Alejandro Bocaz (the offender) has pleaded guilty to an offence that being a person who had a health and safety duty pursuant to section 28 Work Health and Safety Act 2011 (the Act), he failed to comply with that duty and thereby exposed Roberto Caboteja, Manesh Pillai and Neil Acibar to a risk of death or serious injury contrary to section 32 of the Act.
The maximum penalty for the offence is a fine of $150,000.
[2]
Facts
The parties presented an Agreed Statement of Facts which can be summarised as follows.
Extrusion Machine Co (Australia) Pty Ltd (ExCo) carried an engineering services business from its premises in Bankstown that included the repair and maintenance of extrusion machines. ExCo had over 45 years' experience in aluminium extrusion and from time to time repaired or serviced extrusion machines of its customers, including plastic extrusion machines.
ExCo was a family run business.
The offender was employed by ExCo. He specialised in the plastic and rubber extrusion. He was the only employee of ExCo with that particular expertise. As at July 2014 the offender had approximately 30 years work experience and had been employed by ExCo for about 14 years.
The offender would attend the premises of ExCo's customers from time to time as required.
On or about 11 June 2014 Mr Achibar, an employee of Grass Manufacturers Pty Ltd (Grass) contacted ExCo to request a repair to a Jenn Chong Extruder (the extruder) at its premises at Unit 8.1, 1A Hale Street, Botany. Grass operated a business manufacturing synthetic grass for tennis courts and sporting pitches.
Plastic polymers in the shape of pellets were fed into the extruder. The extruder applied heat to melt the material and mechanical pressure was applied by a mechanical screw (the screw) to force the molten material through a heated die to produce a finished product in a cross-sectional shape. The extruder was designed for the use of polypropylene (PP) and polyethylene (PE).
At some time between 11 June 2014 and 18 June 2014, the offender attended Grass' premises and inspected the extruder. He provided a quote for the work on 18 June 2014, which Grass accepted the next day. The quote identified the work to be undertaken as the identification of the cause of the fault by dismantling the extruder. Grass did not have the expertise to carry out the work.
On 7 July 2014 the offender attended Grass' premises to observe the extruder in operation. PP was run through the extruder at the usual temperature of 240 degrees Celsius and the fault was observed. Mr Waterford, Mr Caboteja, Mr Pillai and Mr Acibar were in attendance at the time of the offender's observation of the extruder.
The offender discussed with Mr Waterford the use of purge material in the extruder. He told Mr Waterford that the purge material was coarser than the PP or PE and that it would remove any burnt or carbonised material in the extruder.
The offender then attended the premises of Silver Fox Chemicals Pty Ltd (Silver Fox) and spoke to Gus Loor. The offender was well known to Mr Loor as a regular customer and he had repaired some of Silver Fox's machinery. The offender told Mr Loor that he had an extruder he needed to clean and that he wanted to purge the machine, as part of that process. Mr Loor provided the offender with a bag of purge material at no cost. Mr Loor told the offender that the maximum temperature for the purge material he supplied was 180 degrees Celsius.
The purge material supplied was poly vinyl chloride (PVC) resin and other additives including, filler chalk, waxes and stabiliser packages that resist burning. Silver Fox only made purge material for PVC extrusion equipment. In an extruder designed for PE, PVC purge material will carbonise and give off hydrochloric acid gas if the temperature of the extruder is set too high.
The offender returned to Grass' premises. The extruder was allowed to cool down for 20 minutes before a 20kg bag of the purge material was placed into the extruder. The purge material proceeded through the extruder as expected until it began to extrude black carbonised plastic residue.
When all of the purge material had gone through the extruder, Mr Waterford suggested that the offender try to purge the machine again the following day, in the hope that this would avoid having to dismantle the extruder. Mr Waterford told the offender that there was some urgency in having the extruder working properly. The offender said that he would return the next day with more purge material and would repeat the process before dismantling the extruder.
Prior to 7 July 2014, Grass had never sued purge material in the extruder.
The offender returned on 8 July 2014 and put another 25kg bag of the purge material through the extruder with the temperature set at 180 degrees Celsius.
Mr Caboteja, Mr Pillai and Mr Acibar were present. A small amount of residue came out of the extruder before it stopped working, fumes appeared and an acidic chlorine smell was detected.
