International Oils Machinery (Aust) Pty Ltd (the offender) has pleaded guilty to an offence that being a person who having a health and safety duty pursuant to section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Alexander Campbell-Willis 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 presented a Statement of Agreed Facts that can be summarised as follows.
The offender is a registered corporation that conducts a business recycling waste cardboard and plastic at 24 Hulberts Road, Toormina NSW (the premises). At all material times Charles and Deborah Bohman were the directors of the offender. At the time of the incident the offender employed seven employees.
On or about 25 November 2010, Orora Limited (Orora) supplied and installed a horizontal baler with conveyor machine (the bale press) at the offender's premises. On 1 June 2013, Orora entered into an agreement to lease the bale press to the offender. Under the agreement, Orora was entitled to inspect and service the bale press on a regular basis, and was obliged to provide the offender with all relevant training, documentation and information relating to safe operation of the bale press. The offender had a reciprocal obligation to ensure that the press did not pose a health or safety risk to any person, and that no safety feature of the bale press was altered or removed without prior written approval from Orora.
From 10 January 2009, Alexander Campbell-Willis was employed by the offender as a depot hand/yardman, in charge of baling waste cardboard and plastic for shipment at the premises and keeping the depot in order.
The bale press includes an automatic tie machine, designed to bundle compacted material within the hydraulic baler into cubes. A meshed metal frame acts as a physical barrier to the moving parts of the tie machine, but allows access for servicing and maintenance.
The bale press was designed to be used as follows:
1. The meshed metal frame should be in place and must not be removed while the bale press is operating.
2. Cardboard is loaded onto the conveyor feed and drops down a vertical chute into the compaction chamber, where it is compacted into a large cube. Once a full bale is compacted together, a whistle sounds to indicate that the tying procedure (tie cycle) is ready to commence.
3. Needles are driven through the compacted material from the near side of the baler to the far side.
4. On the far side of the baler, the needles catch the baling wire before being retracted back to their original position, pulling the wire through the compacted material to the near side. Each needle head catches the corresponding baling wire on the near side of the baler, before being retracted back into the machine.
5. Twisters on both sides of each needle catch the two strands of wire and rotate, intertwining the strands of baling wire.
6. The wires are then cut, creating a tied cube of cardboard or plastic ready for storage or recycling.
It is possible to put the bale press into manual mode to complete steps (4) and (5).
Orora engaged Tizak to undertake a risk assessment of the bale press. The risk assessment listed tie wire and strapping as elements of the bale press that can cause cutting, stabbing and puncturing. The risk assessment also identified that the bale press had a functioning safety gate or physical barrier, being the meshed metal frame on the automatic tie machine. Tizak carried out yearly inspections of the bale press.
The offender had a safe work method statement (SWMS) for the bale press. The SWMS did not address the risk of injury from contact with unguarded moving parts. The offender had no record of Mr Campbell-Willis reading or being trained in the SWMS.
The bale press had a history of wires not aligning properly during the tie cycle, requiring workers to reach into the machine and realign the wire onto the inserter head by hand. As a result, Mr Campbell-Willis had, some months prior to the incident and with the knowledge of the offender, removed two bolts from the meshed metal frame of the automatic tie machine and replaced them with a "wing" type nut. This modification enabled workers to open the machine by hand rather than requiring the use of a shifter to undo the two bolts, allowing them to realign any incorrectly aligned wires more easily.
On 6 November 2015 at 7:00am, Mr Campbell-Willis commenced working at the premises. While operating the automatic tie machine, he heard the whistle indicating that the bale press was ready to commence the tie cycle. The bale press was in automatic mode. Mr Campbell-Willis noticed that one of the wires was not aligned. He mistakenly believed he had turned the bale press off, which he did often to realign wires.
Mr Campbell-Willis proceeded to access the moving parts of the tie section of the bale press in an attempt to align the misaligned wire. While he was realigning the wire, the twisters began rotating, causing his thumb to become caught between two wires. As the two wires twisted together, they pulled Mr Campbell-Willis' left hand into the bale press.
Mr Campbell-Willis called out for help, and Howard Barnard, a fire extinguisher technician present at the premises, turned off the bale press and attempted to free Mr Campbell-Willis. He was unable to do so and called 000. Mr Campbell-Willis was trapped in the bale press for approximately 2.5 hours. He suffered serious injuries to his left hand, including broken fingers, amputation and reattachment of the thumb, and permanent damage to the tendons and nerves in his hand and arm. He underwent five surgeries.
Australian Standard 4024.1201:2014 "Safety of machinery - General principles for design - Risk assessment and risk reduction" was published on 30 June 2014, and stipulates the types of safeguards that are required where a hazard zone must be accessed during normal operation of machinery. These include interlocking, adjustable or self-closing guards.
Similar bale presses feature interlocking safety switches on guards, ensuring that operation of the machine ceases immediately upon opening the guard.
Charles Bohman, the managing director of the offender, admitted to SafeWork NSW that the incident could have been prevented by not allowing modification of the bale press or with closer supervision.
Following the incident, the offender reviewed its SWMS for the bale press. The revised SWMS identified the risk of injury from unguarded moving parts, one control factor for which is to 'never remove a guard'.
Orora has implemented an electronic interlocked device on the meshed metal frame of the automatic tie machine, which shuts off the bale press if the machine is opened whilst in operation. Power to the bale press cannot be reactivated until the automatic tie machine is secured closed, the control panel reset and the interlock engaged. The cost of installing the interlocked device was $10,213.50 (excluding labour costs).
