Safe Work New South Wales v Austral Hydroponics P/L; Safe Work New South Wales v Eang Lam [2015] NSWDC 295

District Court New South Wales

Medium Neutral Citation: Safe Work New South Wales v Austral Hydroponics P/L; Safe Work New South Wales v Eang Lam [2015] NSWDC 295 Hearing dates: 9 October 2015, 4 December 2015 Date of orders: 11 December 2015 Decision date: 11 December 2015 Jurisdiction: Civil Before: Judge AC Scotting Decision: Penalty – Austral Hydroponics 1 The offender is convicted. 2 Taking all of those matters into account the appropriate penalty is $200,000. In recognition of the early plea of guilty that sum is to be discounted by 25%. 3 I impose a fine of $150,000. 4 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. Penalty – Eang Lam 1 The offender is convicted. 2 Taking all of those matters into account the appropriate penalty is $20,000. In recognition of the early plea of guilty that sum is to be discounted by 25%. 3 I impose a fine of $15,000. 4 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty COSTS – prosecution costs OTHER – background of offender – farming incident – relationship between offender and injured worker Legislation Cited: Work Health and Safety Act 2011, s32 Crimes (Sentencing Procedure) Act 1999, s21A Fines Act 1996, ss. 6, 122(2) Superannuation Industry (Supervision) Regulations 1994 Cases Cited: Veen v R (No 2) (1988) 164 CLR 465 R v McNaughton (2006) 66 NSWLR 566 Baumer v R (1988) 166 CLR 51 BW v R [2011] NSWCCA 176 R v Wilkinson (No 5) [2009] NSWSC 432 Capral Aluminium Limted v Workcover Authority of New South Wales (2000) 49 NSWLR 610 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Environmental Protection Agency v Barnes [2006] NSWCCA 246 Category: Sentence Parties: Safe Work NSW (Prosecutor) Austral Hydrponics (Offender) Eang Lam (Offender) Representation: Counsel: Mr J Clarke (Prosecutor) Mr R Sweet (Offenders)