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 McNaughton (2006) 66 NSWLR 566
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)
Solicitors: Ms Elenka Haigh, Department of Customer Service (for the Prosecutor)
Mr C Magee, of counsel (for the Defendant)
Ms L Pike, Holman Webb (for the Defendant)
File Number(s): 2021/00007919
JUDGMENT
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On 2 August 2021, ABC…
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- Case
- [2021] NSWDC 552
- Decision Date
CaseChat Overview and Summary
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
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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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