Hubtex Australia Pty Ltd (the offender) appears for sentence after it pleaded guilty to:
1. an offence pursuant to s 32 Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Jai Blackman to a risk of death or serious injury; and
2. an offence pursuant to s 38 of the Act for failing to notify the regulator immediately after the incident.
The maximum penalty for the s 32 offence is a fine of $1.5 million and the maximum penalty for the s 38 offence is a fine of $50,000.
[2]
Facts
The parties tendered an Agreed Statement of Facts that can be summarised as follows.
The offender operated a business involving the importation, leasing and servicing of forklifts from premises at Riverstone.
On or about 13 February 2017 Mr Blackman was engaged by the offender on a 14 day work trial. He hoped to obtain employment as an apprentice mechanic with the offender on completion of the work trial. Mr Blackman had limited work experience and was 16 years of age at the time of the incident, having left school after completing Year 10 at the end of 2016. During the course of the work trial, Mr Blackman's duties included cleaning, replacing panels on forklifts, assisting with the servicing of forklifts and changing batteries on forklifts.
Concerns were raised with management that Mr Blackman's work prior to the incident was unsatisfactory. It was generally thought that Mr Blackman was keen and had potential but that he did not follow instructions.
In the workshop, the offender had available for use by its workers a spray bottle filled with Wolfchester Brake Cleaner (brake cleaner). The spray bottle was white and had the words "brake cleaner" written on it with a black marker pen. The brake cleaner was highly flammable. There was no warning on the spray bottle about the dangers involved with using the brake cleaner. The offender was in possession of the Material Safety Data Sheet (MSDS) for the brake cleaner dated 1 January 2015 and it was affixed to the wall of the workshop at the time of the incident.
During the course of his induction on 13 February 2017, Mr Blackman was not shown the MSDS displayed in the workshop or taken through any of the Safe Work Method Statements (SWMS) that were in force for tasks undertaken in the workshop.
Prior to the incident, Wayne Guillaumier (Head of the Service Department) spoke to Mr Blackman about using the brake cleaner as a degreaser. Mr Guillaumier observed Mr Blackman using the brake cleaner by spraying it on an axle housing that he had been asked to dismantle. Mr Guillaumier told Mr Blackman that the brake cleaner was not the correct product for the task he was undertaking and that what he was doing was dangerous and incurred unnecessary waste and expense. At the time, Mr Guillaumier was concerned that the brake cleaner could splash back into Mr Blackman's eyes and cause him injury.
The offender did not make any changes to the storage and availability of the brake cleaner after Mr Guillaumier spoke to Mr Blackman about his incorrect use of the product.
On 23 February 2017 a review meeting was held between Glen Scharfe (Workshop Leading Hand), Mr Guillaumier, Phil Deka (Operations Manager) and Mr Blackman. The review meeting was held at the suggestion of William Parry (Director of Hubtex) to explain to Mr Blackman what he had been doing well and what he needed to improve on. After the review meeting, Mr Blackman's work trial was extended to give him the opportunity to improve his performance.
The offender did not implement any specific changes to the management or supervision of Mr Blackman after the review meeting.
On 2 March 2017 Mr Scharfe instructed Mr Blackman to dismantle an old forklift gearbox housing using spanners. The gearbox was located in a crate which had been placed on the ground in the workshop area of the premises. The crate's dimensions were 150 cm x 100 cm x 60 cm.
The gearbox was to be stripped down for parts. Mr Blackman was required to remove the bolts and bearings from the gearbox and then to dispose of the remaining parts. There were approximately 15 bolts to be removed on the gearbox. The gearbox was dirty and had grease on its parts. Mr Blackman decided to use the brake cleaner to clean the gearbox and to get the bolts on it undone. There was no discussion between Mr Scharfe and Mr Blackman relating to the use of the brake cleaner and Mr Blackman was not instructed to use the brake cleaner for this purpose.
