SafeWork NSW v Prolec Australia Group Pty Ltd [2026] NSWIC 45

Catchwords: CRIMINAL LAW — W ork health and safety — Offences — Category 2 — Worker’s hand drawn between two rollers and crushed SENTENCING — Relevant factors on sentence — Reduced moral culpability — Substantial mitigating factors — S pecific deterrence substantially diminished — Reduced capacity to pay Industrial Court New South Wales Amendment notes Medium Neutral Citation: SafeWork NSW v Prolec Australia Group Pty Ltd [2026] NSWIC 45 Hearing dates: 13 August 2026 Date of orders: 28 August 2026 Decision date: 28 August 2026 Before: Paingakulam J Decision: (1) I convict Prolec Australia Group Pty Ltd of the offence as charged. (2) I impose a fine of $30,000. (3) Prolec Australia Group Pty Ltd is to pay the prosecutor’s costs of the proceedings, in the sum of $37,500. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor. Catchwords: CRIMINAL LAW — W ork health and safety — Offences — Category 2 — Worker’s hand drawn between two rollers and crushed SENTENCING — Relevant factors on sentence — Reduced moral culpability — Substantial mitigating factors — S pecific deterrence substantially diminished — Reduced capacity to pay Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 BW v The Queen [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71 Mahdi Jahandideh v R [2014] NSWCCA 178 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nash v Silver City Drilling (NSW) Pty Ltd ; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 R v Borkowski [2009] NSWCCA 102 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Wilkinson (No 5) [2009] NSWSC 432 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v General Forest Tree Surgeon Pty Ltd [2026] NSWIC 8 SafeWork NSW v Nsaire [2026] NSWIC 19 SafeWork NSW v Williams Timber Pty Ltd; SafeWork NSW v Easy Fall Guttering Pty Ltd [2021] NSWCCA 233 Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: SafeWork NSW (Prosecutor) Prolec Australia Group Pty Ltd (Offender) Representation: Counsel: T Hammond (Prosecutor) G Diggins (Offender) Solicitors: Department of Customer Service (Prosecutor) Sparke Helmore Lawyers (Offender) File Number(s): 2025/205762 Publication restriction: Nil JUDGMENT Prolec Australia Group Pty Ltd ( Prolec ) conducted a business that involved light fabrication. On 29 May 2023, engineering and drafting trainee and waterjet operator Grace Dash was cleaning a n electrically powered roller m achine (Roller Machine ) when h er right hand was drawn between two rollers and crus hed. She sustain ed serious injuries. Prolec appeared for sentence after pleading 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) (WHS Act) it failed to comply with that duty and thereby exposed Ms Dash to a risk of death or serious injury contrary to s 32 of the WHS Act. The risk particularised at paragraph 9 of Annexure A to the Summons is as follows: “The risk was the risk of workers, in particular Ms Dash, suffering serious injury or death, in particular having their hands or fingers crushed and/or amputated, as a result of their hands or fingers coming into contact with moving parts of the Roller Machine.” By its plea of guilty, Prolec accepts that it could have taken the following reasonably practicable steps to eliminate or at least minimise the reasonably foreseeable risk: “(a) Developing, implementing and enforcing a documented standard safe work procedure (SWP) for cleaning the Roller Machine that included: i. Implementing a lock-out tag-out procedure (using allocated padlocks by authorized personnel) to prevent inadvertent reenergising of the machine during the cleaning process ; ii Prohibiting cleaning of the machine in circumstances where it has not been electrically isolated; iii. Ensuring workers’ attention is drawn to the safety warning plate on the machine; (b) Requiring that workers performing the role of the Roller Machine cleaner provided with instruction, information and training in the SWP described above and assessed as competent and this is documented; (c) Providing and maintaining adequate supervision of workers required to operate or perform cleaning work on the Roller Machine .” The maximum penalty for this offence is a fine of 17,315 penalty units ($ 1,860,843 ). Facts The prosecutor tendered a Statement of Agreed Facts (SO A F) as part of its evidence on sentence which also included an ASIC Historical Company Extract for Prolec , a report indicating that Prolec has no prior safety convictions and excerpts from relevant guidance material . I have taken this document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offence to permit an understanding of the sentence imposed. Background Prolec was incorporated on 1 October 2009 in the name Prolec Electrical Servic es Pty Limited. On 10 September 2016 the entity changed to its present name. Its sole director, Brad ley Roy Morro w , worked at Prolec ’ s premises in Tomago, New South Wales (NSW) (the Site) , five days per week. Other Prolec employees at the S ite included : Ms Dash , who had been employed since 31 October 2022 and was not responsible for cleaning or operating the Roller Machine . Michael Cavanagh , a Prolec leading hand since 8 August 2022 and the supervisor for the afternoon shift on 29 May 2023 . He had more than 16 years ’ experience in metal fabrication and had operated many different types of machinery, including roller machines. Michael Gibson , a fabricator welder with 15 years ’ experience and employed since March 2021. His immediate supervisor was Mr Cavanagh. The Roller Machine Three to four times a year, Prolec ’ s business involved the use of a Roller Machine , comprising four steel rollers . The direction of rotation of the rollers was activated by two foot pedals, neither of which were labelled. The Roller Machine control panel included two rotary switches and an emergency stop button. Only the emergency stop button on the front of the machine was clearly labelled . When it was not being used , its power cord was unplugged and it was covered in fabric sheeting. The