Inspector Shepherd v Vinsente Pty Ltd [2013] NSWIRComm 8

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Shepherd v Vinsente Pty Ltd [2013] NSWIRComm 8 Hearing dates: 11 December 2012 Decision date: 12 February 2013 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: Matter No IRC 1275 of 2010 - Desiya Pty Ltd (1) The defendant is convicted of the offence. (2) The defendant is fined an amount of $60,000 with a moiety to the prosecutor. Matter No IRC 1277 of 2010 - Vinsente Pty Ltd (1) The defendant is convicted of the offence. (2) The defendant is fined an amount of $90,000 with a moiety to the prosecutor. The Court further orders that the defendants shall jointly and severally pay the prosecutor's costs in an amount as agreed or assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Prosecutions of two corporate defendants under s 8(1) of the Occupational Health and Safety Act 2000 that constituted a partnership - Industry of cereal grain wholesaling in rural New South Wales - Employee suffered electrical burns when self propelled auger struck overhead powerlines - Guilty pleas - Sentencing - Consideration of objective and subjective factors - Consideration of approach to sentencing corporations that constitute a partnership where one partner had a prior conviction - Parity - Penalties imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Partnership Act 1892 Cases Cited: Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 Capral Aluminium Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 Department of Mineral Resources of New South Wales (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Limited (1999) 92 IR 8 Inspector Barber v Leighton Contractors Pty Limited [2012] NSWIRComm 145 Inspector Cooper v Visy Pulp and Paper Pty Ltd [2011] NSWIRComm 136 Inspector Hutchinson v Vinsente Pty Ltd (trading as Agrigrain) CIMC, 5 December 2007 JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177; (2008) 184 IR 1 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; (2005) 79 ALJR 1048 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 Regina v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd [2006] NSWIRComm 279; (2006) 156 IR 341 Category: Principal judgment Parties: Workcover Authority of New South Wales (Inspector Ian Shepherd) (Prosecutor) Desiya Pty Ltd (Defendant in matter 1275 of 2010) Vinsente Pty Ltd t/as Agrigrain (Defendant in matter 1277 of 2010) Representation: Mr A C Casselden of counsel with Mr G Antipas of counsel (Prosecutor) Mr D Nagle of counsel (Defendant in matter 1275 of 2010) Mr C Magee of counsel (Defendant in matter 1277 of 2010) Workcover Authority of New South Wales (Prosecutor) Hancock Alldis & Roskov Lawyers (Defendant in matter 1275 of 2010) North & Badgery Solicitors (Defendant in matter 1277 of 2010) File Number(s): IRC 1275 and 1277 of 2010