SafeWork NSW v Steggles Pty Ltd

Solicitors: SafeWork NSW (Prosecutor) Kingston Reid (Defendant) File Number(s): 2022/281970

Judgment

1. The defendant, Steggles Pty Limited (Steggles) operates a poultry processing plant where Mr Haraka Gatabishwa was employed. While performing duties around the Overhead Shackle Conveyor Line (Conveyor Line) Mr Gatabishwa noticed a chicken carcass hanging one-legged. Mr Gatabishwa reached above his head to reattach the chicken's leg to the Conveyor Line when his finger became caught, dragging his hand through the spinning blade of the Hock Cutter. Mr Gatabishwa's right hand was severed.
2. Steggles has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act) it failed to comply with that duty and thereby exposed Mr Gatabishwa to a risk of death or serious injury contrary to s 32 of the Act.
3. The maximum penalty for the offence is a fine of $1,766,130.

The Risk

1. The risk is as described in par 8 of the Amended Summons as follows: "The risk was a risk of workers, in particular Mr Gatabishwa, suffering serious injury or death as a result of becoming caught in the moving parts of the Conveyor Line and subsequently coming into contact with the moving blade of the Hock Cutter."

Reasonably practicable measures

1. Paragraph 9 of the Amended Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows: "The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Mr Gatabishwa, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if not reasonably practicable to eliminate, the risk: (a) Install additional adequate guarding around the Hock Cutter; (b) Installing interlocked barriers around the Conveyor Line; (c) Conducting a risk assessment on the Conveyor Line and Hock Cutter to identify any reasonably foreseeable hazards that could give rise to risks to health and safety, including: I. Identifying the hazard of being caught in the moving parts of the Conveyor Line while workers worked around the Conveyor Line; II. Identifying control measures to address the risk arising from any identified hazards, including the risk of serious injury or death arising from becoming caught in the Conveyor Line. III. Confirming that any implemented controls were adequate and effective in eliminating or, if elimination was not reasonably practicable, minimising the risk of serious injury or death arising from becoming caught in the Conveyor Line. (d) Develop and enforce safe work procedures for working around the Conveyor Line that prohibited the operation of the Conveyor Line when guarding or any interlocking barrier was not in place. (e) Provide workers, in particular Mr Gatabishwa, with instruction, information and training in the safe work procedures for working around the Conveyor Line, having regard to their literacy skills and proficiency in the English language. (f) Provide adequate supervision to workers to prevent access to the moving parts of the Conveyor Line and Hock Cutter."

Legal Approach to Resolution of Disputed Facts Upon a Sentencing Hearing

1. The standard of proof of contested or disputed facts required in a sentencing hearing depends upon which party is seeking to rely on a particular fact. In R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] the High Court said: "A sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."
2. The High Court has since applied this approach in KMC v Director of Public Prosecutions (SA) [2020] HCA 6; (2020) 267 CLR 480 at [33] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ), Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 at [64]-[66] (French CJ, Bell, Keane and Nettle JJ), and Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at [23] (Gleeson CJ).
3. Any disputed fact that the prosecutor seeks to rely on must be proved beyond reasonable doubt: Strbak v The Queen [2020] HCA 10; (2020) 267 CLR 494 at [32] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); R v Pearce [2020] NSWCCA 61 at [69]-[73] (Leeming JA, Rothman J, N Adams J); Alameddine v R [2020] NSWCCA 232 at [46] (Bathurst CJ); Cowling v R [2015] NSWCCA 213 at [13] (Leeming JA); R v AB [2011] NSWCCA 229 at [30] (Johnson J); R v Kirkland [2005] NSWCCA 130 at [13]-[16] (Hunt AJA, Grove and Hall JJ agreeing). In contrast, any disputed fact which the defendant seeks to rely on must be proved on the balance of probabilities: BC v R [2020] NSWCCA 329 (Gleeson JA, Price J, Wright J); Chiang v R [2016] NSWCCA 45 at [13] (Beazley P, Harrison J and R A Hulme J); R v Wang [2020] NSWSC 1335 at [5] (Beech-Jones J).

Agreed Facts

1. The parties prepared an Amended Statement of Agreed Facts dated 26 April 2024.
2. The Amended Agreed Facts are summarised below.
3. At all material times Steggles was a registered corporation with its registered address at 642 Great Western Highway, Girraween NSW.
4. At all material times Steggles conducted a business or undertaking that involved providing labour to a poultry processing plant owned by the Baiada Group of companies, located at Hawthorne Street, Beresfield (NSW) (the site). As at 6 October 2020, Steggles employed approximately 816 staff at the site.
5. At all material times Mr Gatabishwa, the injured worker, was employed by Steggles as a process worker. His duties included machine operation (machinist), bird hanging, cleaning and general housekeeping. On the day of the incident Mr Gatabishwa was assigned to carry out general housekeeping and relief machinist duties. Mr Gatabishwa commenced working at the site in November 2018 at which time he was employed by Australian Personnel Global CP. From November 2019 until the date of the incident he was employed directly by Steggles.