Mr Blackman obtained the spray bottle with the brake cleaner in it from the workbench in the workshop. He understood that the brake cleaner was flammable because it was a cleaning product and that it should not be used near a source of ignition.
Mr Blackman sprayed the brake cleaner on the bolts. He then wiped it off with a rag and tried to undo the bolts using spanners. After trying for a period of time, Mr Blackman then spoke to Mr Scharfe and asked if he could use an open-ended spanner and Ryobi battery operated rattle gun (the rattle gun). The rattle gun was owned by Mr Scharfe. Mr Scharfe told Mr Blackman not to use the rattle gun and that he should use the handheld tools as instructed. Mr Blackman was not aware that the rattle gun was a potential ignition source.
Contrary to the directions of Mr Scharfe, Mr Blackman obtained the rattle gun from Mr Scharfe's toolbox which was also located on the workbench. When Mr Blackman pulled the trigger to operate the rattle gun, it caused a spark which ignited the brake cleaner. The ignition caused an explosion and flames to cover Mr Blackman's face, right arm and fingers. Mr Blackman sustained burns to his face, ears, left hand and right arm. He was taken to a shower where he remained for 20 to 30 minutes before being taken to hospital. Mr Blackman was treated for burns at Hawkesbury Hospital and discharged later that day.
On 3 March 2017 Mr Blackman attended Concord Hospital and had an artificial skin graft surgery to his face, left and right ears, right arm, left index finger and little finger. As a result of the incident Mr Blackman sustained scarring on his right arm in the form of skin discolouration and was not allowed to be exposed to the sun for approximately 12 months.
On 4 March 2017 the offender reported the incident to SafeWork NSW.
There was no safe work procedure for the use of the brake cleaner in place at the time of the incident. The offender did not conduct a risk assessment on the tools that were brought into the workplace by its workers and it did not require the operating instructions for those tools to be brought into the workplace. The Operator's Manual for the rattle gun was not available in the workshop. The Operator's Manual identified the rattle gun as a potential ignition source.
The brake cleaner had been decanted into the spray bottle and was not appropriately labelled, including through the use of a hazard pictogram or hazard statement. The spray bottle containing the brake cleaner was stored on the workbench in the workshop where it was readily available.
The offender had in place the Hubtex Health and Safety Manual which required all workers involved in the use of chemicals classified as hazardous to be provided with information and training as to the safe completion of any required tasks. The offender did not provide Mr Blackman with that training and instruction for the use of the brake cleaner.
Mr Blackman was not informed of the risk of using power tools such as the rattle gun in an explosive atmosphere including the presence of the brake cleaner.
On 13 June 2017 Inspector Cris Jelley issued three Improvement Notices to the offender relating to its use of hazardous chemicals. Shortly after the offender complied with the Improvement Notices by affixing appropriate warning labels to hazardous chemicals, storing them in a dangerous goods cabinet and developing a safe operating procedure for the use of the brake cleaner. The offender held a toolbox meeting on 22 June 2017 at which time the workers were trained on these changes.
Mr Blackman received immediate treatment for a serious burn, which was a notifiable incident as defined in s 38 of the Act. The offender was required to notify SafeWork NSW of the incident immediately and by the fastest possible means available. It did not notify SafeWork NSW until about 2.35pm on 4 March 2017.
[3]
Offender's Case on Sentence
The offender relied on an affidavit sworn by Bruce Peatman on 1 December 2021. The content of Mr Peatman's affidavit can be summarised as follows. I will not repeat matters I have already referred to.
Mr Peatman was employed by the offender as the Managing Director. He had been employed by the offender since 2003, then known as Parry Forklifts, initially in the role of Technical Manager and promoted to the position of General Manager in or around 2007. Mr Peatman commenced his role as Managing Director in or around August or September 2020.
Prior to commencing employment with the offender, Mr Peatman had operated his own business in forklift servicing until approximately 1994, after which point he started working as a contractor with the offender, then known as Parry Forklifts.
