SafeWork NSW v Fumigate All Hours (NSW) Pty Ltd [2021] NSWDC 694

SafeWork NSW v Fumigate All Hours (NSW) Pty Ltd [2021] NSWDC 694

The offender was convicted and fined because it pleaded guilty to failing to comply with its health and safety duty under s 19(1) of the Work Health and Safety Act 2011, thereby exposing Mr Case to a risk of death or serious injury contrary to s 32. The offence had objective gravity because the risks of methyl bromide were known, the likelihood of harm was high if precautions were not taken, the possible consequence included death, Mr Case was vulnerable and inadequately trained, and the failures were inexpensive and easy to remedy. After taking into account deterrence, substantial harm, mitigating factors, cooperation, remorse, rehabilitation, the early guilty plea and a 25% discount,...

Jurisdiction
Australia
Judgment Date
17 December 2021
Procedural Posture
Criminal Prosecution for Offence Under Work Health and Safety Act 2011 / Sentence After Plea of Guilty
Outcome
Fumigate All Hours Pty Ltd was convicted, fined $75,000, ordered to pay agreed prosecutor's costs of $65,000, and 50% of the fine was ordered to be paid to the prosecutor.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'exposure to Risk of Death or Serious Injury' 'methyl Bromide Exposure' 'objective Seriousness' 'general and Specific Deterrence' 'aggravating and Mitigating Factors' 'plea of Guilty Discount']
['criminal Law' 'work Health and Safety' 'sentencing'] ['duty of Persons Conducting a Business or Undertaking' 'exposure to Risk of Death or Serious Injury' 'methyl Bromide Exposure' 'objective Seriousness' 'general and Specific Deterrence' 'aggravating and Mitigating Factors' 'plea of Guilty Discount']

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Procedural Posture

Criminal Prosecution for Offence Under Work Health and Safety Act 2011 / Sentence After Plea of Guilty

Legal Issues

  1. 1 ["What sentence should be imposed for the offender's failure to comply with its health and safety duty under s 19(1) of the Work Health and Safety Act 2011, exposing Tristan Case to a risk of death or serious injury contrary to s 32." 'Whether the offence was objectively serious having regard to the known risks of methyl bromide, the likelihood and consequences of exposure, the vulnerability of Mr Case, and the steps that were inexpensive and easy to implement.' "What weight should be given to deterrence, aggravating factors, mitigating factors, the guilty plea, cooperation, remorse, rehabilitation, and the offender's size and costs liability."]

Ratio Decidendi

The offender was convicted and fined because it pleaded guilty to failing to comply with its health and safety duty under s 19(1) of the Work Health and Safety Act 2011, thereby exposing Mr Case to a risk of death or serious injury contrary to s 32. The offence had objective gravity because the risks of methyl bromide were known, the likelihood of harm was high if precautions were not taken, the possible consequence included death, Mr Case was vulnerable and inadequately trained, and the failures were inexpensive and easy to remedy. After taking into account deterrence, substantial harm, mitigating factors, cooperation, remorse, rehabilitation, the early guilty plea and a 25% discount,...

Court Disposition

Fumigate All Hours Pty Ltd was convicted, fined $75,000, ordered to pay agreed prosecutor's costs of $65,000, and 50% of the fine was ordered to be paid to the prosecutor.

Orders

  • ['Fumigate All Hours Pty Ltd is convicted.' 'I impose a fine of $75,000.' "The offender is to pay the prosecutor's costs of the proceedings as agreed in the sum of $65,000." 'I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.']