ABC Tissue Products Pty Ltd (the offender) has pleaded guilty to a charge that as a person who had a health and safety duty under section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Simara Put 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 $1.5 million.
[2]
Facts
The parties tendered an Agreed Statement of Facts that can be summarised as follows.
The offender conducted a business manufacturing and supplying tissue paper products from premises at Wetherill Park (the site). Ms Put was employed by the offender as a process worker, having commenced employment in February 2000. Mr Minh Luu was employed by the offender as a forklift driver since June 2010.
Building 126 at the site was also known as the production area building. Ms Put worked in the production area on an automated packing machine. Approximately 14 workers worked in the production area during the day shift and approximately 11 workers during the night shift. There was one set of female and male toilets available to workers in the production area. The toilets were located at the back of the building near a lunch room.
The production area building had a roller door entry approximately 4.8 metres wide. Opaque plastic strip curtains were positioned across the roller door opening. These strip curtains ran from the top of the roller door down to the floor. Immediately inside the roller door entry was an area known as the jumbo roll bay or the loading bay. The loading bay was rectangular and approximately 9 metres wide. There was a marked pedestrian walkway along the western side of the production area leading to the toilets. This walkway was marked with yellow floor markings. The walkway did not pass in front of or through the loading bay area. Ms Put was able to access the toilets and lunch room via this walkway from her work area at the automated packing machine.
Large industrial "jumbo rolls" of tissue paper were used at the site in production of tissue paper products. These jumbo rolls varied in size and weighed up to 2 tonnes. The jumbo roll involved in the incident weighed approximately 1.86 tonnes. It was approximately 2.11 metres in diameter and 2.7 metres in length.
Mr Luu was driving a 7 tonne forklift truck with a grab clamp attachment. The forklift was the largest on the site and was used to transport jumbo rolls around the site and into the production area building. The clamp attachment was used to lift and carry the jumbo rolls. The forklift would transport the jumbo rolls into the production area building through the roller door entrance and unload the rolls into the loading bay. An overhead crane would then take the jumbo rolls from the loading bay to be positioned on one of the automated machines in the production area building.
On 15 February 2017 at about 1.05 pm Ms Put walked to the toilet area inside the production area building. At this time Mr Luu was operating the forklift outside the production area building. He drove to a storage location and picked up the jumbo roll using the grab attachment. He then reversed the forklift into the roller door entry of the production area building whilst holding the roll vertically. Once inside the roller door entry, Mr Luu rotated the roll so that it was horizontal and drove the forklift forwards through the strip curtains and into the loading bay area. His view inside the loading bay was obscured by the strip curtains hanging from the roller door and by the jumbo roll. Mr Luu stated that he sounded the horn as he entered the building.
At the same time that Mr Luu entered the roller door, Ms Put had walked back from the toilets through the production area on the eastern side. She did not use the marked pedestrian walkway on the western side of the building. She was walking back towards her packing machine via the loading bay area.
Ms Put did not see the forklift entering the building because she was looking in the direction of another worker. The forklift came through the roller door entry to her left carrying the jumbo roll. Mr Luu released the jumbo roll and it came forward and hit Ms Put in the area of her left shoulder. She fell to the ground, hitting her head on the concrete floor as she landed. Mr Luu did not see Ms Put in the loading bay area or that she had been hit by the jumbo roll. Mr Luu had driven the forklift approximately 2 to 3.5 metres past the roller door entry before releasing the jumbo roll. The jumbo roll came through the strip curtains hanging at the roller door entry and came in to contact with Ms Put within approximately 5 seconds.
Mr Luu was alerted by another worker to the fact that the jumbo roll had hit Ms Put. He assisted the other worker to move the jumbo roll with the forklift away from her and to call emergency services.
Ms Put was taken to Fairfield Hospital for treatment before being transferred to Liverpool Hospital. She suffered a major traumatic brain injury including fractured skull, several brain haemorrhages and brain contusions. She also sustained a partially collapsed lung. She underwent neurosurgery to place a temporary drain in her brain and was placed into an induced coma for six days in intensive care. Ms Put has experienced post traumatic amnesia and decreased cognitive function. Ms Put was off work until 12 March 2019. She has returned on part time suitable duties two hours per day for three days per week with a plan to increase her hours later. As a result of the injuries she sustained in the incident, she cannot stand for extended periods of time and can only walk short distances before tiring. She has ongoing shoulder pain and suffers long term memory loss. She continues to attend the Brain Injury Unit at Liverpool Hospital for ongoing treatment and continues to receive psychological treatment.
