SafeWork NSW v Hilltop Meats Pty Ltd

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty
DETERRENCE – general and specific deterrence
DUTY HOLDERS – there may be more than one duty holder, but that does not exculpate a PCBU from the duty imposed by the legislation
AGGRAVATING AND MITIGATING FACTORS – treatment of the injured worker after the incident
COSTS – prosecutor’s costs

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Work Health and Safety Act 2011 (NSW), ss 19(1), 31, 32

Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117; [2005] NSWIRComm 61
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82
R v Cage [2006] NSWCCA 304
R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v Grandcity Constructions Pty Ltd; SafeWork NSW v Cai [2018] NSWDC 398
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142

Category: Sentence

Parties: SafeWork NSW (Prosecutor)
Hilltop Meats Pty Ltd (Defendant)

Representation: Counsel:
M Moir (Prosecutor)
B Hodgkinson AM SC (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Seyfarth Shaw LLP (Defendant)

File Number(s): 2023/335640

Publication restriction: Nil

JUDGMENT

1. Hilltop Meats Pty Ltd (Hilltop) entered a plea of guilty on 11 March 2025 to an offence that on 20 October 2021 at 13 Scenic Road, Young, NSW, Hilltop being a person conducting a business or undertaking (PCBU) who had a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, did fail to comply with that duty, and the failure to comply with that duty exposed workers, in particular Dean Spencer (Mr Spencer) to a risk of serious injury or death contrary to s 32 of the WHS Act.

2. The prosecutor tendered the Prosecutor’s Sentence Tender Bundle which became exhibit A. The defendant tendered an affidavit of Casey Leigh Smith dated 15 July 2025 which became exhibit 1 and a letter from Hilltop Meats to Mr Spencer dated 18 January 2022 which became exhibit 2.

Background

3. At all material times, Hilltop conducted a business or undertaking that comprised an abattoir. The abattoir processed beef and was located at 13 Scenic Road, Young, NSW 2594 (the site). Hilltop employed approximately 121 workers.

4. At all material times, Edward Throsby (Mr Throsby) was the sole director and shareholder of Hilltop. On or about 2 October 2020, the business of Hilltop changed ownership and Mr Throsby became the new owner and Managing Director of Hilltop from this time.

5. Hilltop employed the following workers:

6. Michael Dorahy (Mr Dorahy), Chief Executive Officer (CEO) of Hilltop who reported to Mr Throsby.

7. Mr Spencer, who worked as a Rendering Operator and Rendering Plant Leading Head at Hilltop, before resigning in 2018, and then recommencing employment in 2021 as a Rendering Supervisor.

8. Peter Brough (Mr Brough) was employed at the site on and off for a period of twenty-eight years in various roles. He performed duties at the site such as general labourer, forklift driver and mowing lawns.

9. Matthew Le Gay Brereton (Mr Brereton), who worked as a Rendering Operator at Hilltop since 2018.

10. Les Moorhead (Mr Moorhead), who worked as the Maintenance Manager at Hilltop since 2016. He reported to Michael Bellamy (Mr Bellamy) who was the general manager and worked from the site on a daily basis. Mr Bellamy held overall responsibility for the day-to-day operations at the site.

The Finished Meal Auger

6. Hilltop owned and operated a finished meal auger (the auger) in the Rendering Plant section of the site. The Rendering Plant, including the auger, was inspected by supervisors and workers on a daily basis and maintained by workers engaged in the Maintenance section of the site. On the day of the incident, the Rendering Supervisor was Mr Spencer.

7. The auger was used to transport a product called “finished meal” or “meat meal” to the finished meat meal storage bin. A small portion of the “finished meal” or “meat meal” was transferred from the auger for the purposes of “bagging bulka bags” of meat meal.

8. The finished meal auger transported the meat meal along an inclining conveyor screw approximately eight metres in length up to a height of five metres above ground level where it was discharged into a silo. The inclining conveyor screw travelled at an angle of approximately 45 degrees.

9. The process for filling each bulka bag was for the auger to transport the meal to the finished meal bin, which was located about three quarters up the screw conveyor and to the bulka bag auger, via a hole in the base of the finished meal auger trough.

