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) Solicitors: Office of the Director of Public Prosecutions (Prosecutor) Loupe Legal (Defendant) File Number(s): 2022/40927 Publication restriction: None Judgment Introduction 1. JBS Australia Pty Ltd (the offender) appears for sentence after being found guilty at trial of an offence under s 32 Work Health and Safety Act 2011 (the Act). 2. The Court's reasons for the finding of guilt are set out in the decision SafeWork NSW v JBS Australia Pty Ltd (No 3) [2023] NSWDC 382 (the verdict judgment). This judgment assumes familiarity with the verdict judgment and adopts the defined terms used in the verdict judgment. 3. The maximum penalty for the offence is a fine of $1.5 million. Facts 1. The factual findings are set out in the verdict judgment. I have taken all of those findings into account in coming to the appropriate sentence. What follows is a summary of the relevant factual findings in the verdict judgment to permit an understanding of the sentence imposed. 2. The offender operates a feedlot at Caroona that receives deliveries of bales of hay on trucks. 3. On 19 February 2020, Ms Fletcher, an administrative employee of JBS, was struck by two falling hay bales in a partially constructed stack, that was six bales high when the bales fell. Each bale measured 2,350mm long by 1,260mm wide and 820mm high and weighed approximately 700 kilograms. Ms Fletcher suffered serious physical injuries and consequential psychological injuries. She has not been able to return to work at this time. 4. It was a well-known risk at the feedlot that partially constructed stacks were unstable and that bales could, and did, fall. 5. At the time of the incident, Ms Fletcher was moisture testing the bales by inserting a probe into each bale in three different locations and recording the highest reading. Bales with a moisture content of 14% or more (wet bales) were not placed into stacks because they were of poor nutritional value to the cattle and could become soft and threaten the structural integrity of a stack. 6. Moisture testing was usually conducted in accordance with the general practice, described at [17] of the verdict judgment. The general practice was passed on through oral instruction and demonstration, through the "buddy system". The effect of the general practice was that bales in stacks of two or three would be placed on the ground adjacent to a pad where a stack was to be formed, so that they could be moisture tested before being placed into the stack. This was to prevent workers from having to approach a partially constructed stack on foot. 7. On the day of the incident, Mr Keeys, a FEL operator, had unloaded some bales of hay before Ms Fletcher arrived to conduct the moisture testing. Prior to the incident, he had begun to construct a stack that was six bales high without lateral support. He unloaded other bales and placed them away from the stack for Ms Fletcher to test. 8. Sometime later, Mr McKenna, another FEL operator, was sent to relieve Mr Keeys. When Mr McKenna arrived, Mr Keeys did not tell him that Ms Fletcher was in the vicinity and undertaking the moisture testing. Mr McKenna placed a stack of two bales very close to the partially constructed stack, to act as a place marker for his own reference. He did not contemplate, at that time, how those bales would be tested. 9. Ms Fletcher approached this stack of two bales to moisture test them, when the top two bales of the partially constructed stack fell onto her, trapping her underneath them. 10. The task of moisture testing involved the risk of death or serious injury to a worker from a falling bale or being struck by a FEL. 11. The offender did not have in place a written safe work procedure (SWP) for the task of moisture testing. 12. The precise content of Ms Fletcher's training on the general practice was not known and her training differed to other workers who undertook moisture testing. She had not been trained on the content of the Hay Stacking TD, the Take 5 Procedure, and she was not ordinarily included in Toolbox Talks (TBT) conducted by the Mill Department, including the TBT conducted on 12 August 2019 relating to the death of a farm worker caused by a falling bale. 13. The training provided on the general practice was deficient in that it did not: 1. include an instruction to Ms Fletcher not to test bales at the face of a stack or that it was dangerous to do so; 2. include training Ms Fletcher on the safety measures to be taken by the FEL operators such as those in the Hay Stacking TD; 3. prevent Mr McKenna putting the stack of two bales that had to be moisture tested in close proximity to a partially constructed stack that was unstable; and 4. prevent a worker from being placed in danger by being put in proximity to a partially constructed stack. 