The Plant

1. Located within the Evisceration Room (Evis Room) at the site was a piece of plant known as the Conveyor Line.
2. The Conveyor Line contained multiple carriages designed to carry chicken carcasses in which birds' heads are separated from their bodies as part of the preparation process, suspended from their legs to a hock cutter blade (Hock Cutter) which would sever the feet of the birds at their hocks, after which the remaining carcasses would move forward.
3. The Hock Cutter had a rotating circulating cutting blade approximately 200mm in diameter. The cutting blade had a circular guard surrounding it exposing approximately 70mm of the cutting blade that came into contact with the chicken hocks.
4. The Conveyor Line was at a height of about 1.96 metres, as was the blade which constituted the Hock Cutter.
5. At the time of the incident no guarding was in place to prevent access to the Conveyor Line. The guarding around the Hock Cutter was not adequate to prevent inadvertent or accidental contact with the moving blade.
6. The engineering system in place at the time of the incident was such that birds secured only by one leg would automatically fall into a chute and be directed to a re-hanging conveyor.

The Incident

1. On 6 October 2020 Mr Gatabishwa was undertaking the role of "floor boy" in the Evis Room. His duties involved general housekeeping, including cleaning chicken remains around the Conveyor Line. Mr Gatabishwa was also required to fulfil the role of "relief machinist" when the normal operator took his scheduled breaks.
2. At approximately 8.45am Mr Gatabishwa was carrying out cleaning duties around the area below the Hock Cutter when he saw a chicken carcass attached by only one leg travelling on the Conveyor Line. Upon seeing this chicken, Mr Gatabishwa reached up above his head to raise up the suspended bird's unconnected leg and re-attached it to the Conveyor Line. As he re-attached the loose leg, one of his fingers on his right hand got caught in the conveyor run. Mr Gatabishwa was unable to extract his finger and his hand was dragged by the Conveyor Line for approximately one metre, through the Hock Cutter, which severed his right hand from his body.
3. There were no witnesses to the incident. At the time the incident occurred Mr Gatabishwa was working in the Evis Room alone.

Guarding

1. At the time of the incident there was no adequate guarding, in the form of a physical barrier, in place preventing access to the Conveyor Line whilst it was in operation.
2. Although there was some guarding in place around the blade of the Hock Cutter, the guard did not cover the full length of the blade, where 70mm of the blade was exposed.
3. The Conveyor Line was in operation 10 hours per day, 5 days per week.
4. Steggles were in possession of the operating manual for the Conveyor Line and Hock Cutter which was entitled, "Marel User Manual Transfer System TR-DE NT" (the Manual). In the safety provisions on p 19 of the Manual the following is stated: "The machine has these safety provisions: A protection around the blade. An emergency stop and/or an emergency stop cord within reach. The machine must be in a separate and closable areas with a safety fence around the machine."
5. Steggles did not install a safety fence around the Conveyor Line.

Risk Assessment, System of Work, Training and Supervision

1. Although Steggles had a documented risk assessment which identified the risk of injury from hands or fingers coming into contact with the Hock Cutter blade, it failed to adequately identify the risks of adjusting the Hock Cutter in circumstances where there was inadequate guarding surrounding the Hock Cutter.
2. At the time of the incident Mr Gatabishwa was not performing the task of adjusting the Hock Cutter blade. In addition, the risk assessment did not address the risk of being caught in the moving parts of the Conveyor Line itself, including the overhead shackles.
3. Mr Gatabishwa was trained as a machinist and performed this role on a regular basis, including the role of relief machinist which he was undertaking on the day of the incident. As part of this training Mr Gatabishwa was trained on a document entitled "Task Instruction Sheet - Adjusting Hock Cutter and Transfer WHS-TI-668". This document set out the procedure to be followed to correctly adjust the Hock Cutter and transfer. The document did not address the procedure to be followed in relation to the task of re-hanging one legged birds.
4. At the time the incident occurred, Mr Gatabishwa was working in the Evis Room alone and was not being actively supervised, notwithstanding that he was working in an area directly below an unguarded machine.

Guidance Material

1. Prior to the incident, the following guidance material was available: 1. SafeWork NSW (SafeWork) Code of Practice, Managing the Risks of Plant in the Workplace (August 2019) (SafeWork Code), which deals with guarding machinery and outlines the guarding hierarchy. It includes guarding as a specific control measure for certain risks associated with plant, including permanently fixed physical barriers and interlocked physical barriers. 2. Australian Standard AS 4024.1801-2014, provides guidance on reducing the risks to health and safety associated with machinery, including guarding design. AS 4024.1801 deals with safety distances to prevent danger zones being reached by upper and lower limbs. The required minimum safety distance from the hazard zone, to prevent access by upper limbs, is 2,500mm (based on an assessment that there was a low risk of an injury occurring) to 2,700mm (based on a risk that there was a high risk of an injury occurring). The height of the Conveyor Line was 1960mm.

Systems of Work After the Incident

1. Within three weeks of the incident Steggles installed a stainless-steel fixed guard fence around the Conveyor Line (the Safety Gate). The Safety Gate has an interlocked access gate which, after opening, immediately stops the Conveyor Line from operating. Steggles also installed a stainless-steel mesh guard around the Conveyor Line and Hock Cutter.
2. Steggles also made the following improvements after the incident: 1. Reviewed and updated its risk assessment for the Conveyor Line and Hock Cutter. 2. Developed a procedure whereby only trained workers are permitted to enter the Safety Gate and only the person who enters the Safety Gate is permitted to restart the line.

