SafeWork NSW v Ultra Refrigeration Pty Limited; SafeWork NSW v Romolo Prestia [2021] NSWDC 149

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Ultra Refrigeration Pty Limited; SafeWork NSW v Romolo Prestia [2021] NSWDC 149 Hearing dates: 20 April 2021 Date of orders: 30 April 2021 Decision date: 30 April 2021 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendants are convicted. (2) The appropriate fine for the corporate defendant, Ultra Refrigeration Pty Limited, is $200,000.00 and that will be reduced by 25% to reflect the early plea. (3) Accordingly, I order the corporate defendant, Ultra Refrigeration Pty Limited, pay a fine of $150,000.00. (4) The appropriate fine for the individual defendant, Romolo Prestia, is $20,000.00 and that will be reduced by 25% to reflect the early plea. (5) Accordingly, I order the individual defendant, Romolo Prestia, pay a fine of $15,000.00. (6) Pursuant to s 122 (2) of the Fines Act 1996 (NSW), 50% of the fines imposed are to be paid to the prosecutor. (7) The defendants to pay the prosecutor's costs as agreed in the sum of $55,000.00. Catchwords: CRIME – work health and safety – risk of death or serious injury – duty of persons undertaking a business or undertaking PROCEDURAL – reasonably practicable – likelihood of risk – knowledge of risk – what the defendant ought reasonably have known SENTENCE – 25% reduction for the utility of the plea. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Home Building Act 1989 Home Building Regulation 2014 Work Health and Safety Act 2011 (NSW) Cases Cited: Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35 Bulga Underground Operations v Nash (2016) 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 Kirk v Industrial Commission of New South Wales (2010) 239 CLR 531 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474–5 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Limited & Anor (No.3) (2005) 147 IR 117 Nash v Silver City Drilling (NSW) Pty Limited (2017) 93 NSWLR 338 Orbit Drilling v The Queen (2012) 35 VR 399 R v McNaughton (2006) 66 NSWLR 566; Attorney General of NSW v Tho Services Limited (in liquidation) [2016] NSWCCA 221 R v Miria [2009] NSWCCA 68 R v Thomson (2000) 49 NSWLR 383 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: SafeWork Australia Code of Practice, How to Manage Work Health and Safety Risks (December 2011) NSW Department of Training document entitled 'Supervisions of Apprentices and Trainees in the Workplace' Fair Trading NSW's brochure entitled 'Disconnections and reconnection of fixed electrical equipment' Category: Sentence Parties: SafeWork NSW (Prosecutor) Ultra Refrigeration Pty Ltd (Defendant) Romolo Prestia (Defendant) Representation: Counsel: Mr P Gow (Prosecutor) Mr D Chin SC and Mr C Parkin (Defendant)