The screw in the machine was switched off, but the hydraulics and the heaters were left on. Fumes continued to be emitted. The offender considered that the die filters located in an apparatus that moved from side to side under hydraulic pressure had become blocked and should be removed, but the filters and the apparatus that housed them would not move. The offender hit the die with a copper hammer, but it would not move.
Mr Acibar suggested that the hydraulics on the machine where too low and if turned up the filter housing may move. The offender said that due to the filter not moving he would have to return the next day in order to manually dismantle the extruder and the filter because the extruder was too hot at that time. Grass did not have a spanner of the correct type to remove a number of nuts required to dismantle the extruder. The offender went to his vehicle to retrieve a suitable spanner.
Mr Pillai slightly increased the pressure of the hydraulics. At about this time, Mr Pillai and Mr Acibar were on one side of the extruder looking at the hydraulics. Mr Caboteja was on the other side of the extruder pressing buttons on in an attempt to move the filter housing, when a discharge of steam and molten material occurred from the area above the buttons and hit Mr Caboteja in the face.
Mr Caboteja was not wearing personal protective equipment (PPE) other than gloves. Grass had not required him to wear PPE.
Mr Caboteja underwent a number of skin grafts to his eyelid and face. He was unable to work for 4 months and then had a gradual return to work. He has resumed full-time duties.
The hazards involved with trying to access the die and filter of an extrusion machine while it is in operation are well known in the industry. Pressure can build up behind a die causing steam and molten material to be ejected from the machine.
There was a risk of a person being splashed with hot material when the purge material was heated beyond the recommended temperature.
The Material Safety Data Sheet (MSDS) for the purge material indicated that it would emit toxic fumes on burning. Exposure controls recommended the wearing of PPE to minimise the risk of being splashed with hot material. The MSDS was available from Silver Fox at the time of the supply of the purge material but was not provided to Mr Bocaz.
There were no measures in place by ExCo or the offender at the time of the incident to address any of these hazards.
On 7 July 2014 the temperature of the extruder was set too high causing the PVC material to burn releasing chlorine gas and contributing to the build-up of material and pressure around the die. On 8 July 2014 the temperature was lowered but the PVC material continued to burn which led to the build-up of pressure and the ejection of the steam and molten material from the machine.
It would have been reasonably practicable to purge the extruder with a PP or PE based purging agent. Instead, a PVC purging agent was used which has a lower melting point than either PE or PP.
ExCo did not have in place a safe system of work to ensure that the offender provided the MSDS to Grass. ExCo and the offender did not provide and maintain a safe work method for cleaning the extruder, including the removal of the die filter apparatus
Once the purge material began to burn the offender did not turn off the extruder and wait for it to cool down, in order for him to manually dismantle it. The offender did not warn Mr Caboteja, Mr Pillai or Mr Acibar to remain clear of the extruder or to wear PPE when it started to emit chlorine gas.
Improvement Notices were issued to the offender to ensure he had a safe system of work to prevent exposure of persons to burns, fumes or dust when using PVC and to ensure emergency procedures were in place.
[3]
The Offender's Case on Sentence
The offender relied on an affidavit sworn 30 August 2017. The offender also gave evidence before me and was cross-examined. The offender's evidence can be summarised as follows.
The offender was born in Santiago, Chile and is presently 60 years of age. He finished school in Chile to a senior level and then enrolled in an Industrial School in order to obtain and complete his qualifications in mechanics. The offender graduated industrial school as a qualified turner.
He immigrated to Australia on 29 June 1970. His formal qualifications obtained in Chile were recognised in Australia and the offender was granted a tradesman's certificate as a fitter and turner on 14 January 1971.
The offender has worked in numerous places as a fitter and turner and as a machinist and has been in continued employment since coming to Australia. He has been employed with ExCo since about September 2001 until present. The offender is employed by ExCo as the manager of the plastics and rubber division. Part of his duties include repairing machinery as well as consulting with clients and customers to identify problems with their machinery and how best to rectify those problems.
The offender works alongside 4 other employees in this division whose responsibilities are as tool makers and fitters and turners. They carry out this role in ExCo's factory undertaking disassembly and machining of equipment and tools.