Prior to the incident there was no formal Traffic Management Plan in place for the production area building or the loading bay area. There was a documented Traffic Management Plan in place for loading containers onto trucks at the site but that plan was not relevant to the area where the incident occurred.
The forklift would unload jumbo rolls into the loading bay approximately 10 times per day. One automated packing machine would use approximately eight jumbo rolls every 12 hours. The opaque strip curtains hanging across the roller door entry did not allow clear visibility of the loading bay area for forklift drivers entering the production area building. There were no temporary barricades or guard rails around the loading bay area to create an exclusion zone and to prevent pedestrians from entering the area where forklifts were operating and unloading the jumbo rolls. There were no temporary bollards installed around the loading bay area to identify the areas in which forklifts were operating and to divert pedestrians away from the area. Forklift drivers were not required to use temporary measures such as hazard lights, extendable bars, bollards, signage or traffic cones to alert pedestrians to forklifts operating in the area. There was no signage on the floor, line markings around the roller door entry or the loading bay area to indicate that it was a forklift operating zone or a pedestrian exclusion zone.
At the time of the incident the offender had in place a Forklift Operator Safe Driving Policy dated 13 August 2005 that required drivers to be licensed, to drive at walking speed and to carry only one jumbo roll at a time. The Forklift Policy provided that "when driving around corners and doorways, you must slow down and honk the horn". The Forklift Policy contained the instruction that forklifts with a load of over 1300 mm high must always be travelling in reverse. The average size of each jumbo roll was over that dimension. At the site, forklift drivers would generally operate forklifts in reverse if their load was higher than their line of sight. However, because of the limited space in the loading bay area workers could not reverse the forklift into the production area building when they were carrying and unloading the jumbo rolls. Instead of reversing into the loading bay area, forklift drivers would drive forwards into the production area whilst carrying the jumbo roll, unload the roll in the loading bay area and then reverse out. This was necessary because the forklift was too large to enable the driver to reverse in, unload the jumbo roll in the required position and then turn the forklift around or manoeuvre around the jumbo roll to exit the building.
Forklifts driving forward into the loading bay area, with a jumbo roll load obscuring the vision of the driver, was a common and accepted practice at the site.
Mr Luu stated that he was aware of the Forklift Policy but that he could only comply with it if there was enough room. Supervisors and managers at the site were aware that forklift drivers were driving forwards into the production area building whilst carrying the jumbo roll that obscured their vision. This practice had been occurring for several years prior to the incident. Workers and supervisors in the production area did not consider this practice to be high risk.
Prior to the incident the offender was aware that the size of the jumbo rolls provided poor visibilities in areas where forklift drivers and pedestrians were present. Several hazard identification reports had previously been generated for poor pedestrian and forklift driver visibility in the production area building due to the size of the jumbo rolls.
The offender did not conduct a risk assessment for the task of unloading the jumbo rolls via a forklift in the loading bay area. Prior to the incident, the offender had conducted several risk assessments for general forklift operations at the site that each identified the risk of collision with the pedestrian. None of the risk assessments evaluated the task of unloading the jumbo rolls using the forklift in the loading bay area. None of the risk assessments considered the physical layout of the loading bay area, the dimensions of the forklift and the grab attachment, the dimensions of the jumbo rolls, the space limitations of where the jumbo roll was to be placed or the turning circle of the forklift.
The offender did not have a Safe Operating Procedure (SOP) or safe work method statement (SWMS) for the task at the time of the incident. The offender did not have a SWMS in place for the movement of pedestrians and vehicles in the production area building in place at the time of the incident.
It was common practice for employees in the production area building to walk through the loading bay area to get to the toilets. There was no exclusion zone in the loading bay area that identified it as a forklift only zone or a pedestrian exclusion zone. There were no marked pedestrian walkways in place in the loading bay area of the production area building at the time of the incident. There was a walkway to the toilets along the dividing wall on the western side of the production area building installed in September 2006 with yellow walkway floor markings.
