SafeWork NSW v Mondiale VGL Pty Ltd [2022] NSWDC 275

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Mondiale VGL Pty Ltd [2022] NSWDC 275 Hearing dates: 15 July 2022 Date of orders: 21 July 2022 Decision date: 21 July 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Mondiale VGL Pty Ltd was convicted on 15 July 2022. (2) The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Mondiale VGL Pty Ltd to pay a fine of $375,000. (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 Mondiale VGL Pty Ltd 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 – defendant conducted a business or undertaking involving transport and logistics – worker was driving a reach stacker to load containers onto trucks – truck driver crushed when struck by the reach stacker as it was reversing - failure to enforce exclusion and designated safety zones – failure to instruct and train workers on the location of exclusion and designated safety zones – failure to identify hazards associated with loading containers Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30E 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) 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: WorkCover NSW Code of Practice: How to Manage Work Health and Safety Risks, December 2011. SafeWork NSW Code of Practice: Managing the Risks of Plant in the Workplace, August 2019 Category: Sentence Parties: SafeWork NSW (Prosecutor) Mondiale VGL Pty Ltd (Defendant) Representation: Counsel: M Moir (Prosecutor) P Barry (Defendant)