SafeWork NSW v Go Go Petroleum Pty Ltd [2022] NSWDC 96

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Go Go Petroleum Pty Ltd [2022] NSWDC 96 Hearing dates: 30 March 2022 Date of orders: 4 April 2022 Decision date: 04 April 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Go Go Petroleum Pty Ltd is convicted. (2) The appropriate fine is $160,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Go Go Petroleum Pty Ltd to pay a fine of $120,000. (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 Go Go Petroleum Pty Ltd to pay the prosecutor's costs agreed in the amount of $43,434.92. 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 – defendant involved in constructing fuel and petrol stations - underground tank being pressure tested by unqualified worker – pressure ten times safe limit – tank exploded – failure to provide adequate information, instruction and training – failure to provide adequate on-site supervision – failure to engage specialist contractor to perform pressure testing on fuel systems 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 Work Health and Safety Regulation 2017 (NSW), Part 3.1 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 AS 4037 1999 (Reconfirmed 2016) "Pressure Equipment – Examination and Testing" Australian Standard AS 4897 2008 (Reconfirmed 2016) "The Design, Installation and Operation of Underground Petroleum Storage Systems" Australian/New Zealand Standard AS/NZS 3788: 2006 "Pressure Equipment - In Service Inspection" Department of Environment, Climate Change and Water NSW "Guidelines for Implementing the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2008" (September 2009) Technical Guide "Durapipe PLX Safe Pipework for Fuel" (January 2013) New Zealand Code of Practice for the "Design, Installation and Operation of Underground Petroleum Storage Systems" Category: Sentence Parties: SafeWork NSW (Prosecutor) Go Go Petroleum Pty Ltd (Defendant) Representation: Counsel: A Mykkeltvedt (Prosecutor) M Shume (Defendant)