SafeWork NSW v Tunny Pty Ltd; SafeWork NSW v Waring [2022] NSWDC 306

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Tunny Pty Ltd; SafeWork NSW v Waring [2022] NSWDC 306 Hearing dates: 26 July 2022 Date of orders: 3 August 2022 Decision date: 03 August 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: In District Court proceedings 2021/00091503: (1) Tunny Pty Ltd was convicted on 26 July 2022. (2) The appropriate fine is $160,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Tunny 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 Tunny Pty Ltd to pay the prosecutor's costs. In District Court proceedings 2021/00091528: (1) Aidan Arthur Waring is convicted (2) I take into account the Victim Impact Statement of Mr Jobson. (3) The appropriate fine is $40,000 but that will be reduced by 25% to reflect the early plea of guilty. (4) Order Aidan Arthur Waring to pay a fine of $30,000. (5) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (6) Order Aidan Arthur Waring to pay the prosecutor's costs. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of officers - 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 the dismantling and wrecking of cars for recycling and the sale of used automobile parts – workers were loading a flatbed truck into a shipping container using a wheel loader – tray of the truck fell while suspended and struck worker – failure to undertake risk assessment – failure to establish and maintain exclusion zone - failure to develop and enforce safe work procedure or safe work method statement – failure to provide instruction, information and training Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10, 10A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Occupational Health and Safety Act 2000 (NSW), s 8(1) Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32 Work Health and Safety Regulation 2017 (NSW), cll 32, 33, 34, 35, 36, 37, 38, 39 Cases Cited: Attorney-General of New South Wales v Tho Services Ltd (In Liquidation) [2016] NSWCA 221 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 Inspector Christopher Downie v Menzies Property Services [2004] NSWIR Comm 259 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 2359 Part 2, Operations: Powered Industrial Trucks, 2013 Australian Standard 3775.1:2014, Chain slings for lifting purposes Safe Work Australia, General Guide for Industrial Lift Trucks, July 2014 SafeWork NSW Guide, Toolbox Talk: Take Forking Safety Seriously Category: Sentence Parties: SafeWork NSW (Prosecutor) Tunny Pty Ltd (Defendant) Aidan Arthur Waring (Defendant) Representation: Counsel: M Moir (Prosecutor) C Magee (Defendants)