Prior Convictions

1. Steggles has no prior convictions for breaches of the WHS Act.

Disputed Facts

1. The following facts were disputed: 1. Whether multiple workers were exposed to the pleaded risk. 2. Whether the pleaded risk was obvious. 3. Whether workers were exposed to the risk of death.

Evidence for the Prosecutor

1. The prosecutor tendered two folders of documents (PX 1 and PX 2).

Documentary Evidence

1. The documentary evidence tendered by SafeWork consisted of the following: 1. A prior convictions report for Steggles (PX 1, Tab 4). 2. An ASIC search for Steggles (PX 1, Tab 5). 3. Three factual inspection reports of Inspector Leinasars of SafeWork (PX 1, Tabs 6, 7 and 8). 4. Photographs taken by Inspector Leinasars (PX 1, Tabs 9, 10 and 11). 5. Post-incident documents of Steggles which led to changes being made in the Evis Room, and in and around the Hock Cutter (PX 1, Tabs 12, 13, 14, 15 and 16). 6. A copy of AS 4024.1801-2014 - Safety of Machinery Part 1801: Safety distances to prevent danger zones being reached by upper and lower limbs (June 2014) referred to in the Agreed Statement of Facts (PX 1, Tab 17). This Standard prescribes that the minimum safety distance from a hazard, so as to prevent access by upper limbs, is 2,500mm. As set out in the Amended Agreed Statement of Facts, the height of the Conveyor Line was 1,960mm. Thus, the Conveyor Line and the Hock Cutter were at a height which required them to be guarded. 7. A copy of the User Manual for the Stork Poultry Processing Transfer System (PX 2, Tab 10). In the "Safety Provisions" section of the User Manual, the following appears: "The machine must be in a separate and closable area with a safety fence around the machine." 1. A copy of the SafeWork Code (PX 1, Tab 19). Part 4.1 of the SafeWork Code deals with "Guarding Plant". It refers to cl 208 of the Work Health and Safety Regulation 2017 (NSW) which states that if guarding is used, and if access to a guarded area is necessary during operation, maintenance or cleaning, the guarding must be an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time.

Evidence of Inspector Leinasars

1. The first report of Inspector Leinasars (PX 1, Tab 6) was created as a result of his visit to the Steggles site on the day of the incident. It includes a photograph of the Conveyor Line entering the Hock Cutter. The equipment is stationary and has been taped-off. The report also includes a copy of a photograph of the same site, with a temporary safety fence erected around it. This fence was put there on the day of the incident to enable processing to resume because of animal welfare concerns.
2. The second report (PX 1, Tab 7) was created as a result of Inspector Leinasars visiting Steggles on 14 October 2020. That report provides information about a "one-legger" ejection chute and a re-load station belt conveyor. Photographs taken that day show that Steggles had installed mesh guards around the Hock Cutter (PX 1, Tab 10).
3. The third report of Inspector Leinasars was created as a result of his visit to Steggles on 28 October 2020 (PX 1, Tab 8). This report contains a description and a photograph of a permanent guard fence surrounding the Hock Cutter which prevented an operator reaching the blades of the Hock Cutter and prevented an operator reaching the Conveyor Line. Inspector Leinasars was informed that the gate to the fence was interlocked. Opening the gate immediately stopped the Conveyor Line.
4. Inspector Leinasars was called as a witness and was cross-examined concerning his observations and his photographs. In cross-examination Inspector Leinasars accepted the proposition that if an incident had not occurred before, then a risk may not necessarily be obvious.

Evidence of Mr Hayford

1. The prosecutor tendered a Record of Interview conducted by SafeWork with Mr Theophilus Hayford on 24 February 2021 (PX 2, Tab 8). The interview was conducted in the presence of the legal representative for Steggles. On the day of the incident Mr Hayford was working as a team leader. He moved around the Steggles plant but his workstation was a table outside the Evis Room. That is where he was when the incident occurred. Mr Hayford said that on the day of the incident Mr Gatabishwa was employed as a cleaner and a relief machinist. There was a senior machinist employed to operate and supervise the Conveyor Line and the Hock Cutter. That senior machinist took three 25-minute breaks during his shift, and during those breaks Mr Gatabishwa relieved the machinist in his duties. Mr Gatabishwa had to look after everything that the senior machinist did during those 25-minute breaks.
2. Mr Hayford had done the work of a relief machinist as part of his job as team leader. Mr Hayford confirmed that, being a tall man, he could reach up to the Conveyor Line and the Hock Cutter. He said that there was nothing to stop someone putting their hand out and touching the Hock Cutter blade itself. There was a safety bar guiding the blade, but it did not entirely cover the blade. The blade came out only far enough to cut the chicken hocks. Mr Hayford confirmed that there had never been any other incidents like this before. He had worked at the site since 2015. In the Evis Room there would always be 10-15 people per shift. Mr Hayford said that he never had any concerns about the Hock Cutter prior to the incident occurring on 6 October 2020.
3. Mr Hayford gave oral evidence and was cross-examined. In cross-examination he said that everyone who worked in the Evis Room rotated from time to time and thus every person who worked in the room did every job on the Conveyor Line during a shift.

