Attorney General of New South Wales v Tho Services Limited (in liquidation) (ACN 000 263 678)

In this case, the Attorney General of New South Wales sought to appeal against the decision of the Local Court to dismiss charges against Tho Services Limited (in liquidation), a company that was prosecuted under the Work Health and Safety Act 2011. The charges arose from an incident where a work experience student suffered flash burns to his eyes due to welding without lowering his protective visor. The Local Court had dismissed the charges, relying on section 10 of the Crimes (Sentencing Procedure) Act 1999, which permits a court to dismiss charges if it considers it appropriate in all the circumstances. The appeal focused on whether the Local Court had erred in finding that there were extraordinary or exceptional circumstances justifying the dismissal of the charges.

The court considered several legal issues, including whether the victim's prior training and experience in welding diminished the respondent's statutory obligations to instruct and advise the student of the risks associated with welding. The court also examined the extent to which the compensation awarded in the related civil matter should influence the formulation of criminal sanctions. Furthermore, the appeal questioned whether the sentence imposed by the Local Court was manifestly inadequate and whether the principles of specific and general deterrence were properly applied. The court also had to consider the importance of general deterrence in matters of industrial safety and the application of residual discretion, as well as the contrition and remorse shown by the respondent.

The court found that the Local Court had not properly considered the statutory obligations of the respondent under the Work Health and Safety Act. It was held that the respondent had a duty to ensure that the student was adequately instructed and advised of the risks associated with welding, regardless of the student's prior training and experience. The court noted that the compensation in the civil matter was not a relevant consideration in determining the appropriate criminal sanctions. The appeal court emphasised the importance of general deterrence in industrial safety matters and held that the sentence imposed by the Local Court was manifestly inadequate. The appeal was allowed, and the matter was remitted to the Local Court for resentencing.

The final orders of the court were that the appeal be allowed, the decision of the Local Court be set aside, and the matter be remitted to the Local Court for resentencing, with directions to consider the statutory obligations under the Work Health and Safety Act, the principles of specific and general deterrence, and the appropriate sentence in light of the statutory duty to ensure the health and safety of workers.