10. The chute connecting the finished meal auger and the bulka bag auger was susceptible to blockage with meat meal if the bulka bag auger was not regularly run (at least daily). Clearing the accumulation was the measure for preventing a blockage, and it was normally Mr Brereton who took this step. Once blocked, the chute was required to be unblocked before a bulka bag order could be undertaken.

11. The auger was operated from a control panel on the ground level. Fitted to the auger at ground level was a “M36” isolation switch which could be used to turn off the power to the auger. The isolation switch was able to be locked out with a padlock.

12. Prior to the incident, fixed guards and covers were available for the finished meal auger. Mr Spencer, Mr Brough and Mr Brereton stated in a SafeWork NSW interview that the guards had been removed for several months prior to the incident to allow visibility and to facilitate access to deal with any blockage. Mr Moorhead also told SafeWork NSW that he thought he was aware, before the incident, that the top two-thirds of the auger was left unguarded. These matters were not reported to senior management at Hilltop. On the day of the incident, the finished meal auger was open at the top, and there was no guarding in place for the conveyor screw.

13. The task of clearing a blockage on the auger was a regular occurrence whenever the auger was used to fill an order. Some workers in the Rendering section had developed their own procedures for clearing a blockage which involved them climbing up on the auger up to a height of approximately five metres without any falls arrest system in place and unblocking the chutes, either with a metal rod or by hand, while some workers stood on top of the screw conveyor without the machine being locked out and tagged out (LOTO).

The Incident

14. On 20 October 2021 at approximately 8.00am, Mr Spencer commenced his daily start-up routine of the machinery in the Rendering section of Hilltop. The Rendering Operator, Mr Brereton, who usually performed bulka bag orders, was on leave. As a result, Mr Brough, who did not usually work in the Rendering section (although had performed bulka bag orders some 6-10 times previously) was instructed by Mr Spencer to assist him with the bulka bag order.

15. Mr Spencer had supervised workers filling bulka bags and had performed the task with Mr Brough two or three times previously. At approximately 8.45am, Mr Brough requested Mr Spencer to leave the finished meal auger and bagging chute auger in “manual mode” so Mr Brough could stop/start the flow of meat meal into the 1-tonne bags by using the isolator switch.

16. Mr Spencer identified that the chute connecting the bulka bag auger to the finished meal auger required unblocking before the order could be undertaken. He turned the M36 isolation switch to the “OFF” position, however he did not attach a padlock or tag to LOTO the isolation switch.

17. Mr Spencer walked up the stairs to the hammer mill (also referred to as the “bliss mill”), onto a platform. He climbed over the hammer mill platform handrail and stepped over a gap or void approximately one metre wide with a suspended drop of approximately three metres to the ground level, onto the unguarded finished meal auger. He walked up the unguarded finished meal auger to an area above the bagging chute auger to an approximate height of five metres above ground level. Mr Brough passed a long steel bar up to Mr Spencer who then used it to manually unblock the build-up of meat meal from the connecting chute. After unblocking the chute, Mr Spencer let go of the bar.

18. Mr Brough connected an empty 1-tonne bag to the bulka bag chute before leaving the room to collect a Tek screw gun from the Maintenance section at the site. He returned to the room approximately 5-10 minutes later and observed that Mr Spencer had disappeared and that he could not see Mr Spencer. Assuming Mr Spencer was no longer standing inside the finished meal auger, Mr Brough turned the M36 isolation switch to “ON” in order to commence filling bulka bags with meat meal.

19. The finished meal auger commenced rotation. Mr Brough heard a squeal and turned the M36 isolation switch to “OFF”. Mr Brough looked up and observed Mr Spencer’s orange shirt in the finished meal auger above him. He then used a two-way radio to request an ambulance.

20. As a result of the incident, Mr Spencer’s left foot below the knee was traumatically amputated. Mr Spencer was admitted to hospital in a critical condition, and remained there for two months, undergoing multiple (at least six to seven) surgeries to his left leg and right foot. Mr Spencer has not returned to work since the incident. He now has a prosthetic left foot, and his right foot has ongoing issues. He suffers from chronic pain, and his ongoing treatment includes extensive physiotherapy, rehabilitation, and wound care to limbs.

