Safe Work NSW v Extrusion Machine Co (Australia) Pty Ltd [2017] NSWDC 192

Safe Work NSW v Extrusion Machine Co (Australia) Pty Ltd [2017] NSWDC 192

The offender failed to have a safe system of work for Mr Bocaz's off-site repair and cleaning work, including procedures for obtaining and using purge material, obtaining and passing on MSDS information, identifying the material and safe temperature for the extruder, risk assessment, training and safe work procedures. That failure exposed Mr Caboteja, Mr Pillai and Mr Acibar to a risk of serious injury, and Mr Caboteja sustained substantial injuries. Although the likelihood of the risk materialising was low and the offender had strong mitigating factors, including no prior convictions, good character, remorse, remedial action, cooperation and an early guilty plea warranting a 25%...

Jurisdiction
Australia
Judgment Date
31 July 2017
Procedural Posture
Criminal Prosecution for Work Health and Safety Offence / Sentence After Plea of Guilty
Outcome
The offender was convicted and fined $45,000, with 50% of the fine to be paid to the prosecutor, and ordered to pay the prosecutor's agreed costs of $20,000.
Legal Topics
['duty of Persons Conducting Business or Undertaking' 'failure to Comply With Health and Safety Duty' 'risk of Death or Serious Injury' 'foreseeability of Risk' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'aggravating and Mitigating Factors' 'capacity to Pay Fine' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['duty of Persons Conducting Business or Undertaking' 'failure to Comply With Health and Safety Duty' 'risk of Death or Serious Injury' 'foreseeability of Risk' 'objective Seriousness' 'general Deterrence' 'specific Deterrence' 'aggravating and Mitigating Factors' 'capacity to Pay Fine' 'prosecution Costs']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["What penalty should be imposed for the offender's failure to comply with its health and safety duty under section 19(2) of the Work Health and Safety Act 2011, contrary to section 32 of the Act." "Whether the offender's conduct was objectively serious having regard to the foreseeable risk created by an employee working at a customer's premises and the absence of a safe system of work." 'Whether injury, harm and loss caused by the offence was substantial for the purposes of section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.' 'What mitigating factors applied, including absence of prior convictions, good character, low risk of re-offending, remorse, guilty plea and cooperation.' 'Whether the offender had a limited capacity to pay the appropriate fine.' 'What orders should be made for payment of part of the fine to the prosecutor and for prosecution costs.']

Ratio Decidendi

The offender failed to have a safe system of work for Mr Bocaz's off-site repair and cleaning work, including procedures for obtaining and using purge material, obtaining and passing on MSDS information, identifying the material and safe temperature for the extruder, risk assessment, training and safe work procedures. That failure exposed Mr Caboteja, Mr Pillai and Mr Acibar to a risk of serious injury, and Mr Caboteja sustained substantial injuries. Although the likelihood of the risk materialising was low and the offender had strong mitigating factors, including no prior convictions, good character, remorse, remedial action, cooperation and an early guilty plea warranting a 25%...

Court Disposition

The offender was convicted and fined $45,000, with 50% of the fine to be paid to the prosecutor, and ordered to pay the prosecutor's agreed costs of $20,000.

Orders

  • ['The offender is convicted.' 'I impose a fine of $45,000.' 'I order that pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.' 'I order that the offender pay the prosecutors costs as agreed in the sum of $20,000.']