Roller Machine was generally used to bend sheet metal into round and cylindrical shapes , which did not require the rollers to be cleaned. However, at the time of the incident, Prolec had secured a job that required the Roller Machine to be used on aluminium sheeting . The rollers needed to be cleaned of potential contaminants in preparation for that job . This was not a task usually required as part of Prolec ’ s operations. The incident At approximately 12:00pm, Ms Dash and Mr Cavanagh commenced their respective shifts. Both workers received a handover from workers on the previous shift and the Production Manager . Mr Cavanagh then instructed Ms Dash to organise a pallet rack and to keep an eye on the waterjet machine. Sometime during her shift Ms Dash observed Mr Gibson cleaning the Roller Machine. Mr Gibson was an experienced sheet metal tradesperson who had operated and cleaned many comparable machines during the previous 15 years. He used a wire brush attached to a grinder to clean the machine while it was on , with t he rollers rotating in reverse , meaning that there was no inward running nip point. At no time during this task did Mr Gibson place his hands on or around the rotating rollers. Sometime prior to 6:00pm, Ms Dash asked Mr Cavanagh if she could help clean the Roller Machine to assist with the workload. Ms Dash had not previously undertaken any work in relation to this machine. Mr Cavanagh agreed to the request and gave Ms Dash verbal instructions in relation to cleaning the Roller Machine: the machine should be turned off at its control panel ; the power supply to the machine should be off at the power point; the emergency stop button should be pressed; the top roller should be removed; cleaning the roller should be done by hand using wax and grease remover from a spray bottle applied using a Scoth-Brite pad; and upon completion of the cleaning , the top roller should be put back in position. Mr Cavanagh then observed Ms Dash cleaning the rollers for approximately 5 to 10 minutes before moving onto other tasks leaving Ms Dash to work unsupervised. At the time that Mr Cavanagh departed, the power supply to the Roller Machine was isolated, the emergency stop button was depressed and the power point to which the machine ’ s power cable was connected was switched off. At approximately 6:00pm, Ms Dash turned on the Roller Machine. This required her to turn the power point switch to the ‘ on ’ position, release the emergency stop button, reinstall the top roller and operate the switches on the control panel. Wearing gloves, s he then us ed a cloth to clean residual dirt from the rollers. Ms Dash had not been instructed to use a cloth for that purpose and nor had she previously observed anybody else doing so . She depressed the foot pedal to cause the rollers to rotate in a forward direction during which her right hand was pulled into the rollers and crushed. Ms Dash was able to operate the foot pedal to cause the rollers to rotate in reverse to release her hand. Mr Cavanagh heard Ms Dash calling for assistance and along with Mr Morrow provided first aid. Ms Dash was transported by ambulance to the John Hunter Hospital where she underwent surgery. Injuries Ms Dash sustained serious crush injuries to her right hand, resulting in amputation of the index finger. She underwent internal fixation surgery to repair the middle and ring fingers . Her injuries have resulted in permanent impairment to her dominant hand . Guidance material Prior to the incident, the following industry guidance material was published by SafeWork NSW and available to Prolec : The SafeWork NSW Code of Practice, Managing the Risks of Plant in the Workplace, December 2022 (Plant COP) requires the PCBU to ensure that workers have the necessary information, training , and instruction concerning the work and its associated risks. It states that plant should be isolated before maintenance or clea n ing starts. The Plant COP describes an isolation procedure as a “ set of predetermined steps that should be followed when workers are required to perform tasks, for example maintenance, repair, installation and cleaning of plant ” . It also provides a lock-out procedure and is supported by a Guide to Machine Safety and a Safety Checklist: Machine Safety . The SafeWork NSW Plant, Equipment and Machinery Energy Isolation Guidelines 2022 provide s a comprehensive guide to ensuring machines are properly isolated when necessary, including during maintenance and cleaning of machinery. Systems of work prior to the incident At the time of the incident, Prolec had provided Ms Dash with a work health and safety (WHS) induction. The handbook included a general prohibition against workers commencing work that exposed them to a risk without first having received the appropriate level of induction or training to allow for safe completion of the work . I t did not include machine specific instruction o r training that addressed WHS risks and hazards. Ms Dash was not required, instructed or expected to operate the Roller Machine as part of her ordinary responsibilities . She had not been trained or assessed as competent in its use . She had not been provided with manuals and documentation relating to its operation. The date of the incident was the first time Ms Dash had been required to clean the machine . The method of work which she adopted to clean the Roller Machine, which involved the machine being turned ‘ on ’ and the rollers put in motion, was not normal practice at the Site. Mr Cavanagh had never seen such a procedure applied. In the course of her employment with Prolec , Ms Dash had only operated the waterjet machine (in which she had been extensively trained and provided with a Safe Operating Procedure (SOP)) and the press machine. When operating the press machine Ms Dash had been directly supervised. New workers at Prolec were supervised by an experienced worker or the leading hand . O n the date of incident Ms Dash was supervised by Mr Cavanagh, who had extensive prior experience both in the operation