WorkCover Authority of NSW v Sarjame StoragePty Ltd [2015] NSWDC 151

District Court New South Wales

Medium Neutral Citation: WorkCover Authority of NSW v Sarjame StoragePty Ltd [2015] NSWDC 151 Hearing dates: 25 March 2015 Date of orders: 25 March 2015 Decision date: 25 March 2015 Jurisdiction: Criminal Before: KEARNS DCJ Decision: The defendant has already been convicted. I fine the defendant the sum of $250,000, with a moiety of the fine to the WorkCover Authority of New South Wales. The defendant is to pay the prosecutor's costs in an agreed sum of $22,500. Catchwords: Work Health and Safety Act ss 19(1) and 32 – plea of guilty – worker fatally injured by frontend loader being used to load grain hoppers – duty of employer to ensure health and safety of employees – absence of risk assessment and traffic management plan – foreseeability of risk – preventability of risk – specific and general deterrence – implementation of safe work practices following incident – no prior convictions – early guilty plea – remorse – good corporate character of defendant – victim impact statement – defendants capacity to pay Legislation Cited: Work Health and Safety Act 2011 Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: WorkCover Authority of NSW (Prosecutor) Sarjame Storage Pty Ltd (Defendant) Representation: Counsel: Ms E James appeared on behalf of the Prosecutor Mr J Darams appeared on behalf of the Defendant File Number(s): 2014/250026

Judgment 1. In this matter the defendant has pleaded guilty to a charge that on 19 February 2013 at the Boolcarrol Grain Storage Depot at Wee Waa it being a person conducting a business or undertaking having a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 to ensure so far as reasonably practicable health and safety of workers engaged by it while the workers were at work in the business of undertaking failed to comply with that duty and the failure to comply with that duty exposed Maurice Anthony Smith to a risk of serious injury or death contrary to s 32 of the Act. 2. I have heard submissions on sentence. At this point I will defer for a short moment the question of sentence but in the meantime I convict the defendant of the offences charged. I will proceed now to receive victim impact statements and then proceed with the sentencing process. 3. It seems that I can take account of the victims' impact statements only to the extent that the harmful impact on the persons concerned is an aspect of harm done to the community. 4. The defendant is charged that on 19 February 2013 at Boolcarrol Grain Storage Depot in Wee Waa, it being a person conducting business or undertaking who had a health and safety duty under s19(1) of the Work Health and Safety Act 2011 to ensure so far as is reasonably practicable the health and safety of workers engaged by it while the workers were at work in the business or undertaking failed to comply with that duty and the failure to comply with that duty exposed Maurice Anthony Smith to a risk of death or serious injury contrary to s 32 of that Act. 5. The defendant has pleaded guilty to the charge. A little earlier I convicted the defendant.