Evidence of Ms Pittman

1. The prosecutor tendered a Record of Interview conducted by SafeWork with Ms Narelle Pittman (PX 2, Tab 7). At the time of the incident Ms Pittman had worked at the Beresfield plant for 43 years. She was a quality control officer whose job was to monitor animal welfare, check the live birds and monitor that the machinery was not damaging the birds.
2. Ms Pittman said that her formal training included being taught that anyone working on the line re-hanging birds had to have their thumbs tucked in. Her regular duties involved her working near or close to the Hock Cutter. Ms Pittman said that to reach the Hock Cutter, she would have had to physically lift her hand in that direction, but she had no need to do that.
3. Ms Pittman gave oral evidence and was cross-examined. In cross-examination she said that when she had to walk past the Hock Cutter to carry out her duties as a quality control officer, she would have been about five metres away from the blade. Ms Pittman acknowledged that the only people allowed to enter the Evis Room were authorised personnel.

First Affidavit of Ms Moore

1. Ms Moore affirmed an affidavit and its annexures on 29 February 2024 in relation to the disputed facts hearing (DX 1).
2. Ms Moore is the National Work Health and Safety/Workers Compensation Manager for the Baiada group of companies, which includes Steggles. Ms Moore is currently employed by BPL Foods Pty Ltd (BPL), a subsidiary of Baiada. Ms Moore has been employed by BPL for 19 years and has held her current position for six years.
3. Ms Moore has a bachelor's degree in Occupational Health and Safety and 20 years of industry experience.

The Defendant

1. Steggles is a wholly owned subsidiary of the private family-owned Baiada group of companies. Baiada engages in the poultry production process, being breeding, hatching, growing, processing, wholesaling and retailing, rendering (protein recovery) and feed milling.
2. At the time of the incident Steggles employed approximately 897 people in New South Wales, of which approximately 770 worked at the Beresfield site. At this facility chickens are received and prepared for human consumption. The site was established in 1958.
3. Ms Moore stated that Steggles "wishes to make clear from the outset that Mr Gatabishwa is a valued member of its workforce and that it sincerely regrets what happened to him". Ms Moore further stated that Steggles "is genuinely and continuously committed to doing what it can to support Mr Gatabishwa".

Obviousness of the Risk

1. Ms Moore asserted that Steggles believes that the risk described in par 8 of the Amended Summons was not obvious at the time of the incident. Ms Moore then explained the basis for the assertion that the risk was not obvious.

The Nature of the Work Being Undertaken by the Injured Worker Did Not Involve, Nor Contemplate, Any Contact or Involvement Otherwise with the Conveyor Line and/or Hock Cutter

1. Ms Moore stated that Mr Gatabishwa's work on the day of the incident did not require him to make any contact with the Conveyor Line or Hock Cutter. Rather, Mr Gatabishwa's work was limited to cleaning the floor and surrounding areas of the plant. Ms Moore annexed Mr Gatabishwa's role description to her affidavit.
2. Mr Gatabishwa was trained to not make contact with any operating plant and signed a commitment to avoid such contact. Mr Gatabishwa's signed commitment and copies of his training and competency verification records were annexed to Ms Moore's affidavit.
3. Ms Moore said that Mr Gatabishwa's competency and proficiency were demonstrated through his training and competency questionnaires and practical demonstrations. Records showing the practical verification of Mr Gatabishwa's competencies were annexed to Ms Moore's affidavit.
4. Mr Gatabishwa was also trained in the handling of birds being processed for human consumption. This training included instruction that birds should only be handled in limited circumstances, with the "Dropped Meat Policy" prohibiting people re-hanging chickens for human consumption onto the shackles. Ms Moore annexed to her affidavit the instruction regarding handling birds and the "Dropped Meat Policy".
5. Ms Moore said that workers performing cleaning tasks were not authorised to physically handle birds on the Conveyor Line and that not all workers at the site could access the Evis Room.
6. Steggles applied strict restrictions on staff being near one another and moving between areas of the facility. These restrictions were because of food safety quality requirements (that still apply now) but also because of the WHS separation controls in place in response to the COVID-19 pandemic. The "Good Manufacturing Policy" and the "Beresfield Staff Traffic Movement" document dated 5 August 2019 applied at the date of the incident and were annexed to Ms Moore's affidavit.

It Was Not the Case That a Worker Working Around the Conveyor Line Could Trip or Fall into That Part of the Plant

1. Ms Moore said in her affidavit that she was not aware of any trip hazards in the vicinity of the Conveyor Line or Hock Cutter that would make it possible for someone to trip or slip and become caught or fall into the Conveyor Line and be propelled into the Hock Cutter.
2. SafeWork's records of interviews with workers and the evidence of Ms Pittman and Mr Hayford corroborated Ms Moore's belief about the absence of trip hazards.

The Conveyor Line Was At a Height and Angle That Placed It Away From the Path of Workers and Away From Body Parts Generally

1. Ms Moore stated that the Hock Cutter is 1.98m above the ground and that the height and angle of the Conveyor Line and Hock Cutter placed it away from the path of workers and their body parts. Additionally, Ms Moore said that there was a guard rail delineating the Conveyor Line.
2. Ms Moore asserted that coming into contact with the Conveyor Line and Hock Cutter, in the way that Mr Gatabishwa did, would have required him to contort his upper body.

