Inspector Howett v K T Regal Pty Ltd [2012] NSWIRComm 144

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Howett v K T Regal Pty Ltd [2012] NSWIRComm 144 Hearing dates: 26 November 2012 Decision date: 12 December 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: Matter No 1826 of 2011 (Corporate Defendant) (1) The defendant, K T Regal Pty Ltd, is convicted of an offence under s 8(1) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $200,000. (3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court. (4) The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed. Matter No IRC 1827 of 2011 (Personal Defendant) (1) The defendant, Kevin Tolson, is convicted of an offence under s 8(1) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of that Act. (2) The defendant is fined an amount of $15,000. (3) Under s 122(2) of the Fines Act 1996 the defendant shall pay to the prosecutor one-half of any fine imposed by the Court. (4) The defendant shall pay the costs of the prosecutor as agreed or, in the absence of agreement, as assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Prosecutions for breach of s 8(1) of the Occupational Health and Safety Act 2000 - Mushroom growing industry - Pleas of guilty by corporate defendant and director of corporate defendant - Employee's arm became entangled in Winch whilst operating with no safety guard - Limb amputated - Victim Impact Statement - Guilty findings - Convictions - Penalties imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales [2004] NSWIRComm 270; (2004) 135 IR 317 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29 Department of Mineral Resources (NSW) (Chief Inspector McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 R v Henry (1999) 46 NSWLR 346 R v Newman, R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R361 R v Ponfield (1999) 48 NSWLR 327 R v Previtera (1997) 94 A Crim R 76 R v Kessey [2001] NSWCCA 469 R v Sanderson [2000] NSWCCA 512 R v Thomas [2007] NSWCCA 269 R v Totten [2003] NSWCCA 207 R v Wilson [2005] NSWCCA 219 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 Category: Principal judgment Parties: Inspector Penelope Howett (Prosecutor) K T Regal Pty Ltd (Corporate Defendant) Kevin Tolson (Personal Defendant) Representation: Mr C Magee of counsel (Prosecutor) Ms W Thompson of counsel (Defendants) WorkCover Authority of New South Wales (Prosecutor) Gilbert & Tobin (Defendants) File Number(s): IRC 1826 and 1827 of 2011