SafeWork NSW v B & J Benchtops Pty Ltd - [2019] NSWDC 674

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v B & J Benchtops Pty Ltd [2019] NSWDC 674
Hearing dates: 4 November 2019
Date of orders: 18 November 2019
Decision date: 18 November 2019
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1   Michael Douglas Herbert is convicted.
2   I impose a fine of $15,000.
3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
4   B & J Benchtops Pty Ltd is convicted.
5   I impose a fine of $90,000.
6 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
7   The offenders are to pay the prosecutor’s costs as agreed in the sum of $31,250.

Catchwords:
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of serious injury – worker injured
SENTENCING – objective seriousness – deterrence – aggravation factors – mitigating factors
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Work Health and Safety Act 2011
Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
R v Borkowski (2009) 195 A Crim R 1
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Youkhana [2004] NSWCCA 412
Category: Principal judgment
Parties: SafeWork NSW (Prosecutor)
B & J Benchtops Pty Ltd (Defendant)
Michael Herbert (Defendant)
Representation:
Counsel:
N Read (Prosecutor)
L Doust (Defendants)
Solicitors:
Legal, Government and Corporate Services, Department of Customer Service (Prosecutor)
DLA Piper Australia (Defendants)

File Number(s): 2018/277348 and 2018/277338
Publication restriction: None

Judgment

Introduction

B & J Benchtops Pty Limited (the company) has pleaded guilty to an offence that being a person conducting a business or undertaking who had a health and safety duty under section 19(1) of the Act, it failed to comply with that duty and thereby exposed Shen Tao Xiao to a risk of death or serious injury contrary to section 32 of the Act.
The maximum penalty is a fine of $1,500,000.
Michael Douglas Herbert (the defendant), has pleaded guilty to an offence that as a person who had a health and safety duty under section 27(1) of the Work Health and Safety Act 2011 (the Act), he failed to comply with that duty and thereby exposed Mr Xiao to a risk of death or serious injury contrary to section 32 of the Act.
The maximum penalty is a fine of $300,000.

Facts

The parties presented an Agreed Statement of Facts which can be summarised as follows.
The company manufactured and installed bench tops and cabinetry and operated its business at 2 Arnott Place, Wetherill Park in the State of New South Wales.
As part of the manufacturing process, various timber and plastic materials were cut to size and off-cuts were collected in a scrap bin. The scrap bin measured 800 mm x 1200 mm and was 600 mm high. The scrap bin was fitted with four castor wheels on its…

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: [2019] NSWDC 674
Decision Date: 18 November 2019

CaseChat Overview and Summary

SafeWork NSW prosecuted B & J Benchtops Pty Ltd and its director, Michael Douglas Herbert, for breaches of work health and safety regulations that led to an injury of a worker. The case was heard and determined by the Local Court of New South Wales. The prosecution alleged that the company and its director failed in their duties under work health and safety laws, resulting in a worker suffering a serious injury. The legal issues before the court included whether the accused parties breached their statutory duties, the objective seriousness of the offence, and the appropriate penalty considering both aggravating and mitigating factors.

The court examined the evidence to determine if the accused parties failed in their duty to ensure the health and safety of workers. It considered whether the risk of serious injury was foreseeable and if adequate measures were taken to prevent such harm. The court also assessed the objective seriousness of the offences, taking into account the gravity of the breach and its impact on the worker. Aggravating factors such as the foreseeability of the risk and the potential for serious injury were weighed against mitigating factors including the company’s compliance history and cooperation with the investigation.

In its reasoning, the court found that the accused parties did indeed breach their duties under the work health and safety legislation, leading to the worker’s injury. The court considered the offences to be of significant objective seriousness due to the potential for serious harm. It imposed fines on both the company and the director, with a portion of the fines to be paid to the prosecutor as per the Fines Act 1996. Additionally, the court ordered the offenders to pay the prosecutor’s costs.

The final orders of the court were that Michael Douglas Herbert is convicted, and a fine of $15,000 is imposed, with half to be paid to the prosecutor. B & J Benchtops Pty Ltd is also convicted, and a fine of $90,000 is imposed, with half to be paid to the prosecutor. Both offenders are ordered to pay the prosecutor’s costs in the sum of $31,250.

Orders

Orders of the court

1 Michael Douglas Herbert is convicted.

2 I impose a fine of $15,000.

3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

4 B & J Benchtops Pty Ltd is convicted.

5 I impose a fine of $90,000.

6 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

7 The offenders are to pay the prosecutor’s costs as agreed in the sum of $31,250.

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 B & J Benchtops Pty Ltd [2019] NSWDC 674
Hearing dates:	4 November 2019
Date of orders:	18 November 2019
Decision date:	18 November 2019
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 Michael Douglas Herbert is convicted. 2 I impose a fine of $15,000. 3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 4 B & J Benchtops Pty Ltd is convicted. 5 I impose a fine of $90,000. 6 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 7 The offenders are to pay the prosecutor’s costs as agreed in the sum of $31,250.
Catchwords:	CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of serious injury – worker injured SENTENCING – objective seriousness – deterrence – aggravation factors – mitigating factors
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011
Cases Cited:	Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412
Category:	Principal judgment
Parties:	SafeWork NSW (Prosecutor) B & J Benchtops Pty Ltd (Defendant) Michael Herbert (Defendant)
Representation:	Counsel: N Read (Prosecutor) L Doust (Defendants) Solicitors: Legal, Government and Corporate Services, Department of Customer Service (Prosecutor) DLA Piper Australia (Defendants)
File Number(s):	2018/277348 and 2018/277338
Publication restriction:	None