of roller machines and in supervising staff. He had also cleaned th e Roller Machine prior to the date of the incident. However, he left Ms Dash alone on the workshop floor after supervising her for only 5 to 10 minutes. Prol ec had a SOP for all machines used at the premises except for the Roller Machine. When the incident occurred, Prolec was in the process of developing a SOP for the Roller Machine . O n 28 April 202 3 it booked and confirmed an appointment for a full safety inspection and consultation with an external WHS consulta nt, which was due to take place two days after the incident, on 31 May 202 3 . Systems of work after the incident Following the incident, Mr Morrow notified SafeWork NSW . On 30 May 2023 SafeWork NSW inspectors attended the premises and were escorted through the workshop by Mr Morrow. SafeWork NSW issued Prolec with various statutory notices and conducted interviews with Ms Dash, Mr Cavanagh and Mr Gibson. Following the incident , and in compliance with the Improvement Notices issued to it , Prolec : a rranged for a competent person to inspect and repair the Roller M achine which included labelling the switches and the foot pedal s . The costs of this measure was approximately $552.50 ; d eveloped and implemented a SOP for the Roller Machine , which included steps to isolate and tag out the plant during cleaning and maintenance. The SOP was then put on display next to the machine and training was provided to all workers on the SOP; c onducted a toolbox talk and welfare checks with workers. This involved discuss ing what was learnt from the incident ; c onducted and continues to conduct further toolbox talks including discussion s on a WHS topic or a SOP ; and d ocumented verbal procedures and instructions. Prolec continues to work with an external WHS consultant to review health and safety procedures at the Site . Offender’s case on sentence Prolec relied on two affidavits of Mr Morrow affirmed 24 July 2026 and 3 August 2026 . The following is a summary o f his evidence, in addition to matters already set out in the SO A F . Mr Morrow has been the sole director and secretary of Prolec since it was incorporated in 2009 and i s responsible for overseeing all operations of the company, including business management, customer relations, procurement, production planning, staff management and development, workshop inspections, WHS and financial performance. He has over 26 years ’ experience in the industry. Mr Morrow is a qualified electrician , having completed qualifications at TAFE in Electrical Instrumentation , Metal Fabrication (Sheetmetal) Manufacturing and Engineering. He has obtained numerous site-specific competencies and licen c es to work within high-risk industrial and mining environments , including an electrical licen c e, contractor licen c e (held by the business), WHS White Card , forklift licen c e, Certificate III in Industrial Instrumentation and a statement of attainment in manufacturing and engineering. He is committed to continuous learning for the development of himself and Prolec , and has participated in various industr y associations , and attend ed manufacturing and mining industry trade shows as well as supplier technical training sessions . He has sought guidance from business coaches, mentors and other experienced business owners. Expression of remorse and contrition On behalf of Prolec , Mr Morrow apologised and expressed his sincere regret for the incident. He acknowledged that Prolec has a responsibility to ensure the safety of workers and accepted that it failed to do so. Mr Morrow stated that the safety of his workers is his number one priority and that he will do everything in his power to ensure something like this never happens again. About Prolec Prolec is a small manufacturing business based in Newcastle that employs between 10 to 15 people depending on the workload, including both Mr Morrow and his wife Buruschke Morrow. It is owned by BR and B Investments (BR&B), the corporate trustee of the Morrow Family Trust. Mr and Mrs Morrow are the directors and shareholders of BR&B, as well as the sole beneficiaries. BR&B is a non-trading entity which has never received any funds from Prolec and d oes not have a bank account or lodge tax returns. Mr Morrow gave evidence of Prolec ’ s community involvement by contributing to the local community and charities, participating in local events and actively supporting the development of apprentices. He outlined various charitable donations made by Prolec including contributions to Adamstown Public School, Samaritans Christmas Drive , Endeavour Foundation and Dixon Park Surf Life Saving Clu b. He also stated that Prolec has a tradition of supporting its apprentices in WorldSkills Australia competitions and that one of the company ’ s apprentices held the title of ‘ Hunter Region Wor ld Skills winner ’ awarded at the competition . Mr Morrow stated that Prolec had not previously been prosecuted for any kind of offence or the subject of any safety related enforcement action . Systems of work prior to the incident Mr Morrow gave unchallenged evidence of the following systems of work in place at the time of the incident, in addition to those set out in the SOAF . Prior to July 2021, Prolec ha d a WHS management system known as ‘ ProSafe ’ . It comprised a set of policies and procedures to create and maintain a safe and healthy workplace. Prosafe applied to all persons working for Prolec , including full time, part - time and casual employees, as well as any contractors. In or around July 2021, Prolec engaged an external WHS consultant, Peninsula Australia Pty Ltd (Peninsula) , formerly known as Employsure , to provide health and safety advice and consultancy services, as well as assistance with employee relations. Peninsula provided Prolec with a suite of WHS documentation to update its WHS management system , including safety policies, plans, handbooks and standardised templates and forms . On 3 August 2021, Peninsula undertook an online initial health and safety