Relevant Guidance Materials and Statutory Obligations

21. The relevant guidance materials are set out in pars 31-43 of the Agreed Statement of Facts (ASOF).

Systems of Work Prior to the Incident

22. Guards were available for the finished meal auger in the Rendering section of the site however, as noted earlier, the guards had been removed by the workers for several months prior to the incident.

23. A documented risk assessment (RA) of the Rendering plant, undertaken in 2015, identified the risk of amputation from exposure to screw conveyors. The RA was not reviewed after Hilltop’s business came under new management in October 2020.

24. There were padlocks and keys available at the site that would have enabled the isolation switch of the auger to be LOTO. Neither Mr Spencer nor Mr Brough had been provided with their own individual padlock and key for usage at the site. A red padlock with a gold key was observed to be located on top of the isolator by Steve Gallop when he responded to the incident.

25. There was a documented procedure for LOTO of machinery at the site, issued in August 2020, however Mr Brough and Mr Brereton were not trained in this procedure prior to the incident. While there are records showing that Mr Spencer received training in 2015 for LOTO, Mr Spencer had not been retrained when he restarted his employment in 2021.

26. Prior to the change of Hilltop’s management in October 2020, Hilltop had employed a dedicated Work Health & Safety (WHS) Officer/Advisor, Phillip Davies, who conducted regular safety walkthroughs at the site. After the change, Mr Dorahy instructed that the responsibility for health and safety rested with the manager or supervisor of each area at the site. Subsequently, Mr Spencer was employed in July 2021 as the supervisor of the Rendering section.

27. At the time of the incident, there were 12 documented Safe Work Instructions (SWI) relating to Rendering section operations. Of the four SWIs relevant to operation of the finished meal auger, all of them required workers to report any incidents to the WHS Officer. Hilltop did not have a designated WHS Officer for the site as at the time of the incident.

28. There was no safety audit undertaken in relation to the operation of the auger, or the site generally, following the change of ownership. The four inherited SWIs relevant to the operation of the auger were not reviewed or updated at any time from the change of ownership of Hilltop until the time of the incident.

29. All of the four inherited SWIs, relevant to the operation of the auger, instructed workers to ensure all guards were fitted to screws and drives prior to starting equipment, and to ensure LOTO procedures were used before working on machinery. The specific PPE Instructions in the SWIs also provided that workers were not to run any equipment without the correct guarding installed. The SWIs also provided that lock out tags were to be placed on equipment which may be faulty or require maintenance. However, those four SWIs did not provide instruction in a safe system of work for the specific tasks of unblocking augers, safe access to the augers, or performing bulka bag orders.

30. The 12 inherited SWIs were issued to Mr Spencer when he recommenced employment in July 2021, however he was not talked through their content.

31. Prior to the incident, there was a verbal safe system of work for unblocking the auger which required workers to use a hammer to attempt to clear the blockage, and to access the location of the blockage by using a scissor lift, or a forklift with a workbox attachment. However, Mr Spencer and Mr Brough were not trained in this safe system of work, and workers developed their own procedures for removing blockages, which involved them climbing up the auger and attempting to unblock the auger.

32. Both Mr Spencer and Mr Brough held a forklift licence. There were six forklifts potentially available for use on the day of the incident. Three forklifts were fitted with an attachment that was not appropriate for use with a workbox.

33. Hilltop made available the inherited SWI “Scissor lift (elevated work platform)” prior to the incident, however Mr Spencer was not provided with a copy, nor trained in it, and Hilltop did not assess Mr Spencer’s competency in the use of a scissor lift.

34. An emergency stop button for the finished meal auger was in place, however it was located approximately 10 metres away from the control panel and the isolation switch of the auger. In addition, workers standing at the isolation switch did not have any visibility of the auger chute that required unblocking during the isolation process.

