Inspector Farmer v OneSteel Wire Pty Ltd [2011] NSWIRComm 133

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Farmer v OneSteel Wire Pty Ltd [2011] NSWIRComm 133 Hearing dates: 30 August 2011 Decision date: 31 August 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. In Matter No IRC 1190 of 2010, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $80,000 with a moiety to WorkCover Authority of New South Wales. 3. There has been no agreement between the parties as to the quantification of costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1) of the Occupational Health and Safety Act 2000 by defendant corporation - early plea of guilty - failure to properly guard dangerous machine - risk to employees working on site - employees accessed working parts of machine through unguarded area - employee lost hand in machine - comprehensive pre-existing safe system of work - significant training of staff - small foreseeable element - general and specific deterrence - remorse shown and contrition expressed - proper steps taken to remedy offence immediately - co-operation with prosecutor - evidence of ongoing commitment to safe working - good corporate citizenship - prior convictions of defendant - maximum penalty - penalty Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A Occupational Health and Safety Act 2000 (NSW) s 8(1) Cases Cited: Cahill v State of NSW (Department of Community Services (No 4) [2008] NSWIRComm 201 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Inspector Rosmund Schuman v BCP Employees Pty Ltd [2011] NSWIRComm 64 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 R v Gallagher (1991) 23 NSWLR 220 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 Tyler v Sydney Electricity (1993) 47 IR 1 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Limited (No 1) (1999) 101 IR 239 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 Category: Principal judgment Parties: Inspector David Farmer (Prosecutor) OneSteel Wire Pty Limited (Defendant) Representation: T Howard of counsel (Prosecutor) P E McDonald SC (Defendant) WorkCover Authority of NSW (Prosecutor) Sparke Helmore Lawyers (Defendant) File Number(s): IRC 1190 of 2010