SafeWork NSW v Phong Warehouse & Distributor Pty Ltd [2018] NSWDC 253

SafeWork NSW v Phong Warehouse & Distributor Pty Ltd [2018] NSWDC 253

The offender was convicted and fined because it failed to ensure, so far as reasonably practicable, the health and safety of workers by not implementing available measures to address a clearly foreseeable risk of serious injury or death from forklifts operating in common warehouse areas. The court assessed the offence as warranting a $40,000 fine, then reduced it by 25% for the early guilty plea, taking into account remorse, remedial steps, lack of prior history, financial circumstances and agreed prosecution costs, while also recognising the need for general and specific deterrence.

Jurisdiction
Australia
Judgment Date
14 September 2018
Procedural Posture
Criminal Prosecution for Work Health and Safety Offence / Sentence After Plea of Guilty
Outcome
Offender convicted; fine imposed; 50% of fine ordered to be paid to prosecutor; offender ordered to pay agreed prosecution costs.
Legal Topics
['failure to Comply With Health and Safety Duty' 'risk of Death or Serious Injury' 'objective Seriousness' 'mitigating Factors' 'aggravating Factors' 'plea of Guilty' 'general Deterrence' 'specific Deterrence' 'capacity to Pay Fine' 'prosecution Costs']
['criminal Law' 'work Health and Safety' 'sentencing' 'costs'] ['failure to Comply With Health and Safety Duty' 'risk of Death or Serious Injury' 'objective Seriousness' 'mitigating Factors' 'aggravating Factors' 'plea of Guilty' 'general Deterrence' 'specific Deterrence' '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 breach of s 32 of the Work Health and Safety Act 2011 by failing to comply with the duty imposed by s 19(1) of the Act." 'How the objective seriousness of the work health and safety offence should be assessed, including foreseeability of the forklift risk and available measures to eliminate or minimise it.' "What weight should be given to mitigating and aggravating factors, including the early guilty plea, remorse, remedial measures, prior history, and the fact the incident occurred on the worker's second day of employment." "How the offender's financial circumstances and agreed liability for prosecution costs should affect the fine."]

Ratio Decidendi

The offender was convicted and fined because it failed to ensure, so far as reasonably practicable, the health and safety of workers by not implementing available measures to address a clearly foreseeable risk of serious injury or death from forklifts operating in common warehouse areas. The court assessed the offence as warranting a $40,000 fine, then reduced it by 25% for the early guilty plea, taking into account remorse, remedial steps, lack of prior history, financial circumstances and agreed prosecution costs, while also recognising the need for general and specific deterrence.

Court Disposition

Offender convicted; fine imposed; 50% of fine ordered to be paid to prosecutor; offender ordered to pay agreed prosecution costs.

Orders

  • ['The offender is convicted.' 'The appropriate fine is $40,000.00 but that will be reduced by 25% to reflect a plea of guilty.' 'I impose a fine of $30,000.00.' 'I order pursuant to s 122(2) of the Fines Act 1996 that 50% of that fine is to be paid to the prosecutor.' 'I order the offender to pay the prosecutors...