SafeWork NSW v B & J Benchtops Pty Ltd [2019] NSWDC 674

SafeWork NSW v B & J Benchtops Pty Ltd [2019] NSWDC 674

The scrap-bin and forklift method created an obvious risk, including a risk of death, and simple measures such as emptying the scrap bin on the ground could have eliminated the risk. Mr Xiao suffered serious injuries, establishing substantial injury, harm and loss as an aggravating factor. The offences were of some objective gravity, but the offenders had no prior convictions, demonstrated remorse, cooperated with the investigation, took remedial steps, had good prospects of rehabilitation, and pleaded guilty, warranting a 25% discount. General deterrence was required, but specific deterrence was not, because the company was no longer trading and Mr Herbert had retired.

Jurisdiction
Australia
Judgment Date
18 November 2019
Procedural Posture
Criminal Work Health and Safety Prosecution / Sentencing After Guilty Pleas
Outcome
Both defendants were convicted; Michael Douglas Herbert was fined $15,000; B & J Benchtops Pty Ltd was fined $90,000; 50% of each fine was ordered to be paid to the prosecutor; the offenders were ordered to pay the prosecutor's agreed costs of $31,250.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'officer Due Diligence Duty' 'risk of Death or Serious Injury' 'worker Injury' 'objective Seriousness' 'general Deterrence' 'aggravating and Mitigating Factors' 'guilty Plea Discount']
['criminal Law' 'work Health and Safety' 'sentencing'] ['duty of Persons Conducting a Business or Undertaking' 'officer Due Diligence Duty' 'risk of Death or Serious Injury' 'worker Injury' 'objective Seriousness' 'general Deterrence' 'aggravating and Mitigating Factors' 'guilty Plea Discount']

Case Brief

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Procedural Posture

Criminal Work Health and Safety Prosecution / Sentencing After Guilty Pleas

Legal Issues

  1. 1 ['What penalty should be imposed on B & J Benchtops Pty Ltd for failing to comply with its health and safety duty under section 19(1) of the Work Health and Safety Act 2011 and exposing Shen Tao Xiao to a risk of death or serious injury contrary to section 32 of the Act.' 'What penalty should be imposed on Michael Douglas Herbert for failing to comply with his due diligence duty under section 27(1) of the Work Health and Safety Act 2011 and exposing Mr Xiao to a risk of death or serious injury contrary to section 32 of the Act.' 'Whether the risk created by the scrap-bin and forklift system and the injuries suffered by Mr Xiao affected the objective seriousness of the offences.' 'What aggravating and mitigating factors, including remorse, cooperation, lack of prior convictions, rehabilitation prospects and guilty pleas, should affect sentence.']

Ratio Decidendi

The scrap-bin and forklift method created an obvious risk, including a risk of death, and simple measures such as emptying the scrap bin on the ground could have eliminated the risk. Mr Xiao suffered serious injuries, establishing substantial injury, harm and loss as an aggravating factor. The offences were of some objective gravity, but the offenders had no prior convictions, demonstrated remorse, cooperated with the investigation, took remedial steps, had good prospects of rehabilitation, and pleaded guilty, warranting a 25% discount. General deterrence was required, but specific deterrence was not, because the company was no longer trading and Mr Herbert had retired.

Court Disposition

Both defendants were convicted; Michael Douglas Herbert was fined $15,000; B & J Benchtops Pty Ltd was fined $90,000; 50% of each fine was ordered to be paid to the prosecutor; the offenders were ordered to pay the prosecutor's agreed costs of $31,250.

Orders

  • ['Michael Douglas Herbert is convicted.' 'I impose a fine of $15,000.' 'I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.' 'B & J Benchtops Pty Ltd is convicted.' 'I impose a fine of $90,000.' 'I order pursuant to section 122(2) Fines Act 1996 that 50% of the...