SafeWork NSW v ll Pastaio Pty Ltd [2020] NSWDC 677

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v ll Pastaio Pty Ltd [2020] NSWDC 677 Hearing dates: 5 November 2020 Date of orders: 9 November 2020 Decision date: 09 November 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) ll Pastaio Pty Limited is convicted. (2) The appropriate fine is $180,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order Il Pastaio Pty Limited to pay a fine of $135,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order Il Pastaio Pty Limited to pay the prosecutor's costs. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – worker's arm entangled in moving parts of mixing machine – safety interlock deliberately bypassed – failure to use appropriate guarding and safety mechanisms – absence of adequate risk assessment – failure to review and consult relevant machine operation manuals – failure to provide sufficient information, instruction and training to workers on machinery and safety guards – absence of adequate supervision Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 191, 274 Work Health and Safety Regulation 2011 (NSW), cll 34, 39, 203, 206, 208 Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Australian Standard 4024.1, Series Safety of Machinery, dated November 2014 SafeWork NSW, Code of Practice Managing the Risks of Plant in the Workplace, dated July 2014 Category: Sentence Parties: SafeWork NSW (Prosecutor) Il Pastaio Pty Limited (Defendant) Representation: Counsel: I Fraser (Prosecutor) R Ranken (Defendant)