District Court
New South Wales
Medium Neutral Citation: SafeWork NSW v Hubtex Australia Pty Ltd [2021] NSWDC 664 Hearing dates: 3 December 2021 Date of orders: 8 December 2021 Decision date: 08 December 2021 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 Hubtex Australia Pty Ltd is convicted.
2 I impose fines in the total sum of $124,000.
3 The offender is to pay the prosecutor’s costs of the proceedings as agreed or assessed.
4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – worker injured – failure to notify regulator immediately after the incident
SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – appropriate penalty
SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Work Health and Safety Act 2011
Work Health and Safety Regulation 2017
Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Longworth v R [2017] NSWCCA 119
R v Borkowski (2009) 195 A Crim R 1
R v Thomson & Houlton (2000) 49 NSWLR 383
Category: Sentence Parties: SafeWork NSW (Prosecutor)
Hubtex Australia Pty Ltd (Defendant)Representation: Counsel:
Solicitors:
M Moir (Prosecutor)
R Coffey (Defendant)
Legal Services, Department of Customer Service (Prosecutor)
Spare Helmore (Defendant)
File Number(s): 2019/47330
2019/47346Publication restriction: None
Judgment
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Hubtex Australia Pty Ltd (the offender) appears for sentence after it pleaded guilty to:
an offence pursuant to s 32 Work Health and Safety Act 2011 (the Act) in that it failed to comply with the health and safety duty it owed pursuant to s 19(1) of the Act and thereby exposed Jai Blackman to a risk of death or serious injury; and
an offence pursuant to s 38 of the Act for failing to notify the regulator immediately after the incident.
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The maximum penalty for the s 32 offence is a fine of $1.5 million and the maximum penalty for the s 38 offence is a fine of $50,000.
Facts
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The parties tendered an Agreed Statement of Facts that can be summarised as follows.
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The offender operated a business involving the importation, leasing and servicing of forklifts from premises at Riverstone.
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On or about 13 February 2017 Mr Blackman was engaged by the offender on a 14 day work trial. He hoped to obtain employment as an apprentice mechanic with the offender on completion of the work trial. Mr Blackman had limited work experience and was 16 years of age at the time of the incident, having left…
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- Case
- [2021] NSWDC 664
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the employer had contravened the relevant statutory provisions and, if so, to impose an appropriate penalty. This involved assessing the objective seriousness of the offence, considering factors such as the potential for harm, the employer's conduct, and the effectiveness of the existing regulatory framework. The court also needed to weigh aggravating and mitigating factors to arrive at a penalty that served the purposes of general and specific deterrence, while also reflecting the principles of justice.
In reaching its decision, the court found that Hubtex Australia Pty Ltd had indeed failed to notify SafeWork NSW immediately after the incident, thereby contravening the statutory duty. The court considered several mitigating factors, including the employer’s clean record, prospects for rehabilitation, expression of remorse, and the fact that it had entered an early guilty plea. Despite these mitigating factors, the court imposed a substantial fine of $124,000, reflecting the seriousness of the offence and its potential impact on workplace safety. Additionally, the court ordered that 50% of the fine be paid to the prosecutor and that the offender cover the agreed or assessed costs of the proceedings.
The court's final orders included a conviction against Hubtex Australia Pty Ltd, a total fine of $124,000, and an order for the offender to pay the prosecutor's costs. Furthermore, it mandated that half of the fine amount be paid directly to the prosecutor, ensuring that the penalty also served a punitive and deterrent purpose.
Orders
Orders of the court
1 Hubtex Australia Pty Ltd is convicted.
2 I impose fines in the total sum of $124,000.
3 The offender is to pay the prosecutor’s costs of the proceedings as agreed or assessed.
4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
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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