review with Prolec due to restrictions associated with COVID-19 . Pennisula provided Prolec with a list of action items based on this review. Prolec addressed the items by preparing and documenting SOP s for the standard machinery used at the S ite. Those SOPs were updated in February or March 2023. However, a n SOP for the Roller Machine was not prepared as it was infrequently used . The Roller Machine was only operated by staff who had been specifically trained and had demonstrated competency in its use. Prior to the incident, only the workshop supervisor and two other experienced sheet metal workers were authorised to use the Roller Machine. Training on the Roller Machine was practical and provided by an experienced operator. It included: the purpose and capabilities of the machine; pre-use inspection of the machine; identifying hazards associated with the machine; correct setup of rollers and adjustment of settings; safe feeding and removal of material; correct positioning of hands and body during operation; emergency stop functions; isolation of the machine prior to maintenance or cleaning; housekeeping requirements; and supervision while competency was being developed. Following the site visit and audit conducted by Peninsula referred to at [ 23 ] above, Prolec addressed each of the further actions identified as being required . I t checked all fire extinguishers ; updated first aid kit signage ; installed safety signage; labelled hazardous materials correctly and implemented a procedure for their handling, use and storage; secured gas cylinders; developed and implemented pre-start checklists for all mobile plant; assessed manual tasks; and made ergonomic adjustments for all workstations. Since 2021, Prolec has paid Peninsula consultancy fees of $76,457.98. Prolec currently pays Peninsula a monthly fee of $1,342.25. Systems of work after the incident The measures taken by Prolec in response to the incident are recorded in the SO A F and summarised above. In addition to those measures, Mr Morrow ’ s evidence was that a lock out bag was purchased for the Roller Machine so that it could not be plugged into a power point by unauthorised personnel. When not in use, it was locked out with the lock out bag, covered up and stored against the wall of the works hop . All plant and machinery continue to be regularly inspected , maintained and service d and there is a system for tagging out inoperable machines. A training register has also been developed for all staff competent in the use of machinery. In or around June 2023, an audit was completed , with assistance from Peninsula, ensuring P rolec ’ s SOPs were updated . Refresher training and instructions were subsequently provided to all relevant employees on the updated SOPs. Prolec has continued to engage Peninsula since the incident . Peninsula provided hazard management refresher training to Prolec in February 2025. The most recent site WHS review was completed by Peninsula on 26 March 2026. Prolec is currently addressing the further action items identified in this review. Finally, Mr Morrow stated that Prolec has upgraded its equipment by removing older machinery, replacing its forklift and improving its lifting equipment. The Roller Machine was sold in February 2026. Capacity to pay Mr Morrow provided extensive evidence about Prolec ’ s capacity to pay a fine , supported by extensive financial documentation . That evidence was as follows : Prolec ’ s annual profits were $21,689 in the 2022/2023 financial year ; $31,848 in the 2023/2024 financial year ; and $ 34,432 in the 2024/2025 financial year . Prolec ’ s estimated net loss for the financial year end ed 30 June 2026 w as $11,523. No dividend has ever been declared or paid to BR&B. Prolec ’ s net assets were $374,527 in the 2022/2023 financial year; $ 406,375 in the 2023/2024 financial year; and $ 440,807 in the 2024/2025 financial year. Prolec owes two debts to the ATO. The first debt for $128,715.59, with an outstanding balance of $123,932.30, is scheduled to be repaid by 25 January 2027. The second debt for $40,952.73, with an outstanding balance of $39,798.34, is scheduled to be repaid by 26 October 2026. On 16 July 2026, Prolec obtained a business loan of $120,000 to pay its suppliers as it had no cash flow otherwise available . As at 20 July 2026, Prolec ’ s bank account had a balance of minus $121,862.34. The available funds before reaching its overdraft limit were $18,137.66. Further , i n December 2025, Prolec purchased its own premises at 14 Rosegum Road, Warabrook NSW (New Premises) , after its landlord advised that the Site it previously leased would be sold. Mr Morrow stated that this purchase put considerable strain on both Prolec and his family . Mrs Morrow personally took out a loan of $2 .55 million , secured by the family home and personal and corporate guarantees provided by Mr and Mrs Morrow, together with general security agreements over the property owned and acquired by both Prolec and BR&B . The monthly loan repayments of $15,509.13 (currently interest only to keep the repayments affordable) are paid as rent by Prolec to Mrs Morrow who then makes the loan repayments. Prolec intends to lease t he portion of the property which it does not occupy, but Mr Morrow deposed that they have been unable to secure a tenant to date . The estimated value of the New Premises is $2 .381 million . The relocation came at a substantial cost ( $ 126 ,235.30) and created a significant disruption to Prolec ’ s business in January and February 2026 . From January to March 2026, Prolec made a net loss of $144,653.08, compared to a net profit of $28,145.35 in the period from April to June 2026 . Mr Morrow ’ s evidence was that he and his wife had prioritised the long-term sustainability of Prolec over their own financial benefit . H is gross wage was $64,000.04 in the 2022/2023, 2024/2025 and 2025/2026 financial years, and $74,000.04 in the 2023/2024 financial year , and his estimate, b ased on his commercial understanding and online research, was that comparable