There Was an Engineering Solution in Place on the Conveyor Line Being an Automated System That Would Capture "One-Legger" Birds to be Re-attached at the Designated Area

1. Ms Moore said that at the time of the incident an automated engineering solution on the Conveyor Line would capture "one-legger" birds to be reattached at another designated area.
2. Ms Moore explained this engineering system, saying that "one-leggers" automatically fall from the Conveyor Line into a chute which moves them to the re-hanging area. This process is automatic and does not require human intervention.
3. Annexed to Ms Moore's affidavit is the "Task Instruction" for re-hanging birds.

The Designated Area for Reattaching "One-Legger" Birds Was Immediately Next to the Conveyor Line, Was Visible to All Workers and Was Known By Workers in the Area Where This Re-attaching Took Place

1. The designated area for reattaching one-legger birds was immediately next to the Conveyor Line.

The Worker Was Well Trained in the Tasks He Was Performing and Had Achieved Perfect Scores When Tested on Training Comprehension

1. Ms Moore explained that Mr Gatabishwa commenced work at the site on 14 November 2018 as a labour hire worker. Mr Gatabishwa was then directly employed by Steggles on 18 November 2019.
2. Ms Moore said that Mr Gatabishwa's employment conditions and contract included safety requirements, and Mr Gatabishwa had to sign a copy of the applicable WHS policy. Ms Moore annexed Mr Gatabishwa's employment contract and signed WHS policy to her affidavit.
3. Additionally, Mr Gatabishwa was trained and inducted when he commenced work at the site on a labour hire basis and again when Steggles directly employed him.

No Similar Incidents Have Occurred Involving a Conveyor Line and Hock Cutter

1. Ms Moore affirmed that she was familiar with the workings of the Conveyor Line and Hock Cutter at the site. Ms Moore said that the same plant is used at Steggles' other poultry processing facilities and has been in operation at the site since 1958.
2. The Conveyor Line and Hock Cutter operate for 18 hours per day, four days per week at the site and has operated continuously for years, processing approximately 130,000 birds per day at the time of the incident.
3. Ms Moore said that Steggles is unaware of any similar incident involving the Conveyor Line or Hock Cutter at the site or at any of Steggles' other facilities.
4. Ms Moore also said that Steggles is unaware of any similar incident occurring on such a conveyor line or hock cutter operating within the poultry processing industry.

Second Affidavit of Ms Moore

1. On 21 May 2024 Ms Moore affirmed a second affidavit (DX 2). Ms Moore's second affidavit is in relation to the sentence to be imposed.
2. Ms Moore said that Steggles was acquired by Baiada, its current owner, in 2009 but that Steggles operated the site before 2009, just not as a member of the Baiada group.

The Hock Cutter

1. Ms Moore clarified that the angle of the Hock Cutter blade can be adjusted, for example, to accommodate processing larger and smaller birds, but that Mr Gatabishwa was not required to adjust the Hock Cutter on the day of the incident.

Steggles' Safety Management System

1. Steggles developed and implemented an extensive safety management system, called the "BSafe System", before the incident.
2. The BSafe System was certified to the Australian/New Zealand Standard AS/NZS 4801, Occupational Health and Safety Management Systems, 2001 between 2015 and 2022. Now the BSafe System is certified to the International Organisation for Standardization ISO 45001 Occupational Health and Safety Management Systems - Requirements with Guidance for Use, 2018.
3. The Baiada WHS&E Policy is the apex document in the BSafe System. The WHS&E Policy sets out Baiada's WHS commitment, direction and objectives. The WHS&E Policy is annexed to Ms Moore's second affidavit.
4. Ms Moore explained that there are 56 national "Standards" that sit below the WHS&E Policy. Those Standards set out Baiada's requirements and provide instruction on WHS matters.
5. The Standards are issued at a national level for each individual facility to implement. Site-specific implementation procedures for the Standards were developed for the site. Additionally, various plans, checklists, templates and inductions specific to the site were in place.
6. Each site's manager, in consultation with the WHS coordinator, is responsible for implementing the Standards. The WHS coordinators report to Ms Moore.
7. Ms Moore said in her second affidavit that each WHS coordinator either has, or is in the process of obtaining, tertiary qualifications and is specifically trained in the BSafe System by their national team manager or other WHS team members.
8. In 2020 there were 16 employees in the WHS team. This has increased now to 19. There are also 10 other WHS administrative staff who assist the WHS team.
9. Ms Moore listed features of the BSafe System, stating that it provides for and includes: 1. Extensive and multi-faceted consultation mechanisms. 2. Extensive training delivered in written format and by practical instruction. 3. Practical verification of competency. 4. Documentation by team members that they would not place hands in any operating machinery. 5. Preventative machine maintenance and pre-start machine checks. 6. Developing and implementing task instructions, including instructions that people do not place their hands near blades in operation. 7. A requirement that equipment must only be operated by trained machinists. 8. Annual external auditing of the BSafe System by British Standards International to ensure that the system retains its accredited standards. 9. Biannual site audits by a national WHS coordinator, assessing the implementation of the BSafe System and reviewing the site's WHS management plan and compliance with accredited standards.
10. Baiada also engages third party certification bodies to conduct Sedex Member Ethical Trade Audits which cover the four pillars of labour practices - business ethics, WHS and environmental management. Ms Moore said that these audits have occurred across 12 of Baiada's main manufacturing sites at varying frequencies but typically on an annual or biannual basis.
11. Steggles' food safety and quality management system is independently accredited as complying with international and domestic food safety laws and International Organisation for Standardization ISO 14001, Environmental Management Systems - Requirements with Guidance for Use, 2015 . Steggles also holds a Hazard Analysis and Critical Control Point accreditation.

