Safe Work NSW v Alejandro Bocaz [2017] NSWDC 271

District Court New South Wales

Medium Neutral Citation: Safe Work NSW v Alejandro Bocaz [2017] NSWDC 271 Hearing dates: 11 August, 27 September 2017 Date of orders: 09 October 2017 Decision date: 09 October 2017 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1 The offender is convicted. 2 I have considered the Victim Impact Statement of Mr Caboteja. 3 I impose no further penalty pursuant to section 10A Crimes (Sentencing Procedure) Act 1999. 4 I order that the offender pay the prosecutors costs as agreed in the sum of $30,000 Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of individual – 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.28, 32 Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(f), 21A(3)(g), 21A(3)(i), 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) Alejandro Bocaz (Offender) Representation: Counsel: Mr M Moir (Prosecutor) Mr C Bolger (Offender)