SafeWork NSW v JBS Australia Pty Limited [2020] NSWDC 678

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v JBS Australia Pty Limited [2020] NSWDC 678 Hearing dates: 13 October 2020 Date of orders: 6 November 2020 Decision date: 06 November 2020 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted. (2) The appropriate fine is $400,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) I accordingly order the defendant pay a fine of $300,000.00. (4) Pursuant to s 122 (2) of the Fines Act 1996, 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: CRIME – prosecution – work, health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – worker injured SENTENCING – general and specific deterrence – deduction for the utility of the plea – appropriate penalty – remorse - contrition Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW) Work Health and Safety Regulations 2011 (Cth) Cases Cited: Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 Capral Aluminium Limited v WorkCover Authority of NSW [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 Kirk v Industrial Commission of New South Wales [2010] HCA 1 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 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; Smith v The Queen [2012] VSCA 82 R v Cage [2006] NSWCCA 304 R v Miria [2009] NSWCCA 68 R v Wilkinson (No 5) [2009] NSWSC 432 SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 Texts Cited: Australian Standard AS 3745-2010 Planning for Emergencies in Facilities (May 2014) Code of Practice Managing the work environment and facilities (December 2011) NSW Rural Fire Service Fact Sheet on Grass Fires (June 2011) NSW Rural Fire Service Guide to Farm FireWise: Checklist and Action Plan (July 2007) SafeWork NSW Fact Sheet - Emergency Plans Work Health and Management System (dated 18 April 2017) Category: Sentence Parties: SafeWork NSW (Prosecutor) JBS Australia (Defendant) Representation: Counsel: Mr P Gow (Prosecutor) Mr A Moses SC with Mr P Sharp (Defendant)