WorkCover Authority of NSW v Gemfen (Australia) Pty Ltd [2014] NSWDC 286

District Court New South Wales

Medium Neutral Citation: WorkCover Authority of NSW v Gemfen (Australia) Pty Ltd [2014] NSWDC 286 Hearing dates: 16 September 2014 Decision date: 16 September 2014 Jurisdiction: Criminal Before: Curtis J Decision: The defendant is convicted and fined Legislation Cited: Work Health and Safety Act 2011 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor) Gemfen (Australia) Pty Ltd (Defendant) Representation: Counsel: B G Docking (Prosecutor) M P Cahill (Defendant)

Solicitors: WorkCover Legal Group (Prosecutor) Holman Webb (Defendant) File Number(s): 2013/340253

Judgment 1. In the matter of Gemfen (Australia) Pty Limited this defendant has summarily pleaded guilty to the charge that on 12 May 2012, contrary to its duty under s 19(1) of the Work Health and Safety Act 2011, it exposed Mr Kenny to a risk of injury. 2. The evidence discloses that, similarly to the precautions of Karimbla, Gemfen took its responsibilities under the Act seriously. 3. I am satisfied that this was an aberration within what would otherwise have been a good work health and safety system devised and routinely maintained by Gemfen. The failure was a failure of its supervisor on site, Mr Pepene. 4. Mr Pepene was a highly-trained and qualified and experienced supervisor and the defendant had no cause to believe that he would not discharge his functions without due care. I do not believe that this is a matter which calls for specific deterrence to any significant degree, if at all. Nevertheless, the need to respond to the legislature's desire to fix the maximum penalty at $1,500,000 and the serious nature of the injury to Mr Kenny reflect a need to satisfy the requirement of general deterrence. 5. In all the circumstances, the appropriate penalty is $100,000. In recognition of co‑operation and the early plea of guilty, the defendant is to receive a discount of 25%. The defendant is convicted and fined $75,000. Costs are agreed in the sum of $10,500 and I order that this sum be paid by the defendant to the prosecution. The prosecutor is to have a moiety of the fine.