SafeWork NSW v DIC Australia Pty Limited [2021] NSWDC 143

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v DIC Australia Pty Limited [2021] NSWDC 143 Hearing dates: 23 April 2021 Date of orders: 30 April 2021 Decision date: 30 April 2021 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) DIC Australia Pty Limited is convicted. (2) I take into account the Victim Impact Statement of Ms Rachel Tanner. (3) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the plea of guilty. (4) Order DIC Australia Pty Limited to pay a fine of $450,000. (5) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (6) Order DIC Australia Pty Limited to pay the prosecutor's costs agreed in the amount of $45,000. 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 – defendant involved in the manufacture of ink products – blockages affected the operation of an ink holding tank and mill – onslow mixer and mill remained in operation while tank was being cleaned – access hatch was removed before anchor blade was electrically isolated – contractor's leg became trapped between side of the tank and anchor blade – other workers suffered injuries when they entered the tank to assist – electrical isolation system inadequate – absence of an external isolator switch or emergency stop – confined space entry permit had only been partially completed – inadequate audit procedure to ensure job safety analysis and confined space entry permit were being utilised – safety documents on electrical configuration of the tank were inadequate Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 16, 19, 32, 274 Work Health and Safety Regulation 2017 (NSW), cll 66, 70, 74, 76 Cases Cited: Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 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 Workcover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Ltd [2009] NSWIR Comm 92; (2009) 186 IR 125 Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (1999) 95 IR 383 Texts Cited: Australian Standard 2865:2009, Confined Spaces (4 September 2009) ISO 45001:2018, Occupational health and safety management systems — Requirements with guidance for use (March 2018) Safe Work Australia, Confined Spaces Code of Practice (February 2016) Safe Work Australia, Managing the Risk of Plant in the Workplace Code of Practice (March 2016) Category: Sentence Parties: SafeWork NSW (Prosecutor) DIC Australia Pty Limited (Defendant) Representation: Counsel: C Magee (Prosecutor) M Cahill (Defendant)