SafeWork NSW v Chemstore Group Pty Ltd

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 costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011
Cases 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 246
Category:	Sentence
Parties:	SafeWork New South Wales (Prosecutor) Chemstore Group Pty Ltd (Defendant)
Representation:	Counsel: Mr N D Read appeared for the Prosecutor Mr M Cahill appeared for the Defendant   Solicitors: Department of Customer Services (Prosecutor) Anne Hazelton, Megan Cant, Holding Redlich Lawyers (Defendant)
File Number(s):	2018/328900
Publication restriction:	None

Judgment

1. 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.

2. This offence carries the maximum penalty of $1,500,000.00.

3. 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…