Safework NSW v Dongwha Timbers Pty Limited [2020] NSWDC 9

District Court New South Wales

Medium Neutral Citation: Safework NSW v Dongwha Timbers Pty Limited [2020] NSWDC 9 Hearing dates: 7 February 2020 Date of orders: 07 February 2020 Decision date: 13 February 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The offender Dongwha Timbers Pty Limited is convicted. (2) The appropriate fine is $120,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the offender Dongwha Timbers Pty Limited to pay a fine of $90,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order the offender Dongwha Timbers Pty Limited to pay the prosecutor's costs. 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 – timber mill – worker tried to dislodge fillet stick which was jamming machinery – heavy arm of machine fell on worker – no written safety procedure in place 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 Freyssinet Australia Pty Ltd [2018] NSWDC 66 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: SafeWork NSW Code of Practice: Managing Risks of Plant in the Workplace (July 2014) SafeWork Australia Code of Practice: Managing Risks of Plant in the Workplace (March 2016) Category: Sentence Parties: SafeWork NSW (Prosecutor) Dongwha Timbers Pty Limited (Defendant) Representation: Counsel: M Scott (Prosecutor) S McIntosh (Defendant)