roles would attract a salary in the range of $120,000 to $250,000 . Similarly, Mrs Morrow , whose role encompasses payroll, accounts payable and receivable, human resources and general administration did not receive a wage from Prolec until around 2017, having worked for the company for years prior. Her gross wage was $48,000.16 in the 2022/2023, 2024/2025 and 2025/2026 financial years, and $38,000.16 in the 2023/2024 financial year . Oral evidence The cross-examination of Mr Morrow traversed a number of matters covered by the SOAF. In addition, Mr Morrow gave evidence that the projected loss for the 2025/2026 financial year was primarily due to th e change in premises which necessitated a temporary cessation of production. His expectation was that the company would become profitable again , now that the moved had been completed . He accepted that the company had been solvent over the previous three years. Mr Morrow ’ s evidence that the loan for the N ew P remises, an investment in his wife ’ s name to enable the company to continue to trade , was obtained after receipt of financial advice which included the ability of the company to repay the loan by way of making rental payments to his wife. Mr Morrow accepted that the purchase came after the commencement of the instant proceedings but stated that Prolec ’ s previous premises was being sold, which required them to move and that the purchase of the New Premise s was the solution. Mr Morrow confirmed that the safety control measures set out at paragraph s 30 to 36 of his 3 August 2026 affidavit were in place prior to the incident and that the workers were trained only on the machines which they were expected to operate as part of their role . Mr Morrow was then taken to the workplace review summaries completed by Peninsula on 3 August 2021 and 31 May 2023, both of which listed as outstanding the requirement to develop , implement and review SOPs for all powered plant and machinery and ensure that they were displayed near the relevant plant or machinery for ease of reference. He stated that Prolec had had some documents in place prior to 3 August 2021 , that they continued to improve from that date and that the fact that Prolec remained non-complaint in 2023 could have been due to the absence of such a procedure for the Roller Machine . Mr Morrow was then taken to Ms Dash ’ s induction documentation which she had signed without completing one of the checklists . Mr Morrow could not explain the absence of markings on that particular checklist but stated that Prolec satisfies itself that workers understand the material because they are required to sign that they have read and understood it . Mr Morrow confirmed that, prior to the incident, Prolec had a practice of having machinery regularly inspected, maintained and serviced and that a system was in place for tagging out inoperable machines. He was then asked about a tagout procedure in which staff were trained in October 2025 . He stated that the documentation of that procedure was a loose end which needed to be tied up after the departure of the manufacturing manager , but that the procedure had been in place and implemented prior to that . Finally, Mr Morrow was taken to his evidence about having invited SafeWork NSW to conduct a site inspection. He accepted that the invitation was extended to SafeWork NSW to attend the S ite, following receipt of a letter dated 25 July 2022, in which SafeWork NSW advised that it had received allegations of safety risks to Prolec employees . Those allegations were fourfold: lifting sheet metal onto a waterjet cutter without a proper manual handling procedure and training ; the absence of a first aid officer on site ; a failure to regularly test and tag electrical equipment ; and using forklift drivers who were not appropriately licensed. Mr Morrow ’ s evidence was that he met with SafeWork NSW inspector David Gurr, who went through the allegations with him and found none of those issues , which SafeWork NSW considered to have been raised by a disgruntled employee on departure from the business, to be substantiated. Mr Morrow ’ s evidence was that the report of the inspection contained three low priority action items which were promptly addressed , by buying a new forklift and labelling pallets with their safe working load. In re-examination, Mr Morrow confirmed that it was the letter from SafeWork NSW which prompted the invitation for SafeWork NSW to visit the S ite , that the SafeWork NSW inspector expressly raised the issues from the 25 July 2022 letter and that the report issued in respect of that visit set out the only matters for remediation identified by SafeWork NSW during that visit. Consideration I have had regard to the objects of the WHS Act set out in s 3 and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act). I have taken into account the maximum penalty for this offence: Ma r karian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ ( Ma r karian ). The Court arrives at the appropriate sentence through a process of “ instinctive synthesis ” in which the sentencing judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to the appropriate sentence given those factors: Markarian at [51]. Objective seriousness 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) 164 CLR 465; [1988] HCA 14 at [ 472 ] , [ 485 ]-[48 6 ] , [ 490 ]-[491] , [ 496 ] . At common law, the term “ objective circumstances ” was used to describe the circumstances of a crime. The gravity of the offence was assessed by reference to its objective circumstances: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15]. This task requires the Court to consider where the conduct of Prolec falls in the range of conduct covered by the offence: Baumer v T he Queen (1988) 166 CLR 51; [1988] HCA 67 at [ 57 ] . As Whealy JA said in BW v The Queen [2011] NSWCCA 176 at [70] ( RS Hulme and Harrison JJ agreeing at [75] - [76]): “…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.” The objective seriousness of an offence is to be determined by reference to the nature of the offending without reference to matters personal to a particular offender or class of offenders: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. 