[4]
Apology
Mr Peatman expressed deep regret on behalf of the offender's directors, senior managers and workers for the circumstances resulting in the incident and the injuries sustained by Mr Blackman.
The offender was aware of its responsibilities to ensure the safety of workers and to immediately notify SafeWork NSW of a notifiable incident and acknowledged that it failed in each of those responsibilities. The offender apologised to Mr Blackman, its employees, SafeWork NSW, the Court and the community for these failures.
Mr Peatman expressed that the incident had reinforced the need for the offender "to continuously be on the lookout for ways to improve safety and work health and safety outcomes at its workplaces."
Mr Peatman contended that the offender's genuine remorse and regret was evident in the active steps taken by the offender to make immediate amends for its breach, including that the offender:
1. had pleaded guilty at the earliest available opportunity;
2. had integrated learnings from the incident into its WHS systems in order to minimise the potential for future incidents; and
3. encourages an attitude towards safety whereby workers can raise any safety issue.
[5]
The offender
The offender is a national forklift specialist business with offices and workshops in New South Wales, Victoria, Queensland, Western Australia and South Australia. It was registered on 5 April 2000.
The offender undertakes importing, hiring and servicing of side loaders, forklifts and picking systems.
In 2003, the offender had approximately three employees in addition to some contractors. At the time of the incident, the offender employed approximately 40 to 50 workers nationally, 30 of which worked in New South Wales. As at 1 December 2021, the offender employed 47 workers, 29 of which worked in the New South Wales branch. The offender also had branches in Queensland (8 employees), Victoria (7 employees), South Australia (2 employees) and Western Australia (1 employee).
The workplace in Sydney where the incident occurred is a 2,200 square metre facility with a workshop for new trucks and rebuilds, a large parts department and an extensive hire fleet.
Since the incident, Mr Peatman has taken over from Mr Parry as Managing Director, and the offender's parent company, Hubtex Maschenbau GMBH Pty Ltd, is now the sole shareholder of the offender and is actively involved in its management.
[6]
Prior WHS record
The offender has not been involved in any other proceedings in relation to WHS or otherwise, prior to this incident. It has been in operation for over 20 years.
Except for the three Improvement Notices issued to the offender by SafeWork NSW in relation to the incident, the offender has not been issued with any Improvement Notices by the regulator.
The only known interaction with SafeWork NSW prior to the incident was as part of an industry audit conducted on forklift safety which occurred on 23 June 2016.
[7]
Engagement with the offender
Mr Blackman approached the offender in early 2017 seeking to obtain opportunities to gain experience in a mechanical workshop with a view to potentially securing an apprenticeship. He had contacted the offender's office several times to try and arrange an interview.
Mr Peatman made the decision to employ Mr Blackman on a two-week trial.
Mr Peatman stated that the offender had a strong record of and commitment to supporting young workers and has had 10 out of 19 apprentices continue with it as qualified tradespeople for an extended period.
At the time of engaging Mr Blackman, the offender did not have a job vacancy but Mr Peatman had suggested to Mr Blackman that if he could impress him during the course of his two-week trial, he would try and find a place for him.
Mr Blackman commenced the two-week trial with the offender on or around 13 February 2017. Mr Peatman expected Mr Blackman to learn and perform menial tasks during this trial period, and at points observed Mr Blackman in the workshop carrying out such tasks. Mr Peatman was aware that Mr Blackman had completed a few short work stints at similar businesses and enjoyed performing mechanical work in his spare time but did not have significant formal experience or expertise.
Mr Blackman was the first worker that the offender engaged on a work trial (as distinct from an apprenticeship). Since the incident, the offender has not provided any similar work trials to young workers, although it continues in its desire to support and develop apprentices through formal programs.
[8]
WHS management systems - general
A significant proportion of Mr Peatman's affidavit was dedicated to outlining the detailed and extensive WHS systems, policies and procedures that the offender had in place prior to the incident.