Prior to the incident the offender spoke with Mr Ruoff, his manager at ExCo who told him about a job enquiry at Grass relating to a problem they were having with their extrusion machine. To the offender's knowledge ExCo had not dealt with Grass before. The offender attended Grass' factory to inspect the extrusion machine. The machine was a Jen Chong machine, a type that the offender had not worked on before. To the offender's knowledge, this machine came from Asia and is cheaper when compared to various and better quality machines that are available from Europe.
The offender spoke with Mr Pillai and Mr Acibar about the problems that the machine was having and said that he would provide them with a quote. It was the offender's intention, at that point, to dismantle the machine and take it to ExCo's factory for further identification of the problem and to clean the barrel and the screw.
The offender asked Mr Pillai and Mr Acibar if either had purged the machine and was informed that they had not and did not have any experience in doing so. In the offender's opinion this was the reason behind the problem that the machine was experiencing. The offender asked Grass to obtain purge material from their supplier; however Grass was unable to do so. The offender agreed to obtain the purge material himself, despite never having done so for a client previously.
The offender arranged with Mr Loor of Silver Fox to obtain purge material without charge. Silver Fox was a client and a customer of ExCo. When the offender collected the purge material he told Mr Loor that it was required for use in a machine that was being used to extract PP. The offender was given PVC purging material. Mr Loor told the offender that the correct melting point for the purge material was 180 degrees Celsius. This purge material was delivered to Grass.
On the date of the incident, the offender returned to Grass to inspect the machine in operation. He was not provided with any safety induction or safety instructions by Grass. Mr Waterford accompanied the offender on his inspection. Mr Acibar, Mr Pillai and the victim were also present. The offender only ever intended to observe the machine operate in his capacity as a consultant, in order to identify and diagnose the problem with the machine.
To the offender's observation the machine was run in its normal state and PP was placed inside. The temperature was set at 240 degrees Celsius, which is the appropriate melting point for that product. The PP was mixed with 5% colour. After 5 minutes product started to come out of the machine, however it was defective. This occurred again when 10% colour was added to the PP.
The offender told Mr Waterford that he believed there could be a build-up of burnt material in the screw which was contaminating the colours. Mr Waterford asked if the purge material obtained by the offender would fix the problem, the offender replied that purging the machine was part of the cleaning process, but given the defects in the output it would not likely work. Mr Waterford requested that the offender try the purge material. The offender told Mr Waterford that the machine was too hot and would need to cool down first.
The machine was allowed to cool for about 20 minutes before all of the purge material was added. As this material ran through the machine, black matter as extracted indicating that the purge material was cleaning the barrel and the screw. Mr Waterford asked the offender if he could return the next day as there was some urgency to getting the machine working properly and that the purge material may be the only thing needed to clean the machine, saving time and money.
The offender returned the next day with more purge material. The temperature on the machine indicated a low reading. The offender instructed the Grass employees to set the temperature on the machine at 180 degrees Celsius. He was informed by Mr Pillai that the machine would heat up in 30 to 45 minutes. A hand held temperature gauge indicated a variance of temperature across the components of the machine.
After about 50 minutes the screw reached 180 degrees Celsius. Before placing the purge material into the machine, the offender suggested that the filter be removed, however like the previous day, the filter did not move. The purge material was placed into the machine and contaminated material was extruded. After about 30 minutes Mr Pillai said that the purge material was not moving anything. Fumes and a chlorine smell began to emit from the machine. Mr Pillai stood on top of the machine and tried using a piece of timber to force the purge material into the machine. Mr tried to do the same thing with a metal bar. The offender told Mr Acibar and Mr Pillai to turn off the screw and remove the purge material. This was done with a vacuum.
The filter remained blocked and was not moving under hydraulic pressure. The offender was concerned that the filter may be preventing the purge material from moving through the machine and determined that the filter should be removed. Mr Pillai hit the filter with a small hammer which was not the correct tool for use on metal. The offender went to his vehicle to get a copper hammer to strike the filter, but it still did not move.
Attempts to move the filter were not successful. Mr Acibar suggested that the hydraulics might need adjusting, however the offender told him he would need to return the next day and dismantle the machine when it had cooled down. The offender spoke with Mr Pillai about what was needed to do to access the filter and said that he would need to return the next day. Grass did not have the correct tool, so the offender went to get a spanner from his vehicle. The offender was gone for no longer than 2 minutes.