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]. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor rel evant to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71 at [82]. The question of foreseeability of the risk is to be determined objectively. The Court of Criminal Appeal examined the sentencing process with regard to the WHS Act in Nash v Silver City Drilling (NSW) Pty Ltd ; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 . Under the heading “ Assessment of Risk ” , Basten J A said: “[34] The sentencing judge commenced his consideration with the proposition that ‘[g] reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.’ However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors. 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 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 little, if any, cost…” 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.” The prosecutor contended that the foreseeability of the risk was high , as crush injuries from workshop machines are widespread , and the risk of them is well known especially against the background of readily available and accessible guidance material . It noted that most of the c ontrol measures which could have been implemented to eliminate or minimise the risks were n either difficul t n or expensive to implement , as is demonstrated by the measures introduced after the incident. The prosecutor also contended that the likelihood of the risk materialising was relatively high in circumstances where there was no SOP for the Roller Machine at the time of the incident , and an inexperienced worker was left to work unsupervised . Prolec submitted that the objective seriousness of the offence was needed to be viewed in the context of the following matters: t he Roller Machine was rarely used and when it was not in use it was disconnected from the power supply . T he cleaning of the rollers was not a usual task required in Prolec ’ s operations and arose on the date of the incident because of a particular job the company secured; Ms Dash ’ s duties did involve the use or cleaning of the Roller Machine . To her credit, Ms Dash helped the company ’ s workload by offering to clean the Roller Machine; h aving agreed to let Ms Dash clean the Roller Machine, Mr Cavanagh provided detailed instructions as to how the task should be performed . M r Cavanagh then supervised Ms Dash and at the time he departed the instructions he gave were being complied with; and t he risk arose because Ms Dash took a series of deliberate steps contrary to Mr Cavanagh ’ s instructions. For example, Ms Dash used a cloth to clean the rollers rather than the Scotch-Brite pad . Prolec accepted that it was foreseeable that a worker like Ms Dash may depart from an oral procedure in which they had been trained , and that a written procedure for isolating and locking out the power supply to the Roller Machine , making the operation of the machine impossible , should have been provided . However, it distinguished the provision of oral instruction in this case, which was both detailed and demonstrated, with that seen in SafeWork NSW v General Forest Tree Surgeon Pty Ltd [2026] NSWIC 8 which Taylor J at [51] described as “ the lowest order of control ” such that it did significant ly reduce the gravity of the offending . Despite its accepted failures , Prolec contended that it was not an offender that merely paid lip service to its obligations under the WHS Act referring to the safety systems in place prior to the incident, as well as the measures implemented in response. Further , Prolec contended that the likelihood of the risk materialising in the circumstances of this case was low . Prolec contended that the need for Ms Dash to take a number of deliberate actions — plug in and turn on the machine, remove the em ergency stop, refit the top roller to the machine , and operate the forward rolling pedal — was such that the realisation of the risk could not be said to be likely. Finally, Pro lec contended that potential consequences of the risk materialising included serious injury but that there was insufficient evidence to find beyond reasonable doubt that any such injury had the potential to be fatal. I accept that the risk of crush injuries from mobile plant is a well known and foreseeable risk , the control measures for which were not burdensome. There is significant guidance material about the need to isolate and lock out plant and machinery while cleaning and maintenance occur. However, I also accept that it was somewhat less foreseeable that the risk would materialise in all of the circumstances of this case . As submitted by Prolec , the Roller Machine was rarely used . W hen it was used, it was not normally required to be cleaned . I t was normally operated only by the supervisor and two experienced employees and was not Ms Dash ’ s normal role, and she was given detailed instructions and observed for a brief period to ensure that she was competent to perform the task . F inally , Prolec put a number of safety guards in p lace , such as isolating the machine by turning it off both on the control panel and at the wall socket, activating the emergency stop button and removing the top roller. For the risk to materialise, all of those control measures had to be deliberately reversed and the machine had to be activated using the foot pedal. The gravamen of this offence is therefore threefold . First, Ms Dash was permitted to work on a machine in respect of which she had had no formal training . Second, after a period of instruction and observation she was left to work unsupervised . Third, the machine was not locked out to prevent her turning it on and activating it with the foot pedals . As submitted by Prolec , had the last of those measures been in place, the incident could not have occurred. Prolec did not have the capability to lock out the