SafeWork NSW v Yan Huai Wu and Zenger (Aust) Pty Ltd [2018] NSWDC 211

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Yan Huai Wu and Zenger (Aust) Pty Ltd [2018] NSWDC 211 Hearing dates: 16 July 2018 Date of orders: 30 July 2018 Decision date: 30 July 2018 Jurisdiction: Criminal Before: Scotting DCJ Decision: See paragraphs [55]-[61] in relation to the first defendant See paragraphs [51]-[54] and [61] in relation to the second defendant Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker SENTENCING – mitigating factors – aggravating factors – objective seriousness – general deterrence – substantial harm, injury, loss or damage – no record of previous convictions – good character – prospects of rehabilitation – plea of guilty SENTENCING – penalty – alternative orders – training orders – WHS undertaking SENTENCING PRINCIPLES – remorse WORK HEALTH AND SAFETY – undocumented risk assessment – lack of employee training COSTS – prosecution costs OTHER – unguarded feed chute on pillow filling machine – machine not isolated from electricity supply prior to being cleaned – fingers severed by shredder component of machine – workers with limited literacy skills 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 at [180]. R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 Category: Principal judgment Parties: SafeWork NSW v Yan Huai Wu and Zenger (Aust) Pty Ltd Representation: Counsel: Mr M Moir (Prosecution) Mr C Magee (Defendants)