As at March 2017, the offender had:
1. a comprehensive WHS manual;
2. a range of documented WHS policies and procedures including a Health and Safety Policy, a Hazardous Chemical Checklist and a Job Safety Analysis (JSA) template;
3. shared safety responsibilities amongst multiple managerial and senior staff;
4. completed workplace inductions for all new workers;
5. an Employee WHS Handbook. Chapter 12 of the Employee WHS Handbook dealt exclusively with the WHS responsibilities of workers when dealing with hazardous chemicals. Chapter 12 of the Employee WHS Handbook expressly informed workers:
When working with hazardous chemicals, you are responsible for:
ensuring you are familiar with any hazardous chemicals that you may be required to use in the course of your duties, and with the location and contents of the associated Safety Data Sheet;
following any guidance or instruction you receive on how to perform work involving hazardous chemicals;
…
ensuring that chemicals are appropriately labelled, particularly when they are being decanted to another container, to include as a minimum:
the product identifier; and
a hazard pictogram or hazard statement consistent with the correct classification of the hazardous material.
1. documented safe work processes for certain workplace tasks and activities;
2. conducted toolbox talks that included discussion of various WHS matters;
3. displayed Safety Data Sheets and MSDS in the workplace;
4. ensured that the 20-litre brake cleaner drums contained a flammable pictogram;
5. provided training and skills development opportunities;
6. an established practice and understanding between its workforce that workers should not use other people's tools without their permission, noting that there were communal items available for use;
7. engaged an independent third party (Employsure) to assist it with the development and implementation of WHS management systems; and
8. had recently received a completed audit from Employsure of its WHS management system which did not identify any issues of non-compliance with the handling, use and/or storage of hazardous chemicals.
[9]
Induction and Training
The offender provided induction training to employees when they commenced work. At the time surrounding the incident, this induction training was provided to new workers by Allison Campbell, and included:
1. ensuring the person has been taken through the relevant SWMSs and JSA statements for their role;
2. obtaining, recording and storing a copy of the worker's relevant licences and qualifications;
3. providing information and instruction on the workplace generally and on the offender's policies and procedures relating to emergency response, health and safety (including personal protective equipment in the workshop), security and reporting of incidents and hazards; and
4. providing an opportunity for employees to ask questions.
Ms Campbell provided this induction training to Mr Blackman on 13 February 2017.
Mr Blackman's induction training record did not indicate that he was shown the relevant SWMS or JSA worksheets. Mr Peatman contended that this was appropriate and ordinary given that Mr Blackman was engaged on a short work trial, was not expected to be performing any high risk tasks involving hazardous chemicals or power tools, and would be working closely with other experienced and trade qualified personnel. Mr Peatman stated that workers who would be expected to use specialist equipment or perform more significant tasks would be shown the relevant materials as part of their induction training.
[10]
The brake cleaner
Wolfchester Brake Cleaner is used to clean brake parts from dust, grime and brake fluid build-up. In the offender's workplace, it is primarily used in a decanted spray container to clean brake components and the floor.
The offender's workers generally did not use brake cleaner for cleaning the heads of bolts in gear boxes. Mr Peatman stated that he would have opted to use a rag or a pressure washer to perform this task.
Mr Peatman admitted that he was now aware that the offender should have implemented a procedure to ensure that a spray container with decanted brake cleaner had the appropriate labelling and pictogram in accordance with the Globally Harmonised System of Classification and Labelling of Chemicals (GHS). Further, although the Australian Standard did not require small quantities of brake cleaner to be kept in a secure location to limit unauthorised use by workers, with the benefit of hindsight, the offender acknowledged that such a precaution would have minimised the risks associated with unauthorised use, and has now implemented that precaution.
[11]
Actions taken on the day of the incident
Immediately after the incident occurred on 2 March 2017, all work was ceased on site and Mr Blackman was given first aid treatment and Mr Scharfe drove him to Hawkesbury Hospital.
