SafeWork NSW v SNAP Programs Limited and State of New South Wales (Department of Communities and Justice) [2021] NSWDC 259

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v SNAP Programs Limited and State of New South Wales (Department of Communities and Justice) [2021] NSWDC 259 Hearing dates: 11 June 2021 Date of orders: 18 June 2021 Decision date: 18 June 2021 Jurisdiction: Criminal Before: Scotting DCJ Decision: Penalty – SNAP 1 SNAP Programs Limited is convicted. 2 I have taken into account the principle of totality. The two offences arise from the same incident. The s 19(1) offence is the more serious because there were more people exposed to a risk of death or serious injury. For transparency in the sentencing exercise, I will nominate the appropriate fine for each offence but will reduce the fine for the s 19(2) offence to reflect the just and appropriate measure of the total criminality involved. 3 The total fines payable for the two offences is $90,000. 4 SNAP Programs Ltd is to pay the prosecutor's costs of the proceedings agreed at $75,000. 5 I order pursuant to s 122(2) Fines Act 1996 that 50% of each fine is to be paid to the prosecutor. Penalty – State of New South Wales 6 The Department of Communities and Justice is convicted. 7 I impose a fine of $150,000. 8 The Department of Communities and Justice is to pay the prosecutor's costs of the proceedings agreed at $70,000. 9 I order pursuant to s 122(2) 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 – death of worker – death of child in care 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: Children and Young Person (Care and Protection) Act 1988 Children and Young Persons (Care and Protection) Regulation 2012 Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 Category: Sentence Parties: SafeWork NSW (Prosecutor) SNAP Programs Limited (Defendant) State of New South Wales (Department of Communities and Justice) (Defendant) Representation: Counsel: D Jordan (Prosecutor) C Magee (SNAP) Y Shariff SC with M Kalyk (DoCJ)