SafeWork NSW v Hiltour Pty Ltd [2018] NSWDC 376

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Hiltour Pty Ltd [2018] NSWDC 376 Hearing dates: 6 November 2018 Date of orders: 03 December 2018 Decision date: 03 December 2018 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 The offender is convicted of both offences. 2 The appropriate fine for the section 32 offence is $60,000. The appropriate fine for the section 38 offence is $5,000. Both will be reduced by 25% to reflect the plea of guilty. 3 I impose a fine of $45,000 for the section 32 offence. 4 I impose a fine of $3,750 for the section 38 offence. 5 I order that pursuant to section 122(2) Fines Act 1996, 50% of the fine is to be paid to the prosecutor. 6 The offender is to pay the prosecutors costs agreed in the sum of $38,000. Catchwords: CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of serious injury – worker injured – safety incident reporting SENTENCING – aggravating factors – mitigating factors – objective seriousness – general deterrence – specific deterrence – substantial harm, injury, loss or damage – no record of previous convictions – good prospects of rehabilitation – plea of guilty – assistance to law enforcement authorities – remorse WORK HEALTH AND SAFETY – lack of employee training – no documented safe work procedure – risk control measures available at no cost COSTS – prosecution costs OTHER – batching chemical compounds – contact with chemical induced allergic reaction causing severe burns – worker not trained in safe handling of chemicals – worker not instructed to wash skin thoroughly following exposure – failure to report incident 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 at [32] R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 at [26] Category: Sentence Parties: SafeWork NSW (Prosecution) Hiltour Pty Ltd (Defendant) Representation: Counsel: Mr M Moir (SafeWork NSW) Mr C Magee (Hiltour Pty Ltd)