SafeWork NSW v Campbelltown Hardware Pty Ltd and Khalid [2021] NSWDC 217

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Campbelltown Hardware Pty Ltd and Khalid [2021] NSWDC 217 Hearing dates: 19 May 2021 Date of orders: 31 May 2021 Decision date: 31 May 2021 Jurisdiction: Criminal Before: Scotting DCJ Decision: Penalty - Campbelltown 1 Campbelltown Hardware Pty Limited is convicted. 2 I impose a fine of $75,000. 3 Campbelltown Hardware Pty Ltd is to pay the prosecutor's costs of the proceedings against it, as agreed or assessed. 4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. Penalty – Mr Khalid 5 Muhammad Jawad Khalid is convicted. 6 Taking into account Mr Khalid's lack of capacity to pay a fine, I impose no other penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999. 7 Muhammad Jawad Khalid is to enter into a WHS undertaking pursuant to s 239 Work Health and Safety Act 2011 on the following conditions: (1) The matter is adjourned to 31 May 2023. (2) The offender is to appear before the Court if called on to do so during the term of the adjournment. (3) The offender is not to commit any offence under the Work Health and Safety Act 2011 during the term of the adjournment. (4) The offender is to notify the Registrar of the District Court at the Downing Centre of any change of address for service. 8 I make no order for payment of the prosecutor's costs of the proceedings against Muhammad Jawad Khalid, by the offender. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker 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 – capacity to pay a fine – WHS undertaking Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Jahandideh v R [2014] NSWCCA 178 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 Texts Cited: Australian Standard AS 2359.2-2013 Work Health and Safety Regulation 2017 Category: Sentence Parties: SafeWork NSW (Prosecutor) Campbelltown Hardware Pty Ltd (Defendant) Muhammad Jawad Khalid (Defendant) Representation: Counsel: M Moir (Prosecutor) Y Sharif SC/M Hawila (Defendants)