Safe Work NSW v Extrusion Machine Co (Australia) Pty Ltd [2017] NSWDC 192

District Court New South Wales

Medium Neutral Citation: Safe Work NSW v Extrusion Machine Co (Australia) Pty Ltd [2017] NSWDC 192 Hearing dates: 21 July 2017 Date of orders: 31 July 2017 Decision date: 31 July 2017 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1 The offender is convicted. 2 I impose a fine of $45,000. 3 I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 4 I order that the offender pay the prosecutors costs as agreed in the sum of $20,000. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – foreseeability of risk SENTENCE – plea of guilty - mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty – experience of employee in specific task SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – extra curial punishment – rehabilitation COSTS – prosecution costs OTHER – hydrochloric acid – gas – supervision of employee – semi autonomous role – control of employee when off-site - cleaning agent – plastics – injury to worker – facial injuries – purging of materials – safe work management system Legislation Cited: Work Health and Safety Act 2011 ss.19, 32 Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(f), 21A(3)(i), 21A(3)(g), 21A(3)(k), 21A(3)(m) Fines Act 1996 ss. 6, 122(2) Cases Cited: 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 Jahandideh v R [2014] NSWCCA 178 Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Youkhana [2004] NSWCCA 412 R v Tuala [2015] NSWCCA 8 Category: Sentence Parties: Safe Work NSW (Prosecutor) Extrusion Machine (Offender) Representation: Counsel: Mr M Moir (Prosecutor) Ms J Bulut (Offender)