Ms Put stated that she was not aware of any painted walkways in the production area building and that the way she walked on the day of the incident was her normal route to the toilets.
Production area supervisors and managers were aware that some workers, on occasions, walked through the loading bay area to get to the toilets.
Guidance material was available in the form of the SafeWork NSW Code of Practice "Managing the Risks of Plant in the Workplace" (the Code) dated 18 July 2014 and the SafeWork Australia Traffic Management Guide dated July 2014, and Australian Standard AS2359.2 - 2013 Powered Industrial Trucks Part 2: Operations dated February 2013.
After the incident SafeWork NSW issued the offender with an improvement notice requiring a Traffic Management Plan to be put in place that managed the risks of persons being struck by plant, separating forklifts from pedestrians through the use of barricades, guard rails, painted and well defined walkways, crossings, safe work zones, pedestrian exclusion zones and site rules.
The offender completed a hazard identification report for the incident recommending that pedestrian no-go zones and walkway areas be established and that the Traffic Management Plan for the site be reviewed. Yellow and black hazard markings were subsequently painted on the floor around the roller door entrance to identify forklift operation zones. The plastic strip curtains were removed from the roller door entry of the production area building, providing greater visibility in the area. Flashing orange lights were installed on the inside of the roller door entry to visually warn pedestrians when forklift operations were being undertaken. Temporary barriers were implemented to separate pedestrians from moving forklifts.
A SOP for forklift trucks was created by the offender on 24 February 2017. The SOP provides that a forklift is not to be operated within 3 metres of pedestrians when moving a load without clear vision. The offender introduced a new Safe Work Method Statement for pedestrian, vehicle and forklift movements dated 30 March 2017.
A traffic plan map for the production area building was issued on 27 February 2017. The traffic plan provided that a pedestrian zone is in place along the divider wall from Line 4 to the toilets which includes a marked pedestrian crossing. There is no pedestrian traffic on the driveway.
A Traffic Management Plan was developed for the production area building on 30 March 2017.
SafeWork NSW also issued an improvement notice requiring workers to be given training and instruction in relation to the new Traffic Management Plan. Forklift drivers and workers in the production area were trained in the new Traffic Management Plan and forklift operating procedures and participated in documented toolbox talks regarding pedestrian safety.
[3]
The Offender's Case on Sentence
The offender relied on an affidavit of Sunny Siu Kei Ngai affirmed 12 October 2020. Mr Ngai is the Managing Director of the offender and has been employed in that role since August 2018. He commenced employment with the offender in 1991. Since the date of the incident Mr Ngai has held the roles of Company Secretary and Managing Director.
Mr Ngai attends bi-monthly WHS meetings with other senior management and participates in high level decision making relating to company safety matters. The offender was founded and established by Mr Ngai's father in 1986. As the business expanded other family members joined the business to assist in its operations. Chek Ming Ly and his family, who were refugees from Vietnam, moved to Australia to assist in the business. Mr Ly presently works as the General Manager focussing on production, warehousing, transport, staff, purchasing and payments. Mr Ly's role also involves direct communication with the safety department and receiving reports on safety related matters.
The offender's best known brand is "Quilton" which includes toilet paper and facial tissues. Its other well-known brands include "Tuffy" kitchen towels and "Symphony" tissues. The offender prides itself as a market leader in tissue products and has 60% market share in retail toilet paper, 30% market share for retail facial tissues and 20% market share for retail paper towel. The offender also manufactures "home brand" tissue paper products for major retailers.
The offender is the only large scale Australian owned and based tissue manufacturer in the country. All of the offender's major competitors are foreign owned with most of their profits going overseas. The offender's group of companies currently employs approximately 700 staff which it considers to be "extended family members" and treats them as such. The offender is a genuine family business and employs a number of people from the same family groups and even has inter-generational staff. For example, Ms Put's four children also work for the offender.
On behalf of the offender, Mr Ngai accepts responsibilities for its failures that gave rise to the risk that exposed Ms Put to the risk of injury. The offender acknowledges and deeply regrets the significant impact that it has had on Ms Put and her family. The offender acknowledges and deeply regrets the impact this incident has had on a valued employee.
