Guerinoni Nominees Pty Ltd v Cullen - [2022] WASC 337

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   GUERINONI NOMINEES PTY LTD -v- CULLEN [2022] WASC 337
CORAM:   ARCHER J
HEARD:   20 SEPTEMBER 2022
DELIVERED          :   14 OCTOBER 2022
FILE NO/S:   SJA 1084 of 2021
BETWEEN:   GUERINONI NOMINEES PTY LTD
Appellant
AND
CRAIG CULLEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J ANDRETICH
File Number            :   KR 516/2019

Catchwords:

Criminal law - Appeal against sentence - Failure to maintain safe work environment - Whether the magistrate made factual errors - Whether fine of $230,000 was manifestly excessive

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	S Vandongen SC
Respondent	:	J F Bennett

Solicitors:

Appellant	:	Fourlion Legal
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Al Hussein v Commissioner for Consumer Protection [2014] WASC 296
Ausdrill v Hanekom [2009] WASC 307
Ayton v City of Armadale [2020] WASCA 39.
BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267 (S)
Caruso v Shire of Augusta - Margaret River [2016] WASC 379
CJH v the State of Western Australia [2013] WASCA 139; (2013) 230 A Crim R 1
Crocker v Vinicombe [2019] WASC 416; (2019) 279 A Crim R 529
Director of the Public Prosecutions of the State of Victoria v Dalgliesh (A Pseudonym) [2017] HCA 41; (2017) 262 CLR 428
Gaskell v The State of Western Australia [2018] WASCA 8
H v Western Australia [2006] WASCA 53
Harding v The State of Western Australia [2015] WASCA 27
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586
Jacomb v The State of Western Australia [2021] WASCA 81
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Mippy v the State of Western Australia [2012] WASCA 254
Ninyette v Holmes [2015] WASC 287
Peat Resources of Australia Pty Ltd v Rodney William Brown Chief Executive Officer City of Cockburn [2002] WASCA
R v Australian Char Pty Ltd [1999] 3 VR 834; (1995) 79 A Crim R 427
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Reilly v Tobiassen [2008] WASC 92
Resource Recovery Solutions Pty Ltd v Ayton [2021] WASC 443
Resource Recovery Solutions Pty Ltd v Ayton [No 2] [2022] WASC 142
RO v R [2019] NSWCCA 183
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5
Sgroi v R (1989) 40 A Crim R 197, 201
Strahan v Brennan [2014] WASC 190
Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139
The State of Western Australia v Zhuang [2021] WASCA 56
Trinder v Anderson (Unreported, WASC, Library No 960216, 24 April 1996)
Wilson v The State of Western Australia [2010] WASCA 82

TABLE OF CONTENTS

Introduction

Background

The charge

The trial

Reasons for conviction

Sentencing

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WASC 337
Decision Date

CaseChat Overview and Summary

In Guerinoni Nominees Pty Ltd v Cullen, Guerinoni Nominees Pty Ltd, an employer, was convicted of an offence under the Mines Safety and Inspection Act 1994 (WA) for failing to provide and maintain a safe working environment for its employee, Mr Aston. Guerinoni was fined $230,000. Guerinoni appealed against the sentence. The appeal was allowed. The court found that the magistrate had erred in finding that Guerinoni's failure to implement isolation procedures and supervision measures causally contributed to the injuries. The court also found that the fine was manifestly excessive. The fine was set aside and the employer was re-sentenced to a fine of $150,000.

Orders