SafeWork NSW v Roadworx Surfacing Pty Ltd

Background

1. The defendant conducted a business or undertaking of road maintenance, including stabilising, profiling and resurfacing roads. The defendant's administration office and depot are located in Unanderra NSW ('Unanderra yard'). The defendant was contracted by Kiama Council to conduct crack sealing works in Jamberoo NSW ('Jamberoo Road job'). It was conducted from 13 August 2019 to 19 August 2019.
2. Immediately before and at the time of the incident, the defendant employed Boldy Tipiwai ('Mr Tipiwai') as foreman, Jacob Palmer ('Mr Palmer') as a sprayer/driver, and Matthew Simpson ('Mr Simpson') and Joel Vaughan ('Mr Vaughan') as crew members. The defendant also employed Jamie Verran ('Mr Verran'), a qualified civil engineer who commenced as spray seal manager on the day of the incident.
3. The defendant owns the crack sealing machine ('CSM') involved in the accident. The CSM is a 'Cimline Melter Applicator' purchased by the defendant in 2009 for $74,125 USD. It is a purpose-built machine designed to heat solid 20kg blocks of a bitumen-rubber product 'Bitulastic Bituflex' ('Bituflex') as a filler for road maintenance.
4. Bituflex is melted in the 1,040L heating tank, stirred by an agitator, then pumped out hot via a hand-held lance. The CSM has a dial to bring the tank to a specific temperature and a control panel with three lights that indicate when the Bituflex is "three quarters full", "half to three quarters full" or "less than half full". At the time of the incident, and for some time before, the lights stopped working and did not inform operators of the quantity of Bituflex in the CSM. Due to the faulty lights, workers had to open the inspection hatch to determine the level of product in the CSM.
5. The CSM's originally manufactured hose and lance ('the original heated hose') was purpose-built, had insulated casing, and was heated electrically so the melted Bituflex remained hot in the hose without clogging. The CSM had an access port to store the original heated hose and keep the Bituflex hot and circulating. The original heated hose was replaced for $2,000 AUD in 2013 and 2014, and was inoperable at the time of the incident. The defendant did not order a new hose and used a non-heated hose.
6. The defendant modified the CSM by fitting metal pipes and taps to its rear so that the Bituflex could pass through a non-heated hose. The defendant used diesel as a solvent to "back flush" or "suck back" the pipework by switching the CSM to "reverse" to clear any Bituflex before it cooled, solidified and clogged the pipework.

The Incident

1. On 19 August 2019, Mr Palmer started the CSM to heat it up at the Unanderra yard before arriving at Jamberoo Road. The Bituflex was heated to about 300 degrees Celsius and remained at that temperature for the morning. The crew consisted of Mr Palmer, Mr Simpson and Mr Vaughan. Mr Tipiwai and Mr Verran were not present.
2. The workers had a break at approximately 11:00am. Mr Palmer sucked diesel back into the CSM's pipework to flush the lines, which introduced diesel into the hot tank that mixed with the Bituflex. Mr Palmer and Mr Vaughan each placed a block of Bituflex into the CSM. Mr Palmer then told Mr Vaughan that he would check the level of the Bituflex and opened the inspection hatch, introducing air. Autoignition followed and a fire and/or explosion occurred in the heating tank and out of the inspection hatch.
3. Mr Palmer, who was not wearing a face shield or any personal protective equipment ('PPE'), suffered burn injuries and fell to the ground. Mr Vaughan heard an explosion and saw the top of the CSM alight. There was no burn kit available.
4. Mr Palmer was taken to Wollongong Hospital and discharged on 20 August 2019. He was then transferred to the Burns Unit at Concord Hospital for surgery. Wollongong Hospital reported that Mr Palmer presented with multiple burn injuries to the face and neck. Concord Hospital reported that his injuries consisted of biobrane burns to the face and flash burns to the face, ears and neck. The primary operation performed on Mr Palmer was a debridement and Xenografting to the face, ears and anterior neck.
5. After the incident, Mr Palmer could not be exposed to the sun or heat for three months. On 30 June 2021, he reported that he was no longer receiving ongoing medical treatment for his injuries and the sun continues to impact his injuries. Mr Palmer has been engaged with a psychologist since the incident.