The extent of Mr Blackman's injuries was not immediately perceived by the offender's management personnel to be particularly severe or serious as Mr Blackman attempted to leave the cold shower on numerous occasions and return to work, and the burns seemed to have a similar appearance and characteristics of a sunburn. These factors informed Mr Scharfe's decision not to call an ambulance, but to drive Mr Blackman to the hospital "to err on the side of caution."
Mr Scharfe drove Mr Blackman to Hawkesbury Hospital and remained there while Mr Blackman underwent initial assessment and until Mr Blackman's parents arrived.
On 4 March 2017 the offender was informed that Mr Blackman had been referred to Concord Burns Unit. The offender notified SafeWork NSW of the incident immediately after learning of this.
Mr Peatman contended that at the time of the incident, the offender did not understand that this was a notifiable incident to be reported immediately to SafeWork NSW under the Act. Mr Peatman did not believe that there was an intent on the part of the offender to hide or fail to notify SafeWork NSW of the incident.
On 14 March 2017 Mr Peatman attended an interview with Callum Pope (Rehabilitation Services), Mr Blackman and Mr Blackman's mother to discuss Mr Blackman's ability to work following the incident.
[12]
Actions taken following the incident
Following the incident, SafeWork NSW undertook an investigation which initially concluded that there was no apparent fault on the part of the offender or its representatives; issued three Improvement Notices to the offender in June 2017 in relation to hazardous chemical risk assessments, storage, labelling and instruction; and did not identify, advise or implement any enforcement action to be undertaken by the offender in relation to supervisory arrangements and/or the presence of personal work tools in the workshop.
On 7 March 2017 the offender held a toolbox talk on "emergencies, injury and incidents" where workers were shown all relevant emergency and evacuation procedures, firefighting equipment and first aid equipment. Workers were also advised of the incident and reminded of the importance of safety in the workshop. As part of this, the offender also raised up its fire signage in the building to increase visibility, and workers were trained on this change. The offender also developed and implemented a designated emergency walkway through the workshop in the event of an emergency, and provided workers with information and training on this change during the toolbox talk.
The offender has also developed, reviewed and implemented a safe operating procedure for the use of brake cleaner that: identifies the risks associated with the use of brake cleaner; sets out the storage requirements for brake cleaner (including ensuring the appropriate product identifier and hazard pictogram or hazard statement is clearly labelled); and prohibits the use of the brake cleaner in the presence of power tools.
On 22 June 2017 the offender held a toolbox talk where workers were provided with training on the safe operating procedure for brake cleaner and the new GHS and were given refresher training on the safe use of brake cleaner in the workshop and the Safety Data Sheet for brake cleaner.
On 1 August 2017 the offender conducted a staff survey to obtain feedback from workers on whether they: felt comfortable raising concerns or queries; felt that their concerns or queries were addressed properly by management; and had any suggestions on how the process of raising concerns or queries could be improved. The results from that survey indicated that workers were comfortable raising their concerns or queries with the offender and considered that their concerns or queries were addressed properly by management.
Since the incident, the offender has also implemented the following WHS-related changes:
1. all workers have been provided with breathable nitrile gloves to use when they are decanting and using the brake cleaner;
2. increased focus on and more consistent toolbox meetings to discuss WHS matters or after significant events or developments;
3. reviewed and updated the storage and labelling of hazardous chemicals including brake cleaner to ensure it complied with the Work Health and Safety Regulation 2017;
4. installed a new chemical storage cabinet with warning signs and instructions regarding safety hazards;
5. reviewed and revised the chemical awareness procedures and processes;
6. implemented a virtual safety system for mobile mechanics to complete prior to starting any job via a tablet. This system includes completing a "Take 5" and conducting a risk assessment, and must be completed for a worker to log a job;
7. developed and implemented a Purchasing and Procurement Policy which provides guidance on procuring goods and services and includes, amongst other things, a section on health and safety;
8. appointed Ms Campbell to the role of WHS Manager in January 2020. Ms Campbell completed a Certificate IV in WHS in September 2020;
9. implemented a system by which the WHS Manager conducts random workplace inspections;
10. uploaded all safety paperwork to the offender's intranet to make safety documentation and WHS resources more readily accessible to workers;
11. implemented the following safety documents, prepared and reviewed by Employsure: an updated and amended version of the offender's Health and Safety Handbook; and the Employee Handbook, which includes a section focusing on the offender's policies and procedures surrounding health and safety in the workplace; and
12. reviewed, updated and implemented the following safe operating procedures: "Operating Pallet Jacks to Move Pallets of Material"; and "Ladders - General". Between December 2019 and July 2021, workers received training and were inducted into those safe operating procedures.