machine at the time of the incident. The evidence establishes that Ms Dash was exposed to the risk of a serious crush injury . As devastating as her injuries were, they could have been significantly worse . However, I accept that the prospect of Ms Dash sustaining a fatal injury in all of the circumstances was unlikely . Moral culpability of Prolec The prosecutor accepted that Prolec devoted considerable resources to health and safety consultants and had a “ quite comprehensive ” framework in place. However , it submitted that the benefit to be afforded to Prolec on account of that system was somewhat diluted because of the gap in respect of the Roller Machine. The prosecutor submitted that the need for a SOP for machines in general and the Roller Machine in particular , should have been on Prolec ’ s radar because of the input that it received from Peninsula in 2021 and again in 2023 about the absence of a documented SOP . In assessing the moral culpability of the offender, I take into account that Prolec had demonstrated its commitment to complying with its duty under s 19(1) of the WHS Act in that: Ms Dash had received extensive training in the machine ordinarily operated by her — the waterjet machine . Ms Dash was directly supervised when she operated the p ress m achine — the only other machine which she was required to operate as part of her role. Ms Dash was supervised by Mr Cavanagh, who was a highly experienced employee both in operating the roller machines and supervising staff . At the time of the incident, Prolec had SOPs for all of its machines other than the Roller Machine and the SOP for that machine, which was used only three to four t imes per year, was underway. Prior to the incident, only the workshop supervisor and two other experienced sheet metal workers were authorised to use the Roller Machine. At the time of the incident, Prolec was working with WHS consultant Peninsula , and it continues to do so in an ongoing way. The induction of employees included the provision of SOPs for the machines that they were required to operate. Ms Dash received such an induction. Prolec conducted daily pre - start meetings and monthly t oolbox t alks which included discussions about safety when using machinery. All plant and machinery were regularly inspected and maintained. There was a system in place for tagging out inoperable machines , which were then repaired by a competent service technician who confirmed that it was safe to use. All staff were informed of this. Significantly, a SafeWork NSW advisory visit on 3 1 August 2022 — nine months before the incident , raised only three low level matters . Prolec acted promptly to address the matters raised, as it did in response to advice received from Peninsula. Plainly, Prolec was a PCBU which devoted considerable attention and resources to meeting its WHS obligations. This materially reduces Prolec ’ s moral culpability for the offence . Aggravating factors The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) of the CSP Act. In order for the aggravating factor to be established, the Court must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the subject offence: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained, but merely the creation of a risk of death or serious injury. The serious injuries sustained by Ms Dash are sufficient to establish the aggravating factor . Mitigating factors Prolec has no prior convictions: s 21A(3)(e) of the CSP Act . Prolec is otherwise of good character: s 21A(3)(f) of the CSP Act. I have previously set out some of the measures which demonstrate its proactive approach to safety issues . Th e invitation to SafeWork NSW to conduct a site visit on 31 August 2022 , following receipt of a complaint by a disgruntled employee elicited three matters of low priority to which Prolec gave immediate attention . Further Prolec has been active in its support of the local community, as set out at [ 31 ] above. The certificates of appreciation annexed to the 3 August 2026 affidavit of Mr Morrow date from 2014 – 2019 . The prosecutor contended that this somewhat tempered the weight to be afforded to good character, particularly as the character references provided related to Mr Morrow (whose good character was not in issue) rather than to Prolec . However, in finding Prolec to be a corporation of good character, I also rely on the evidence of its engagement with industry organisations, and the development of skilled local tradespeople by employing apprentices and trainees and its tradition of supporting them to engage in World S kills competitions . I find that the offender is unlikely to reoffend (s 21A(3)(g) of the CSP Act) and has good prospects of rehabilitation (s 21A(3)(h) of the CSP Act). In that regard, I note that Prolec has been operating since 2009, a period of more than 14 years , without any prior convictions at the time of the incident . The additional steps that it has taken since the incident will , together with the ongoing engagement of Peninsula , further increase the likelihood of its return to being a law - abiding entity . I accept as genuine Mr Morrow ’ s evidence that he wishes to ensure that an incident such as that involving Ms Dash is not repeated. Prolec has shown remorse for the offence: s 21A(3)( i ) of the CSP Ac t. Mr Morrow has apologised on behalf of Prolec for the failures that led to the injuries suffered by Ms Dash and accepted responsibility for its actions . Mr and Mrs Morrow ’ s communication with Ms Dash and her mother after the incident offering support , and ultimately a n ongoing position with Prolec , is a further demonstration of this. Prolec entered a plea of guilty on 2 February 2026 to the charge particularised in an Amended Summons of that date. The plea of guilty was entered at the fourth mention of proceedings commenced on 29 May 2025 and first li sted on 28 July 2025 . Prolec is entitled to a discount on penalty that reflects the utilitarian value of that early plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [123]; R v