Relevant Guidance Materials & Statutory Obligations

1. Clause 34 of the Work Health and Safety Regulation 2017 (NSW) ('the Regulation') requires duty holders to identify reasonably foreseeable hazards that may give rise to health and safety risks. Clause 35 requires duty holders to eliminate health and safety risks so far as is reasonably practicable, and where it is not possible, to minimise those risks so far as is reasonably practicable. Clause 351 prescribes that duty holders must manage health and safety risks associated with hazardous chemicals at a workplace.
2. As the work conducted by the defendant was "high risk construction work" as per clause 291(n) of the Regulation, clause 299 requires the defendant to prepare a Safe Work Method Statement ('SWMS') that specifies the hazards and control measures, and how the control measures are implemented, monitored and reviewed. Clause 39 requires duty holders to provide suitable and adequate information, training and instruction to workers with regard to the nature of the work and its associated risks.
3. Section 21 of the Act requires duty holders to ensure, so far as is reasonably practicable, that the plant that they manage are without risks to any person's health and safety. Clause 44(2) of the Regulation requires duty holders to provide workers with PPE and information, training and instruction in the proper use and wearing of PPE. Clauses 203, 205 and 206 of the Regulation respectively require duty holders to manage health and safety risks associated with plant, to prevent unauthorised alterations to plant and to ensure that the plant is used only for its designated purpose.
4. At the time of the incident, the following material was available to the defendant:

• WorkCover NSW, "Managing the Risks of Plant in the Workplace" Code of Practice dated July 2014 ('Risk Code') requires that a risk assessment be performed, consideration as to whether the plant could create hazardous conditions by causing a fire or explosion, that the manufacturer be consulted before the plant is altered, that competent persons carry out alterations, that unsafe work practices be corrected and that information, training or supervision be given to persons using the plant.
• WorkCover NSW, "Managing Risks of Hazardous Chemicals in the Workplace" Code of Practice dated July 2014 ('Chemicals Code') provides guidance on risk assessment and control measures, assessing physicochemical risks, identifying ignition sources that could ignite flammable materials, the process of heating chemicals, the risk of ignition, and providing information and training. It states that flammable hazardous chemicals like diesel and Bituflex are the highest risk fuels.
• AS-NZ 4024.1202.2014 Safety of Machinery Part 1201: General Principles for Design - Risk Assessment and Reduction requires the defendant to design alterations to the CSM to the same standard required by its original designer.

Systems of Work Prior to the Incident

1. The defendant's "Plant Hazard Risk Assessment and Control Measures" document for the CSM ('the risk assessment') was developed to identify hazards and controls but did not identify workplace hazards. It identified the risk of explosion and required the use of PPE, pre-start checks, and the availability of a first-aid kit and operator's manual in the CSM. The defendant did not conduct an adequate risk assessment or identify hazards associated with refilling and altering the CSM. The defendant did not assess the risks and hazards associated with heating Bituflex, "flushing out" the pipes with diesel fuel, or fuel and oxygen sources causing a fire and/or explosion.
2. At the time of the incident, the defendant had two Safe Work & Environmental Method Statements ('SWEMS') that were relevant to the task of crack-sealing. These did not consider all relevant matters, such as the CSM alterations, specific hazards of fire and explosion, and hazards associated with flushing the CSM with diesel fuel.
3. SWEMS-30 related to crack-sealing and was signed by Mr Palmer, Mr Simpson, and Mr Tipiwai. Mr Vaughan stated that he never saw it. It required a pre-start on the CSM and that all workers were to wear "safety sunglasses or goggles/face protection as per SWMS". It warned that Bituflex should only be heated to the manufacturer's specifications and that workers should "wait until crack sealing product is melted to 200 degrees", "wait until crack sealing product is 160 degrees before you start recirculating" and "continually check temperature and only heat to minimum temperature required". It also specified the following:

• "Only heat product to the manufacturers specifications, wear fire retardant PPE provided";
• "wait until crack sealing product is melted to 200 degrees";
• "wait until crack sealing product is 160 degrees before you start recirculating"; and
• "Continually check temperature and only heat to minimum temperature required".

