SafeWork NSW v Freedom Foods P/L [2016] NSWDC 153

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Freedom Foods P/L [2016] NSWDC 153 Hearing dates: 25 July 2016 Date of orders: 01 August 2016 Decision date: 01 August 2016 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1. The offender is convicted. 2. The appropriate fine is one of $100,000 that will be discounted by 25% to take into account the early plea of guilty. 3. I impose a fine of $75,000. 4. I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5. I order that the offender pay the prosecutor's costs as agreed in the sum of $25,000. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – crush injury – injury to employee SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty – steps taken by offender to assist injured worker SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition COSTS – prosecution costs Legislation Cited: Work Health and Safety Act 2011 s.19 Work health and Safety Regulation 2011 cl. 208(2) Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(3)(e), 21A(3)(f), 21A(3)(i), 21A(3)(k), 21A(3)(m) Fines Act 1996 s. 122(2) 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 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Category: Sentence Parties: SafeWork NSW (Prosecutor) Freedom Foods (Offender) Representation: Counsel: Mr Hammond (Prosecutor) Mr Meehan (Offender)