NSW Caselaw
District Court New South Wales
Medium Neutral Citation: SafeWork NSW v Komatsu Pty Ltd [2020] NSWDC 314 Hearing dates: 12 May 2020 Date of orders: 19 June 2020 Decision date: 19 June 2020 Jurisdiction: Criminal Before: Strathdee, DCJ Decision: (1) The defendant is convicted.
(2) The appropriate fine for the defendant would be $500,000.00 and that will be reduced by 25% to reflect a plea of guilty.
(3) I accordingly order the defendant to pay a fine of $375,000.00.
(4) 50% of the fine imposed is to be paid to the prosecutor.
(5) The defendant is to pay the prosecutor's costs agreed in the sum of $40,000.00. Catchwords: CRIMINAL LAW- prosecution- work health and safety- duty of persons undertaking a business – risk of death or serious injury SENTENCE – objective seriousness- mitigating factors-aggravating factors- plea of guilty – discount of 25% because of the utility of the plea -general deterrence-specific deterrence- appropriate penalty-remorse - contrition COSTS – prosecution costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2017 (NSW) Cases Cited: Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) NSWLR 338 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 Markarian v The Queen [2005] NSWIRComm 25 Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 Orbit Drilling v The Queen [2012] VSCA 82 R v Cage [2006] NSWCCA 304 R v Miria [2009] NSWCCA 68 SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 WorkCover Authority (NSW) v Profab industries Pty Ltd (2000) 49 NSWLR 700 Texts Cited: Australian Standard 2359: Powered Industrial Trucks (2013) Operation and Maintenance Manual SafeWork NSW brief guide 'Toolbox Talk: Take Forklifting Safety Seriously' SafeWork NSW Code of Practice 'How to Manage Work, Health and Safety Risks' (December 2011) SafeWork NSW Code of Practice 'Managing the Risks of Plant in the Workplace' (July 2014) WARN Industrial Hoists Installation and Operator's Guide WorkCover Safety Alert 'Working with or around Mobile Plant' Category: Sentence Parties: SafeWork New South Wales (Prosecutor) Komatsu Australia Pty Ltd (Defendant) Representation: Counsel: Mr N Read appeared for the Prosecutor Ms P Lowson appeared for the Defendant Solicitors: SafeWork NSW Legal Services (Prosecutor) Aaron Dearden, Hall & Wilcox (Defendant) File Number(s): 2018/00277275 Publication restriction: None
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