SafeWork NSW v Turfco Australia Pty Ltd [2018] NSWDC 191

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Turfco Australia Pty Ltd [2018] NSWDC 191 Hearing dates: 9 July 2018 Date of orders: 16 July 2018 Decision date: 16 July 2018 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 The offender is convicted. 2 I impose a fine of $375,000. 3 I order that pursuant to section 122(2) Fines Act 1996, 50% of the fine is to be paid to the prosecutor. 4 I order that the offender pay the prosecutor's costs as assessed or agreed. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee SENTENCING – general deterrence – specific deterrence – mitigating factors – aggravating factors – objective seriousness – substantial harm, injury, loss or damage – victim impact statement – no record of previous convictions – prospects of rehabilitation – plea of guilty SENTENCING PRINCIPLES – remorse WORK HEALTH AND SAFETY – unsafe system of work contrary to operator's manual – lack of employee training – lack of risk control measures COSTS – prosecution costs OTHER – worker fell and crushed beneath moving turf harvester – traumatic asphyxia Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011 Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Borkowski (2009) 195 A Crim R 1 R v Tuala [2015] NSWCCA 8 R v Youkhana [2004] NSWCCA 412 Category: Principal judgment Parties: SafeWork NSW v Turfco Australia Pty Ltd Representation: Counsel: Mr Chin with Mr Olivier (Safework) Ms Thompson (Defendant)