1. The offender failed to take the following reasonably practicable steps: 1. to conduct a risk assessment for the tasks of unloading hay, moisture testing and stacking hay. The offender's HIRA Procedure required a risk assessment to be conducted for tasks that involved "contact with falling objects" and "injury by moving equipment"; 2. to develop, implement and enforce safe work procedures (SWP) for the task of moisture testing and hay stacking. It was reasonably practicable for the offender to have introduced the Hay Testing Manual and the Hay Stacking Manual prior to the incident. The post-incident procedures were more effective at implementing isolation controls known to the offender and incorporated in the general practice. A written SWP was required to remedy the deficiencies of the buddy system training on the general practice and to make it clear that the general practice was being replaced; 3. to provide information, training and instruction to Ms Fletcher. Ms Fletcher's training was deficient. She was not provided with Task Training in accordance with the offender's safety system because of the failure to identify moisture testing as a separate task. The introduction of the post-incident SWPs would not have had an impact on safety without training the workers on them. 1. Within one month of the incident, the offender introduced the Hay Testing Training Manual and the Hay Stacking Manual, the relevant content of which is set out at [180]-[187] of the verdict judgment. The offender also developed the Hay Testing and Stacking Awareness training courses to be used in training workers on the content of the post-incident SWPs. Offender's Case on Sentence 1. The offender read the affidavit of Susan Jane Lloyd sworn on 23 October 2023. The following is a precis of the evidence relied upon by the offender. 2. Ms Lloyd is the Head of Risk for the offender. She commenced in this role approximately six months after the incident. She oversees a broad portfolio across various human capital areas. Her department is responsible for maintaining the offender's Health and Safety Framework, Injury Management and Health and Wellbeing Framework and its Modern Slavery Framework. 3. Ms Lloyd holds a Bachelor of Business (Human Resources) and a Graduate Diploma of Occupational Health and Safety from the Queensland University of Technology. She is an accredited ISO OHS Management Systems Auditor and has held senior safety roles in a diverse range of industry sectors for 20 years. Background 1. JBS S.A. is registered in Brazil and is the ultimate holding company for the offender. 2. In 2007, Australian Meat Holdings Pty Ltd (AMH) was part of JBS S.A.'s acquisition of Swift & Company. AMH had four feedlots, one of which was the Caroona Feedlot. 3. The Caroona Feedlot has been integrated into the JBS Australia safety management systems. 4. The offender employs approximately 6,830 workers across its various divisions and entities, including approximately 1,189 workers in New South Wales. 5. The offender's activities are diverse and include operation of feedlots for cattle and sheep, meat processing plants, warehousing and cold storage, meat retail and wholesale operations, transport, distribution and logistics services, and administrative and professional services which support these activities. 6. The offender has the following Divisions: 1. Northern Division, which operates five processing facilities and five feedlots in Queensland and New South Wales; 2. Southern Division, which operates four beef and lamb processing facilities and one feedlot in New South Wales, Victoria, Tasmania and South Australia; 3. D.R. Johnson Group, which is the offender's domestic wholesale division; 4. Knox International, which processes and exports Australian sheep and lamb skins; 5. JBS Carriers, which is the offender's transportation division; and 6. Swift & Company Trade Group, which is the international trading division that sources a range of meat proteins and offal products from JBS Australia operations and independent suppliers. 1. The offender is also the major shareholder in Andrews Meats Industries Pty Ltd, which supplies meat products to all areas of the hospitality industry, as well as health and aged care, education, aviation and sporting venues. 2. The offender is also the major shareholder in Scott Technology Limited, which designs and manufactures advanced automation systems that improve productivity, reliability, yield and safety for manufacturers and 3. The offender currently employs 43 people at the Caroona Feedlot. 4. The primary purpose of the offender's feedlots is the feeding and watering of livestock before they are transferred to meat processing facilities. Around 6,000 head of cattle pass through the Caroona Feedlot per month to a meat processing plant run by the offender. The offender is licensed to hold up to 28,000 head of cattle at the Caroona Feedlot at any given time. 5. On 22 July 2020, JBS Australia pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (NSW), following the death of a contractor at the Caroona Feedlot on 16 February 2017. JBS was issued a fine for that offence. Support of Ms Fletcher 1. The Caroona Feedlot team has been in regular contact with Ms Fletcher since the incident and has provided assistance to Ms Fletcher in a number of ways. It was in daily contact with Ms Fletcher's family and the offender's insurer immediately after the incident, to ensure that Ms Fletcher had access to the best and most appropriate medical care. The team at the Caroona Feedlot also provided cooked meals for Ms Fletcher and her family and helped care for Ms Fletcher's animals on her property, which is a working farm. When Ms Fletcher was transferred back to Quirindi Hospital on 3 March 2020, members of the Feedlot team visited her. The Feedlot team also funded the building of a ramp and other modifications at her residence to assist with her mobility. 