SafeWork NSW v B & E Foods Pty Ltd & Ors [2023] NSWDC 569

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v B & E Foods Pty Ltd & Ors [2023] NSWDC 569 Hearing dates: 29 November 2023 Date of orders: 15 December 2023 Decision date: 15 December 2023 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) B & E Foods Pty Ltd is convicted. (2) The appropriate fine for the offence is $500,000 and that will be reduced by 25% to reflect the plea of guilty. (3) Accordingly, I order B & E Foods Pty Ltd to pay a fine of $375,000. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (3) is to be paid to the prosecutor. (5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), B & E Foods Pty Ltd is to pay the prosecutor's costs, as agreed or assessed. (6) Xu Chun Dong is convicted. (7) The appropriate fine for the offence is $50,000 and that will be reduced by 25% to reflect the plea of guilty. (8) Accordingly, I order Xu Chun Dong to pay a fine of $37,500. (9) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (8) is to be paid to the prosecutor. (10) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), Xu Chun Dong is to pay the prosecutor's costs, as agreed or assessed. (11) E & J International Pty Ltd is convicted. (12) The appropriate fine for the offence is $350,000 and that will be reduced by 25% to reflect the plea of guilty. (13) Accordingly, I order E & J International Pty Ltd to pay a fine of $262,500. (14) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (13) is to be paid to the prosecutor. (15) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), E & J International Pty Ltd is to pay the prosecutor's costs, as agreed or assessed. (16) NL Workforce Solutions Pty Ltd is convicted. (17) The appropriate fine for the offence is $350,000 and that will be reduced by 25% to reflect the plea of guilty. (18) Accordingly, I order NL Workforce Solutions Pty Ltd to pay a fine of $262,500. (19) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed above at (18) is to be paid to the prosecutor. (20) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), NL Workforce Solutions Pty Ltd is to pay the prosecutor's costs, as agreed or assessed. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – maximum penalties COSTS – prosecutor's costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Latoudis v Casey (1990) 170 CLR 534 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 Muldrock v The Queen (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Poletti Corporation [2019] NSWDC 491 SafeWork v Tunny Pty Ltd; SafeWork NSW v Waring [2022] NSWDC 306 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 Category: Sentence Parties: SafeWork NSW (Prosecutor) B & E Foods Pty Ltd, NL Workforce Solutions Pty Ltd, E & J International Pty Ltd and Xu Chun Dong (Defendants) Representation: Counsel: Mr M Moir (for the Prosecutor) Mr S McIntosh (for the Defendants)