SafeWork NSW v Ampelite Australia Pty Ltd [2022] NSWDC 22

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Ampelite Australia Pty Ltd [2022] NSWDC 22 Hearing dates: 11 February 2022 Date of orders: 22 February 2022 Decision date: 22 February 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: In District Court Proceedings 2021/00141331: (1) Ampelite Australia Pty Ltd is convicted. (2) The appropriate fine is $180,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Ampelite Australia Pty Ltd to pay a fine of $135,000. (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 Ampelite Australia Pty Ltd to pay the prosecutor's costs agreed in the amount of $46,000. In District Court Proceedings 2021/00141316: (1) Ampelite Australia Pty Ltd is convicted. (2) The appropriate fine is $16,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Ampelite Australia Pty Ltd to pay a fine of $12,000. (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) No order as to costs. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – failure to notify SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – defendant involved in manufacturing fibreglass and polycarbonate roof sheets, ventilators and skylights – worker used unguarded mechanical power press – mechanical power press crushed worker's right hand - failure to conduct risk assessment - inadequate instructions and training – failure to guard mechanical power press 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, 32, s 38 Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 36, 37, 38, 203, 208 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: SafeWork NSW, Managing the Risks of Plant in the Workplace Code of Practice, (July 2014) Australian Standard AS 4024.3001-2009, Safety of machinery materials Part 3001: Materials forming and shearing - Mechanical power presses, (June 2019) Category: Sentence Parties: SafeWork NSW (Prosecutor) Ampelite Australia Pty Ltd (Defendant) Representation: Counsel: E Kerkysharian (Prosecutor) P Barry (Defendant)