SafeWork NSW v Visy Board Pty Limited [2024] NSWDC 95

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Visy Board Pty Limited [2024] NSWDC 95 Hearing dates: 27 March 2024 Date of orders: 5 April 2024 Decision date: 05 April 2024 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Visy Board Pty Limited was convicted on 27 March 2024. (2) The appropriate fine is $500,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Visy Board Pty Limited to pay a fine of $375,000. (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 Visy Board Pty Limited to pay the prosecutor's costs agreed in the amount of $55,000. 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 – manufacturer of corrugated cardboard – powered mobile equipment - corrugator machine – trolley car – worker crushed between corrugator and trolley car – serious injury – amputation – failure to control risks – inadequate risk assessment – inadequate safe work procedure – no physical barrier to separate worker from machinery – no markings Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E Factories, Shops and Industries Act 1962 (NSW) Fines Act 1996 (NSW), ss 6, 122 Occupational Health and Safety Act 1983 (NSW) Occupational Health and Safety Act 2000 (NSW) 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 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: SafeWork NSW Code of Practice How to Manage Work Health and Safety Risks, August 2019 SafeWork NSW Code of Practice Managing the Risks of Plant in the Workplace, August 2019 SafeWork NSW Fact Sheet Machine Safety – Guide for Operators SafeWork NSW Guide to Machine Safety, Catalogue No SW09449 Category: Sentence Parties: SafeWork NSW (Prosecutor) Visy Board Pty Ltd (Defendant) Representation: Counsel: C Magee (Prosecutor) P Barry (Defendant)