1. SWEMS-06 related to "Heating Bituminous Products" and was signed by Mr Palmer, Mr Tipiwai and Mr Simpson. It required workers to wear a full-face mask and neck protection, to "never overheat the product" and to "continually check temperature and only heat to minimum temperature required".
2. Mr Palmer completed a general company induction but was not provided with an induction for the CSM. The defendant did not provide workers with training in or access to the Operator's Manual, information sheets or Safety Data Sheets. The "Roadworx Site Specific Induction and Toolbox Meeting" document for the crack-sealing work on Jamberoo Road was completed by the workers. It identified the hazards as "emulsion product contact with the eyes" and "asphalt burns", and the respective risk control measures as "operator to wear safety glasses when operating hand lance" and "PPE provided should be worn". These were not addressed before work commenced.
3. Before the incident, Mr Palmer used the CSM once and was not given information or instruction regarding the safe operating procedures, level lights, correct PPE to wear, maximum temperatures, or hazards involved with using Bituflex or diesel, particularly to flush lines. In relation to checking the Bituflex levels in the CSM, he said "it was just, um, go check how much product's in there and that's how we checked how much was in the machine, was opening that door". He was not informed that this was unsafe.
4. The defendant did not have a safe system of work in place for the CSM and various unsafe work practices occurred. These are contained in paragraphs [91]-[126] of the Agreed Statement of Facts ('ASOF'), and summarised in brief below:

• The defendant failed to ensure that workers did not overheat the Bituflex and Mr Palmer was taught by Mr Tipiwai to "max out" the CSM when starting it.
• There was no system to record faults on the CSM, meaning workers could not bring faults to management's attention and instead developed a practice of using the inspection hatch to determine the Bituflex levels in the CSM.
• The defendant did not provide workers with suitable PPE, which were identified and stated as the following: "safety sunglasses or goggles/face protection as per SWEMS", "protective clothing must be worn", "wear face shield", "when hot, wear protective clothing, safety shoes or boots, safety glasses or eye/face protection, gloves and suitable respirator" and "If splashing is possible, use a full-face shield over safety glasses as added protection".
• The defendant modified the CSM without consulting the manufacturer, changed the method of work by requiring workers to "back flush lines", and did not have a safe practice for flushing the CSM lines.

Steps taken after the incident

1. SafeWork NSW issued two improvement notices in response to the incident relating to the risks of operating the CSM and the defendant's failure to notify SafeWork NSW about the incident. The CSM is subject to a prohibition notice and not in use.
2. The defendant conducted an Incident/Hazard Report and investigation, which found that "based upon statements from employees involved, it would appear that the diesel that has been sucked into the crack sealing unit has ignited. When the inspection hatch has been opened, blowback has occurred and caused the injuries".
3. SWEMS-30 was amended to include "no volatiles or diesel to be used to flush lines", "level of tanks to be determined by sensor unit" and "visual assessments of tanks to be avoided where possible. For visual assessment, where appropriate PPE - longs, gloves, face mask". The defendant also conducted training on the use of the CSM.

Risk

1. The risk is described in Annexure "A" to the Summons in the following terms: "[11] The risk was the risk of workers, in particular Mr Palmer suffering serious injury or death as a consequence of fire and/or explosion occurring while they were undertaking work at the site using the CSM."

The Defendant's Duty

1. The defendant had a duty pursuant to s 19(1) of the Act to "ensure" the health and safety of its workers, so far as reasonably practicable. The duty requires the identification of risks in the workplace and the adoption of measures to eliminate or minimise them, so far as is reasonably practicable (see Kirk v Industrial Commission of New South Wales [2010] HCA 1 at [34]). The duty is positive, non-delegable and requires duty holders to search for, detect and eliminate, so far as is reasonably practicable, risks to safety: WorkCover Authority (NSW) v Inspector Egan & Atco Controls Pty Ltd (1998) 82 IR 80 per Hill J at 85.
2. There was nothing complicated about any of the reasonably practicable measures that could and should have been taken.
3. The reasonably practicable measures to control the risk are set out in paragraph 12 of the Summons. In summary the measures relate to:

