Attorney General of New South Wales v Tho Services Limited (in liquidation) (ACN 000 263 678) [2016] NSWCCA 221

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Attorney General of New South Wales v Tho Services Limited (in liquidation) (ACN 000 263 678) [2016] NSWCCA 221 Hearing dates: 28 September 2016 Date of orders: 17 October 2016 Decision date: 17 October 2016 Before: Hoeben CJ at CL at [1] Harrison J at [2] Campbell J at [108] Decision: (1) Allow the appeal. (2) Set aside the orders made by Curtis DCJ on 15 February 2016. (3) In lieu thereof, (a) the respondent is convicted; (b) the respondent is fined $240,000. Catchwords: WORK HEALTH AND SAFETY ACT – work experience student suffered flash burns to his eyes when welding without lowering his protective visor – where judge at first instance dismissed charges pursuant to s 10 Crimes (Sentencing Procedure) Act – whether extraordinary or exceptional circumstances shown – whether victim's prior training/experience diminishes respondent's statutory obligations to instruct and advise of risk – extent to which compensation in related civil matter bears upon the formulation of criminal sanctions – whether sentence manifestly inadequate – application of principles of specific and general deterrence – where respondent company in liquidation – importance of general deterrence in matters of industrial safety – application of residual discretion – contrition and remorse – public need for retribution Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 CMB v The Queen (2015) 89 ALJR 407; [2015] HCA 9 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Inspector Christopher Downie v Menzies Property Services [2004] NSWIR Comm 259 R v McNaughton (2006) NSWLR 566; [2006] NSWCCA 242 Category: Principal judgment Parties: Attorney General of New South Wales (Appellant) Tho Services Limited (in liquidation) (ACN 000 263 678) (Respondent) Representation: Counsel: J Agius SC with M Scott (Appellant) J Cook (Respondent)