Other Actions Taken After the Incident

1. No similar incidents have occurred since the incident, nor has SafeWork issued any statutory notices to Steggles.
2. Baiada undertook the risk assessments referred to in the Amended Statement of Agreed Facts across all Baiada sites nationally, with each site required to provide photographic evidence of the implemented controls.
3. Steggles installed the Safety Gate, a stainless-steel fixed guard fence with an interlocked access gate around the Conveyor Line, along with guards around the Conveyor Line and Hock Cutter.
4. Steggles reviewed and updated its risk assessment for the Conveyor Line and Hock Cutter, and developed a procedure that only trained workers are permitted to enter the Safety Gate and restart the Conveyor Line.

Support for Mr Gatabishwa and His Family

1. Ms Moore listed the ways that Steggles supported Mr Gatabishwa after the incident. Such support included: 1. Fundraising to provide support for Mr Gatabishwa and his family. 2. Steggles' supervisors and employees visiting Mr Gatabishwa in hospital and at his home. 3. Offering the Employee Assistance Program to Mr Gatabishwa and his family. 4. Offering, through Steggles' rehabilitation provider, support to help Mr Gatabishwa return to work. This included offering Mr Gatabishwa a long-term position in a modified role and making vehicle modifications to accommodate his needs and request to work on forklifts. 5. Arranging medical appointments. 6. Liaising with the Gatabishwa family to provide ongoing support, including food-vouchers. 7. Offering Mr Gatabishwa legal assistance for the SafeWork process.

Commitment to Safety

1. Ms Moore stated that Steggles and Baiada demonstrate their ongoing commitment to safety and a positive WHS culture by: 1. Providing equal, fair and safe work opportunities throughout their sites. 2. Implementing a WHS strategy across the business that commits to continual employment. 3. Encouraging and supporting an active WHS Committee to increase worker engagement, consultation and participation in WHS matters. 4. Adopting a training and induction program that supports and encourages the reporting of hazards, incidents and near misses. 5. Adopting an EAP that supports employee wellbeing, provides training to staff, and provides access to an employee application to foster and promote worker health and wellbeing. 6. Developing a Supplier Code of Conduct that stipulates the expectations of suppliers relating to matters including: 1. Compliance with legal requirements. 2. Providing safe working conditions and risk management systems.

Community Presence, Support and Engagement

1. Ms Moore's second affidavit described Baiada donating millions of dollars to charities and community organisations, giving examples of Baiada supporting communities and grassroots sporting organisations.
2. Baiada supports the Beresfield community through supporting local public schools by providing donations, fruit, school merchandise and funding for school equipment.
3. Ms Moore also listed the 12 Australian children's charities that Baiada supports.
4. Baiada provides monetary donations to the various charities and team members from Steggles' different departments volunteer time to, for example, cook meals for families staying at the Ronald McDonald House in Westmead as part of the "Meals from the Heart" programme.
5. Additionally, the Baiada family, leadership team and staff established the "Steggles Charity Nest" in the 2000s. The Steggles Charity Nest aids children's charities around Australia by raising funds and awareness about the work of various charities.
6. Steggles holds a "Charity Month", known as Steggles' "Host a Roast" campaign, where 30 cents from each Steggles Family Roast sold is donated to the Steggles Charity Nest for an entire month. Ms Moore said that the most recent Host a Roast campaign raised more than $60,000.
7. Steggles also hosts growers' forums during which safety can be discussed, and provides industry participants with safety resources, including pro forma safety management system materials.

Steggles No Longer an Employer

1. Ms Moore explained that since 1 July 2023 Steggles has not employed workers, ceasing doing so on 1 July 2023 as part of a broader programme of reducing the number of employing entities in the Baiada group of companies.

Remorse and Contrition

1. Ms Moore ended her second affidavit by "sincerely" apologising to Mr Gatabishwa and his family on behalf of Steggles for its "failing" and harm caused, stating that: "As a business, the realisation that we should have done more to ensure the safety of workers has been difficult. We have close working relationships with our workers and, in many cases, we know their extended families. Mr Gatabishwa is a highly valued member of our team and we are deeply concerned to do all we can to ensure his recovery and continued work with us."
2. Ms Moore said that Steggles "accepts unequivocally" that it has breached the obligations in the WHS Act as stipulated in the Amended Summons.