Borkowski [2009] NSWCCA 102 at [32]. The prosecutor did not take issue with the offender ’ s submission that it should be afforded a discount on sentence of 25% in recognition of its early guilty plea. I accept that a discount of 25% is appropriate in the circumstances: ss 21A(3)(k) and 22 of the CSP Act. Prolec submits that its cooperation with the authorities is a matter which should operate in mitigation of the sentence to be imposed upon it: s 21A(3)(m) of the CSP Act. In that regard, Prolec relied upon the evidence that it cooperated with the SafeWork NSW i nvestigation following the incident. Prolec also pointed to its invitation to SafeWork NSW to conduct the site visit which occurred on 3 1 August 2022 . However, in oral submissions , Prolec accepted that the level of its assistance wa s not such that it should be afforded a discrete discount on sentence. Rather, it was a matter to be taken into account as part of the instinctive synthesis exercise. The prosecutor accepted as much . The assistance to the authorities on which Prolec relies demonstrate Prolec ’ s good character and strong prospects of rehabilitation , and I take them into account in that way . I also give considerable weight to this evidence in considering the role of specific deterrence in the sentencing exercise (addressed below). Deterrence The parties agreed that the penalty imposed in relation to this offence must reflect an element of general deterrence. The prosecutor submitted that specific deterrence remained an active but not significant component in the sentencing exercise because P rolec continues to operate in the industry employ ing 12 people, including inexperienced workers who require close supervision . Prolec ’ s submission , which I accept, is that the requirement for the sentence impose d to effect specific deterrence is substantially diminished because of all the circumstances of this matter. The evidence to which I have referred demonstrates that Prolec was proactive in implementing control measures to ensure employee safety prior to the incident. The invitation to SafeWork NSW to attend the S ite in August 2022, Prolec ’ s engagement of Peninsula and the prompt manner in which it addressed safety issues raised demonstrates as much. Similarly, t here was a strong culture of conducting daily pre-start meetings and documenting monthly t oolbox t alks prior to the incident. The incident has heightened Prolec ’ s awareness of safety issues and prompted the implementation of further safety measures. Notably, Prolec no longer operates the Roller Machine, having sold it in February 2026 a nd has SOPs for all machines that it currently operates. The evidence before the Court is that such SOPs were reviewed and updated as a result of audits conducted both before and after the incident. Capacity to pay a fine Section 6 of the Fines Act 1996 (NSW) requires the Court to have regard to the means of Prolec before imposing a fine. An offender that seeks to have a fine reduced on the basis of limited capacity to pay bears the evidentiary onus of convincing the Court that it should limit the amount of the fine. An offender ’ s capacity to pay is relevant but not decisive: Mahdi Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted due to the seriousness of the offence and the need for general deterrence. In Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal recognised that a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation and that the maximum penalty for the offence was “ undoubtedly ” set having regard to that circumstance. The onus lies on the offender to establish, on the balance of probabilities, that it has an incapacity to pay a fine: McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353 at [24]. To do this, it “ must bring evidence fully disclosing its financial state ” : SafeWork NSW v Nsaire [2026] NSWIC 19 at [60] per Taylor J ( Nsaire ). Such material is to be appropriately scrutinised by the Court: Nsaire at [61]. Prolec has provided extensive financial evidence, to which I have already referred, in support of its submission that it has reduced capacity to pay a fine because of its presently strai ten ed financial state, in part due to the need to relocate its business earlier this year. I accept that evidence , which satisfies me that the fine otherwise imposed ought to be moderated . The prosecutor accepted that some moderation of the fine was appropriate but submitted that it was necessary to weigh that factor against a need for general deterrence. In that regard, the prosecutor pointed to the increasing turnover of the business year on year, together with the increasing equity and net assets . The prosecutor submitted that Prolec ’ s trajectory was positive , that the decline in profitability due to the requirement for the business to change premises was temporary and that in the medium term the business was performing well . In determining whether Prolec has limited capacity to pay a fine, and having accepted that submission, in determining the appropriate fine, I have taken into account that it will also be required to pay the prosecutor ’ s costs: SafeWork NSW v Williams Timber Pty Ltd; SafeWork NSW v Easy Fall Guttering Pty Ltd [2021] NSWCCA 233 at [44] (per Wilson J with whom Beech-Jones CJ at CL and RA Hulme J agreed) ; Nsaire at [64] . Those costs are agreed as being $37,500. Penalty I convict Prolec Australia Group Pty Ltd of the offence as charged. The appropriate fine is $ 8 0,000 , which will be reduced by 25 % to reflect the plea of guilty. However, I reduce the fine to $3 0 ,000 because of Prolec ’ s incapacity to pay a fine. I make the following orders: I convict Prolec Australia Group Pty Ltd of the offence as charged. I impose a fine of $ 3 0 ,000 . Prolec Australia Group Pty Ltd is to pay the prosecutor ’ s costs in the sum of $3 7,500 . Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor. ********** Amendments 28 August 2026 - Coversheet – corrected representation. 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: 28 August 2026