35. Hilltop did not have in place any documented SWI or Safe Work Method Statements (SWMS) requiring the finished meal auger to be LOTO specific to the task of clearing a blockage in the finished meal auger. There was no assessment of the competency of workers in clearing blockages on the auger prior to the incident. There were no handrails in place. There were no other system of falls arrest in place. There was only one scissor lift on site and it was not always available for use to clear blockages in the auger. When it was available, workers, instead of using the scissor lift, climbed up the auger in order to complete the task of unblocking the auger more quickly.

36. No hazard reports were documented regarding the lack of guarding on the auger, or the practice of workers climbing up the auger without any fall restraint to clear blockages while working on top of the unguarded screw conveyor. Mr Moorhead knew that workers had previously stood on top of the exposed conveyor screw. Mr Moorhead had instructed Mr Brereton not to stand in the unguarded auger to clear a blockage and that he was to use a scissor lift or ladder, but Mr Moorhead did not bring this issue to the attention of more senior management of Hilltop. No risk assessment was undertaken for the task of clearing blockages.

37. A Hilltop employee handbook was developed in 2017 containing the WHS Policy for the business, but it was not updated until after the incident.

38. Hilltop conducted toolbox talks purportedly on a monthly basis in each area or department at the site, however sometimes there were gaps of up to four months between the toolbox talks. Hilltop also conducted “KRA” (Key Results Area) meetings where safety issues were raised, however no issues relating to the unguarded finished meal auger were raised.

39. Prior to the incident there was no comprehensive or adequate instruction or training provided to the workers regarding the safe procedure for the unblocking of the finished meal auger.

Systems of Work After the Incident

40. The defendant was able to rectify the situation quickly and simply after the incident involving Mr Spencer.

41. In response to the incident SafeWork NSW issued a prohibition notice, and two improvement notices that directly related to the risk that gave rise to the incident.

42. In response to the notices issued, Hilltop took the following action:

43. Reinstated the removable covers on the finished meal auger and bagging chute auger.

44. Senior staff, including Mr Dorahy, Mr Bellamy and Mr Moorhead, reviewed and updated the inherited procedures and policies related to LOTO training.

45. Re-trained workers in LOTO, and their competency in LOTO was then assessed.

46. In addition to compliance with the above notices, Hilltop took the following action:

47. Summoned Mr Spencer to the site in mid-January 2022 while he was recovering from his injuries and issued him with a formal warning for failure to follow company procedures.

48. Fabricated and installed a knife gate (ie a physical barrier) to reduce meal dropping into the chute connecting the bagging chute to the finished meal auger and thereby reduce the incidence of blockages on the finished meal auger.

49. Issued individually-issued padlocks and keys to maintenance workers and rendering workers.

50. Installed an access platform next to the bagging auger chute.

51. Installed rubber mallets to assist with the dislodgement of built-up meat meal from the meal auger and connecting chute to bagging chute auger.

52. Conducted an investigation into the incident. No report was produced, however all findings were communicated verbally to the Managing Director Mr Throsby.

53. Commenced safety walk-throughs at the site to assist in the identification of hazards, risks and opportunities for improvement.

54. Updated the Work Health and Safety Policy of Hilltop.

55. Installed a VSD (variable speed drive) to control the speed of the finished meal auger.

56. Employed a dedicated Safety & Training Coordinator at the site.

57. Reviewed inherited safe work instructions relevant to rendering plant.

58. In addition, the policies and procedures relating to LOTO which had been inherited from previous owners of the defendant’s business were reviewed and updated. Workers were retrained and assessed for competency in the updated LOTO procedure and were issued with individual padlocks and keys.

Sentencing

45. The court is to approach a sentencing exercise on the basis of it being one of “instinctive synthesis”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

46. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way:

“The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.”

Objective Seriousness of the Offence

47. The primary consideration requires a determination of the objective seriousness of the offence. The High Court made this clear in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]:

“…The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of offending.”

48. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474-475.

49. The duties of the defendant require that they ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

50. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling Pty Ltd v The Queen (2012) 35 VR 399; [2012] VSCA 82 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.

51. The objective degree of foreseeability is a matter for the court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610; [2000] NSWIRComm 71 (Capral Aluminium) at [81].

52. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No 3*)* (2005) 147 IR 117; [2005] NSWIRComm 61.

53. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700; [2000] NSWIRComm 142 at [31].

54. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (Nash v Silver City Drilling). His Honour Justice Basten, under the heading “Assessment of Risk” said at [34]:

“The sentencing judge commenced his consideration with the proposition that ‘[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.’ However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.”

55. His Honour further observed at [42]:

“The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.”

56. I accept that s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) is generally regarded as a codification of the common law principles of sentencing: R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law such as the principles of proportionality and totality: R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272.

57. The court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]-[18] (Latham J).

58. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority of NSW v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

59. The objective seriousness of an offence under s 32 of the WHS Act is considered in the context of the gradation of offences contained in ss 31-32 of the WHS Act: Nash v Silver City Drilling at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

60. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Nash v Silver City Drilling at [34].

61. The availability of steps to eliminate or minimise the risk: Nash v Silver City Drilling at [34].

62. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Nash v Silver City Drilling at [34] and [53].

63. Whether the risk was known or ought reasonably to have been known to or identified by the offender.

64. Whether the risk was an obvious or clear one.

65. The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd*; SafeWork NSW v Cai* [2018] NSWDC 398 at [55] (Russell SC DCJ).

66. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of. In Nash v Silver City Drilling, his Honour Justice Basten dealt with the proper approach to considering the objective seriousness of offences under the WHS Act, saying at [53]:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.”

Matters Relevant to Determining the Culpability of the Defendant

61. A documented risk assessment of the Rendering plant, undertaken in 2015, identified the risk of amputation from exposure to screw conveyors. One of the identified control measures was that all conveyors were to be fitted with a bolted cover. There were guards available for the auger in the Rendering section of the site. However, for several months prior to the incident, guards for the auger had been removed to allow visibility into the chute and to facilitate the unblocking of the chute. There is no evidence before me as to when the guards were removed or by whom.

62. Nothing effective had been done to identify and rectify this situation by the time of the incident. It appears that workers in the Rendering section had developed their own procedures for clearing up a blockage which involved them climbing up the auger up to five metres in height above the ground, without any fall arrest systems in place, and unblocking the unguarded auger. This was done either by hand or with a metal rod, while they stood on the top of the conveyor screw without the machine being LOTO from the power supply.

63. On the day of the incident Mr Spencer had adopted the same procedures for unblocking the auger as he had seen other workers previously do. There was no assessment of the competency of the workers in clearing the blockages on the auger prior to the incident. There were no handrails in place. There were no other systems of fall arrests in place. At the time of the incident, the auger was not LOTO while Mr Spencer was performing work in close proximity to the unguarded screw conveyor.

64. No risk assessment was undertaken for the task of clearing blockages on the auger. Workers, including Mr Spencer, were not instructed to LOTO the auger prior to clearing any blockage.

65. After the business of Hilltop changed hands in October 2020, the new ownership had inherited a number of documented SWIs. The SWIs relevant to the operation of the auger specified that LOTO was to be completed before any maintenance work was performed on the machine. However, those SWIs did not provide any instruction for LOTO of the auger prior to the task of clearing any blockage.

66. There was a documented training procedure for LOTO of machinery used in August 2020 but it did not specifically relate to the task of clearing blockages on the auger. Further to this, workers who were tasked with unblocking the auger, including Mr Brough, were not trained in this LOTO procedure.

67. Some LOTO training had been provided to Mr Spencer in 2015 when he was first employed by Hilltop, however he was not retrained in LOTO when he recommenced his employment with Hilltop in July 2021.

68. There were padlocks and keys available for the LOTO of the isolation switch of the auger. However, workers unblocking the auger were not required to use them.

69. At no time prior to the incident did the defendant issue an individual padlock and key to Mr Spencer since he recommenced employment in 2021. Mr Brough was not provided with his own padlock and key on the day of the incident. No effective action was taken to mitigate the hazards from working with height while unblocking the auger.

70. The practice of workers climbing up the auger instead of using the scissor lift (or forklift workbox) developed because this was a quicker method to complete the task of unblocking the auger. No effective action was taken by management to stop this dangerous practice despite Hilltop’s maintenance manager, Mr Moorhead, having instructed one of the workers to use a scissor lift and not to stand in the unguarded auger in order to clear a blockage. These unsafe practices nevertheless persisted.