When he came back into the factory, the offender saw the victim near the operation buttons for the filter were on the machine. The offender saw an explosion of steam hit the victim in the face. The offender ran over to assist the victim.
The offender deposed that from the prosecution brief he became aware the machine was recently moved from Melbourne and reassembled, without it being commissioned. The offender was not informed of this at the time.
The PVC purge material that was used is suitable for use in the machine, provided the temperature is correctly set. The offender was of the understanding that the temperature had been set as per his instructions, at 180 degrees Celsius and that the burning point for PVC is 260 degrees Celsius. The offender cannot, in his experience and training, understand how the material reacted in the way that it did.
This is the only workplace incident that the offender has been involved with since commencing work in Australia. The offender never intended to use the purge material as a substitute for undertaking the quoted work, that is the dismantling and cleaning of the machine. The quotation was provided to, reviewed and approved by ExCo. This practice continues today.
ExCo has not provided the offender with any of the following:
1. occupational health and safety training,
2. safe work methodology statement training or procedures,
3. documenting safe work practice procedures,
4. risk identification or management, or
5. risk assessment
in relation to his role within the factory or when off-site consulting with clients and customers.
The offender has developed his own practices for the safe conduct and performance of his work by identifying risks to his own safety as well as others in reliance on his work experience and knowledge. The offender will not obtain or supply any purge material on a customer's behalf, requiring them to provide their own purge material. The offender will also shut off any machine that is emitting gas, any burning smell or appears to be seizing up and will dismantle it manually.
The offender has 4 adult children and 3 grandchildren. He lives with his wife and his daughter and her child. He supports all 3 financially. The offender continues to work with ExCo at present. He is the sole breadwinner for his family. His wife was recently made redundant from her job with a catering company.
The offender owns his home with a small loan outstanding in the sum of $13,099.00. The offender's property has an estimated value of about $850,000. The offender does not have any significant savings. He has $30,961.37 in superannuation.
The offender has experienced symptoms of anxiety and depression since the incident and was unfit for work from 18 July 2016 to 12 September 2016. The offender has also experienced sleeplessness, difficulty in concentration, irritability and dramatic weight loss. He was referred to a psychologist by his general practitioner. The offender has stopped driving due to his lack of concentration and concern for other road users.
The offender submitted a workers compensation claim following the incident and was certified to return to work in July 2017, at reduced hours. The offender presently works 35 hours per week where his normal work week was 41.5 hours.
The offender has since spoken with and apologised to the victim. The offender expressed deep regret and remorse for his injuries.
On 14 September 2017 the offender felt dizzy and was taken to hospital by his wife. He remained in hospital overnight for observation. He took a few days off work. On his return to work, his supervisor, Michael Ruoff suggested that he should consider retirement.
The offender tendered 16 character references. The referees speak of the offender as hardworking and dedicated to providing a better life for his family. A number of them have been provided by people for whom the offender has undertaken work whist employed by ExCo. They speak very highly of the offender's diligence and competence.
[4]
Consideration
I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999.
[5]
Objective Seriousness
The risk of the build-up of pressure in the extruder was foreseeable, but not obvious. The extruder was reacting in an unexpected way and the giving off of fumes was indicative that the purge material was burning. By turning off the screw the offender expected the pressure to subside. However, because the die filter apparatus would not move, the pressure was not released and the steam and molten material found a way to escape, when Mr Caboteja was crouching in proximity to the operating controls.
The offender had by this time formed the opinion that he could not achieve any more without dismantling the extruder and to do that it would have to cool down. It was about 4.00pm, so the dismantling of the extruder would have to wait until the next day. The offender failed to inform all of the Grass workers who were in the vicinity of the extruder that this was his decision. He also failed to exclude them from the area surrounding the extruder when he was working on it, particularly after it had behaved unpredictably and there were acidic fumes being emitted from it. The offender could have advised the Grass employees to wear PPE. Alternatively, if he had provided the MSDS to Grass, it may have required them to wear PPE.