Mr Ngai deposed that the offender has always been committed to work place safety and understands the importance and need to comply with the legislation. Safety is a priority for the offender and it will always continue to properly resource the WHS team to ensure that no further safety incidents occur. The offender has an unlimited budget for matters relating to work, health and safety. Senior management take an active role in these matters including attendance at bi-monthly meetings. The offender employs highly qualified specialised staff to implement and enforce the company's workplace health and safety system. At the time of the incident the Safety Department consisted of five employees including a National Work Health and Safety Manager.
Since about 2014 the offender has invested significantly in automated technologies to reduce the interaction between workers and the machinery used and therefore have reduced the hazards and risks to workers at his various sites. After the incident in 2017 a decision was made by the Board to increase the size of the Safety Department to seven specialist safety staff. Mr Ngai deposed that following the accident the company took a number of immediate steps to improve its safety system in response to the incident that are outlined in the affidavit of Mr Johnson.
Following the incident the offender provided immediate support to Ms Put including regularly visiting her in hospital and assisting her with relevant paper work in relation to her compensation claim. The company provided her with a gift of money and has also provided her with food, tissue products and clothing. The offender has supported Ms Put on her return to work by creating a position for her to return on light duties and ensuring her comfort when she attends for work. Support was provided by the offender to its employees following the incident through access to counselling.
Mr Ngai deposed that the offender has a strong sense of social responsibility and has, since commencing operations in 1986, donated more than $40 million to hospitals, charities and other organisations in Australia and in funding programs to assist disadvantaged persons overseas. The details of its various charitable donations are displayed on its website and summarised in Mr Ngai's affidavit which I will not repeat.
The offender co-operated with the investigation of SafeWork NSW.
The offender also relied on an affidavit of Paul David Johnson, affirmed 14 October 2020. Mr Johnson is the Group WHS Manager for the offender. He commenced employment with the offender in November 2015. Mr Johnson has 17 years' experience in manufacturing and has held WHS specific roles for seven years of that time. He holds a number of safety qualifications.
The offender's WHS team currently comprises seven employees with defined roles. At the time of the incident there were five full time safety staff at Wetherill Park. There is no budget limit placed on the Safety Department by the company or spending that is necessary to provide appropriate safety equipment and training.
The employees of the Safety Department speak several different languages. The majority of the work force at Wetherill Park come from a non-English speaking background.
The Safety Department is responsible for the implementation of the WHS management system on a day-to-day basis including review of the policies and systems, supervision, information and instruction. The Safety Department conducts workplace inspections on a daily basis to identify hazards and control such added risks. The Safety Department produces compliance monitoring that is documented and reported.
The offender ensures that procedures, information, instruction and decisions about safety matters are conveyed to workers through toolbox talks, face-to-face meetings, training sessions, memorandums and inductions for new workers.
The offender has in place a Safety Management System that is ISO45001 compliant and is independently audited. The offender's Safety Management System contains a number of policies and procedures that are supported by forms and registers including but not limited to Confined Spaces Policy, Hot Work Procedure, Manual Handling Policy, OHS Policy and Vehicle Safety Policy.
New workers are provided with safety inductions and an OHS Handbook which is explained at the start of their employment.
The offender has in place Safe Work Method Statements and Safe Operating Procedures that have been developed in consultation with its workers. The Safety Management System includes risk assessment, hazard identification, forms and related procedures.
The offender encourages communication between workers and supervisors in the identification of issues on safety hazards. The bi-monthly safety meetings are open to operational supervisors. The offender has implemented an employee consultation forum in June 2018 consisting of seven volunteers from various sites to participate in a monthly meeting with Mr Johnson. The offender has implemented an anonymous hotline that workers can use to report safety concerns if they do not want to raise the matter directly with their managers.
Safety officers undertake daily workplace inspections to monitor compliance with the Safety Management System and to discuss any issues identified by workers. CCTV monitoring of the various sites is undertaken and safety officers are required to watch one 60 minute period each day to observe workers' compliance with safety systems and a log is kept of these observations. The cameras are set up in many operational areas particularly where high risk activities such as the use of forklifts and the overhead crane take place.
The WHS management system is audited externally on an annual basis.
The offender has implemented direct reporting systems to the directors for any urgent WHS matters. The main line of communication is through Mr Johnson at the bi-monthly meeting, but if an urgent matter arises he could report the matter immediately to the directors.
