SafeWork NSW v Phong Warehouse & Distributor Pty Ltd [2018] NSWDC 253

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Phong Warehouse & Distributor Pty Ltd [2018] NSWDC 253 Hearing dates: 11 September 2018 Date of orders: 14 September 2018 Decision date: 14 September 2018 Jurisdiction: Criminal Before: Strathdee, DCJ Decision: 1. The offender is convicted. 2. I impose a fine of $30,000.00. 3. I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor. 4. I order the offender to pay the prosecutors costs as agreed in the sum of $18,000.00. Catchwords: CRIMINAL LAW – prosecution – work health & safety – duty of persona undertaking business – risk of death and serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty – capacity to pay fines imposed COSTS – prosecution costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Work Health and Safety Act 2011 Cases Cited: Baumer v R (1998) 166 CLR 51 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Environment Protection Authority v Barnes [2006] NSWCCA 246 Inspector Beacham v J & L Marble Pty Ltd [2009] NSWIRComm 100 Jahandideh v R [2014] NSWCCA 178 McColl v John Watson Building Services Pty Ltd [2004] NSWIRComm 353; 137 IR 310 Muldrock v The Queen [2011] HCA 39 Nash v Silver City Drilling (NSW) Pty Limited ; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96;93 NSWLR 338 R v Wilkinson (No. 5) [2009] MSWSC 432 Category: Sentence Parties: SafeWork New South Wales (Prosecutor) Phong Warehouse & Distributor Pty Ltd (Offender) Representation: Counsel: Mr T Hammond appeared for the Prosecutor Ms T Epstein appeared for the Offender