SafeWork NSW v ABC Tissue Products Pty Ltd - [2021] NSWDC 552

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v ABC Tissue Products Pty Ltd [2021] NSWDC 552
Hearing dates: 7 October 2021
Date of orders: 15 October 2021
Decision date: 15 October 2021
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   The defendant is convicted.
(2)   The appropriate fine for the offence is $600,000.00 and that will be reduced by 25% to reflect a plea of guilty.
(3)   Accordingly, I order the defendant to pay a fine of $450,000.00
(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor’s costs agreed in the sum of $25,000.00.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – previous convictions - appropriate sentence
OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act2011 (NSW)

Cases Cited:
Bulga Underground Operations v Nash (2016) 93 NSWLR 338
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357
Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Orbit Drilling v The Queen (2012) 35 VR 399
R v Cage [2006] NSWCCA 304
R v MA [2004] NSWCCA 92
R v McNaughton (2006) 66 NSWLR 566
R v Miria [2009] NSWCCA 68
R v MMK [2006] NSWCCA 272
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v ABC Tissue Products Pty Ltd [2020] NSWDC 640
SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v Orbit Formwork Pty Ltd [2019] NSWDC 685
SafeWork NSW v Poletti Corporation [2019] NSWDC 491
SafeWork NSW v Sapform Pty Ltd [2020] NSWDC 86
Veen v R (No. 2) (1988) 164 CLR 465
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
ABC Tissue Products Pty Limited (Defendant)
Representation:
Mr A Mykkeltvedt, of counsel (for the Prosecutor)
Mr C Magee, of counsel (for the Defendant)
Solicitors: Ms Elenka Haigh, Department of Customer Service (for the Prosecutor)
Ms L Pike, Holman Webb (for the Defendant)

File Number(s): 2021/00007919

JUDGMENT

On 2 August 2021, ABC…

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: [2021] NSWDC 552
Decision Date: 15 October 2021

CaseChat Overview and Summary

SafeWork NSW prosecuted ABC Tissue Products Pty Ltd in the Local Court of New South Wales, alleging breaches of the Work Health and Safety Act 2011 (NSW). The dispute centred on whether ABC Tissue Products Pty Ltd had fulfilled its obligations under section 19(1) of the Act, which mandates that businesses must ensure health and safety to eliminate risks to health or safety, as far as reasonably practicable. SafeWork NSW argued that the company failed to prevent an employee from serious injury, claiming this was a breach of its duty.

The primary legal issue before the court was whether ABC Tissue Products Pty Ltd had contravened section 19(1) of the Work Health and Safety Act 2011 (NSW) by not adequately ensuring the health and safety of its employees, thus exposing them to a risk of death or serious injury. The court had to determine the objective seriousness of the offence, consider mitigating and aggravating factors, and assess the appropriate sentence considering the plea of guilty and previous convictions. The company had pleaded guilty, which influenced the reduction in the fine.

The court found that the company had indeed failed to meet its duty of care under section 19(1) of the Act, resulting in an employee suffering a serious injury. The court recognised the objective seriousness of the offence and the need for both general and specific deterrence. Despite the guilty plea, the court also took into account the financial position of the company and previous convictions to arrive at a sentence of $600,000, reduced by 25% due to the guilty plea, resulting in a fine of $450,000. Half of this amount was directed to be paid to the prosecutor, and the company was also ordered to pay the prosecutor's costs of $25,000.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine for the offence is $600,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(3) Accordingly, I order the defendant to pay a fine of $450,000.00

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor’s costs agreed in the sum of $25,000.00.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SafeWork NSW v ABC Tissue Products Pty Ltd [2021] NSWDC 552
Hearing dates:	7 October 2021
Date of orders:	15 October 2021
Decision date:	15 October 2021
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine for the offence is $600,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) Accordingly, I order the defendant to pay a fine of $450,000.00 (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW) the defendant is to pay the prosecutor’s costs agreed in the sum of $25,000.00.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – previous convictions - appropriate sentence OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act2011 (NSW)
Cases Cited:	Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v McNaughton (2006) 66 NSWLR 566 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v ABC Tissue Products Pty Ltd [2020] NSWDC 640 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Orbit Formwork Pty Ltd [2019] NSWDC 685 SafeWork NSW v Poletti Corporation [2019] NSWDC 491 SafeWork NSW v Sapform Pty Ltd [2020] NSWDC 86 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) ABC Tissue Products Pty Limited (Defendant)
Representation:	Mr A Mykkeltvedt, of counsel (for the Prosecutor) Mr C Magee, of counsel (for the Defendant) Solicitors: Ms Elenka Haigh, Department of Customer Service (for the Prosecutor) Ms L Pike, Holman Webb (for the Defendant)
File Number(s):	2021/00007919