A “ticking time bomb”.

That’s how the conveyor belt system that killed factory worker Wesley Tomich has been described by his sister.

“Traumatised” family members shared the impact of losing him in such a “horrifying and unexpected way” during the sentencing of one of New Zealand’s biggest fertiliser companies, Ballance Agri Nutrients Ltd.

Tomich, who can be named for the first time after suppression orders lapsed, died in the company’s Mount Maunganui factory on July 27, 2023.

He was 37 and had been working there for seven months.

Tomich was cleaning when he tried to step over a running conveyor belt and lost his footing, according to court documents.

There was a delay in the emergency stop activation. Tomich was dragged under heavy machinery and crushed, dying at the scene from his injuries.

Hazards that contributed to his death were previously identified by risk assessment experts engaged by Ballance in 2015 and 2022.

Ballance Agri-Nutrients Hewletts Rd fertiliser manufacturing plant, where Wesley Tomich, 37, died in conveyor belt crushing incident in July 2023. Photo / John Borren

Ballance pleaded guilty to a charge of failing in its duty to ensure the health and safety of workers cleaning the conveyor belt.

This included failing to provide proper training on safely cleaning and maintaining the system, including an effective standard operating procedure for the task.

Ballance should have also ensured the conveyor system had effective guarding and emergency stop services in line with appropriate industry guidance and standards.

The reserved sentencing decision of Judge Paul Geoghegan and victim impact statements from Tomich’s family were released to the Bay of Plenty Times this week.

‘A life sentence of sorrow and trauma’

Wesley’s mother Lee-Ann Tomich, 59, said losing her son this way had traumatised her family “forever”.

“There are no words to describe the sadness and empty feeling I carry with me … I did not just lose my son, I lost him in the most unexpected and horrifying way."

She said she struggled with intense stress, sleeplessness and anxiety.

It felt “unbearable” to be away from her husband, Anthony, because she feared losing him too. He suffered a “massive heart attack” a year after Wesley died and was still unable to work.

Their son’s death was “avoidable” and he should have been safe at work, she said.

Ballance paying a fine and fixing safety issues after the fact did not fix the “devastation” caused to her family.

Wesley Tomich was pinned under a large hopper called a Johnson that was part of the conveyor belt system. Photo / WorkSafe

“You have given me a life sentence of sorrow and trauma.”

Tomich’s sister, who cannot be named for legal reasons, said she believed the death was “not an accident”.

“Wesley was stolen from us.

“Ballance knew they were safety issues and had the money to fix it … This was a ticking time bomb … And we will never be the same again.”

She said she visited the factory and was “disgusted” to see the lack of guarding or railing along the path next to the conveyor belt area.

“I was traumatised seeing the machine where he died … It made me sick inside to think he was there with no family at his side going through horrific pain and dying.”

She said Wesley paid the price for Ballance’s “dangerous operation” and the company must pay for what it did.

She wanted the sentence to set a precedent for other companies that would ensure no other family had to go through the “turmoil” hers was experiencing.

The maximum penalty was a fine of $1.5 million.

Sentencing arguments

Judge Geoghegan’s decision said WorkSafe lawyer Sarah Backhouse had sought a starting point for the fine of $700,000 to $800,000 as Ballance’s conduct departed significantly from industry standards.

She said the hazard had twice been identified as a risk by independent experts, as recently as a year before Tomich’s death, and the cost of fixing it was not too high given the likelihood of harm.

Backhouse acknowledged Ballance had since made significant safety upgrades including compliant guarding.

Wesley Tomich fell while stepping over the middle conveyor belt. Photo / WorkSafe

Ballance’s lawyer, Brett Harris, said it had an extensive trading history and safety record across decades and did not accept the offending was obvious, or in breach of typical industry standards.

He said the company did not accept it failed to implement any guarding that had been recommended.

Ballance contended that the offending was a system failure of risk management processes and administrative controls that let workers be near operating conveyors at the end of the cleaning process.

Harris submitted a fine of between $275,0000 and $325,000 was appropriate after taking into account Ballance’s early guilty plea, remorse, co-operation, reparation payments and remedial steps.

The judge’s ruling

Judge Geoghegan found the level of Ballance’s culpability was high.

“The victim’s death was a direct result of cleaning the conveyor without effective guarding, without appropriate locations for the emergency stop switch, and without effective instructions to workers on how to perform their task safely.

Judge Paul Geoghegan fined Ballance Agri-Nutrients $420,000 over the death of Wesley Tomich, 37, in 2023. Photo / Andrew Warner

“The standard operating procedure was defective and allowed the conveyor belt to be energised to assist in removing the final debris that was on the floor.”

Judge Geoghegan accepted Ballance had since undertaken “very significant” remedial steps at a significant cost.

He imposed a fine of $420,000 after accounting for Ballance’s early guilty pleas, remorse, co-operation, and $287,202 reparation already paid to the victim’s family.

That reparation had included $77,000 for emotional harm suffered and $210,202.86 in proceeds under its employee life insurance scheme.

The judge declined to order further reparation, saying no legal remedy could adequately address the family’s loss.

“I acknowledge their anger, their anguish and distress. Victim impact statements speak volumes of the impact on them of the loss which they have suffered.”

Ballance was also ordered to pay $2166.60 in costs to WorkSafe.