Mr Johnson deposed that the production area building is 40 metres wide and 141 metres long occupying an area of 5640 square metres. There are specific policies and Safe Work Method Statements in place to address the risks associated with the work performed in the production area building including an SWMS on pedestrian, vehicle and forklift movements, Traffic Management Plan, large vehicle access rules, pedestrian safety rules, forklift moving goods rules and forklift load/unload rules.
The offender regularly undertakes risk assessments when new pieces of plant are introduced to the production area building or when usual tasks arise.
The offender has undertaken significant investment to remove some risks to its workers. An example of this is the use of packing robots on production lines to avoid interaction between workers and plant and eliminating manual handling and entrapment risks. The offender has also implemented rules relating to the movement of heavy vehicles around the production area building including the use of one-way roads and dedicated exit and entries for heavy vehicles.
Within the production area building there are daily inspections by the safety officers to identify hazards and deal with them. Workers are also encouraged to raise any safety concerns they may have through training at induction, toolbox talks and casual discussions with safety officers.
Mr Johnson deposed that the offender had an AS4801 compliant Safety Management System in place at the time of the incident relating to the unloading of jumbo rolls into the loading bay area as well as a number of additional traffic control measures in place. A Safe Operating Procedure for the movement of large jumbo rolls by a forklift truck was being developed at the time of the incident and was under review.
The offender had a series of traffic and pedestrian control measures in place in the production area building. A dedicated pedestrian walkway was in place and identified. Further, there were bridges in place to allow workers to walk safely over the top of operational conveyors. A series of pedestrian crossings were added in 2016 to indicate the location where workers could cross the production area building to access the toilets. There was a bright yellow painted metal barricade at the end of the pedestrian walkway to funnel pedestrians away from the wall opening where forklifts pass through. The barricade also prevents pedestrians from walking straight across the traffic area. There was a forklift warning sign next to the entry/exit point.
The offender acknowledges that prior to the incident it placed too heavy a reliance on individuals complying with administrative controls in relation to the safety of forklift operations in the production area buildings and that this did not provide an adequate system to ensure the health and safety of the workers. Also, the offender did not adequately take into account, as part of its control measures, that workers could use the loading bay as a short cut when going to the toilets. There was a need for physical barriers in place to prevent pedestrian and forklift interactions.
After the incident, the offender immediately took steps to implement additional control measures to ensure the safety of workers. Between 16 February 2017 and 20 February 2017 forklift drivers underwent refresher training in relation to site traffic rules and were provided with communications relating to pedestrian safety. Workers were retrained in pedestrian safety, forklift movements and truck unloading. Workers were also given training in the use of allocated walkways when moving through the production area building. The SOP for the movement of large jumbo rolls by a forklift truck was finalised on 23 February 2017 and was implemented. The traffic markings were repainted on all entrances to the production area building to ensure the workers were aware of active forklift areas. The opaque plastic curtains were removed from the entry of the loading bay. In about March 2017 the offender conducted a risk assessment for the task of unloading the jumbo rolls with a forklift in the loading bay area. In March 2017 the offender installed flashing lights, horns and temporary physical barricades at each entry to the production area building where a forklift may travel. Temporary barricades were also used to ensure that forklift drivers got out of the forklift to move them prior to entry into the building so that they could assess if there were pedestrians in the vicinity.
On or about 30 March 2017 the offender introduced a roll of "truck marshall" for the production area building. The truck marshall oversees the unloading of the truck and its safety exit from the site to make sure pedestrians are clear and a forklift exclusion zone is in place. Currently one of the safety officers performs the truck marshall duties as it is not a full time role. The production office is instructed to inform the truck marshall of all anticipated deliveries to enable safe traffic management.
In March 2017 the company implemented a new Traffic Management Plan. An external contractor has been engaged to provide updates to the Traffic Management Plans across the Wetherill Park production site.
Since the incident there have been seven risk assessments undertaken in relation to traffic management issues within the production area building. The offender has implemented change and advised the SWMS and SOPs for the production area building.
Forklift drivers are required to use a trained spotter when operating in the production area building.
In July 2017 the offender constructed a new toilet block and lunch room in the centre of the production area buuilding at a cost of approximately $80,000. The location of the new amenities block minimises the number of workers required to walk in areas where they might come into contact with forklifts.
