Safe Work NSW v EC Throsby Pty Ltd; Safe Work v Mondex Group Pty Ltd [2018] NSWDC 102

District Court New South Wales

Medium Neutral Citation: Safe Work NSW v EC Throsby Pty Ltd; Safe Work v Mondex Group Pty Ltd [2018] NSWDC 102 Hearing dates: 10 April 2018 Date of orders: 23 April 2018 Decision date: 23 April 2018 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1 The offenders are convicted. 2 EC Throsby Pty Ltd is fined $90,000. 3 Mondex Group Pty Ltd is fined $15,000. 4 Pursuant to s.122(2) of the Fines Act 1996, 50% of the fine in each case is to be paid to the Prosecutor. 5 Order that EC Throsby Pty Ltd is to pay the Prosecutor's costs as agreed in the sum of $35,000. 6 Order that Mondex Group Pty Ltd is to pay the Prosecutor's costs as agreed in the sum of $33,800. Catchwords: CRIMINAL LAW – work health and safety offence –offence of exposing employee to risk of death or serious injury SENTENCE – plea of guilty – statement of agreed facts - appropriate penalty – applicable discount for plea of guilty – no prior convictions SENTENCE PRINCIPLES – parity – totality – mitigating factors – aggravating factors - circumstances – objective seriousness – specific deterrence – general deterrence – community values – remorse – contrition – timing of plea of guilty – prospects of rehabilitation – utilitarian value of plea of guilty – fine – capacity to pay – consideration of victim impact statement WORK HEALTH AND SAFETY – appropriate training of employee – experience of employee – work to be undertaken - disabling of proximity switch - WORDS AND PHRASES – injury to victim – injured worker – arm injury – laceration – compound fracture – severed tendon Legislation Cited: Crimes (Sentencing Procedure) Act 1999 ss. 3, 3A, 21A(2)(g), 21A(3)(e), 21A(3)(f), 21A(3)(h) 21A(3)(i), 21A(3)(k), 21A(3)(m) Fines Act 1996 s.122(2) Work Health and Safety Act 2011 ss.19(1), 32 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Borkowski (2009) 195 A Crim R 1 R v Youkhana [2004] NSWCCA 412 Category: Sentence Parties: Safe Work NSW (Prosecutor) EC Throsby Pty Ltd (Offender) Mondex Group Pty Ltd (Offender) Representation: Counsel: Mr M Moir (Prosecutor) Mr D Stanton (Throsby) Ms J Ghabrial (Mondex)