SafeWork NSW v Clean Valley Pty Ltd and John Cross [2020] NSWDC 681

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Clean Valley Pty Ltd and John Cross [2020] NSWDC 681 Hearing dates: 26 October 2020 Date of orders: 6 November 2020 Decision date: 06 November 2020 Jurisdiction: Criminal Before: Strathdee, DCJ Decision: (1) The corporate defendant is convicted. (2) The appropriate fine for the corporate defendant would be $60,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) I accordingly order the corporate defendant pay a fine of $45,000.00. (4) The individual defendant is convicted. (5) The appropriate fine for the individual defendant would be $5,000.00 and that will be reduced by 25% to reflect a plea of guilty. (6) I accordingly order the individual defendant pay a fine of $3,750.00. (7) 50% of the fines imposed are to be paid to the prosecutor. (8) The defendants are to pay the prosecutor's costs agreed in the sum of $33,000.00. 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) 93 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 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 SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 226 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 2359: Powered Industrial Trucks (2013) 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) SafeWork NSW's Working With Or Around Mobile Plant Safety Alert (30 January 2014) The General Guide for Workplace Traffic Management published in 2014 by SafeWork Australia WorkCover Safety Alert 'Working with or around Mobile Plant' Category: Sentence Parties: SafeWork New South Wales (Prosecutor) Clean Valley Pty Ltd and John Cross (Defendants) Representation: Mr M Scott for the Prosecution Mr B Bickford for the Defendants