Workcover v Visy Paper P/L - [2015] NSWDC 284

District Court

New South Wales

Medium Neutral Citation: Workcover v Visy Paper P/L [2015] NSWDC 284
Hearing dates: 24 August 2015
Date of orders: 04 September 2015
Decision date: 04 September 2015
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1 The offender is convicted and I impose a fine of $412,500.
2 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
3 I order that the offender pay the prosecutor’s costs as agreed or assessed

Catchwords: CRIMINAL LAW – prosecution – plea of guilty - work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee – safety measures – lack of safety plan
SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty – measures taken since incident – implementation of safety recommendations
COSTS – prosecution costs
Legislation Cited: Work Health and Safety Act 2011
Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Cases Cited: Veen v R (No 2) (1988) 164 CLR 465
R v McNaughton (2006) 66 NSWLR 566
Baumer v R (1988) 166 CLR 51
BW v R [2011] NSWCCA 176
R v Wilkinson (No 5) [2009] NSWSC 432
Capral Aluminium Limted v Workcover Authority of New South Wales (2000) 49 NSWLR 610
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Bottin [2005] NSWCCA 254
R v Borkowski (2009) 195 A Crim R 1
Category: Sentence
Parties: Workcover (Prosecutor)
Visy Paper P/L (Defendant)
Representation:
Counsel:
Mr M Moir (Prosecutor)
Mr J Fernon SC
Solicitors:
Workcover Authority (Prosecutor)

File Number(s): 2014/150518

SENTENCE

Visy Paper Pty Limited (the offender) has pleaded guilty to an offence that as a person who had a health and safety duty under section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Boge Soleski, an employee of the offender, to a risk of death or serious injury contrary to section 32 of the Act.

The maximum penalty for the offence is a fine of $1.5 million.

On the sentence hearing, Mr Moir appeared for the prosecutor and Mr Fernon SC appeared for the offender.

Preliminary issue as to the acceptance of the particulars of the Amended Summons

In the course of the sentence hearing, I was informed that the offender admitted the particulars set out in the Amended Summons, except for the last sentence of particular 7 which provides, “[T]he fatal injuries sustained by Boge Soleski when he was struck by the reversing loader in the covered paper yard were manifestations of the risk”.

Mr Moir submits that the last sentence in particular 7 is an ingredient of the actual offence specified in section 32(c) of the Act. I do not accept that submission for the reasons that follow.

Section 32 of the Act provides:

A person…

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.

Continue reading Workcover v Visy Paper P/L

Details

AGLC: Workcover v Visy Paper P/L [2015] NSWDC 284
Case: [2015] NSWDC 284
Decision Date: 04 September 2015

CaseChat Overview and Summary

The case involved the prosecution of Visy Paper P/L in relation to the death of an employee, which occurred due to a failure in workplace safety. The court was tasked with determining the appropriate penalty for the company, which had pleaded guilty to charges related to breaching work health and safety laws. Specifically, the court needed to assess the company's duty of care under the work health and safety legislation, particularly concerning the risk of death or serious injury and the adequacy of safety measures in place. The central legal issues included the company's failure to implement adequate safety plans and measures, leading to the tragic incident.

The court meticulously examined the circumstances surrounding the death, the company's capacity to pay, and the objective seriousness of the offence. It considered mitigating factors such as the company's actions post-incident and the implementation of safety recommendations, as well as aggravating factors like the breach of duty and the preventable nature of the death. The court balanced these elements against the need for specific and general deterrence in reaching its decision on the penalty. Ultimately, the court imposed a fine of $412,500, ordered that 50% of the fine be paid to the prosecutor, and mandated that the company cover the prosecution's costs as agreed or assessed.

Orders

Orders of the court

1 The offender is convicted and I impose a fine of $412,500.

2 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

3 I order that the offender pay the prosecutor’s costs as agreed or assessed

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Workcover v Visy Paper P/L [2015] NSWDC 284
Hearing dates:	24 August 2015
Date of orders:	04 September 2015
Decision date:	04 September 2015
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 The offender is convicted and I impose a fine of $412,500. 2 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 3 I order that the offender pay the prosecutor’s costs as agreed or assessed
Catchwords:	CRIMINAL LAW – prosecution – plea of guilty - work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee – safety measures – lack of safety plan SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty – measures taken since incident – implementation of safety recommendations COSTS – prosecution costs
Legislation Cited:	Work Health and Safety Act 2011 Crimes (Sentencing Procedure) Act 1999 Fines Act 1996
Cases Cited:	Veen v R (No 2) (1988) 164 CLR 465 R v McNaughton (2006) 66 NSWLR 566 Baumer v R (1988) 166 CLR 51 BW v R [2011] NSWCCA 176 R v Wilkinson (No 5) [2009] NSWSC 432 Capral Aluminium Limted v Workcover Authority of New South Wales (2000) 49 NSWLR 610 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Bottin [2005] NSWCCA 254 R v Borkowski (2009) 195 A Crim R 1
Category:	Sentence
Parties:	Workcover (Prosecutor) Visy Paper P/L (Defendant)
Representation:	Counsel: Mr M Moir (Prosecutor) Mr J Fernon SC Solicitors: Workcover Authority (Prosecutor)
File Number(s):	2014/150518