71. There were no serious endeavours undertaken by the defendant prior to the incident to mitigate the hazards associated with working from heights in close proximity to the unguarded auger through adequate training or instruction.

72. There was ample guidance material readily available to the defendant at the time of the incident which has been referred to previously. In particular, the guidance material emphasised the importance of training and instructing workers in LOTO procedures for tasks such as maintenance, repair and cleaning of plant.

73. The ASOF demonstrates that Mr Spencer was issued with a formal written warning by his employer, the defendant, in mid-January 2022 for his alleged failure to follow company procedures.

74. By its plea of guilty, the defendant has admitted that it should have taken the reasonably practicable steps as set out in the Amended Summons.

75. The likelihood of the risk occurring if appropriate control measures were not taken was significant, and these control measures should have been implemented as they were simple, inexpensive and well-known to the defendant.

76. The pleaded risks were a risk of death or serious injury. The injuries sustained by Mr Spencer were very serious and life-changing for him and his family. One cannot imagine what Mr Spencer has been through having lost his foot as a consequence of this accident.

77. It is evident from the Prosecutor’s Sentence Tender Bundle that the workers were accustomed to undertaking this task without any protection against falling from height. The workers, including Mr Brough and Mr Spencer, had not been trained or instructed to use any fall restraint mechanisms in order to access the auger and remove the blockages. Nor had they been trained and instructed to adopt the LOTO procedures which applied at the site in relation to maintenance work.

78. The manner in which the work was performed on the day of the incident was not unusual or some sort of aberration as the workers, including Mr Brough and Mr Spencer, were in fact following what was a standard procedure that had been employed at the site for quite some time. There is nothing before me to suggest that it was a requirement or instruction for the workers in performing this task to use scissor lifts or forklifts with a workbox attachment.

79. At the time that the first responders arrived on the day of the incident, there was in fact a lock sitting next to the isolation switch with a key that could have been utilised to isolate this piece of equipment, but it did not happen.

80. The defendant concedes that the only thing that would eliminate the risk of being trapped in the moving auger is the LOTO procedure. The defendant asserts that this was well-known and easily understood. When looking at the particulars contained within the Amended Summons, the issue distils down to whether there was a procedure that allowed for the clearing of blockages in place.

81. What was important in these circumstances, and the defendant accepts was missing, was a specific written procedure for the clearing of the blockages.

82. The defendant submits that as Mr Spencer was the supervisor at the relevant time, he was in a position of making sure that nothing unsafe happened. There were various inspections carried out on the rendering plant by workers engaged in the Rendering section of the site on a daily basis, which includes rendering operators and the rendering supervisors. The defendant notes that this included Mr Spencer. The defendant asserted that they were not trying to blame Mr Spencer in their oral submissions, as there can be multiple duty holders, but the defendants’ reliance on the fact that Mr Spencer was a supervisor troubles me.

83. Nonetheless, the defendant asserts that the new owners of Hilltop had never been told that there was a problem, and that this is reflected in the ASOF. The directors, Mr Throsby and Mr Dorahy, state that all they knew was that inspections were taking place. The directors were based in Singleton NSW which is another plant that was operated by the defendant. The submission they make is that they were reliant on being told if there is a problem, and in this instance they had not been so told. The defendant’s submission is basically whether there were a series of factors which mitigate against a serious breach, and that this is not a case where they were aware of something but not doing anything about it. Nonetheless, the reality is that the isolation did not occur on this occasion.

84. The defendant further submits that the workers were not reporting to senior management and therefore not bringing work health and safety issues to the attention of the directors.

85. I note that the duty imposed on the PCBU is a non-delegable duty. I accept however that the maintenance manager, Mr Moorhead, did not bring this issue to anybody’s attention. I note the further submission of the defendant that had it been reported and the directors were on notice, then the offending would be much more serious than the way in which the matter is presented today.

86. Further, I note that the defendant accepts that this incident was foreseeable, and they accept that if someone climbed on top of the auger when it was unguarded, and a different person turned it on, a risk was created. The defendant additionally accepts that when such a person had climbed to the top of the auger at three or five metres of height, there was the risk of a fall.

