SafeWork NSW v Hubtex Australia Pty Ltd - [2021] NSWDC 664

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
Ollis v R [2011] NSWCCA 155
Perrin v R [2006] NSWCCA 64
R v Borkowski (2009) 195 A Crim R 1
R v Tadrosse (2006) NSWLR 740
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v Scharfe [2021] NSWDC 260

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Hubtex Australia Pty Ltd (Defendant)
Representation:
Counsel:
M Moir (Prosecutor)
R Coffey (Defendant)
Solicitors:
Legal Services, Department of Customer Service (Prosecutor)
Spare Helmore (Defendant)

File Number(s): 2019/47330
2019/47346
Publication restriction: None

Judgment

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.

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

The parties tendered an Agreed Statement of Facts that can be summarised as follows.
The offender operated a business involving the importation, leasing and servicing of forklifts from premises at Riverstone.
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…

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: [2021] NSWDC 664
Decision Date: 08 December 2021

CaseChat Overview and Summary

SafeWork NSW brought proceedings against Hubtex Australia Pty Ltd in the Local Court of New South Wales, alleging breaches of work health and safety regulations. The prosecution centred on the employer's failure to promptly notify SafeWork NSW after an employee was injured at work, which resulted in a serious injury. The employer was charged with contravening specific statutory obligations designed to ensure the safety of workers and to facilitate timely reporting and response to workplace incidents.

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

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 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 Ollis v R [2011] NSWCCA 155 Perrin v R [2006] NSWCCA 64 R v Borkowski (2009) 195 A Crim R 1 R v Tadrosse (2006) NSWLR 740 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Scharfe [2021] NSWDC 260
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Hubtex Australia Pty Ltd (Defendant)
Representation:	Counsel: M Moir (Prosecutor) R Coffey (Defendant) Solicitors: Legal Services, Department of Customer Service (Prosecutor) Spare Helmore (Defendant)
File Number(s):	2019/47330 2019/47346
Publication restriction:	None