2. When Ms Fletcher left hospital on 10 March 2020, a member of the Feedlot team called on her regularly. At Ms Fletcher's request, communication was reduced to a single contact point and the site has maintained formal contact in line with that request. 3. Ms Fletcher continues to be invited to the Feedlot's social activities. 4. The offender has also provided injury management and return to work support to Ms Fletcher. She has a specialist case manager who has developed an injury management plan in consultation with her treating medical team, her Rehabilitation and Return to Work Co-ordinator and the Feedlot team. Her current goal is to work on her farm, and the offender expressed that it wishes to support her to achieve that goal. Following the Incident 1. In compliance with Improvement Notices issued by Inspector Toole ending 1429 and 1424 following the incident, the offender reviewed the systems of work for the tasks of hay stacking and moisture testing and updated the documented procedures and training programs. 2. Workers undertaking the tasks were required to be trained on the procedures. Safety Systems 1. The offender's Work Health and Safety Policy is reviewed every two years. The Policy was most recently updated in September 2023. It sets out the JBS Group's safety accountabilities, policies, and procedures. 2. In 2021, the offender developed a 5-year Risk Strategy (the Risk Strategy) to support its goal to be a work environment free from workplace injury and illness. The Risk Strategy has the following five focus areas: 1. Proactive Safety Culture; 2. Regulatory Compliance; 3. Targeted Risk Reduction Strategies; 4. Cost-Efficient Insurance Solutions; and 5. Maintaining a Health Workplace. 1. For each of these focus areas, the Risk Strategy sets out goals to be reached by 2025 and strategies to reach this goal. For example, in relation to the "Proactive Safety Culture" focus area, the document sets out key strategies such as safety culture assessment, leadership safety walks and a Safety Champions program, and each strategy has an "action plan" for implementation. 2. The offender has consulted and communicated with its workers about the Risk Strategy. There are posters setting out the Risk Strategy and the Risk Goals to be reached by 2025. 3. From the start of 2022, the offender implemented a policy by which each JBS site must produce their own site-based risk strategy which aligns with the offender's Risk Strategy goals. We Care Program 1. One of the initiatives implemented by the offender to support the Risk Strategy is the "We Care Program", which launched at the beginning of 2022. This program aims to ensure that team members have a timely, safe and sustainable return to work if they are injured on a site run by the offender. 2. In 2022, Ms Lloyd travelled to every site across Australia and New Zealand with two team members and personally trained all human resources, safety and injury management personnel in a day-long program. 3. The aim of the program is to ensure that injury management and workers' compensation within the company is managed with empathy and fairness, communication and efficiency. 4. The offender invested $117,500 in the program. External Verification of the Offender's Work Health and Safety Management System (WHSMS) 1. The offender's WHSMS framework is aligned with the National Self Insurers OHS Audit Tool in every jurisdiction in which it operates. 2. As part of the offender's assurance program, a minimum of two sites run by the offender undergo a WHSMS external audit by an accredited WHSMS Auditor each year. Safety in the Feedlots Division 1. The offender has made significant investment in safety in the Feedlots Division since February 2020. 2. It banned use of quad bikes and replaced them with side-to-side vehicles. The replacement program cost approximately $87,395. 3. In 2023, the offender commenced a trial of proximity detectors at the Riverina Feedlot, which involves use of technology on large farming machinery and plant to detect nearby workers. This involves using technology on large farming machinery and plant to detect nearby workers. If a worker is detected nearby, the plant has an audio alarm which sounds, and all plant stops . If the trial is successful, the detectors will be rolled out across all of the offender's feedlots and farms. The equipment for the trial cost $25,000. 4. In 2022, the offender commenced a robotics trial to reduce manual handling injuries. The trial involves having workers wear sensors to ascertain a baseline of their exertion when performing tasks. Workers then wear an exoskeleton to get a different baseline of their exertion. Data is then collected through workers filling out forms to record how they are feeling at the beginning and end of the working day. This trial cost $77,650 and is ongoing. The University of South Australia has been engaged to progress this trial. 5. The offender is also working with its insurer on a separate trial to determine whether the exoskeleton can be used to assist people in returning to work after suffering a musculoskeletal injury. 