Expert Report of Dr Harwood

1. Dr Thomas Harwood, a Senior Staff Specialist in emergency medicine, provided a report dated 29 February 2024 (DX 3). In par 2.3 of the report Dr Harwood said: "The focus of my review and opinion is on actual events rather than possible ones. Any injury, no matter how trivial, carries with it the risk of complications, such as bleeding or infection that in some circumstances may lead to death. In estimating the risk of death from an injury it is reasonable to consider the following factors. - The site and nature of the injury. - The presence or absence of immediate complications, such as severe haemorrhage. - The age and health background of the patient. - Whether first aid is provided and the timing and quality of definitive health care. In many cases it is not possible to definitively assign the absolute level of risk of death after an injury, but it is reasonable to quantify the relative risk using the factors above."
2. Dr Harwood reviewed the NSW Ambulance Incident Detail Report, the NSW Ambulance Case Sheet 40255 and the notes of John Hunter Hospital.
3. In par 4.1 of the report Dr Harwood considered the fact that in hospital Mr Gatabishwa was found to be suffering from Aeromonas scepsis. Dr Harwood noted that this is a bacterial infection which can "cause severe illness and even death in some patient groups". The reported mortality in otherwise healthy patients, such as Mr Gatabishwa, is "below 20%". Dr Harwood concluded that Mr Gatabishwa's risk of death from his infection "was low due to his underlying good health, the infection being quickly diagnosed and promptly treated in a hospital environment".
4. On p 7 of his report Dr Harwood provided a summary of his opinion as follows: "In summary it is my opinion that it is reasonable to conclude that Mr Gatabishwa had a low prospect of dying from the injury he sustained, with survival being the more likely outcome. I base my opinion on the anatomical site of the injury distal to major vascular structures, especially the radial arteries of the arm and forearm. I also base my opinion on the timely attendance and care by local first aiders, the timely attendance and care by ambulance professionals, the absence of described severe bleeding by ambulance officers on scene, the standing down of a rescue helicopter with its critical care medical team by those ambulance officers and the timely transfer and expert care at a dedicated trauma hospital. Similarly while Mr Gatabishwa developed an Aeromonas infection while in hospital there is no evidence from the notes that this became life threatening and in my opinion it's reasonable to conclude that, with its rapid detection and correct treatment with appropriate antibiotics, the risk of this infection becoming fatal was avoided."
5. In cross-examination, Dr Harwood conceded that if the amputation of the right hand had occurred in a more proximal location, then arteries could have been severed, leading to significant blood loss and an increased risk of death.

Whether the Risk was Obvious

1. Steggles relied upon the first affidavit of Ms Moore (DX 1) and submitted that there was no challenge to her evidence that the risk was not obvious to Steggles or to the industry at large. Further, counsel for Steggles submitted that Inspector Leinasars accepted that if the incident had not occurred before, that would mean that the risk may not necessarily be obvious. Counsel also pointed to the evidence of Ms Pittman (who had worked at Beresfield for 43 years) and Mr Hayford. Both said that it had never occurred to them that they would need to reach up towards the Conveyor Line and the Hock Cutter. It was also submitted that the SafeWork Code did not identify the risk and that the User Manual did not identify the pleaded risk.
2. I find that the pleaded risk was not obvious because of the following factors set out in DX 1: 1. The work being undertaken by Mr Gatabishwa did not involve, or contemplate, any contact with the Conveyor Line or the Hock Cutter. 2. Mr Gatabishwa had been trained not to make contact with any operating plant. 3. Mr Gatabishwa had been trained in the Steggles' policy that any dropped chickens should not be re-hung onto the shackles. 4. There was no possibility of a worker tripping or falling into the Hock Cutter. 5. The Conveyor Line was at a height and angle placed away from the path of workers. 6. There was an automated system to capture one-legger birds to be re-attached. 7. The designated area for re-attaching one-legger birds was visible to all workers and was away from the area of the Hock Cutter. 8. No similar incident had ever occurred involving the Conveyor Line or the Hock Cutter. 9. Steggles was unaware of any similar incident occurring within the wider poultry processing industry. 10. The Conveyor Line and the Hock Cutter operated for 18 hours per day, 4 days per week. It processed 130,000 birds per day. It had operated continuously for many years.
3. I find that the evidence has not established beyond a reasonable doubt that the pleaded risk was obvious.

Whether More Than One Person Was Exposed to the Risk

1. The Amended Summons specifically pleads that the offence occurred on 6 October 2020. The incident occurred on the morning shift, and thus the fact that there was an afternoon shift where people could have also been exposed is irrelevant. There was no direct evidence that any person was working in the vicinity of the Conveyor Line and the Hock Cutter when the incident occurred.
2. Mr Hayford did give evidence that Mr Gatabishwa was employed as a relief machinist, and that in that capacity he would have been relieving a senior machinist who was on a break. However, there was no evidence to identify whether there was a senior machinist on duty that day at all. For all the court was aware, Mr Gatabishwa may have been relieving for the entire shift.
3. While the evidence of Mr Hayford was that the workers in the Evis Room moved around to different tasks, and rotated between tasks, there was no evidence that any other worker had been working adjacent to the Conveyor Line and the Hock Cutter. Ms Pittman gave evidence that while, as a quality control officer, she walked past the area of the incident, she was five metres away from the Conveyor Line and the Hock Cutter when she did so.
4. I find that the evidence has not established beyond a reasonable doubt that more than one person was exposed to the pleaded risk 6 October 2020.

Whether There Was a Risk of Death

1. With all due respect to the careful submission made by counsel for Steggles, it is deserting reality to think that a person whose hand was completely amputated in a piece of machinery used to dismember poultry, would not be facing a risk of death. The report of Dr Harwood focusses upon what happened after the event, rather than upon the risk which existed in general terms. Further, Dr Harwood's report acknowledged that an injury of the kind suffered by Mr Gatabishwa, and the bacterial infection which resulted from that injury, both carried a risk of death, if the victim did not receive prompt and skilled medical attention. Mr Gatabishwa received such attention and he thus survived.
2. The conclusion to the report of Dr Harwood was that Mr Gatabishwa "had a low prospect of dying from the injury he sustained, with survival being the more likely outcome". Again, that is an opinion reached after taking into account the fact that Mr Gatabishwa was the recipient of prompt first aid and medical care. A low prospect of dying is a risk of dying.
3. I find that SafeWork has established beyond a reasonable doubt that there was a risk of death, not just serious injury, as a result of Mr Gatabishwa being exposed to the pleaded risk.

