SafeWork NSW v Fumigate All Hours (NSW) Pty Ltd [2021] NSWDC 694

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Fumigate All Hours (NSW) Pty Ltd [2021] NSWDC 694 Hearing dates: 10 December 2021 Decision date: 17 December 2021 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 Fumigate All Hours Pty Ltd is convicted. 2 I impose a fine of $75,000. 3 The offender is to pay the prosecutor's costs of the proceedings as agreed in the sum of $65,000. 4 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 – 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 Fines Act 1996 Work Health and Safety Act 2011 Work Health and Safety Regulations 2017 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37R v Youkhana [2004] NSWCCA 412 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 Texts Cited: AS/NZS 1716:2012: Respiratory Protective Devices" (published 13 February 2012) Australian/New Zealand Standards 1715:2009: Selection, Use and Maintenance of Respiratory Protective Equipment" (published 6 February 2009) SafeWork Australia Information Sheet: Managing Risks of Hazardous Chemical Exposure When Unpacking Shipping Containers" (published 19 February 2016) SafeWork Australia: Managing Risks of Hazardous Chemicals in the Workplace" (published July 2012) The AFAS MB Fumigation Standard (published August 2015), Category: Sentence Parties: SafeWork NSW (Prosecutor) Fumigate All Hours (NSW) Pty Ltd (Defendant) Representation: Counsel: P McEniery (Prosecutor) P Barry (Defendant)