6. In early 2023, a new horsemanship training program and risk assessment was introduced across six Feedlots and the Dinmore site in Queensland. The program costs $11,250 per year and involves theory and on-site assessment. General Safety System Investments 1. When Ms Lloyd commenced in her role as Head of Risk for the offender, she was given a mandate by the Board to increase investment in safety and to introduce new initiatives to reduce risks to employees and contractors. She was given the budget to increase safety resources by over 60% and has overseen investment by the offender in safety capability. 2. In early 2021, Ms Lloyd introduced the following minimum qualifications for all members of her team: 1. all safety advisors had to at least have a Graduate Diploma in Occupational Health and Safety; 2. all safety managers must have at least one tertiary qualification. 1. There has also been investment in ongoing safety education. In 2021, there was a two-day Health, Safety and Wellbeing Conference, which all safety and injury management personnel were required to attend. At the conference, Ms Lloyd provided education on key safety initiatives and invited external speakers to address on a range of topics including leadership, critical incident management, psychosocial risk, using virtual reality in safety training and using exoskeletons to reduce manual handling injuries. 2. In the last three years, the offender also invested in capital projects across its Northern Feedlots, part of which was directed to safety projects. A new dedicated feedlot safety committee was formed to support the capital projects. Ms Lloyd is a member of the committee, along with other operational leads and executives. Ms Lloyd's role in the committee is to embed risk management, including safety management, into decision making for capital projects. 3. Examples of capital expenditure with a safety benefit include $4.5million invested to remove the risks arising from workers directly interacting with livestock, by introducing remote controlled gates, building walkways, installing hydraulic operated crush, improving lighting and updating electrical switch boards. Another example is the upgrade of the mill at the Caroona Feedlot that was undertaken between 2019 and 2023. As part of the mill upgrade, technology was introduced to reduce health and safety risks for workers in the mill department. This technology cost $9,382,148 and includes the following: 1. remote sensing and control systems for feed commodity storage to alleviate the need for ascending/descending stairs and access elevated platforms; 2. isolating the electrical switch board and control centre from operators, eliminating arc flash; and 3. remote sensing and control of feed commodities processing. Community Involvement 1. At a national level, the offender's Southern Division donated $10,000 to OzHarvest in 2022. 2. The offender's total economic contribution to the Caroona community in 2022 was $26.25 million. The offender also sponsors the following community initiatives in Caroona and Quirindi: 1. the JBS Values Award at Quirindi High School, to the value of $1,000; 2. the Prawn & Chicken night at the Spring Ridge Primary School. The offender donates meat to the value of $2,000; 3. annual support to the Blackville local school fundraiser and donates two Terminus Hotel dinner vouchers and meat to the value of $400; and 4. in 2023, the offender donated a box of meat to the Walhallow community for a NAIDOC week barbeque. 1. The offender also hosts educative tours for agricultural students and other industry participants. Safety education forms part of each tour. In the last two years, the Caroona Feedlot has hosted: 1. 35 University of New England students on a feedlot tour; 2. 40 Tocal College students for a crop day visit; 3. 58 Tocal College students for a feedlot tour; and 4. 65 members of the Beef Shorthorn Society of Australia for a weekend tour. Remorse 1. The offender expressed regret for Ms Fletcher being injured at work and extended its sympathy to her for the injury she suffered as a result of the incident. Consideration 1. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999. Objective Seriousness 1. The risk was obvious and well known, both to the offender and in the industry. The offender had implemented the general practice to minimise the risk. The general practice was mostly successful in removing workers undertaking moisture testing from the vicinity of partially constructed stacks. The SWPs introduced after the incident had the effect of almost eliminating the risk. 2. The likelihood of the risk coming home was low. The offender had employed the general practice for a number of years without incident. Ms Fletcher's lack of training was only exposed because of a communication breakdown between Mr Keeys and Mr McKenna and the placement of two untested bales by Mr McKenna close to the partially constructed stack. 3. The consequences of the risk included a risk of death. 4. The steps that the offender could have taken to further minimise the risk were known to it, simple and inexpensive. 5. The offender had a substantial safety system in place, but it failed to identify moisture testing as a discrete task, to which the safety system ought to have applied. The offender had a blind spot in its system which had developed over a lengthy period of time. The offender failed to be proactive in improving its systems by implementing measures that would go closer to eliminating the risk. 6. Ms Fletcher suffered from a number of spinal fractures. She experiences ongoing pain and disability, and her treatment options are limited. She requires care and is now reliant on others for assistance. She has not been able to return to work and misses the interaction with her co-workers and fulfilment that her job gave her. Her mental health has suffered. 