[13]
Support to Mr Blackman
Following the incident, the offender: contacted Mr Blackman's parents on 4 March 2017 to enquire how Mr Blackman was; checked in with Mr Blackman when he visited the workshop two to three weeks after the incident; participated in Mr Blackman's rehabilitation meeting; and covered Mr Blackman's medical expenses through its insurance policy.
Mr Blackman received workers compensation payments for the period 2 March 2017 to 17 May 2017, after which he was fit to work without restriction. These benefits were paid by the offender with reimbursement sought from the relevant insurer. Although the relevant policy only provided for workers compensation to cover a portion of Mr Blackman's usual remuneration, the offender provided payment of the remaining balance as a gesture of goodwill and ex gratia benefit.
[14]
Co-operation with and disclosure to SafeWork NSW
Mr Peatman stated that the offender took every available opportunity to comply with the investigation being conducted by SafeWork NSW, and provided all relevant information and documentation requested by SafeWork NSW as part of its investigation. All Improvement Notices issued by SafeWork NSW in response to the incident were also complied with in a timely manner.
[15]
Corporate citizenship
The offender actively seeks to engage young people to provide them with work experience in appropriate roles. Since 2001, it has provided apprenticeship opportunities to young workers, and has employed 19 apprentices to date, 10 of which have stayed on beyond obtaining their qualifications.
The offender also supports initiatives dedicated to improving and raising awareness about mental health issues, with a particular focus on young men. In 2020, the offender hosted an "R U OK Day" event with its staff and participated in the "Push-Up" Challenge to raise money for Headspace. As part of the "R U OK Day" event, the offender held a toolbox talk with staff regarding the importance of mental health and looking out for one another.
Mr Peatman stated that the offender is committed to the health and safety of all workers on its worksites, and endeavours to ensure that WHS is continually prioritised. He also stated that the offender is eager to avoid any WHS incidents in the future, and has used the incident to reflect upon and reiterate the need for ongoing evaluation and management of potential risks to health, safety and wellbeing by its workers.
[16]
Consideration
I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.
[17]
Objective Seriousness
The s 32 offence involves some objective gravity.
The risk of a worker being injured by incorrect use of hazardous chemicals was known to the offender. It had provided for the risk in the Safety Manual and displayed the MSDS in the workshop. It failed to store and label hazardous chemicals in accordance with the objective guidance material available.
The likelihood of the risk occurring was moderate. The brake cleaner was readily available in the workshop and inadequately labelled. The offender's conduct created the situation where the brake cleaner could be used by an inexperienced worker.
Mr Blackman failed to comply with instructions given to him by Mr Scharfe for the task he was undertaking. This is a mitigating circumstance in this case but only to a limited degree because the obligation of the offender to ensure the health and safety of its workers extended to disobedient workers.
The potential consequences of the risk involved a risk of serious injury.
The steps that could have been taken to eliminate or minimise the risk were simple, well known and inexpensive.
Mr Blackman was vulnerable by reason of his youth and inexperience, coupled with the inadequate nature of the information and training provided by the offender.
The injuries sustained by Mr Blackman were significant. He required skin graft surgery and has been left with some permanent discolouration of the skin on his right forearm.