• Conducting a risk assessment in relation to tasks which identified the hazards and risks associated with the task, including: 1. If and under what conditions the CSM, the bitumen products, fuel and ignition sources could create a hazardous condition; 2. Hazards and risks associated with using Bituflex and diesel together, and then heating them; 3. Hazards and risks identified on the Bituflex label; and 4. Hazards and risks associated with altering the CSM.
• Identifying the control measures that provide the most adequate protection against the identified risks;
• Preparing a SWMS for this high-risk construction work that took all relevant matters into consideration, and how they were to be implemented, monitored and reviewed;
• Putting in place a prohibition against heating products in the CSM above their auto-ignition temperature;
• Putting in place a prohibition against operating the CSM when the product level indicator lights for the heating tank were faulty or not working;
• If alterations to the CSM are proposed, assessing the potential risks associated with the change and the safety features and warning devices to ensure safety;
• Providing workers with appropriate PPE, including a full face shield and bodily protection, and ensure that they are used;
• Developing, implementing and enforcing a safe work procedure for the tasks to be performed including but not limited to the temperature that the Bituflex was heated to, reporting of faults with any machinery and ensuring that access to the inspection hatch of the CSM is not gained by workers whilst the Bituflex is hot;
• Putting in place a safe procedure for flushing the lines of the CSM on completion of bitumen transfers;
• Providing adequate information, instruction and training to workers at the site;
• Putting in place a system to provide oversight of training programs to make sure that any unsafe work practices being taught in them are corrected before they are passed on to new workers; and
• Providing direct supervision to workers conducting high risk work including supervision that includes directing, demonstrating, monitoring and checking the work, such as is necessary to protect the workers against the risk of fire and/or explosion.

Victim's Injuries and the Victim Impact Statement

1. The notes from Wollongong Hospital indicate that Mr Palmer presented with the following injuries: 1. Burn injury to face and neck - 5%; 2. 28M facial burns; 3. Total Body Surface Area (TBSA) 1.5% of superficial partial thickness burn over bilateral cheek and mid to deep dermal partial thickness burn to bilateral earlobes and nose plus areas of superficial burns including forehead, scalp, anterior and posterior neck; and 4. Circumferential superficial burns noted to the neck. Neck is soft with no signs of threatened airway.
2. Concord Hospital reports indicate that Mr Palmers injuries and treatment consisted of : 1. Biobrane burns to face; 2. Flash burns to face, ears and neck; and 3. Primary operation performed was a debridement and Xenografting to face, both ears, anterior neck.
3. A Victim Impact Statement from Mr Palmer was prepared under s 29 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Act') which I must consider: s 30E(1)(a). The statement attests to the harm of the kind that might be expected in this type of offence, and I have no difficulty in accepting its contents: R v Tuala [2015] NSWCCA 8 at [79] (referring to the relevant provisions pre-amendment on 27 May 2019).
4. Mr Palmer's Victim Impact Statement was harrowing to read. The second paragraph of the statement reads as follows: "As a result of this incident my day-to-day life has changed dramatically, and I am continually struggling with anxiety, irritability and sleeplessness."
5. Mr Palmer then details the enormous changes that he has experienced as a consequence of this incident. The symptoms described are severe, and the anxiety that he continues to suffer, in circumstances where most people would consider as benign, are very significant. His friendships have been compromised as he has become very withdrawn and Mr Palmer only really socializes when his wife can accompany him.
6. He is restless and irritable as opposed to having been a calm and happy-go- lucky person prior to the incident. He now suffers poor self-esteem, lack of confidence, difficulty in concentrating and completing basic tasks, and difficulty sleeping.
7. Mr Palmer experiences extreme sensitivity of his skin requiring lukewarm showers. He must apply sunblock and zinc cream to his face, head and neck whenever venturing outside. In winter his lips crack and in summer his lips blister, both causing pain.
8. Mr Palmer has scarring on both sides of his head, and the hair on the front of his head has not grown back. He becomes anxious when looking in the mirror and shaving as these activities trigger memories of the horror and excruciating pain he went through during the incident and the physical pain he suffered during the following weeks when recovering.
9. There are many circumstances, tasks and smells that remind Mr Palmer of the incident and trigger anxiety. This includes the smell of bitumen, a BBQ or any smell of burning. He feels poorly treated by the defendant after the incident. Professional help sought by Mr Palmer has been of little assistance.
10. It is evident to me that Mr Palmer has suffered greatly and unfortunately may continue to do so. I am saddened by what he has been through, and I am grateful that he provided a statement, and that I had the opportunity to read it. I hope that as time passes, his suffering might ease.

