SafeWork NSW v JBS Australia Pty Ltd (No 4) [2023] NSWDC 473

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v JBS Australia Pty Ltd (No 4) [2023] NSWDC 473 Hearing dates: 25 October 2023 Date of orders: 08 November 2023 Decision date: 08 November 2023 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 JBS Australia Pty Ltd is convicted. 2 I have taken into account the Victim Impact Statement of Ms Fletcher. 3 I impose a fine of $300,000. 4 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5 The offender is to pay the prosecutor's costs of the proceedings as agreed or assessed, except for the costs of the Notices of Motion filed on 30 November 2022 and 28 February 2023. 6 The prosecutor is to pay the offender's costs of the Notice of Motion filed on 30 November 2022. 7 Each party is to pay its own costs of the Notice of Motion filed on 28 February 2023. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – appropriate penalty SENTENCING PRINCIPLES - good prospects of rehabilitation WORK HEALTH AND SAFETY – worker inadequately trained Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Fines and Penalties Act 1901 Work Health and Safety Act 2011 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Chant v The Nuance Group (Australia) Pty Ltd [2012] NSWSC 399 Coombes v Patrick Stevedores Holdings Pty Ltd [2005] NSWIRComm 56 Geoff Derrick v ANZ Group Ltd (No 2) [2005] NSWIRComm 145 NSW Food Authority v Fernbrew Pty Ltd trading as D'Aquino Bond Wholesalers [2007] NSWSC 531 O'Sullivan v New South Wales (2003) 128 IR 158 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v JBS Australia Pty Ltd [2020] NSWDC 678 SafeWork NSW v JBS Australia Pty Ltd (No 2) [2023] NSWDC 116 SafeWork NSW v JBS Australia Pty Ltd (No 3) [2023] NSWDC 382 Secretary Department of Planning and Environment v AGL Energy Ltd and AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2 Secretary Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 Veen v The Queen (No 2) (1988) 164 CLR 465 Workcover Authority of New South Wales v Warrah Ridge Pastoral Co Pty Ltd unreported 23 September 1994 (Bauer J) Texts Cited: Stroud's Judicial Dictionary 9th edition Category: Sentence Parties: SafeWork NSW (Prosecutor) JBS Australia Pty Ltd (Defendant) Representation: Counsel: J Agius SC with N Read (Prosecutor) A Moses SC with P Sharp (Defendant)