SafeWork NSW v Aussie Skips Recycling Pty Ltd; SafeWork NSW v Emmanuel Roussakis [2022] NSWDC 276

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Aussie Skips Recycling Pty Ltd; SafeWork NSW v Emmanuel Roussakis [2022] NSWDC 276 Hearing dates: 8 July 2022 Date of orders: 21 July 2022 Decision date: 21 July 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: Penalty for Aussie Skips Recycling Pty Ltd (2020/139767): (1) Aussie Skips Recycling Pty Ltd is convicted. (2) The appropriate fine is $700,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Aussie Skips Recycling Pty Ltd to pay a fine of $525,000. (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 Aussie Skips Recycling Pty Ltd to pay the prosecutor's costs. Penalty for Emmanuel Roussakis (2020/139762): (1) Emmanuel Roussakis is convicted. (2) The appropriate fine is $80,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Emmanuel Roussakis to pay a fine of $60,000. (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 Emmanuel Roussakis to pay the prosecutor's costs. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of officers – 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 – defendants involved in waste recycling services – workers were picking and sorting through waste piles by hand in close proximity to a front-end loader – front-end loader reversed and struck and killed a worker – failure to conduct risk assessment – failure to provide physical separation between pedestrians and plant – failure to provide adequate means of communication between pedestrian and plant operators – failure to provide adequate information, instruction and training 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, 4, 19, 27, 32 Work Health and Safety Regulation 2017 (NSW), cl 214, Pt 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 SafeWork NSW v Harris Holdings NSW Pty Ltd [2017] NSWDC 299 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 Code of Practice - How to Manage Work Health and Safety Risks, December 2011 Safe Work Australia, General Guide for Workplace Traffic Management, July 2014 Safe Work Australia, Workplace Traffic Management Information Sheet, July 2014 Category: Sentence Parties: SafeWork NSW (Prosecutor) Emmanuel Roussakis (Defendant) Aussie Skips Recycling Pty Ltd (Defendant) Representation: Counsel: N Read (Prosecutor) B Hodgkinson SC (Defendant)