7. I have had regard to the maximum penalty for the offence. Deterrence 1. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180]. 2. There is some need for specific deterrence in this case because the offender still operates in a dangerous industry where its workers are potentially exposed to many and varied risks. The offender had a comprehensive safety system in place which, if applied, would have required the generation of new SWPs. The offender quickly took the necessary steps to address the risk that came home in this case. It has also taken steps to improve its systems and spent considerable sums on those initiatives. Aggravating Factors 1. At the sentence hearing, it was common ground that the offender only had one relevant prior conviction for a s 32 offence dealt with by Strathdee DCJ in SafeWork NSW v JBS Australia Pty Ltd [2020] NSWDC 678. The incident, the subject of the conviction, occurred on 16 February 2020. The plea of guilty was entered by the offender on 22 July 2020. The relevant conviction was entered by her Honour on 6 November 2020, following a sentence hearing on 13 October 2020. 2. The prior conviction arose from an incident at the Caroona feedlot on 16 February 2017, where a grass fire exposed four workers to the risk of death or serious injury. Mr Ranclaud suffered burns and died two days later. The fire started from the use of a tractor to mow the grass at the feedlot. There had been two similar fires in the three months before the incident. The offender had in place an Emergency Plan that did not provide instructions for workers responding to a grass fire, or any training and instruction on emergency procedures for workers dealing with a grass fire and/or an evacuation procedure for a grass fire. The offender had not conducted a risk assessment for a grass fire, had not provided firefighting PPE to workers, did not provide training relating to grass fires, had not conducted Emergency Plan meetings and had not provided instructions for workers regarding harvesting operations in high temperatures. The offender was fined the sum of $300,000. 3. The prosecutor submitted that the aggravating factor provided for by s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 was satisfied because there were similarities in the offender's failings in each incident, in that the offender had in place an inadequate system to respond to a known risk and that there were gaps in the training provided to the workers to deal with a known risk. 4. The offender submitted that the prior conviction did not indicate a continuing disobedience of the law or demonstrate increased moral culpability or demonstrate a dangerous propensity calling for an increase in specific deterrence: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 (Mason CJ, Brennan, Dawson and Toohey JJ). 5. I am not satisfied beyond reasonable doubt that the aggravating factor is established for the following reasons. The offender had in place a significant safety system that demonstrated a genuine intention to comply with its obligations imposed the Act. With the diverse range of activities undertaken by the offender, it is unsurprising that the comprehensive safety system had gaps in it. The risk posed by the grass fires was known and required urgent intervention. The risk posed to Ms Fletcher was minimised to a significant extent by the implementation of the general practice. The failure to identify moisture testing as a separate task was a blind spot in the offender's safety system. It took a combination of circumstances to expose the inadequate training of Ms Fletcher. I have also taken into account that the plea of guilty in the previous matter had not been entered prior to the incident the subject of these proceedings and I am not satisfied that the moral culpability of the offender is increased, that it acted with disregard for its obligations or that there is a need for an increase in the weight to be given to specific deterrence. 6. The injury, harm and loss caused by the s 32 offences was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. In this case, Ms Fletcher's injuries are sufficient to establish the aggravating factor. Mitigating Factors 1. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated, by the steps it has taken after the incident, that it has good prospects for rehabilitation. The offender has invested heavily in upgrading its systems in the period since the incident. 2. The offender has expressed remorse for the injuries sustained by Ms Fletcher but has stopped short of accepting responsibility for the offence. I infer that it has done so to preserve its position on appeal. The offender has also asked the Court to take into account the support it has provided to Ms Fletcher after the incident. Ms Fletcher takes issue with the extent of the support claimed by the offender. Some of the support has been provided as a consequence of the offender's legal obligations to support an injured worker. Some of the support has been provided by workers at the feedlot in their private capacity. Overall, the offender's expression of remorse and some of its acts of support should be taken into account in mitigation, but I am not satisfied that the mitigating factor provided for by s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 has been established. 