Sentencing

1. The penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the Act.
2. The Court is to be guided by the provisions of the Sentencing Act which include: 1. Section 3A which sets out the purpose of sentencing; 2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and 3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.
3. 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.
4. 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 judgement without any attempt to state precisely how any given factor has influenced the judgement."

Objective Seriousness of the Offence

1. The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
2. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474-5.
3. 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 v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465.
4. 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 ('Capral Aluminium') at [81].
5. 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.
6. 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 at [31].
7. The Court of Criminal Appeal examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 ('Nash v Silver City'). Justice Basten at [34], under the heading 'Assessment of Risk' said: "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."
8. 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."
9. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [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] NSWCCA 272.
10. 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).
11. The defendant's duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the Act: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
12. The following matters are relevant to determining the culpability of the defendant: 1. The defendant asserts that it is a victim of its own history of safe operation and that there was a break down in the "Chain of command": (Defendant's Outline of Submissions on Sentence - page 2). It asserts that it was only because of their previous success that they were lulled into a false sense of security, and that the chain of command only broke down when the truck was overheating and that was the crystallization of that failure. 2. Further, it was submitted by the defendant that this was inconsistent with the previous 12 years of safe operation. I accept that it was the first offence in the last 12 year period and have taken that into consideration as a mitigating factor. However, a defendant cannot rest on its laurels and take a relaxed position with regard to the safety of its workers - employers must be ever-vigilant to their duties under the Act. 3. The induction of 8 January 2018 to the CSM with the accompanying SWEMS 30 prepared by "Smarter Safety" not only did not address the heating of the CSM beyond the recommended temperature and the PPE, it did not address what would be appropriate when the indicator lights on the CSM were not working, nor the hose not being heated, or the excessive temperature to which the Bituflex was being heated. Further, there was no reference to what could potentially occur if the hatch had to be opened. 4. The heated hose had not worked for about 18 months to two years before the incident, and alternate measures were used by unsupervised workers, including the installation of a metal tap to disperse the heated Bituflex into an aluminium watering can to apply to the road surface. 5. As a consequence of the heated hose not actually being heated, diesel was introduced to stop the hoses becoming clogged when the works stopped, for example for morning tea, as occurred on the date of the incident. 6. The machine was operated at an excessive temperature. 7. In the first paragraph of the Defendant's Submissions at page 3 it is stated: "Roadworx engaged Smarter Safety Pty Ltd to professionally carry out its induction and was reasonably reliant on Smarter Safety Pty Ltd. Roadworx has been let down by the level of input and contents in that induction by Smarter Safety Pty Ltd. 1. It is clear by the submissions from the defendant and the manner in which it has presented its plea, it is trying to apportion blame to others. They submit they relied heavily on Smarter Sense (Defendant's Submissions page 3), that Mr Palmer didn't wear the appropriate PPE (paragraph [17] of Gilles affidavit), and that the warning signs placed on the CSM "had warning signs which were not adhered to" (Defendant's Submissions page 3). 2. Whilst the Gillies affidavit says that Mr Gillies regrets the failures. 3. The defendant's pre-incident systems of work were inadequate to manage the risk. 4. There were simple, straightforward steps which could and should have been taken to avoid the risk. These are outlined above. 5. There was a large amount of industry guidance material that the defendant could and should have had regard to; and 6. Mr Palmer suffered significant and severe injuries.
13. I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "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."
14. 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 (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).
15. The objective seriousness of an offence under s 32 of the Act is considered in the context of the gradation of offences contained in ss 31-32 of the Act: Nash v Silver City at [54]-[56]. The matters relevant to objective seriousness for a s 32 offence include:

• 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: Ibid [34];
• The availability of steps to eliminate or minimise the risk: Ibid [34];
• Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] and [53];
• Whether the risk was known or ought reasonably have been known to or identified by the offender;
• Whether the risk was an obvious or clear one; and
• The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).

