SafeWork NSW v Rex Australia Pty Ltd; SafeWork NSW v Wei Wang [2021] NSWDC 334

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Rex Australia Pty Ltd; SafeWork NSW v Wei Wang [2021] NSWDC 334 Hearing dates: 20 July 2021 Date of orders: 23 July 2021 Decision date: 23 July 2021 Jurisdiction: Criminal Before: Russell SC DCJ Decision: Penalty for Rex Australia Pty Limited (2020/241852): (1) The offender Rex Australia Pty Ltd is convicted. (2) The appropriate fine is $300,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order Rex Australia Pty Ltd to pay a fine of $225,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order Rex Australia Pty Ltd to pay the prosecutor's costs. Penalty for Wei Wang (2020/241876): (1) The offender Wei Wang is convicted. (2) The appropriate fine is $60,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order Wei Wang to pay a fine of $45,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order Wei Wang to pay the prosecutor's costs. 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 – trolley fell forward from the tines of a forklift causing unsecured glass panels to fall and strike a worker – absence of risk assessment – forklift in use was unsuitable for the task of lifting A-frame trolleys loaded with glass panels – no traffic management plan – absence of a relevant safe operating procedure – lack of exclusion zone – inadequate instructions and training in relation to loading area access Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32 Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 36, 37, 38, 54, 218 Cases Cited: 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 Texts Cited: Australian Standard 2359.2 – 2013: Powered industrial trucks – Part 2: Operations SafeWork Australia: General Guide Workplace Traffic Management (July 2014) SafeWork Australia: General Guide for Industrial Lift Trucks (July 2014) SafeWork NSW: How to Manage Work Health & Safety Risks Code of Practice (December 2011) SafeWork NSW: Managing the Risk of Plant in the Workplace Code of Practice (July 2014) SafeWork NSW: "Take Forking Safety Seriously – Safety Guide for Businesses" Guidance Note Category: Sentence Parties: SafeWork NSW (Prosecutor) Rex Australia Pty Ltd (Defendant) Wei Wang (Defendant) Representation: Counsel: N Read (Prosecutor) M McAuley (Defendants)