Safe Work New South Wales v Waycon Bulk Pty Ltd [2015] NSWDC 254

Safe Work New South Wales v Waycon Bulk Pty Ltd [2015] NSWDC 254

The offender's deliberate modification of the wood splitting machine circumvented an inbuilt two-hand safety mechanism, made the machine non-compliant with the applicable Standard, created an obvious risk of amputation or death, and fell very considerably short of what was expected of a reasonable employer. The offending was aggravated by substantial injury and continued use of the modified machine after the incident, but mitigated by no prior convictions, an early guilty plea warranting a 25% discount, and co-operation. The offender's trust-based futility submission did not justify avoiding or reducing the fines, including because capacity to pay is not decisive, the trust was not a...

Jurisdiction
Australia
Judgment Date
10 September 2015
Procedural Posture
Criminal Prosecution for Work Health and Safety Offences / Sentence After Guilty Plea
Outcome
The offender was convicted of both offences and fined $187,500 for the section 32 offence and $7,500 for the section 38 offence, with 50% of the fines payable to the prosecutor and prosecution costs payable by the offender as agreed or assessed.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'failure to Notify Notifiable Incident' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'fine' 'capacity to Pay' 'trustee Capacity' 'moiety of Fine' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'failure to Notify Notifiable Incident' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'fine' 'capacity to Pay' 'trustee Capacity' 'moiety of Fine' 'prosecution Costs']

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Procedural Posture

Criminal Prosecution for Work Health and Safety Offences / Sentence After Guilty Plea

Legal Issues

  1. 1 ["What fine should be imposed for the offender's offence under section 32 of the Work Health and Safety Act 2011 (NSW)." "What fine should be imposed for the offender's offence under section 38 of the Work Health and Safety Act 2011 (NSW)." "Whether the offender's financial and trustee position justified reducing or avoiding a fine." 'Whether aggravating and mitigating factors, including injury, absence of prior convictions, early guilty plea, co-operation and remorse, affected penalty.' 'Whether 50% of the fines should be paid to the prosecutor and whether prosecution costs should be ordered.']

Ratio Decidendi

The offender's deliberate modification of the wood splitting machine circumvented an inbuilt two-hand safety mechanism, made the machine non-compliant with the applicable Standard, created an obvious risk of amputation or death, and fell very considerably short of what was expected of a reasonable employer. The offending was aggravated by substantial injury and continued use of the modified machine after the incident, but mitigated by no prior convictions, an early guilty plea warranting a 25% discount, and co-operation. The offender's trust-based futility submission did not justify avoiding or reducing the fines, including because capacity to pay is not decisive, the trust was not a...

Court Disposition

The offender was convicted of both offences and fined $187,500 for the section 32 offence and $7,500 for the section 38 offence, with 50% of the fines payable to the prosecutor and prosecution costs payable by the offender as agreed or assessed.

Orders

  • ['In relation to the section 32 offence I impose a fine of $187,500 and in relation to the section 38 offence I impose a fine of $7,500.' 'I order pursuant to section 122(2) Fines Act 1996 that 50% of the fines are to be paid to the prosecutor.' "I order that the offender pay the prosecutor's costs as agreed or...