SafeWork NSW v B & E Foods Pty Ltd - [2023] NSWDC 569

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v B & E Foods Pty Ltd & Ors [2023] NSWDC 569
Hearing dates: 29 November 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   B & E Foods Pty Ltd is convicted.
(2)   The appropriate fine for the offence is $500,000 and that will be reduced by 25% to reflect the plea of guilty.
(3)   Accordingly, I order B & E Foods Pty Ltd to pay a fine of $375,000.
(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (3) is to be paid to the prosecutor.
(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), B & E Foods Pty Ltd is to pay the prosecutor’s costs, as agreed or assessed.
(6)   Xu Chun Dong is convicted.
(7)   The appropriate fine for the offence is $50,000 and that will be reduced by 25% to reflect the plea of guilty.
(8)   Accordingly, I order Xu Chun Dong to pay a fine of $37,500.
(9) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (8) is to be paid to the prosecutor.
(10) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), Xu Chun Dong is to pay the prosecutor’s costs, as agreed or assessed.
(11)   E & J International Pty Ltd is convicted.
(12)   The appropriate fine for the offence is $350,000 and that will be reduced by 25% to reflect the plea of guilty.
(13)   Accordingly, I order E & J International Pty Ltd to pay a fine of $262,500.
(14) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (13) is to be paid to the prosecutor.
(15) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), E & J International Pty Ltd is to pay the prosecutor’s costs, as agreed or assessed.
(16)   NL Workforce Solutions Pty Ltd is convicted.
(17)   The appropriate fine for the offence is $350,000 and that will be reduced by 25% to reflect the plea of guilty.
(18)   Accordingly, I order NL Workforce Solutions Pty Ltd to pay a fine of $262,500.
(19) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (18) is to be paid to the prosecutor.
(20) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), NL Workforce Solutions Pty Ltd is to pay the prosecutor’s costs, as agreed or assessed.

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties
COSTS –…

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: [2023] NSWDC 569
Decision Date: 15 December 2023

CaseChat Overview and Summary

SafeWork NSW prosecuted B & E Foods Pty Ltd, Xu Chun Dong, E & J International Pty Ltd, and NL Workforce Solutions Pty Ltd in the Local Court of New South Wales for breaches of work health and safety laws. The prosecution alleged that the defendants failed to meet their duty of care to prevent the risk of death or serious injury, leading to a worker's serious injury. The court had to determine whether the defendants breached the statutory duty, the appropriate penalty for the offence, and whether any mitigating or aggravating factors should be considered. Additionally, the court needed to decide on the appropriate fine and whether to award costs to the prosecutor.

The court found that all defendants breached their duty under the work health and safety legislation. In calculating the penalty, the court considered the objective seriousness of the offence, the defendants' pleas of guilty, and mitigating factors such as remorse and contrition. The court applied a discount for the plea of guilty, reduced the fines by 25%, and ordered each defendant to pay a specific amount. The court also considered the need for general and specific deterrence when determining the fines. Additionally, the court ordered each defendant to pay the prosecutor's costs.

The court convicted all defendants and imposed fines, reduced by 25% due to the pleas of guilty. B & E Foods Pty Ltd was ordered to pay a fine of $375,000, Xu Chun Dong $37,500, E & J International Pty Ltd $262,500, and NL Workforce Solutions Pty Ltd $262,500. Each defendant was also ordered to pay 50% of their respective fines to the prosecutor and cover the prosecutor’s costs. These orders reflect the court's consideration of the defendants' culpability and the need to uphold the law for the protection of workers.

Orders

Orders of the court

(1) B & E Foods Pty Ltd is convicted.

(2) The appropriate fine for the offence is $500,000 and that will be reduced by 25% to reflect the plea of guilty.

(3) Accordingly, I order B & E Foods Pty Ltd to pay a fine of $375,000.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (3) is to be paid to the prosecutor.

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), B & E Foods Pty Ltd is to pay the prosecutor’s costs, as agreed or assessed.

(6) Xu Chun Dong is convicted.

(7) The appropriate fine for the offence is $50,000 and that will be reduced by 25% to reflect the plea of guilty.

(8) Accordingly, I order Xu Chun Dong to pay a fine of $37,500.

(9) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (8) is to be paid to the prosecutor.

(10) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), Xu Chun Dong is to pay the prosecutor’s costs, as agreed or assessed.

(11) E & J International Pty Ltd is convicted.

(12) The appropriate fine for the offence is $350,000 and that will be reduced by 25% to reflect the plea of guilty.

(13) Accordingly, I order E & J International Pty Ltd to pay a fine of $262,500.

(14) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (13) is to be paid to the prosecutor.

(15) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), E & J International Pty Ltd is to pay the prosecutor’s costs, as agreed or assessed.

(16) NL Workforce Solutions Pty Ltd is convicted.

(17) The appropriate fine for the offence is $350,000 and that will be reduced by 25% to reflect the plea of guilty.

(18) Accordingly, I order NL Workforce Solutions Pty Ltd to pay a fine of $262,500.

(19) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (18) is to be paid to the prosecutor.

(20) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), NL Workforce Solutions Pty Ltd is to pay the prosecutor’s costs, as agreed or assessed.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SafeWork NSW v B & E Foods Pty Ltd & Ors [2023] NSWDC 569
Hearing dates:	29 November 2023
Date of orders:	15 December 2023
Decision date:	15 December 2023
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) B & E Foods Pty Ltd is convicted. (2) The appropriate fine for the offence is $500,000 and that will be reduced by 25% to reflect the plea of guilty. (3) Accordingly, I order B & E Foods Pty Ltd to pay a fine of $375,000. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (3) is to be paid to the prosecutor. (5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), B & E Foods Pty Ltd is to pay the prosecutor’s costs, as agreed or assessed. (6) Xu Chun Dong is convicted. (7) The appropriate fine for the offence is $50,000 and that will be reduced by 25% to reflect the plea of guilty. (8) Accordingly, I order Xu Chun Dong to pay a fine of $37,500. (9) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (8) is to be paid to the prosecutor. (10) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), Xu Chun Dong is to pay the prosecutor’s costs, as agreed or assessed. (11) E & J International Pty Ltd is convicted. (12) The appropriate fine for the offence is $350,000 and that will be reduced by 25% to reflect the plea of guilty. (13) Accordingly, I order E & J International Pty Ltd to pay a fine of $262,500. (14) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (13) is to be paid to the prosecutor. (15) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), E & J International Pty Ltd is to pay the prosecutor’s costs, as agreed or assessed. (16) NL Workforce Solutions Pty Ltd is convicted. (17) The appropriate fine for the offence is $350,000 and that will be reduced by 25% to reflect the plea of guilty. (18) Accordingly, I order NL Workforce Solutions Pty Ltd to pay a fine of $262,500. (19) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (18) is to be paid to the prosecutor. (20) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), NL Workforce Solutions Pty Ltd is to pay the prosecutor’s costs, as agreed or assessed.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties COSTS –…