Safe Work NSW v Alejandro Bocaz - [2017] NSWDC 271

District Court

New South Wales

Medium Neutral Citation: Safe Work NSW v Alejandro Bocaz [2017] NSWDC 271
Hearing dates: 11 August, 27 September 2017
Date of orders: 09 October 2017
Decision date: 09 October 2017
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1 The offender is convicted.
2 I have considered the Victim Impact Statement of Mr Caboteja.
3 I impose no further penalty pursuant to section 10A Crimes (Sentencing Procedure) Act 1999.
4 I order that the offender pay the prosecutors costs as agreed in the sum of $30,000

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of individual – risk of death or serious injury – foreseeability of risk
SENTENCE – plea of guilty - mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty – experience of employee in specific task
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – extra curial punishment – rehabilitation
COSTS – prosecution costs
OTHER – hydrochloric acid – gas – supervision of employee – semi autonomous role – control of employee when off-site - cleaning agent – plastics – injury to worker – facial injuries – purging of materials – safe work management system
Legislation Cited: Work Health and Safety Act 2011 ss.28, 32
Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(f), 21A(3)(g), 21A(3)(i), 21A(3)(k), 21A(3)(m)
Fines Act 1996 ss. 6, 122(2)
Cases Cited: R v Thomson & Houlton (2000) 49 NSWLR 383
R v Borkowski (2009) 195 A Crim R 1
Environmental Protection Agency v Barnes [2006] NSWCCA 246
Jahandideh v R [2014] NSWCCA 178
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
R v Youkhana [2004] NSWCCA 412
R v Tuala [2015] NSWCCA 8
Category: Sentence
Parties: Safe Work NSW (Prosecutor)
Alejandro Bocaz (Offender)
Representation:
Counsel:
Mr M Moir (Prosecutor)
Mr C Bolger (Offender)
Solicitors:
Safe Work NSW (Prosecutor)
Lex Fori Lawyers (Offender)

File Number(s): 2016/00198466
Publication restriction: None

sentence

Alejandro Bocaz (the offender) has pleaded guilty to an offence that being a person who had a health and safety duty pursuant to section 28 Work Health and Safety Act 2011 (the Act), he failed to comply with that duty and thereby exposed Roberto Caboteja, Manesh Pillai and Neil Acibar to a risk of death or serious injury contrary to section 32 of the Act.
The maximum penalty for the offence is a fine of $150,000.

Facts

The parties presented an Agreed Statement of Facts which can be summarised as follows.
Extrusion Machine Co (Australia) Pty Ltd (ExCo) carried an engineering services business from its premises in Bankstown that included the repair and maintenance of extrusion machines. ExCo had over 45 years’ experience in aluminium extrusion and from time to time repaired or serviced extrusion machines of its customers, including plastic extrusion machines.
ExCo was a family run business.
The offender was…

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.

Continue reading Safe Work NSW v Alejandro Bocaz

Details

AGLC: Safe Work NSW v Alejandro Bocaz [2017] NSWDC 271
Case: [2017] NSWDC 271
Decision Date: 09 October 2017

CaseChat Overview and Summary

Safe Work NSW brought proceedings against Alejandro Bocaz in relation to a workplace incident involving the use of hydrochloric acid. Bocaz, who was responsible for the supervision of employees, was found to have failed in his duty to ensure the safety of workers, leading to injuries caused by exposure to the acid. The case was heard in a court that dealt with criminal law matters, specifically focusing on the prosecution of breaches in work health and safety regulations.

The primary legal issues revolved around the responsibilities of Bocaz as a supervisor and the foreseeability of the risk associated with the use of hydrochloric acid. The court had to determine whether Bocaz's actions constituted a breach of his duty to prevent foreseeable risks of death or serious injury, and if so, the appropriate penalty. Additionally, the court needed to weigh various mitigating and aggravating factors in determining an appropriate sentence.

The court found Bocaz guilty of the charges and considered several factors in sentencing, including the objective seriousness of the offence, the specific and general deterrence value of the penalty, Bocaz's capacity to pay, and the need for rehabilitation. Bocaz had pleaded guilty, which was considered a mitigating factor. However, the court also noted the significant harm caused to the victim, Mr Caboteja, who suffered facial injuries due to the incident. The court ordered Bocaz to pay the agreed prosecution costs of $30,000 and imposed no further penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999.

The court's decision reflects a balanced approach, taking into account the seriousness of the offence, Bocaz's remorse, and the need to uphold community values regarding workplace safety. The final order included the conviction, the imposition of costs, and no additional penalty, reflecting the totality of the circumstances and the principles of sentencing in such cases.

Orders

Orders of the court

1 The offender is convicted.

2 I have considered the Victim Impact Statement of Mr Caboteja.

3 I impose no further penalty pursuant to section 10A Crimes (Sentencing Procedure) Act 1999.

4 I order that the offender pay the prosecutors costs as agreed in the sum of $30,000

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Safe Work NSW v Alejandro Bocaz [2017] NSWDC 271
Hearing dates:	11 August, 27 September 2017
Date of orders:	09 October 2017
Decision date:	09 October 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 The offender is convicted. 2 I have considered the Victim Impact Statement of Mr Caboteja. 3 I impose no further penalty pursuant to section 10A Crimes (Sentencing Procedure) Act 1999. 4 I order that the offender pay the prosecutors costs as agreed in the sum of $30,000
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of individual – risk of death or serious injury – foreseeability of risk SENTENCE – plea of guilty - mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty – experience of employee in specific task SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – extra curial punishment – rehabilitation COSTS – prosecution costs OTHER – hydrochloric acid – gas – supervision of employee – semi autonomous role – control of employee when off-site - cleaning agent – plastics – injury to worker – facial injuries – purging of materials – safe work management system
Legislation Cited:	Work Health and Safety Act 2011 ss.28, 32 Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(f), 21A(3)(g), 21A(3)(i), 21A(3)(k), 21A(3)(m) Fines Act 1996 ss. 6, 122(2)
Cases Cited:	R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Environmental Protection Agency v Barnes [2006] NSWCCA 246 Jahandideh v R [2014] NSWCCA 178 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Youkhana [2004] NSWCCA 412 R v Tuala [2015] NSWCCA 8
Category:	Sentence
Parties:	Safe Work NSW (Prosecutor) Alejandro Bocaz (Offender)
Representation:	Counsel: Mr M Moir (Prosecutor) Mr C Bolger (Offender) Solicitors: Safe Work NSW (Prosecutor) Lex Fori Lawyers (Offender)
File Number(s):	2016/00198466
Publication restriction:	None