statutory duty.

65 The appellant properly concedes that the sorters, including Manikandan Rathinasabapathy, were vulnerable workers because they were essentially unskilled, unsophisticated, and had a limited understanding of English.

66 The appellant contends, however, that there was evidence led at trial which should be accepted that it subjectively believed that Manikandan Rathinasabapathy was experienced and skilled in performing waste processing services because:

(a) it understood that all Mode 2 employees were experienced and well trained in such work and had received full inductions before starting work at the workplace (including in relation to health and safety issues); and

(b) its experience of Manikandan Rathinasabapathy at the workplace was that he was competent, that he understood English well and he often acted as the interpreter for other workers employed by Mode 2.

67 A submission is also made that her Honour referred to this submission when delivering her sentencing remarks and made no comment as to whether she accepted or rejected that the appellant's belief was reasonably held.

68 The appellant maintains that its subjective belief about Manikandan Rathinasabapathy was reasonably held, but accepts that it should have done more to investigate his experience, training, competence and understanding of English.

69 In her Honour's findings when delivering her reasons for decision on conviction, her Honour found that the sorters had very limited understanding of English and noted that Manikandan Rathinasabapathy's English may have been better than the other sorters, but it was still limited at the time of the accident.[36]

70 Although her Honour may not have referred directly to the appellant's subjective belief, it is plain that she did not regard it to be relevant because she found that the sorters, including Manikandan Rathinasabapathy, were vulnerable to serious injury.

71 In any event, I do not accept that the appellant's subjective belief could be found to be reasonable. This is because Mode 2 had no control over the work performed at the appellant's workplace, and there is no evidence that it provided any training, instructions and inductions at the workplace.

72 Nor do I accept that it was reasonable to rely upon Mode 2 as a contractor on the understanding it was experienced in the provision of services and employed workers that were experienced and well trained in the relevant work, when it was clear that the sorters had very limited understanding of English, and one similar incident had occurred in the year preceding Manikandan Rathinasabapathy's accident.

73 Consequently, I am of the opinion that the vulnerability of Manikandan Rathinasabapathy and the other sorters who were at work on 28 January 2016 was an aggravating factor.

74 I also find the fact that the appellant did not implement an adequate blockage procedure (after the other sorter had broken their arm approximately a year before Manikandan Rathinasabapathy lost his right arm) to be an aggravating factor.

75 As to mitigating factors, the appellant submits that the actions it took after the accident to remedy the deficiencies in safety procedures and to further improve the overall occupational health and safety of the workers are factors in favour of it in the assessment of penalty. However, as set out above, the presiding magistrate found the fact that remedial measures had been taken subsequently to the accident indicated that those measures were practicable and were measures that could have been taken prior to the incident. Her Honour also found when delivering her sentencing remarks that the fact that these measures were implemented provided limited mitigation.[37]

76 The appellant says that it is a respected company with good corporate standing which is demonstrated by the fact that:

(a) local government councils regularly engage it to provide waste management services;

(b) it has received industry awards from the Waste Authority WA (a State government department) and the Housing Industry Association recognising its commitment to, and achievements in, waste management;

(c) the Green Building Council of Australia has selected the appellant to provide educational workshops to engineers, consultants and builders since 2013 and have input into the development of its voluntary waste reporting criteria; and

(d) it has a long history of charitable donations and sponsorship of community organisations, provision of services free of charge to charity initiatives and disadvantaged people and supporting employees to attend litter collection events and other waste auditing volunteering roles.

77 The appellant has referred the court to a range of sentences imposed for what it says are similar breaches as an indication of the appropriate sentencing range for a general duty offence of failing to provide a safe system of work. I have reviewed each of those authorities referred to in Annexure A of the outline of the appellant's sentencing submissions, but have not found those cases to be comparable. This is because the distinguishing circumstances in this matter are that:

(a) this matter involved vulnerable workers who were under the pressure of time to perform unblocking tasks;

(b) prior to Manikandan Rathinasabapathy's accident the appellant had been given notice that a worker had been injured after coming into contact with moving parts of machinery; and

(c) the appellant was on notice since sometime in 2013 when an improvement notice was issued that there was a risk to workers accessing unguarded moving machinery.