87. I note that the defendant concedes that there was no training in the safe system of clearing the regular blockages in a position where there were no guards and the clearing of blockages was a task that had to be done at height.

Deterrence

88. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

89. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).

90. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.

91. The Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 (Bulga) at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]-[75] which said:

“[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

…

[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.”

92. General deterrence must be a significant feature of the sentence imposed upon the defendant. The need for general deterrence is necessary to send a warning to the industry that such risks to safety of workers who work at height, and over unguarded machinery, will not be tolerated and everyone involved should be aware of and take active steps to eliminate, or minimise, if elimination is not possible, the risk to the safety of workers on the site.

93. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the WHS Act very seriously.

94. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.

95. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

96. Clearly there was a breakdown in communications between management and workers. That does not however absolve a PCBU of its duty to protect workers from the risk of harm.

97. Thus, the need for a component of specific deterrence in this matter is very relevant as the defendant continues to operate in an industry that presents significant risks to the health and safety of workers. The defendant continues to employ a large number of workers.

Aggravating Factors

98. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act. In order for this 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] (Hidden J, McColl JA and Levine J agreeing).

99. I am satisfied beyond reasonable doubt that this harm is more deleterious than may ordinarily be expected, and as such is an aggravating factor pursuant to s 21A(2)(ib) of the Sentencing Act.

100. An issue has arisen in relation to exhibit 2. Exhibit 2 is a letter dated 18 January 2022 to Mr Spencer signed by Mr Dorahy as Chief Executive Officer of the defendant. The document is headed “Final Warning – Failure to follow procedures and adhere to responsibility”.

101. It is an agreed fact at par 64(a) of the ASOF that the defendant took the following action:

“Summoned Mr Spencer to the site in mid-January 2022 while he was recovering from his injuries and issued him with a formal warning for failure to follow company procedures.”

102. The defendant submits that it, through its directors, faced a significant dilemma as to whether or not to send this letter to Mr Spencer. The letter sets out in significant detail the failures that the defendant believes that Mr Spencer had made which contributed to his accident, some of which, as they drew his attention to in the letter, were ultimately his fault.

103. The letter amongst other things states as follows:

“Had these failures not been present, we are confident that no harm would have occurred.

As advised in previous discussions, your actions leading up to the incident were unacceptable. In any normal circumstance, these actions would constitute Serious Misconduct and warrant Summary Dismissal under our Disciplinary Policy. However, given the situation and the injuries sustained, we are choosing to provide you with a Final Warning.

This Final Warning dictates that, on your return to work in any capacity, it is expected that you will be retrained in Company Policy and Procedures and will in all instances adhere to the requirements of your role and employment, following all lawful and reasonable instruction.

Any further failures to adhere to correct Procedures and expectations will result in immediate termination of employment.

I propose that we meet again on your return to work to review these expectations and conduct retraining. If you wish to respond to this Final Warning letter, please do so by contacting me [mobile phone number removed] or by replying in writing.”

104. Senior Counsel for the defendant made submissions to the effect that the defendant thought that issuing such a final warning to Mr Spencer was a good way to illuminate the risks at play on the site to the rest of the workforce on site, whilst using the auger.

105. I do not agree.

106. Mr Spencer was severely injured in a horrible accident on 20 October 2021 which resulted in the amputation of his left foot and other injuries to his right leg. He required a number of surgeries. He has not returned to work and continues to require treatment.

107. The demand for Mr Spencer to attend the workplace during a period when he was recovering from a very traumatic injury resulting in a significant disability is offensive. To treat any employee who was severely injured whilst working for the defendant, in such a way is disgraceful. Mr Spencer was, no doubt, still recovering from the incident. To call him in and then give him a “Final Warning” is heartless in the extreme.

108. The defendant asserts that they did so to make sure that the message was given to all workers that such conduct must not continue. The manner in which this was done is completely inappropriate. If the defendant wanted to ensure that the rest of the workforce was aware of the correct procedures, they could have held a meeting with them. No doubt some of the workers were also traumatised by the events of 20 October 2021 and may themselves have needed counselling.

