SafeWork NSW v Solveco Pty Ltd (No. 2) [2022] NSWDC 331

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Solveco Pty Ltd (No. 2) [2022] NSWDC 331 Hearing dates: 9 August 2022 Date of orders: 12 August 2022 Decision date: 12 August 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Solveco Pty Ltd is convicted. (2) The appropriate fine is $240,000 but that will be reduced by 12.5% to reflect the plea of guilty. (3) Order Solveco Pty Ltd to pay a fine of $210,000. (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 Solveco 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 – offender conducted a business or undertaking involving waste management, treatment of liquid waste and solvents and recycling of commercial waste – worker was operating a shredder to shred aerosol cans 20 metres away from a worker operating a pressure washer – puncturing and shredding aerosol cans released a cloud of flammable gas – spark from pressure washer created an explosion and fire – failure to require aerosol cans be punctured and degassed prior to shredding – failure to prohibit ignition sources around flammable gases and vapours – failure to implement and maintain safe system of work – failure to provide adequate 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, 19, 32 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 CRS NSW Pty Ltd; SafeWork NSW v Jay McGeachie Jenkins [2017] NSWDC 312 SafeWork NSW v JA Investment Group Pty Ltd [2021] NSWDC 569 SafeWork NSW v JPS Car Wash Management Pty Ltd; SafeWork NSW v SRS Star Management Pty Ltd; SafeWork NSW v Sarjeet Sidhu [2021] NSWDC 148 SafeWork NSW v Omega International and Shetty [2016] NSWDC 11 SafeWork NSW v Plasser Australia Pty Ltd [2021] NSWDC 441 SafeWork NSW v Solveco Pty Ltd [2021] NSWDC 298 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority of NSW v Customised Gas Australia Group Pty Ltd and Flynn [2014] NSWDC 361 WorkCover Authority of NSW v Drayton & Sons Pty Ltd [2014] NSWDC 180 WorkCover Authority of NSW v Transtank Pty Ltd [2014] NSWDC 288 Texts Cited: Australian/New Zealand Standard 600079.0:2012, Explosive atmospheres Part 0: Equipment–General requirements Australian/New Zealand Standard 60079.10.1:2009, Explosive atmospheres Part 10.1: Classification of areas–Explosive gas atmospheres Safe Work Australia Code of Practice, Managing Risks of Hazardous Chemicals in the Workplace, July 2012 Safe Work Australia Code of Practice, Managing the Risks of Plant in the Workplace, July 2012 SDS Category: Sentence Parties: SafeWork NSW (Prosecutor) Solveco Pty Ltd (Defendant) Representation: Counsel: I Taylor SC with M Moir (Prosecutor) J Glissan QC with P Barry (Defendant)