District Court
New South Wales
Medium Neutral Citation: SafeWork NSW v Chemstore Group Pty Ltd [2019] NSWDC 598 Hearing dates: 12 September 2019 Date of orders: 24 October 2019 Decision date: 24 October 2019 Jurisdiction: Criminal Before: Strathdee, DCJ Decision: (1) The defendant is convicted.
(2) The appropriate fine is $120,000.00 and that will be reduced by 25% to reflect a plea of guilty.
(3) I accordingly order the defendant to pay a fine of $90,000.00.
(4) I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor.
(5) I make no order as to costs.Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking a business – duty of employers – risk of death or serious injury
SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition
COSTS – prosecution costsLegislation Cited: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Act 2011Cases Cited: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 [(2000)] 49 NSWLR 610
Environmental Protection Authority v Barnes [2006] NSWCCA 246
EPA v Barnes [2006] NSWCCA 246
Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIR Comm 100
Jahandideh v R [2014] NSWCCA 178
McColl v John Watson Building Services Pty Ltd [2004] NSWIR Comm 353; 137 IR 310
Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108
Environmental Protection Authority v Barnes [2006] NSWCCA 246Category: Sentence Parties: SafeWork New South Wales (Prosecutor)
Chemstore Group Pty Ltd (Defendant)Representation: Counsel:
Solicitors:
Mr N D Read appeared for the Prosecutor
Mr M Cahill appeared for the Defendant
Department of Customer Services (Prosecutor)
Anne Hazelton, Megan Cant, Holding Redlich Lawyers (Defendant)
File Number(s): 2018/328900 Publication restriction: None
Judgment
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On 17 June 2019 Chemstore Group Pty Ltd (‘the defendant’), pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (‘the Act’) by failing to comply with the health and safety duty imposed upon it by s19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the defendant’s business or undertaking and in doing so exposed workers to a risk of death or serious injury.
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This offence carries the maximum penalty of $1,500,000.00.
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The offence was committed at the defendant’s premises on 9 May 2017. At that time and place there were workers working in the defendant’s business that were exposed to a risk to their health and safety. One of the workers exposed to the risk was Aaron Punch (‘Mr Punch’) who, as a result of being exposed…
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- Case
- [2019] NSWDC 598
- Decision Date
CaseChat Overview and Summary
The court had to determine the culpability of Chemstore Group Pty Ltd and the appropriate penalty to impose, considering both mitigating and aggravating factors. In its deliberations, the court examined the nature of the breach, the extent of the risk posed, and the steps, if any, taken by the defendant to mitigate or exacerbate the situation. The court also took into account the defendant's capacity to pay and the need for the penalty to serve objectives such as specific deterrence, general deterrence, and to reflect the objective seriousness of the offence.
Upon thorough consideration, the court found Chemstore Group Pty Ltd guilty. The court imposed a fine of $120,000, which was subsequently reduced by 25% due to the plea of guilty, resulting in a fine of $90,000. The court also ordered that 50% of the fine be paid to the prosecutor. The court declined to make an order as to costs. This decision reflects the court's assessment of the objective seriousness of the offence and the need for both deterrence and retribution, while also taking into account the defendant's capacity to pay and the principles of parity and totality in sentencing.
Orders
Orders of the court
(1) The defendant is convicted.
(2) The appropriate fine is $120,000.00 and that will be reduced by 25% to reflect a plea of guilty.
(3) I accordingly order the defendant to pay a fine of $90,000.00.
(4) I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor.
(5) I make no order as to costs.
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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