Inspector Shepherd v Desiya Pty Ltd [2013] NSWIRComm 9

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Shepherd v Desiya Pty Ltd [2013] NSWIRComm 9 Hearing dates: 12 December 2012 Decision date: 12 February 2013 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: Matter No IRC 65 of 2011 - Desiya Pty Ltd (1) The defendant is convicted of the offence. (2) The defendant is fined an amount of $130,000 with a moiety to the prosecutor. Matter No IRC 69 of 2011 - Vinsente Pty Ltd (1) The defendant is convicted of the offence. (2) The defendant is fined an amount of $200,000 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 under s 8(1) of the Occupational Health and Safety Act 2000 of two corporate defendants that constituted a partnership - rural industry of cereal grain wholesaling - Employee fatally injured when struck by truck in defendants' premises - Guilty pleas - Sentencing - Objective and subjective factors considered - Whether prior conviction of one defendant called for heavier penalty - Victim impact statements - Penalties imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cases Cited: Capral Aluminium Ltd v Workcover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992 Inspector Hutchinson v Vinsente Pty Ltd (trading as Agrigrain) CIMC, 5 December 2007 Inspector Maddaford v Coleman [2004] NSWIRComm 317; (2004) 138 IR 21 Inspector Shepherd v Vinsente Pty Ltd [2013] NSWIRComm 8 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; (2005) 79 ALJR 1048 R v Mansour [1999] NSWCCA 180 R v Previtera (1997) 94 A Crim R 76 WorkCover Authority of NSW v Denson and others [2007] NSWIRComm 69; (2007) 162 IR 199 Category: Principal judgment Parties: Workcover Authority of New South Wales (Inspector Ian Shepherd) (Prosecutor) Desiya Pty Ltd (Defendant in matter 65 of 2011) Vinsente Pty Ltd t/as Agrigrain (Defendant in matter 69 of 2011) Representation: Mr A C Casselden of counsel with Mr T Hickey of counsel (Prosecutor) Mr D Nagle of counsel with Mr M Gaven of counsel (Defendant in matter 65 of 2011) Mr C Magee of counsel (Defendant in matter 69 of 2011) Workcover Authority of New South Wales (Prosecutor) Hancock Alldis & Roskov Lawyers (Defendant in matter 65 of 2011) North & Badgery Solicitors (Defendant in matter 69 of 2011) File Number(s): IRC 65 and 69 of 2011