1. As a consequence of the matters set out above, I am of the view that this is an objectively serious offence. The seriousness of the foreseeable harm to a worker was extreme, and the steps available to avoid the risk were straightforward and inexpensive.

Deterrence

1. 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.
2. 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).
3. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.
4. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 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."
5. General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with working with flammable and combustible materials in an environment above their autoignition temperature.
6. That in itself is an inherently dangerous practice, which the Chemicals Code (Tab 7, p 41) points out, "auto-ignition temperature of the hazardous chemical should be considered as some … may ignite spontaneously above certain temperatures".
7. 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 Act very seriously. 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.
8. 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.
9. The systems of work in place prior to the incident did not provide for adequate protection from the risks associated with hazardous chemicals.
10. After the incident, the defendant took a number of steps to strengthen its safety management system including attending its SWEMS and conducting training on the CSM. These steps are described at paragraphs [128]-[131] of the ASOF.
11. I accept that the prospects of rehabilitation of the defendant are fair, but the need for an element of specific deterrence is still necessary in these circumstances.

Aggravating Factors

1. For an aggravating factor to be established, I must be satisfied beyond a 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). It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. Mr Palmer's severe injuries are an aggravating factor. The injury and emotional harm caused by the offence was substantial: s 21A(2)(g) of the Sentencing Act.