Consideration

1. I have had regard to the objects in s 3 of the WHS Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act).

Objective Seriousness of the Offence

1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
3. In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
4. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
5. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
6. 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. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
7. The Court of Criminal Appeal has examined the sentencing process with regard to the WHS Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at [34], under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater 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 on assessment of all those factors."
8. Further at [42] his Honour continued: "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 [event] 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 little, if any, costs."
9. At [53] his Honour dealt with the proper approach to considering the objective seriousness of offences under the WHS 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 the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting 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 materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
10. My findings about the defendant's level of culpability are based upon the following: 1. The risk was actually known by Steggles. It had imposed administrative controls many years before to minimise, but not eliminate, the risk (a matter properly conceded by counsel for Steggles in oral submissions). Further, Steggles should have known of the risk by reason of guidance material. 2. However, for reasons set out above, the risk was not an obvious risk. 3. The likelihood of the risk occurring was very low, given the evidence that the machinery had operated for years without incident, and that such an incident was unknown in the wider poultry processing industry. 4. The evidence has established that Mr Gatabishwa was exposed to the risk, but there is no evidence to prove beyond a reasonable doubt that any other worker was so exposed. 5. The potential consequences of the risk were death (contrary to the submissions for Steggles) or serious injury. 6. There were steps available to Steggles to eliminate the risk, by the engineering solution of gating off the Hock Cutter area. Such a measure was installed on a temporary basis on the day of the incident, and on a permanent basis within days of the incident. 7. There was no evidence that taking the appropriate reasonably practicable steps imposed any significant burden or inconvenience upon Steggles. 8. The harm done to Mr Gatabishwa was most serious. He has never worked again. 9. The maximum penalty for the offence is a fine of $1,766,130 which reflects the legislature's view of the seriousness of the offence. 10. In oral submissions, counsel for SafeWork correctly acknowledged that Mr Gatabishwa was injured while carrying out an act that he had been told not to do.
11. I find that Steggles' level of culpability is in the low range.

Deterrence

1. 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 Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].
2. The penalty must reflect the need for specific deterrence. Steggles is no longer employing workers to process chickens, due to a corporate restructure. However, it is still the operator of the site.

Aggravating Factors

1. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) CSP Act.

Mitigating factors

1. Steggles does not have a significant record of previous convictions: s 21A(3)(e) CSP Act. This was properly conceded by counsel for SafeWork.
2. Steggles is otherwise of good character: s 21A(3)(f) CSP Act. The steps which it took after the incident demonstrate this. Steggles has been a company in existence since 1984.
3. Steggles is unlikely to re-offend: s 21A(3)(g) CSP Act.
4. Steggles has good prospects of rehabilitation: s 21A(3)(h) CSP Act. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has installed an engineering solution which, on all the evidence, should have been in place before this accident occurred.
5. Steggles has shown remorse for the offence: s 21A(3)(i) CSP Act. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Gatabishwa was caused by its actions.
6. Steggles entered a plea of guilty: s 21A(3)(k) CSP Act. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) CSP Act. It is appropriate to give Steggles a 20% discount for its plea of guilty for the following reasons: 1. The proceedings first came before the court for directions on 21 November 2022. From that date until September 2023 the matter was going through the Enforceable Undertaking (EU) process. 2. On 11 September 2023 the court directed the matter to stand over to 16 October 2023 for the entry of a plea. A similar direction was made on 16 October 2023. On 27 November 2023 Steggles entered a plea of guilty to the elements of the offence and the matter was set down for hearing. Directions were made in relation to the service of evidence relating to disputed facts. 3. The disputed facts hearing was set down for three days, but the evidence concluded in one day and the oral submissions were received on the morning of the second day. Both sides approached the disputed facts hearing with a view to minimising the areas in dispute and conducting the proceedings efficiently. 4. While Steggles has been unsuccessful in challenging one of the disputed facts, its conduct in pleading guilty promptly after the EU process had concluded, and in narrowing the areas of dispute, resulted in substantial savings of public time and cost.
7. Steggles gave assistance to law enforcement authorities: s 21A(3)(m) CSP Act. It co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

1. I am required to have regard to s 6 of the Fines Act 1996 (NSW) 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: Mahdi Jahandideh v The Queen [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.
2. In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996."
3. There was no submission about capacity to pay, so this issue does not arise.

Costs

1. The parties have agreed to an order that the defendant is to pay the prosecutor's costs.

Penalty

1. I have come to the view that the appropriate fine, before any reduction by virtue of the guilty plea, is $200,000. At first blush this may appear to be too low having regard to the catastrophic injury suffered, but I fix that amount based upon my findings set out above about the low level of objective seriousness and the strong mitigating factors in favour of Steggles.
2. My orders are: 1. Steggles Pty Ltd is convicted. 2. The appropriate fine is $200,000 but that will be reduced by 20% to reflect the plea of guilty. 3. Order Steggles Pty Ltd to pay a fine of $160,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. 5. Order Steggles Pty Ltd to pay the prosecutor's costs.

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: 14 June 2024