SafeWork NSW v Byford Equipment Pty Limited [2021] NSWDC 168

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Byford Equipment Pty Limited [2021] NSWDC 168 Hearing dates: 7 May 2021 Date of orders: 12 May 2021 Decision date: 12 May 2021 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 Byford Equipment Pty Limited is convicted. 2 I impose a fine of $30,000. 3 The offender is to pay the prosecutor's costs of the proceedings, agreed in the sum of $35,000. 4 I order that pursuant to section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – worker injured SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011 Work Health and Safety Regulation 2017 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Longworth v R [2017] NSWCCA 119 Ollis v R [2011] NSWCCA 155 Perrin v R [2006] NSWCCA 64 R v Borkowski (2009) 195 A Crim R 1 R v Tadrosse (2006) NSWLR 740 R v Thomson & Houlton (2000) 49 NSWLR 383 Texts Cited: AS 2865-2009 "Confined Spaces" dated 4 September 2009 Regulations 62-77 of the Work Health and Safety Regulation 2017 Safe Work Australia's Confined Spaces Code of Practice dated December 2011 Safe Work Australia's Managing Risks of Hazardous Chemicals in the Workplace Code of Practice dated July 2004 Wax and Grease Remover MSDS issued in 2005 Wax and Grease Remover MSDS issued in 2017 WorkCover NSW Safety Alert "Cleaning Solvents and Thinners" dated August 2012 Category: Sentence Parties: SafeWork NSW (Prosecutor) Byford Equipment Pty Limited (Defendant) Representation: Counsel: M Moir (Prosecutor) P Barry (Defendant)