3. The offender is a good corporate citizen, contributing to charitable causes and local community organisations. Order pursuant to s 122(2) Fines Act 1996 1. Section 122 Fines Act 1996 provides: (1) This section applies where-- (a) the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and (b) the prosecutor is not a police officer. (2) The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor. (3) For the purposes of this section, "fine" does not include an amount of the kind referred to in section 4 (1) (e) or (f). 1. The prosecutor seeks an order that 50% of the fine be paid to it, pursuant to s 122(2) Fines Act 1996. 2. The offender submitted that an order pursuant to s 122(2) Fines Act 1996 involves the exercise of a discretion that must be exercised judicially and on the basis of some evidence but did not otherwise oppose the order being made. 3. I am satisfied that the order sought should be made in favour of the prosecutor for the reasons that follow. 4. First, the preconditions in s 122(1) Fines Act 1996 are satisfied. The Act does not make any provision for the application of fines recovered for WHS offences, and SafeWork NSW is not a police officer. 5. Second, s 122 Fines Act 1966 and its predecessor s 5 Fines and Penalties Act 1901 have been consistently applied by a variety of courts over a long period to order the payment of a moiety of the fine to the informer, unless there is disentitling conduct: Workcover Authority of New South Wales v Warrah Ridge Pastoral Co Pty Ltd unreported 23 September 1994 (Bauer J), Secretary Department of Planning and Environment v AGL Energy Ltd and AGL Upstream Infrastructure Investments Pty Ltd [2017] NSWLEC 2, NSW Food Authority v Fernbrew Pty Ltd trading as D'Aquino Bond Wholesalers [2007] NSWSC 531 and Chant v The Nuance Group (Australia) Pty Ltd [2012] NSWSC 399. By definition, a moiety is one half of the fine imposed: Stroud's Judicial Dictionary 9th edition. If that practice is to change, it is not a matter for this Court. 6. In the WHS context, this has included payment of a moiety to private informers such as the secretary of a trade union, where evidence is given that the money will be remitted to the union and used for WHS purposes: Geoff Derrick v ANZ Group Ltd (No 2) [2005] NSWIRComm 145, Coombes v Patrick Stevedores Holdings Pty Ltd [2005] NSWIRComm 56 and O'Sullivan v New South Wales (2003) 128 IR 158. In Derrick at [23], Boland J decided that the court is not required to approve of the way the money will be spent, so long as it is to be applied for a lawful purpose. 7. Third, the parliament has provided for the payment of a portion of the penalty to the informer, who in this case is part of the same body politic responsible for maintaining the law enforcement agency in question, namely the State of New South Wales. How the money will be accounted for within the government is of no concern to the offender or the Court: Nash at [74] (Basten JA, Hoeben CJ at CL and Walton J agreeing). I am satisfied that Basten JA's comments are considered dicta, by which I am bound. 8. Fourth, If I am wrong on the last point, I am satisfied that the prosecutor, as the regulator defined in clause 1 of Schedule 2 of the Act, will lawfully apply the money recovered to: 1. the costs and expenses of the investigation of the matter before the Court, for which there is no statutory power to recover: Secretary Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 at [62] (Preston CJ); and 2. exercising its functions provided for by s 152 of the Act. Costs 1. The prosecutor sought an order that the offender pay the prosecutor's costs as agreed or assessed, save for the costs associated with the prosecutor's unsuccessful Notice of Motion before Russell SC DCJ (SafeWork NSW v JBS Australia Pty Ltd (No 2) [2023] NSWDC 116). 2. The offender submitted that the offender should only pay 70% of the prosecutor's costs, with the quantum of costs reduced to take into account the prosecutor's failure to establish two particulars of breach of duty in [12(f)] and [12(g)] of the Summons, the rejection of part of Ms Radcliffe's evidence and the results of the interlocutory applications. 3. The particulars of breach of duty that the prosecutor failed to establish did not add any significant time to the hearing of the matter and were dealt with shortly at [296]-[303] of the verdict judgment. The rejection of Ms Radcliffe's evidence was a factual determination that involved a choice between competing evidence given by a number of different witnesses. The prosecutor was obliged to lead all of the evidence that it did, albeit that it sought to rely heavily on Ms Radcliffe's evidence, which I ultimately rejected but found to be unnecessary to find the offender guilty. I am not satisfied that there was not much extra time taken to deal with this factual issue, or that if there was, that it was avoidable. As to the interlocutory applications, the offender was wholly successful on one and the parties shared the success on the other. The appropriate order is one that reflects that the prosecutor's overall success at trial and accounts for the differing results of the interlocutory applications. Penalty 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2023