Mitigating Factors

1. The defendant has been carrying out its business for almost 12 years and has no convictions despite the work activities of the defendant and that it has 180 employees: s 21A(3)(e) of the Sentencing Act.
2. In Haynes v CI & D Manufacturing (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."
3. I have taken into account the companies' industrial record, which in the circumstances is good.
4. After the incident, the CSM was stood down for work and a new SCEMAIR was purchased for $380,000.00 in its place. Mr Gillies at [26] of his affidavit deposes that this is automated to eliminate a similar accident taking place. However, there seem to be nothing further done by the defendant to ensure no re-offending.
5. Importantly, whilst the defendant does not seem to accept responsibility for the failures. Mr Gillies was not on site when the accident happened. However, he knew that diesel was used to flush the lines to prevent the blockage of the bitumen (ASOF [84]).
6. Mr Gillies knew that the hose attached to the wand to distribute the bitumen was broken. It was a hose that was required to be heated so that the bitumen would not cool and cause the hose to block. The heating mechanism of the hose had been broken for more than 18 months to 2 years, and Mr Gillies was aware of that situation.
7. The operator's manual for the CSM cautioned that the product should only be heated to 200 degrees, and 160 degrees before re-circulation occurs, and to continually check the temperature and only heat to the minimum temperature required.
8. Paragraph [96] of the ASOF reads as follows: "96. Despite these warnings Roadworx failed to ensure that workers did not overheat the Bituflex in the following ways: a. Mr Palmer was not instructed in the maximum heating or pouring temperatures as outlined in the Bituflex SDS, Bituminous Products Information Sheet or the Operators Manual, SWEMS-30 or SWEMS-06; b. Mr Tipiwai was not aware of the recommended heating or pouring temperature of the Bituflex. Mr Tipiwai said he did not follow the instructions in the SWMS as he preferred to follow a process of trial and error in terms of heating the Bituflex; and c. Mr Tipiwai taught Mr Palmer to "max it out" when first starting the CSM. Mr Palmer was taught to heat the Bituflex to approximately 600 degrees Fahrenheit (315 degrees C). He was then taught to bring the heat back. 97. On 19 August 2019 the burner on the CSM was set to approximately 570 degrees F (approximately 300 degrees C) when work commenced and left at that temperature throughout the morning. This temperature exceeds the autoignition temperature for Bituflex."
9. Mr Tipiwai was Mr Palmer's supervisor and clearly did not follow the instructions in the SWMS. It seems there were no systems in place to ensure that the supervisors were following the correct procedure. However, the duty owed by the defendant cannot be delegated, and it is a very worrying set of circumstances that Mr Tipiwai was instructing Mr Palmer to adopt very unsafe procedures.
10. Further, the level lights on the CSM were not working, and whilst Mr Tipiwai was aware of the same, there was no system in place whereby faults could be adequately recorded and brought to the attention of management (ASOF paras [99]-[100]). As a result of the level lights not working, a practice of using the inspection hatch to determine the level of Bituflex in the CSM had developed. Mr Palmer explained that to inspect the level of the product you have to lean in to look down inside the CSM (ASOF [101]-[102]). Mr Palmer had checked the Bituflex levels this way at his training and followed the practice of other workers and had not been corrected by Roadworx (ASOF [105]).
11. The prospects of the defendant re-offending are relevant to the sentencing process: s 21A(3)(h) of the Sentencing Act. The defendant's affidavit at page 5 ( there is no paragraph number), states as follows: "There appear to be significant failures by Roadworx that led to the accident (1) The CSM has been set to a very high temperature, well beyond the recommended temperature that had the potential to auto-ignition of the solvent. While Mr Palmer had a general company induction in 2015, his only introduction with CSM was on 8 January 2018, this induction should have been refreshed at regular intervals. There was no mention in the SWEMS 30 of the dangers inherent in heating the CSM beyond its recommended temperature nor the danger of auto-ignition of the kettle when flushing with diesel at a low level. (2) The contents of the CSM were bituflex and diesel, the diesel being used to clean and flush out the hose. Having said this, the diesel only became the hazard it was, due to the temperature of the CSM well above the recommended temperature and little or no bituflex in the kettle. (3) There was an assumption that Mr Palmer was issued with appropriate PPE gear. Had he been wearing appropriate PPE Gear, the accident would have had modest consequences. (4) Temperature of the CSM and inadequate PPE gear at the heart of the accident and injury. A staff member ignores the warnings present on the machine, and stronger supervision is needed to ensure the prescribed operating practices are followed. This is no a lesson well learnt by management and staff of Roadworx."
12. Mr Gillies demonstrates the acceptance of responsibility for the defendant's failures and has demonstrated remorse and contrition: s 21A(3)(i) of the Sentencing Act.
13. Whilst I accept that the defendant has taken some steps to either eliminate or minimise the relevant risk (ASOF [129]-[131]), it cannot be said that re-offending is unlikely.
14. The defendant entered a plea of guilty, however, I accept that it was not at the first available opportunity. The prosecutor filed a Summons on 11 August 2021. The charge was adjourned on 11 October 2021, 6 December 2021, 21 February 2022, 14 March 2022, 4 April 2022 and then to 2 May 2022 when the defendant entered a plea of guilty to the original Summons, almost 9 months after filing.
15. Whilst the plea itself demonstrates remorse, the prosecutor submits it is open to me to find that the defendant ought not be entitled to the maximum discount given the delayed history.
16. In R v Thomson & Houlton (2000) 49 NSWLR 383 at [155] the Court stated that the utilitarian value of the pleas to the criminal justice system should generally be assessed in the range of 10-25% and the top of the range would be expected to be restricted to pleas at the earliest possible opportunity. Exhibit E indicates that the solicitor for the defendant was experiencing some personal difficulties in March this year. I also note that Counsel for the defendant was experiencing health difficulties this year, and I have had regard to those impediments and intend to disregard any delay so caused.
17. Nonetheless, it cannot be said that the defendant entered a plea of guilty at the first available opportunity, and as such I am of the view that the appropriate discount is 15%: s 21A(3)(k) of the Sentencing Act.
18. The defendant co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act.
19. Having taken all of those matters into consideration, the appropriate fine for the defendant is $400,000.00. The defendant is entitled to a discount of 15% for the utility of the early plea.

PENALTY

1. I make the following orders: 1. The defendant is convicted. 2. The appropriate fine for the offence is $400,000.00, and that will be reduced by 15% to reflect the plea of guilty. 3. Accordingly, I order the defendant to pay a fine of $340,000.00. 4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. 5. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor's costs, as agreed or assessed.

---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2022