78 As the presiding magistrate properly found when delivering her reasons for decision on conviction, there were numerous clear indicators within the factual context to foreshadow an incident such as that which occurred on 28 January 2016.[38]

79 I accept the presiding magistrate's finding that the need for personal deterrence in this case is slightly reduced because of the implementation of remedial measures past 28 January 2016 and a desire of the appellant to ensure future compliance with the OSH Act.

80 As to general deterrence, workplace safety requires employers to take the obligations imposed by the legislation very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements.

81 It is my view that the circumstances of the appellant's breach of statutory duty owed to not only Manikandan Rathinasabapathy but to the other sorters and employees at its workplace on 28 January 2016[39] require the imposition of a penalty that reflects the need to properly punish by first taking proper account of the very serious nature of the offence and other sentencing factors. In determining the penalty, I then have had regard to the principle that an appropriate penalty should also act as a general deterrent to those employers who do little to improve the health and safety at workplaces where employees[40] are vulnerable, and where the nature of the work itself can be hazardous and carries a significant risk to employees' health and safety:

(a) without adequate safe systems being implemented, and enforced through appropriate systems of work;

(b) without appropriate information about hazards being provided to employees;

(c) without employees being provided with adequate instruction and training about hazards; and

(d) without employees being provided with direct supervision of their work.

82 In my opinion, when regard is had to all of the circumstances of the offending and the relevant sentencing factors, the general duty offence fell within the higher end of the scale of offending prohibited by s 19(1) and s 19A(2) of the OSH Act.

83 For these reasons, I formed the opinion that an appropriate penalty for the offence in Charge PE 39876/18 was a fine of $230,000.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Grounds 1 to 8 related to Charge PE 39876/18 and ground 9 related to Charge PE 39837/18.

[2] Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435, 439 (Owen J).

[3] Ayton v City of Armadale [2020] WASCA 39.

[4] Ayton v City of Armadale [2020] WASCA 39 [52] ‑ [54] and [65].

[5] In Ayton v City of Armadale [2020] WASCA 39, the breach of statutory duty arose in respect of a non‑employee pursuant to s 21(2) of the OSH Act.

[6] Ayton v City of Armadale [2020] WASCA 39 [70].

[7] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [73].

[8] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [121(o)(i)].

[9] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [121(n)(ii)].

[11] Resource Recovery Solutions Pty Ltd v Ayton [2021] WASC 443 [194] ‑ [200].

[12] Resource Recovery Solutions Pty Ltd v Ayton [2021] WASC 443 [250] ‑ [253].

[13] Hazard was particularised in Attachment 'A' to the Charges as injury to a person at the Workplace as a result of that person's body or clothing being caught in one of the pinch points of a conveyor belt at the Workplace known as the Diversion Belt (Diversion Belt).

[14] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [66].

[15] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [67].

[16] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [72].

[17] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [109] ‑ [110].

[18] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [208].

[19] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [209].

[21] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [144].

[22] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [145].

[23] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [162].

[24] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [163].

[25] Outline of appellant sentencing submissions dated 6 April 2022, par 28.

[26] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [151].

[27] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [151].

[29] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [164].

[31] Outline of prosecutor's sentencing submissions lodged 16 October 2020, Appendix A.

[32] Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435, 439 (Owen J), applying Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 451; see also Markarian v R [2005] HCA 25; (2005) 228 CLR 357 [30] ‑ [31].

[33] Ayton v City of Armadale [2020] WASCA 39 [61]; applying Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31].

[34] Ayton v City of Armadale [2020] WASCA 39 [62]; applying Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 452; The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256 [19]; Gaskell v The State of Western Australia [2018] WASCA 8 [144].

[35] Ausdrill v Hanekom [2009] WASC 307 [40] (Le Miere J).

[36] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [73(a)] and footnote 20.

[38] Unreported reasons for decision of presiding magistrate delivered 10 July 2020 [123].

[39] The evidence at trial established that on that day at the appellant's workplace there were both workers (engaged by Mode 2) and employees (employed by the appellant) engaged in work.

[40] The reference to employees in this sentence is intended to also refer to persons who are workers as defined in s 23E of the OSH Act.