WorkCover Authority of NSW v Gemfen (Australia) Pty Ltd

[2014] NSWDC 286

District Court

New South Wales

Medium Neutral Citation:	WorkCover Authority of NSW v Gemfen (Australia) Pty Ltd [2014] NSWDC 286
Hearing dates:	16 September 2014
Decision date:	16 September 2014
Jurisdiction:	Criminal
Before:	Curtis J
Decision:	The defendant is convicted and fined
Legislation Cited:	Work Health and Safety Act 2011
Category:	Sentence
Parties:	WorkCover Authority of New South Wales (Prosecutor) Gemfen (Australia) Pty Ltd (Defendant)
Representation:	Counsel: B G Docking (Prosecutor) M P Cahill (Defendant) Solicitors: WorkCover Legal Group (Prosecutor) Holman Webb (Defendant)
File Number(s):	2013/340253

Judgment

1. In the matter of Gemfen (Australia) Pty Limited this defendant has summarily pleaded guilty to the charge that on 12 May 2012, contrary to its duty under s 19(1) of the Work Health and Safety Act 2011, it exposed Mr Kenny to a risk of injury.

2. The evidence discloses that, similarly to the precautions of Karimbla, Gemfen took its responsibilities under the Act seriously.

3. I am satisfied that this was an aberration within what would otherwise have been a good work health and safety system devised and routinely maintained by Gemfen. The failure was a failure of its supervisor on site, Mr Pepene.

4. Mr Pepene was a highly-trained and qualified and experienced supervisor and the defendant had no cause to believe that he would not discharge his functions without due care. I do not believe that this is a matter which calls for specific deterrence to any significant degree, if at all. Nevertheless, the need to respond to the legislature’s desire to fix the maximum penalty at $1,500,000 and the serious nature of the injury to Mr Kenny reflect a need to satisfy the requirement of general deterrence.

5. In all the circumstances, the appropriate penalty is $100,000. In recognition of co‑operation and the early plea of guilty, the defendant is to receive a discount of 25%. The defendant is convicted and fined $75,000. Costs are agreed in the sum of $10,500 and I order that this sum be paid by the defendant to the prosecution. The prosecutor is to have a moiety of the fine.

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Decision last updated: 04 March 2015