The objective gravity of the s 38 offence is low. The extent of the delay was about 48 hours. The offender did report the incident before it came to the notice of the regulator. I accept that the offender did not appreciate the severity of Mr Blackman's injuries immediately after the incident, or know that they triggered the obligation provided for by s 38 of the Act. On the other hand, the Hubtex Safety Manual referred to the obligation to report similar incidents.
I have taken into account the maximum penalty for each offence.
[18]
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].
The penalty imposed must also provide for specific deterrence. The offender continues to operate a business that poses a significant risk of harm to its workers, including a number of apprentices. However, that must be tempered by reference to the offender's safety system that it had in place prior to the incident and the steps it has subsequently taken to improve that system, together with its prior good record.
[19]
Aggravating Factors
The injury, harm and loss caused by the s 32 offence was substantial: s 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 injuries sustained by Mr Blackman are sufficient to establish the aggravating factor.
The prosecutor contended that Mr Blackman was a vulnerable victim and that the aggravating factor provided for in s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999 was established on the basis that Mr Blackman was 16 years of age at the time of the incident and had limited work experience.
Section 21A(2)(l) Crimes (Sentencing Procedure) Act 1999 provides:
the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of geographical isolation of the victim or because of the victim's occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver, or other public transport worker, bank teller or service station attendant).
The provision is concerned with the vulnerability of a particular class of victim, who need to be protected because they are vulnerable to criminal offences generally or of a particular type: R v Tadrosse (2006) NSWLR 740 at [24]-[26]. The subsection provides examples of those classes of victims such as the "very young" or by reference to their occupation, but those examples are not exhaustive: Perrin v R [2006] NSWCCA 64 at [35] and Longworth v R [2017] NSWCCA 119 at [17]. A combination of factors may justify a finding of vulnerability: Ollis v R [2011] NSWCCA 155 at [96].
The provision is not concerned with the threat posed by a class of offender, or circumstances relating to the offender: Tadrosse at [26].
I am not satisfied beyond reasonable doubt that the prosecutor has established the aggravating factor, for the reasons that follow. There was no evidence that young apprentices are disproportionately represented as victims in WHS offences. I accept that Mr Blackman was young and inexperienced, but it was the lack of information and training that exposed him to the risk and the responsibility for the failure to attend to those matters was referrable to the offender. Even if I accept that young workers are a class of victims, the extent to which they are vulnerable to WHS offences depends on a multitude of factors that are not referable to their membership of the class, such as the standard of their training, the level of supervision and the nature of the work that they are asked to perform.
[20]
Mitigating Factors
The offender does not have any record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender has been in operation for over 20 years.
The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated this through its commitment to improving its safety systems since the incident.
The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Peatman on behalf of the offender accepted responsibility for its contravention of the Act and has expressed remorse. The offender has also paid some reparation to Mr Blackman. I am satisfied that the offender has expressed genuine remorse and contrition.
The offender entered a plea of guilty: s 21A(3)(k) and s 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 usual range is 10% to 25% but that is only a guide. The plea also indicates remorse: Borkowski at [32]. The offender has been sentenced on the basis of an Amended Summons that was agreed to following my decision in related proceedings, particularly with reference to my findings on causation: SafeWork NSW v Scharfe [2021] NSWDC 260. The appropriate discount is 20%.
The offender cooperated with the investigation: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
The offender has demonstrated itself to be a good corporate citizen through its commitment to the employment and development of apprentices and through its support of charitable and communal causes.
[21]
Penalty
Hubtex Australia Pty Ltd is convicted.
The appropriate fine for the s 32 offence is $150,000 that will be reduced by 20% to give effect to the plea of guilty.
The appropriate fine for the s 38 offence is $5,000 that will be reduced by 20% to give effect to the plea of guilty.
I impose fines in the total sum of $124,000.
The offender is to pay the prosecutor's costs of the proceedings as agreed or assessed.
I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
[22]
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Decision last updated: 09 June 2022