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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 March 2015