After the incident occurred, Mr Johnson was notified and he attended the site. Ms Put was being attended to by ambulance officers before being taken to hospital. Mr Johnson remained at the site and spoke to the police and SafeWork NSW inspectors. The offender and a number of individuals have provided support to Ms Put since the incident including visiting her and keeping in touch in relation to her condition and ongoing welfare, including the provision of clothing, food and money. Workers have access to a counselling service.
The company has been committed to assisting Ms Put to return to work and supporting her family through that process. On 13 March 2019 Ms Put returned to work three days a week for two hours per day. During 2019 she worked towards a complete return to pre-injury duties, however, she has been medically certified as not fit for any duties. Ms Put is still employed by the company but she remains off work on workers compensation. Ms Put's four children still work for the offender, one in Perth and three in Wetherill Park and the offender has maintained a positive relationship with Ms Put and her children since the incident. Ms Put and her family were well-respected and held in high regard within the company. The offender is eager to welcome Ms Put back to the workplace, if that is possible.
[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 offence is one of considerable objective gravity.
The risk was obvious and should have been known to the offender. The offender's supervisors knew that workers often walked back from the toilets through the loading bay area. The offender had in place Traffic Management Plans for other areas of the site. The positioning of the plastic strip curtain and the fact that the jumbo rolls were carried by the forklift at a height to block the driver's line of sight made the system of work one that was fraught with danger to pedestrians in the loading bay area.
The likelihood of the risk arising was moderate to high. There were no physical barricades to prevent pedestrians from entering the loading bay area or to protect them from coming into contact with a forklift, however the loading bay was not a high pedestrian traffic area.
The risk to workers included a significant risk of death.
The steps that could have been taken to eliminate the risk were known to the offender, Inexpensive and simple to implement and could have been implemented with minimal inconvenience to the offender.
It should be noted that the offender had in place significant safety systems overseen by dedicated WHS staff. However, the system did not identify or control the glaring risk of serious personal injury or death presented by the forklifts unloading the jumbo rolls in the loading bay area. Only so much credit can be given for extensive and well-documented safety systems when it is demonstrated by a tragic incident like this one that they have significant and undeniable flaws in them. The offender presented no explanation for how this could have occurred.
The offence caused extremely serious personal injury to Ms Put.
I have taken into account the maximum penalty for the offence.
[6]
Deterrence
The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. 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 some need for specific deterrence because the offender continues to operate in an industry that poses considerable risk to workers and other persons. However, the offender has demonstrated that it has taken considerable steps since the incident to improve its safety systems with particular emphasis on traffic management around the site.
[7]
Aggravating Factors
The offender has a record of previous convictions: 21A(2)(d) Crimes (Sentencing Procedure) Act 1999. Multiple convictions for offences of this type are rare for a PCBU. The offender has 7 prior convictions for similar offences under the old legislation arising from 3 incidents occurring in 1998, 2002 and 2004. Prior convictions are pertinent to deciding where, within the boundaries set by the objective circumstances are set, a sentence should lie: R v McNaughton (2006) 66 NSWLR 566 at [26]. Prior convictions should not be taken into account in such a way to punish the offender again for those earlier matters, but they do not assist the offender in affording to it any particular leniency.
The injury, harm and loss caused by the section 32 offences 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 offence does not require an injury to be sustained but only the creation of a risk. In this case the injury sustained was extremely serious and has led to Ms Put experiencing significant ongoing disabilities including her inability to work.
[8]
Mitigating Factors
The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender had in place extensive WHS systems prior to the incident. The offender has demonstrated by the steps it has taken after the incident that it has good prospects for rehabilitation.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Ngai and Mr Johnson on behalf of the offender accepted responsibility for its actions and has expressed contrition and remorse. The offender has also taken steps to assist Ms Put after the incident.
The offender entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: 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 appropriate discount is 25%.
The offender co-operated with the SafeWork investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
The offender is an exceptional corporate citizen. The extent of the contribution of the offender financially to charitable and as a major employer is very significant.
[9]
Penalty
ABC Tissue Products Pty Ltd is convicted.
The appropriate fine is $400,000 that will be reduced by 25% to give effect to the plea of guilty.
I impose a fine of $300,000.
The offender is to pay the prosecutor's costs agreed in the sum of $40,000.
I order that pursuant to section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
[10]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 26 October 2020