Safework NSW v K & R Fabrications (W’gong) Pty Limited (No. 2) [2019] NSWDC 457

District Court New South Wales

Medium Neutral Citation: Safework NSW v K & R Fabrications (W'gong) Pty Limited (No. 2) [2019] NSWDC 457 Hearing dates: 29 August 2019 Date of orders: 03 September 2019 Decision date: 03 September 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The offender is convicted. (2) Order the offender to pay a fine of $75,000. (3) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (4) Order the offender to pay the prosecutor's costs as agreed or assessed. (5) Order the return of Exhibits forthwith. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty

COSTS - prosecution costs

OTHER – unrestrained bearing housing of gearbox fell on worker causing serious injury – need for bearing housing to be restrained when backing plates of housing were removed – need for SWMS or JSA for task being carried out Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 SafeWork NSW v K & R Fabrications (W'Gong) Pty Limited [2019] NSWDC 238 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Sentence Parties: SafeWork NSW (Prosecutor) K & R Fabrications (W'gong) Pty Limited (Defendant) Representation: Counsel: M Cahill (Prosecutor) P Lowson (Defendant)