[3]
The offender's case on sentence
The offender relied on two affidavits of Deborah Bohman affirmed 5 November 2018 and 7 November 2018, an affidavit of Elaine Harris (a casual employee of the offender) affirmed 4 November 2018, and an affidavit of Sam Fifita (yard manager of the offender) affirmed 5 November 2018. Their evidence can be summarised as follows.
Deborah and Charles Bohman purchased International Oils from Ms Bohman's father. The offender employs local workers. The offender is the sole source of income for its directors, Mr and Ms Bohman. In the financial years ending 2015, 2016 and 2017, the offender has made net profits of $866, $17,892 and $13,043, respectively. Mr and Ms Bohman have drawn a combined annual income of between $50,000 and $60,000 in the financial years ending 2015, 2016 and 2017.
The offender is currently in overdraft in the sum of approximately $27,000. Ms Bohman is concerned that a significant fine may force the offender into liquidation.
Ms Bohman stated that she and Mr Bohman were deeply upset by the injuries suffered by Mr Campbell-Willis, and that they are ready and willing to support him in any way they can.
Elaine Harris gave evidence that the incident involving Mr Campbell-Willis took a financial and psychological toll on Mr and Ms Bohman. Each weekend following the incident, Ms Bohman drove four hours to the Gold Coast Hospital to visit and support Mr Campbell-Willis until he was transferred to Coffs Harbour, bringing him pyjamas and toiletries.
Once Mr Campbell-Willis returned to Coffs Harbour, Ms Bohman continued to assist him by taking him to medical appointments, purchasing him food and other necessities, and offering financial assistance.
Mr and Ms Bohman took steps to improve the offender's safety standards following the incident, including installing safety switches and additional guarding on the bale press, and mandating the use of walkie talkies by staff to ensure that they are in contact at all times. The offender has had cameras installed throughout the premises, enabling Mr and Ms Bohman to monitor operations when they are not present. The offender has also employed a yard manager, Sam Fifita, to oversee all operations.
Since the incident, the offender has implemented weekly toolbox training and safety sessions with employees and contractors, and engaged an external safety expert, Greg Bailey.
[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 some objective gravity.
The risk of entrapment of hands or arms in the bale press was obvious and prevented by guarding. The removal of the guard while the bale press was in operation was the cause of the incident, which was entirely preventable. The offender was aware that the bale press was operated in an unsafe condition, because it could be easily accessed by the removal of the wing nut. The modification of the bale press was a breach of the lease agreement. The modification was undertaken for the sake of convenience without proper regard for the safety of the workers using it. The offender should have updated the SWMS to provide for isolation procedures if the internal working of the bale press were to be accessed.
The risk was one of serious injury. The chances of the risk coming home were moderate.
The offender could not have installed the interlocking mechanism, which was a matter reserved to Orora under the lease agreement.
I have had regard to the maximum penalty for the offence.
[6]
Deterrence
The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses 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 also a need for specific deterrence, but it is reduced. The offender continues to operate a business that presents some dangers to its workers. I accept that the incident has had a salutary effect on the directors of the offender and that they have demonstrated insight that the offender needs to be more vigilant in the future.
[7]
Aggravating factors
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. Mr Campbell-Willis, with the assistance of his psychologist, prepared a Victim Impact Statement (VIS), which was not objected to or called into question. In my view is it appropriate to take it into account in establishing the aggravating factor: R v Tuala [2015] NSWCCA 8. Mr Campbell-Willis sustained serious permanent injuries to his hand and arm as a result of the incident, and has been unable to return to work since. He continues to experience chronic pain, and has difficulty completing everyday tasks such as dressing, eating and cleaning. He attends psychological counselling, as adjusting to his disability has left him feeling socially isolated, anxious and depressed. His financial situation remains precarious. I am satisfied beyond reasonable doubt that the injury, harm and loss caused by the offence was substantial.
[8]
Mitigating factors
The offender does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender was incorporated in 1985. The offender has been operated by the current directors since 1996, which is indicative that the operation is usually conducted in a safe manner.
The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has undertaken steps to improve its safety systems including retaining an external safety consultant, conducting regular tool box meetings and employing a yard manager to supervise operations at the yard.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse through the affidavits of Ms Bohman, as well as through its actions in assisting Mr Campbell-Willis and improving the safety of the bale press machine. I am satisfied on the balance of probabilities that the offender has accepted responsibility for its actions and has demonstrated genuine remorse and contrition.
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 Safe Work investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
[9]
Capacity to pay a fine
The Court is required to have regard to section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
Ms Bohman gave evidence that her and her husband obtain a modest income from the operation of the business by the offender. The profits of the offender are also modest. The imposition of a significant fine is likely to lead to the winding up of the company and the loss of the directors' livelihood.
[10]
Penalty
The offender is convicted.
I have taken into account the Victim Impact Statement.
I am satisfied that I should exercise my discretion to reduce the fine by reason of the offender's reduced capacity to pay.
The appropriate fine is one of $20,000 which will be reduced by 25% to give effect to the plea of guilty.
I impose a fine of $15,000.
I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
The offender is to pay the prosecutor's costs as agreed or assessed.
[11]
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Decision last updated: 10 December 2018