The offender had not been trained by ExCo on how to recognise the risks created by his work on Grass' premises or trained him on the appropriate steps to take to eliminate or minimise the risks created. If this training was provided I am satisfied that the offender would have followed it. In my view, the offender's lack of training as to his obligations under the Act is the most significant causal factor in the incident.
The steps required to eliminate or minimise the risk were simple.
The likelihood of the risk coming home were low. The offender was considered to be a good employee with considerable skills. The error made by the offender was an isolated one and came about through a series of unexpected events. The offender had originally intended to collect the extruder and dismantle it at ExCo's premises. The purging of the extruder was a process engaged in at the request of Grass, because it needed the extruder operating properly as soon as possible.
The risk was one of serious injury.
The injuries sustained by Mr Caboteja were significant. He has undergone a number of skin grafts and his eye sight is affected. He has been left with facial scarring and has experienced psychological symptoms. His amenity of life has been significantly affected.
Mr Pillai and Mr Acibar were also exposed to a risk of serious injury.
[6]
Deterrence
The penalty imposed in relation to this offence must provide for general deterrence. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].
There is also a need for specific deterrence, however it is significantly reduced. The offender is 69 years old and close to retirement. The offender has never been involved in a safety breach in the course of his work history. The offender has learnt from the experience and I am satisfied that he is unlikely to reoffend.
Aggravating factors
The injury harm and loss caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The Victim Impact Statement was not objected to or called into question and in my view it is proper to take it into account in consideration of the establishment of the aggravating factor: R v Tuala [2015] NSWCCA 8. Mr Caboteja has sustained damage to his eyesight, scarring and has undergone a number of skin grafts to his face and eyelids. He has also suffered psychological symptoms. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. A risk that comes home and causes serious injury is thereby more deleterious than may ordinarily be expected for the offence. I am satisfied beyond reasonable doubt that the injury harm and loss caused by the offence was substantial.
[7]
Mitigating factors
The offender does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender is presently 69 years of age.
The offender was a person of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The offender has worked in an industry that presents risks to the health and safety of its workers for about 47 years and has not been charged with or convicted of an offence. He has a solid work history and his character referees hold him in high regard as a competent tradesman and man of excellent character.
The offender is unlikely to re-offend: section 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. The offender no longer does any work off-site and has implemented his own safe system of work based on his experience. Taking into account the offender's impeccable safety record of about 50 years without incident in a dangerous industry and considering his age, I am satisfied on the balance of probabilities that the offender is unlikely to re-offend.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse through his affidavit and in evidence before me. I am satisfied on the balance of probabilities that the offender has accepted responsibility for his actions and demonstrated genuine remorse and contrition.
The offender entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range a particular case should fall is the timing of the plea, so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The plea was entered a few days before the first day of the defended hearing. The appropriate discount is 10%.
[8]
Capacity to pay a fine
The Court is required to have regard to section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
I am satisfied on the basis of the evidence led by the offender that he has a limited capacity to pay a fine. The offender still owes about $13,000 on a loan that was taken out about 5 years ago to renovate his home. He estimates that his home is worth about $850,000. He has made enquiries about getting a loan to any fine imposed and costs. He has been told that he is unlikely to get that loan because of his age and income, unless one of his children is prepared to guarantee the loan. In order to pay a significant fine, I expect that the offender would have to sell his home to obtain the necessary funds and buy another property, noting that he has one of his daughters and granddaughters living with him at present. That course would involve additional costs.
The offender has about $30,000 in superannuation, which I expect will become available to him when he retires. The offender had about $5,000 in the bank at the end of August 2017.
Overall, I am satisfied that the offender has very little, if any capacity to pay a fine.
[9]
Other Matters
The offender has agreed to pay the prosecutor's costs in the sum of $30,000. I have taken that amount into account in deciding the amount of the fine to be imposed: Environmental Protection Agency v Barnes [2006] NSWCA at [78].
The incident has taken a significant personal toll on the offender. He has suffered stress and anxiety about the incident and these proceedings.
[10]
Penalty
The offender is convicted.
I have considered the Victim Impact Statement of Mr Caboteja.
I impose no further penalty pursuant to section 10A Crimes (Sentencing Procedure) Act 1999.
I order that the offender pay the prosecutors costs as agreed in the sum of $30,000
[11]
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Decision last updated: 09 October 2017