109. As their stated purpose of the letter was to warn other employees, the question arises as to whether the letter itself was to be shown to the other employees. If so, that in itself is insensitive. The fact that the defendant decided to take serious disciplinary action against Mr Spencer shortly after the incident, whilst he was still recovering, does not to my mind show remorse or contrition, nor any kindness or humanity, despite what is said in the defendant’s affidavit.

110. I acknowledge that the defendant kept in contact with Mr Spencer and took some steps to provide him with an income. However, in my mind, these efforts are tempered and undermined by the decision to take serious disciplinary action against him in the circumstances in which it did.

111. I regard the letter (exhibit 2), and the circumstances surrounding it, as significantly aggravating actions.

Mitigating Factors

112. In Haynes v CI & D Manufacturing Pty Limited (No 2); Callaghan v CI & D Industries Pty Limited (No 2) (1995) 60 IR 455 at 456-457 the Full Bench held the following:

“We think that having regard to the specific nature of the legislation, the past record upon which the both the prosecution and the defendants should rely must be intimately bound to the nature of the offences which the Court is considering, namely industrial safety, health and welfare. We add one comment on the question of the previous record, and that is that the Court should attempt to ensure the accuracy of the record and have objective regard to it in relation to the industrial enterprise and the extent of its operations. We consider that the extent of the operations of the defendant enterprises is to be taken into consideration when coming to conclusions having regard to the past record.

Human experience indicates that the larger the number of industrial transactions a company is involved in the larger the number of industrial accidents which occur as a matter of statistical expectation. The safety record of very large company with some prior convictions may, on analysis, be better than that of a small company with fewer such convictions. However, we again emphasise that in the context of the OHS Act the record is only one of the factors to be taken into account in assessing penalty and the essential inquiry must remain the circumstances of the breach in question.”

113. The defendant has not been subject to a prior conviction under work health and safety law: s 21A(3)(e) of the Sentencing Act, and as such is entitled to the leniency which might ordinarily apply to a defendant with no previous convictions.

114. I note that in the affidavit of Casey Leigh Smith affirmed 15 July 2025 (exhibit 1) there is an expression of contrition and remorse for the injuries caused to Mr Spencer. I also note that the company has in some ways supported and stayed in contact with Mr Spencer. Whilst I accept that to be the case, I note that the affidavit does not mention the warning letter, and as I have indicated above, the effect of the defendant’s conduct in calling Mr Spencer in and giving him a written final warning, is something that, in my view, should cause me not to grant the defendant any leniency pursuant to s 21A(3)(i) of the Sentencing Act.

115. I accept that the defendant is a corporate citizen of good character and has made charitable donations and contributes to the community: s 21A(3)(f) of the Sentencing Act

116. I accept that the defendant is unlikely to reoffend as it has undertaken significant changes and is even more focused than before on the health and safety of its workers: s 21A(3)(g) of the Sentencing Act. This is not a defendant that had no regard to safety at all – it had systems in place to protect its workers, but there was no enforcement of such policies when the workers went to clear any blockage of the auger.

117. I accept that the defendant has demonstrated a commitment to workplace safety and therefore has reasonable prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act*.*

118. The defendant co-operated with SafeWork NSW during its investigations, as it is obliged to do: s 21A(3)(m) of the Sentencing Act.

119. The defendant entered a plea of guilty to the Amended Summons at an early stage of the proceedings. Such a plea of guilty demonstrates a degree of remorse, and I will allow a deduction of 25% for the utilitarian value of the plea in accordance with the principles set out in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and s 21A(3)(k) and s 22 of the Sentencing Act.

Penalty

120. I make the following orders:

121. Hilltop Meats Pty Ltd is convicted.

122. The appropriate fine for the offence is $1,000,000, but that will be reduced by 25% to reflect the utility of the plea.

123. Accordingly, Hilltop Meats Pty Ltd is to pay a fine of $750,000.

124. A moiety of 50% of the fine is to be paid to the Prosecutor.

125. The defendant is to pay the Prosecutor’s costs agreed in the sum of $61,000.

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